Constitutional Challenge to the Workplace Relations Commission

by Barry Walsh, Partner and Head of the Employment Team at McDowell Purcell.

The Workplace Relations Commission (“WRC”) and its associated services, most notably the WRC Adjudication service, is now up and running for over 3 years, having been established by the Workplace Relations Act 2015 (“the Act”).

As to be expected with any new system, there was much comment at the time, some of it very vocal, on whether it was appropriate for adjudicating on statutory employment law disputes.

Most users have now accepted its existence and indeed many users are pleased with the streamlining of the system and the faster turnaround times. However there has been some ongoing criticism of certain aspects including the adjudication system itself.

Supreme Court challenge

In that regard it is noteworthy that the Supreme Court recently granted permission for a constitutional challenge to proceed on certain provisions of the Act.

The challenge relates particularly to the hearing of complaints such as:

1. An Adjudicator is not required to have a legal qualification or indeed any particular qualification;
2. An Adjudicator is not permitted to take evidence on oath;
3. WRC hearings are not held in public;
4. The lack of a penalty for any person who gives false evidence; and
5. The appeals process lies with a body (the Labour Court) which is not a court of law.

Critics of the WRC adjudication system say that changing the above would result in more legally sound decisions and increased transparency.

The challenge is being brought by a complainant in an unfair dismissal and non-payment of wages WRC case* which commenced in 2016. In his case, no evidence was heard, however, written submissions and documentation were accepted by the Adjudicator. The subsequent written decision stated that the parties had been given an opportunity to present evidence and on this basis, along with the written submissions, it was decided that the complaints were not well founded.

The Complainant appealed to the Labour Court and, separately, sought judicial review at the High Court. The High Court accepted the WRC’s proposal to annul its decision and arrange for a new hearing with a different Adjudicator.  The High Court, however, refused to allow the Complainant to pursue a constitutional challenge against the WRC procedures outlined above as there was no danger of the Complainant being adversely affected in the case. This element was further appealed to the Supreme Court which granted leave to bring the constitutional challenge.

Consequences for the WRC

For the moment there is no change and no impact on the WRC’s day to day services.

As far as we know, there is no hearing date notified yet. However, this constitutional challenge will in due course be carefully watched. If it succeeds it could require a serious overhaul of the WRC adjudication process.

*Zalewski v Adjudication Officer & Ors [2019] IESC 17

About the author
Barry Walsh is Partner and Head of the Employment Team at McDowell Purcell. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.