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The Minister for Business, Employment and Retail, Damien English TD, has today said that the government will introduce legislative amendments without delay to enable the Workplace Relations Commission to continue to discharge its statutory functions in line with the Constitution.
Minister English today received the Orders of the Supreme Court in the ‘Zalewski Case’ whereby the State successfully defended the case - Zalewski v. Adjudication Officer and the Workplace Relations Commission (WRC), Ireland, and the Attorney General.
The Supreme Court held that the exercise of powers by Adjudication Officers pursuant to part 4 of the Workplace Relations Act, 2015 as amended (‘the 2015 Act’) was the administration of justice under Article 34 of the Constitution. The administration of justice, in accordance with Article 34, is normally preserved for the Courts.
However, the Supreme Court found that the administration of justice as carried out by the adjudication service is permissible within the meaning of Article 37 of the Constitution as the administration of justice was limited.
In responding to this ruling Minister English said:
"The WRC's adjudication service is an integral part of ensuring that our extensive employment and equality rights are afforded to the residents of Ireland.
"The decision of the Supreme Court means that the adjudication service will continue to deliver significant benefits to both employers and employees, enhanced by amending legislation that I will bring forward on foot of the judgement. It is crucial that the WRC can hear cases and make rulings to build on its track record of delivering a fair, simple, cost effective and user-friendly service for employers and employees in the State.
"As a result of this Supreme Court ruling, the government working closely with the legislature, will bring forward some procedural amendments to the law to enable the WRC to continue to discharge its statutory functions in line with the Constitution. Such amendments will allow for hearings in public and the administration of oaths in WRC hearings.
"I acknowledge that the ruling of the Supreme Court may impact some cases currently before the WRC. My department is moving swiftly on this matter and is currently drafting emergency legislation to be introduced as a matter of urgency in the coming weeks. I do believe these procedural changes will ensure continued improvement of the adjudication services."
The legislation currently under preparation will provide for elements included in the judgement such as the ability for evidence to be provided on oath/affirmation and power to prosecute for giving false evidence; and for the generality of hearings to be heard in public, save those that may, in circumstances to be defined, heard in private.
On 6 April 2021 the Supreme Court delivered judgment in Zalewski v. Adjudication Officer and the Workplace Relations Commission, Ireland, and the Attorney General in which the majority held that the exercise of powers by Adjudication Officers pursuant to the Workplace Relations Act, 2015 as amended (‘the 2015 Act’) was the administration of justice within the meaning of Article 37 of the Constitution. In doing so, it rejected a challenge to the validity of certain sections of the 2015 Act and section 8 of the Unfair Dismissals Act 1977 as amended.
However, separately the Supreme Court also determined that two aspects of the 2015 Act are incompatible with the Constitution.
First, it held that section 41(13) of the 2015 Act, which requires all hearings before an Adjudication Officer to be held otherwise than in public is inconsistent with the Constitution.
Second, it has held that the absence of the provision for the administration of an oath, or any possibility of punishment for giving false evidence is inconsistent with the Constitution.
The WRC has survived the Constitutional challenge presented by the appellant in the case. However, in its judgement as set out above the Court outlines its understanding that the WRC is in fact administering justice, albeit in a manner permissible under the Constitution.
This finding that the WRC is administering justice will result in certain consequential procedural amendments being required in law to enable the WRC to continue to discharge its statutory functions in conformity with the Constitution. These include hearings in public and the administration of oaths.
Therefore, this legislation will provide for elements included in the judgement such as the ability for evidence to be provided on oath/affirmation and power to prosecute for perjury, and for the generality of hearings to be heard in public, save those that may, in circumstances to be defined, heard in private.
A number of adjournments to cases due to be held in the WRC over the coming weeks may be necessary in advance of the enactment of emergency legislation which is currently being prepared by DETE to give effect to the terms of the ruling.