Decision making by Quasi-Judicial Bodies – The implications of Zalewski
20 May 2021
A recent Irish Supreme Court decision in the context of adjudication of workplace disputes may have implications for a wide range of decision making bodies. Here Maura Connolly (Partner, Dispute Resolution) and Kate Liddy-Cormican (Solicitor) review the background to the case and consider its wider application outside of the employment law sphere.
Zalewski -v- Adjudication Officer and WRC, Ireland and the Attorney General  IESC24
Mr Zalewski (the “Appellant”) initiated judicial review proceedings in which he challenged the constitutionality of the adjudicative process established under the Workplace Relations Act 2015 (the “2015 Act”) following what was described by Mr Justice O’Donnell in the Supreme Court as a “startling … calamitous error” whereby an Adjudication Officer of the Workplace Relations Commission (the “WRC”) issued a determination dismissing the Appellant’s claim in the absence of a full hearing.
On Appeal to the Supreme Court
In the Supreme Court (the “Court”), it was concluded that the WRC, and the Labour Court on appeal, involved the administration of justice. The administration of justice is a function usually reserved for the courts under Article 34 of the Constitution. However, Article 37 permits bodies, other than courts, to exercise “limited functions and powers of a judicial nature, in matters other than criminal matters”. In this regard, the Court noted that the jurisdiction of the WRC is limited to areas of employment law specifically identified in the 2015 Act; the WRC can make limited awards and there are limits on the enforceability of same; WRC decisions may be appealed to the Labour Court or to the High Court on a point of law; and it is a body which may be subject to judicial review. Accordingly, the Court confirmed the constitutionality of the WRC within the meaning of Article 37.
The Court highlighted that bodies administering justice, like the WRC, are required to do so in accordance with the “fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness” and that the standard of justice administered under Article 37 of the Constitution “cannot be lower or less demanding than the justice administered in courts under Article 34”. In this regard, the Court highlighted the importance of public hearings; taking evidence on oath, and the possibility of prosecution for false evidence; cross-examination; and the independence of decision-makers.
In light of this, the Court found that some of the functions and powers exercised by the WRC fell short of the standard of justice required. In particular, the Court held that the blanket prohibition on public hearings before an adjudication officer in the 2015 Act and the absence of a provision to take certain evidence on oath to be inconsistent with the Constitution. The Court held that, whilst it is unsatisfactory, that there was no express provision for cross-examination in the 2015 Act, it was not unconstitutional. In this regard, the Court noted the Guidance Note for a WRC Adjudication Hearing provides for cross-examination and, in any event, if it is wrongly refused, a remedy would be available to the parties concerned. As the independence of decision-makers was not specifically challenged in the proceedings, the Court deemed it inappropriate to rule on this point.
The WRC Going Forward…
On 15 April 2021, the Government announced its intention to introduce amendments to the 2015 Act to provide for public hearings, save for certain circumstances and for evidence to be taken on oath without delay. In the meantime, the WRC has confirmed that it will adjust its procedures in accordance with the ruling; hearings will be open to the public, save for disputes arising under section 13 of the Industrial Relations Act 1969 and the names of parties involved in disputes before the WRC will no longer be anonymised. The WRC has advised that where an Adjudication Officer determines that there is a serious and direct conflict of evidence such that evidence is required on oath, the hearing will be adjourned until the 2015 Act is amended. In this regard, it is anticipated that a number of cases before the WRC will be adjourned until the amending legislation is enacted.
Beyond the WRC…
Beyond the WRC, this ruling will have implications for other quasi-judicial bodies which will be required to re-arrange their processes and procedures to ensure that they comply with the constitutional requirements enunciated above. Below are our some of our observations and comments in respect of the potential impact that this ruling may have:
- Mr Justice O’Donnell noted that the five-part test set out McDonald v. Bord na gCon  I.R. 217 used to identify the characteristics of the administration of justice has been “interpreted and applied narrowly, with the effect that few, if any, provisions have fallen foul of it”. In this regard, the judge advised that the test should be applied to indicate the “general features” of the administration of justice, rather than used as a “canonical checklist”. Accordingly, bodies who were of the view that they were not administering justice under the McDonald test, should now re-assess their functions, powers, and caseload to determine if they are, in fact, administering justice and re-arrange their procedures accordingly. It may be that test litigation, like the Zalewski case, will be required to truly determine the constitutional status of any given body.
- Quasi-judicial bodies must now adapt their processes to facilitate public hearings. It is anticipated that some teething problems will arise as these bodies navigate remote platforms to facilitate adequate and safe public hearings in light of the current Covid-19 restrictions. Notwithstanding any perceived difficulties, justice must be seen to be done effective immediately.
- It is likely that the opening of proceedings to the public may encourage potential users of quasi-judicial forums to engage with alternative dispute resolution procedures, like mediation, in order to preserve their anonymity particularly in circumstances where disputes involve allegations which could potentially damage the reputations of the parties concerned.
- As suggested by Mr Justice O’Donnell, it is likely that decision makers will take evidence on oath even when it is not required in circumstances where a decision may be quashed if it is incorrectly determined that evidence on oath was not required. In addition, it is likely that this procedure will lead to greater and unnecessary formality in quasi-judicial proceedings in a manner not envisaged by legislators.
- Users of quasi-judicial forums who anticipate cross-examination may seek legal representation. It is likely that this will lead to additional costs, delays in processes and greater formality in procedures.
- Unlike judges, decision makers of quasi-judicial bodies are not required to make a declaration pursuant to Article 34.6.1 of the Constitution that they will execute their office “without fear or favour”. In the absence of any such declaration, the question of independence and impartiality of decision makers will likely arise. In this regard, perhaps policies regulating the appointment and discipline of decision makers should be considered by these bodies.
- Mr Justice O’Donnell was of the view that there was no justification for insisting that, as a matter of constitutional law, that decision makers have legal qualifications. Notwithstanding this, it may be prudent to establish a peer review system whereby decision makers are assisted by legal experts to ensure that they are discharging their functions in accordance with the Constitution and principles of fair procedures.
For further information please contact Maura Connolly (Partner & Head of Dispute Resolution), Kate Liddy-Cormican (Solicitor) email@example.com or another member of the Dispute Resolution team at Eugene F Collins.