Supreme Court ruling reforms authority of Adjudication Officers

In April 2021, the case of Tomasz Zalewski v. Adjudication Officer & Ors. [2021] IESC 24 concluded before the Supreme Court.

Mr Zalewski’s claim to have the entire system by which Adjudication Officers determine cases involving the rights of employees declared unconstitutional was unsuccessful.

Since, however, the Supreme Court has ruled that a change should be applied to how the Adjudication Officers and the Workplace Relations Commission (WRC) processes are conducted.

Case history

In 2016, Mr Zalewski made unfair dismissal and non-payment of wages claims against his former employer before the WRC. After the first hearing, the Adjudication Officer adjourned the case.

The WRC followed up with Mr Zalewski’s legal representative with the date and time of the second day of hearing. When Mr Zalewski and his representative arrived for the second day, the Adjudication Officer told them outside the hearing room that she had already made and issued her decision on the matter. They were then informed that the second day invitation was an administrative error.

However, in early 2017, Mr Zalewski began judicial review proceedings in the High Court. He sought to have the Adjudication Officer’s decision quashed and a declaration that the entire WRC adjudicative process established under the Workplace Relations Act 2015 (the 2015 Act) is unconstitutional.

Supreme Court ruling

The Supreme Court ruled that, in most cases, Adjudication Officers acting on behalf of the Director General of the WRC were administering justice. To administer justice would require certain minimum standards to be met.

The procedures under the Workplace Relations Act 2015 didn’t meet these standards. So, the procedures under the 2015 Act were deemed unconstitutional. The Supreme Court found that in order for proceedings before the WRC to meet the requisite standards, two significant changes had to be made. These were:

  • Proceedings before the Workplace Relations Commission should be held in public, and;
  • Evidence in proceedings before the Workplace Relations Commission should be given on oath.

The result of these changes was that all proceedings before the WRC were paused for a time. This was to allow the Oireachtas to enact legislation that brought the WRC in line with the requirements fixed by the Supreme Court. The Workplace Relations (Miscellaneous Provisions) Act 2021 was enacted on July 22nd, 2021.

In addition to the above, the 2021 Act made further changes:

  • Set standards for the appointment of Adjudication Officers of the Workplace Relations Commission, such as prohibiting the appointment to the position of those who have been convicted of certain offences, undischarged bankrupts and persons disqualified from being directors of a company.
  • Provided for the removal of Adjudication Officers where they have engaged in certain misconduct or failed to execute their duties as an Adjudication Officer.
  • Amended the process for enforcement of Workplace Relations Commission decisions to require enforcement proceedings be brought on notice.

Evidence to be given under oath

A person may now have to swear an oath or affirmation by the Adjudication Officer hearing the case. If that person gives a materially false statement, knowing it to be false, the person can be fined up to €100,000 and face a term of imprisonment of up to 10 years.

The 2021 Act allows for the oath or affirmation to be administered in proceedings brought pursuant to s.8 Unfair Dismissals Act, s.9 Protection of Employees (Employers’ Insolvency) Act 1984, s.79 Employment Equality Act 1998, and s.25 Equal Status Act 2000.

Hearings will now be heard in public

Going forward, proceedings will be held in public. That is unless the Adjudication Officer believes that special circumstances require that proceedings be conducted “otherwise than in public”.

That means that unconnected parties can be denied entry to the hearing and that journalists would be prevented from reporting certain information in relation to the case. Furthermore, some identifying information will be removed from the written determination published by the WRC.

Other Acts amended

The 2021 Act also amends the Equal Status Act 2000, the Employment Equality Act 1998, the Protection of Employees (Employers’ Insolvency) Act 1984, the Unfair Dismissals Act 1977, and the Industrial Relations Act 1946 to allow for the same penalties for perjury as outlined above.

Within 12 months of enactment, a review will be conducted of these reforms and a report will be presented to the Oireachtas.

How will the Supreme Court’s ruling affect employers?

The process of dealing with the Workplace Relations Commission will be more formal and demanding from now on. Adjudication Officers will be more like specialist judges hearing employment matters. Adjudication Officers and employers and employees who find themselves in litigation will also be under increased media scrutiny, which heightens the risk of reputational damage.

Need our help?

If you have questions in relation to this article or need help with any HR issue, speak to an expert Graphite employment law consultant now on 01 886 0350 or request a callback here.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Latest Resources

What happens when workplace romances go wrong

workplace romances gone wrong
First published: February 14th 2024 Last updated: February 14th 2024 Love makes the world go round, or so they say. But what effect does love […]

10 tips for handling an office romance

First published: February 12th 2020 Last updated: February 14th 2024 It’s estimated people spend a third of their life at work, so it’s no surprise […]

An employer’s defence to sexual harassment claims

Sexual harassment claims
First published: December 11th 2023 Last updated: December 11th 2023 While the vast majority of Christmas party celebrations pass off without any problems, there’s no […]

Olga Shevchenko

Director/Advocate, Immigration Advice Bureau

Olga Shevchenko specialises in immigration advocacy and consultancy, in particular, employment permit, visas, family reunification, citizenship, etc, for those seeking to visit, reside or invest in Ireland.

Olga provides extensive information, knowledge, and support to her clients, enabling access to positive solutions for people struggling to handle the immigration law.

Minister Neale Richmond

Minister of State, Department of Enterprise, Trade and Employment

Neale Richmond TD was appointed as Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for Employment Affairs and Retail Business and the Department of Social Protection in January 2023.

Much of his work at the Department of Enterprise, Trade and Employment is with businesses, workers, their representative bodies and the State Agencies to ensure that the economic recovery and growth extends to all parts of the country. He works closely with the SME sector, including retail, on building resilience and on the transition to the green and digital economies.

Mark Carpenter

Director of Regulatory & Corporate Affairs, Sky

Mark Carpenter is Director of Regulatory & Corporate Affairs at Sky Ireland. In this role he has responsibility for External and Internal Communications, Public Policy and Regulatory Affairs and the company’s ‘Bigger Picture’ (CSR) programme. He also works closely with Sky Group teams on a variety of matters, in particular our partnerships with domestic broadcasters.

Prior to working at Sky, Mark worked as a Policy Officer in Houses of the Oireachtas and as a Management Consultant at Accenture. He has a BA in History from Oxford University and a PhD in Political Science from Trinity College Dublin.

Nora Cashe

Litigation and Compliance Manager, Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Managing Director, Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

Senior HR Consultant, Graphite HRM

Rhiannon Coyne is a Senior HR Consultant at Graphite HRM and will be providing an overview of best practice on how to deal with complaints of bullying and harassment in the workplace. 

With a number of recent updates to employment laws, Rhiannon will take a closer look at employment equality and how it is interlinked to Health & Safety and what employers can learn from recent case laws.

David Begg

Chairman, Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.