the supreme court has recently issued in april 2021 its decision on the challenge
to the constitutionality of the workplace relations act 2015 and the whole system of
the wrc and the labor court and so on and the uh determination of disputes labor
disputes employment law disputes just by way of background mr zalewski an employee who had been i
believe unfairly dismissed or he claimed he was unfairly dismissed he brought a claim for that
he lost his case at the wrc but he had a rough time matters to wrc to put it mildly in fact
the supreme court decided that the way that that hearing was conducted or certainly parts of it
were calamitous but in any event he challenged the constitutionality of the legislation itself
and the whole wrc system there was a judicial review on the high court and i think that was 2019
it was a decision issued then and basically the decision was that the cons
it was constitutional the system was constitutional the legislation was constitutional
and the reason for that was because the wrc were not involved in the administration of justice
the claim had been that they were involved in the administration of justice
and the constitution makes provision for justice to be administered by judges and in public and
neither of these things happen in the wrc that was the basis of the claim the judicial review
referral to the high court rather the high court decided he wrc were not involved in the
administration of justice the reason for that was because if you are a decision from the wrc
to wrc were incapable of enforcing that decision you still had to go to the district court to get
an order to enforce your decision however that decision then from the high court was appealed
by mr zielewski and his legal team to the supreme court and the supreme court have issued its
decision in april 2021 on the 6th of april 2021 and it basically held that the system operated by
the workplace relations commission and the labor court is not unconstitutional however it does have
concerns about certain aspects of the way that hearings are heard and certain procedures that are
adopted just to give you a bird's-eye view as is where the challenge was based on the argument that
the system involved the administration of justice and the constitution provides that this can only
be done by courts and judges in accordance with article 34 of the constitution because article
34 says justice shall be administered in courts established by law by judges appointed in the
manner provided by this constitution and save in such special and limited cases as may be
prescribed by law shall be administered in public wrc hearings are not administered by
judges and they're not administered in public therefore this was the argument
as to why the legislation and the whole system was unconstitutional the supreme court however
held that the wrc was only exercising limited jurisdiction and section or article 37 of
monrock nahiran allows for the administration of limited jurisdiction because it says nothing
in this constitution shall operate to invalidate the exercise of limited functions and powers of a
judicial nature in matters other than criminal matters by any person or body of persons duly
authorized by law to exercise such functions and powers not withstanding that such person or such
body of persons is not a judge or court appointed or established as such under this constitution so
the supreme court held that the wrc is involved in the limited administration of justice and this
is provided for in article 37 of the constitution however the supreme court did make a number of
observations and findings that concerns it had essentially with the way that the procedures
were adopted by the wrc and did hold the two things in particular were unconstitutional
the issues it had or the concerns it had seems to me based on reading the decision to be on
three things one evidence being given with without the taking of an oath or affirmation
two the absence of a right an automatic right to cross-examine a person giving evidence and three
hearings not being held in public being held in private and the status quo or the default position
with wrc hearings is that they are held in private the wrc does permit cross-examination but the
legislation does not make express provision for this so the supreme court had a difficulty with
that however the supreme court did declare two aspects of the procedures unconstitutional one
evidence being given without an oath or affirmation and no penalty for untruthful evidence
and two the removal of the possibility of certain cases being held in public by virtue of section
1413 of the workplace relations act 2015 and section 8 6 of the unfair dismissals act 1977
are inconsistent with the constitution just to summarize again the supreme court did declare
two aspects of the way the system operates to be unconstitutional one evidence being given without
an oath being taken or affirmation and two the removal of the possibility of certain cases being
held in public because the default position is wrc cases are held in private the supreme court found
that the underpinning legislation the workplace relations like 2015 was constitutional but it does
have concerns about these two particular aspects of the way of the legislation indeed the way that
the cases are held in the wrc and the supreme court does expect changes to be made those expect
its findings to be acted upon and therefore there is likely to be a significant impact on the future
operation of the wrc and the labor court it will be interesting to see exactly how uh real
teeth as it were is given to these observations and these findings of unconstitutionality by the
supreme court again the legislation itself per se workplace relations act 2015 is constitutional but
two aspects of the way the system is operated is unconstitutional and the supreme court does expect
changes so it will be interesting as i say to see exactly how the wrc puts into effect these
uh the finding of the supreme court in this lucy zelusky case mr zeluski april 2021 the decision is
handed down and there is a link to the decision on my website employment rights ireland dot com
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