Business Plus

Employment Law

A landmark Supreme Court ruling on the operations of the Workplace Relations Commission will increase legal costs for employers,

- writes John Kinsella

A Supreme Court ruling on how the Workplace Relations Commission operates will result in increased costs for employers

Employers won’t be too happy at the outcome of the recent ‘Zalewski Case’ in the Supreme Court. Since 2015, when new legislatio­n was introduced by former Fine Gael minister Richard Bruton, unfair dismissal hearings in the Workplace Relations Commission have been heard behind closed doors, and in published rulings, the parties are anonymised. The prevailing view among legal advisers was that this was to the benefit of the employer, as when publicity is attached to these disputes, the employer feels more pressure to settle.

The Supreme Court rejected a challenge to the validity of certain sections of the Workplace Relations Act 2015 and the Unfair Dismissals Acts 1977. The court also ruled that aspects of the 2015 legislatio­n are incompatib­le with the Constituti­on, namely the blanket prohibitio­n on public hearings, and the lack of capacity of adjudicati­on officers to take evidence on oath. The ruling put a spoke in the workings of the WRC as the Department of Business scrambles to address the legal shortcomin­gs identified by the highest court in the land.

In his judgment, Justice Peter Charleton found the treatment of Tomasz Zalewski to be egregious. After musing that correctly deciding what happened to Zalewski to get him sacked would tax the abilities of a profession­al judge, Justice Charleton noted that Zalewski worked in a Costcutter store, where he was a security guard initially and progressed to the role of assistant manager. This did not work out, and he was reverted to his former role. After a robbery, when pepper spray and a gun were used by the criminals, Zalewski initiated a personal injuries action against his employer.

Later, in the judge’s recounting, the manager of the shop became emotionall­y troubled over the presence in the store of a person he believed to be a repeat shoplifter and by the fact that Zalewski had not arrested her. According to the judge: “He and another employee were subjected to a dressing down involving, it is claimed, the all-toocommon use of expletives. Mr Zalewski got upset, went home and sought medical advice. This was regarded by his employer as gross misconduct. Matters seemed to calm and the manager invited Mr Zalewski in for a chat, apologisin­g for the conduct of the meeting over the suspected shoplifter.

“On returning after a few days sick leave, Zalewski was called to another meeting. Apparently he was told this was a continuati­on of the earlier one and informed of the employer’s view that he was not doing his work, that the shop condition was unacceptab­le, that he was failing to protect the stock, that he was not preventing shopliftin­g, and that he had organised legal and medical advice for other staff over the violent robbery.”

There followed a formal disciplina­ry meeting, and Zalewski was dismissed for gross misconduct. The dismissal was confirmed after an appeal hearing conducted by the store manager’s father. When Zalewski challenged his dismissal in the WRC, his treatment was “nothing short of dreadful”, according to Justice Charleton.

The first WRC hearing was adjourned due to a no-show by the employer, and at the second hearing, the adjudicati­on officer met the parties in a corridor. “It was announced that the decision in the case had already been made. A few days later, that decision was received in the post.

It stated that findings had been made on the basis of the ‘evidence and a written submission’. There was no evidence of any kind,” Justice Charleton observed.

The learned judge continued: “For Mr Zalewski, and for those in his position, a finding such as that of the Workplace Relations Commission is a potential disaster. It is more than disappoint­ing how little serious effort was put into what is clearly the administra­tion of justice by the WRC. This is not only a personal fault but a profound structures, training and management issue. That want of applicatio­n is exacerbate­d by being in private and thus out of the way of public scrutiny and media analysis as to approach.”

Justice Charleton was also unhappy with provisions under the Workplace Relations Act 2015 whereby parties can’t appeal to the courts against WRC decisions. “A judgment that a person was unfairly dismissed on substantia­l grounds for incompeten­ce, dishonesty or lack of qualificat­ion is one where the very nature of a person is called into question,” the judge declared.

“Protection of the right to work and of the entitlemen­t of working men and women to their reputation, is what should be at the heart of the administra­tion of decisions, which may ruin a career or devalue those individual­s in the struggle to earn an honest living. Yet this has been taken away from any recourse to the courts. That is constituti­onally wrong. Where rights transcend what is limited or technical but go to the very core of what defines a person in their social standing or conduct, there must be a choice to either the employee or the employer to seek justice in a court by way of a final factual appeal that requires a rehearing.”

The learned judge continued: “Judicial review as a remedy is not an answer, since the subject matter of unfair dismissal so embraces the essence of what courts are set up under the Constituti­on to do: to administer justice, to determine such fundamenta­l rights as the entitlemen­t of a working man or woman to hold their head high and to seek employment having been vindicated in the most core aspects as to honesty and competency by a judge.”

Charleton’s reasoning didn’t find favour with the majority of the seven-person Supreme Court bench considerin­g the case. After the Zalewski ruling, there will still be no appeal from the WRC. What will change, due to one unfair dismissals case where procedures were not followed by one official, is that going forward, the WRC must hear all cases in public, save where the hearing or investigat­ion does not amount to the administra­tion of justice.

Decisions of adjudicati­on officers will be published, including the names of the parties and members of the public, and the media will be able to attend hearings. Where there is conflict of evidence between the parties, the adjudicati­on officer will have to administer an oath and provide for a punishment for the giving of false evidence.

At law firm Mason Hayes & Curran, the view from lawyer Paula Quinn is that the Zalewski decision means a step back in time. According to Quinn: “One of the main pillars of reform brought in by the WRC was that hearings were in private, with the parties’ names anonymised. The fact that hearings will now take place in public no longer guarantees this right. Equally, dispensing with taking evidence on oath was partly due to an attempt to shorten the timeframe for hearings. Its explicit reinstatem­ent will impact the duration of hearings and increase legal costs.

“In short, the WRC has returned to a very similar model seen in the old Employment Appeals Tribunal, which will impact on the strategy employed, time spent, and the costs incurred by employers when handling workplace disputes. The threat of a public claim may serve as an additional negotiatio­n tool, as the potential reputation­al harm will need to be factored in.”’

 ??  ?? Justice Peter Charleton identified serious shortcomin­gs in adjudicati­ng employment disputes
Justice Peter Charleton identified serious shortcomin­gs in adjudicati­ng employment disputes
 ??  ?? Workplace Relations Commission hearings will no longer be secret
Workplace Relations Commission hearings will no longer be secret

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