The Administration of Justice in Administrative Tribunals: Zalewski v. Adjudication Office  IESC 24 (Introduction)
There is likely to be an increase in Irish legal content on the blog in the next while as I am preparing a new edition of Administrative Law in Ireland. In a series of posts I am going to discuss the important decision in Zalewski.
The decision of the Irish Supreme Court in Zalewski v Adjudication Officer  IESC 24 is remarkable for several reasons. It is a case with striking, indeed “extraordinary” facts (at para. 5), and perhaps more importantly is probably the most significant administrative law case decided by the Irish Supreme Court since the seminal decision in East Donegal Co-Operative Livestock Mart Limited v. The Attorney General  IR 317 half a century ago.
Z brought a claim for unfair dismissal under the Unfair Dismissals Act 1977 to the Workplace Relations Commission, the administrative tribunal established to deal with such claims under the Workplace Relations Act 2015. On the first day of the hearing, the parties made written submissions and provided documentation but the hearing was adjourned as a witness was unavailable. But when the parties showed up on the second appointed day (December 13) they were told that a decision had already been made. They subsequently received a decision dated December 16 recording that a full hearing had taken place and dismissing Z’s claim. As MacMenamin J described it in his dissenting opinion:
…what happened in this case could not simply be explained on the basis of “misfiling”. Unfortunately, what is actually found in this “decision”, however construed, does not allow for any conclusion other than, on its face, it was a prejudging of a hearing which had not even taken place. It contained a series of inaccuracies. It gave the impression to any reader that a hearing had taken place, where both sides had been given the opportunity of presenting their case. This was simply incorrect. It alleged the appellant had failed to file documentation. This, too, was incorrect. It was not simply that the decision contained errors concerning some aspects of a claim. That can happen. More seriously, it purported to give a full decision based on events and evidence which had simply never taken place at all (at para. 11).
This is extraordinary enough but, at the same time, a fairly obvious breach of fair procedures. Z sought, though, to challenge the constitutionality of the machinery for dealing with unfair dismissal claims. In a prior case,  IESC 17, the Supreme Court held that he had standing to bring his challenge. This even though the precise defects Z complained of about the Commission’s process — its inability to take evidence on oath and to hear matters in public — could have been resolved by exercising a right of de novo appeal to the Labour Court (another administrative tribunal). In any event, having found Z had standing and having heard the challenge on the merits, the Supreme Court delivered a remarkable set of reasons that reset the foundations of Ireland’s administrative state.
Two provisions of the Irish Constitution provided the starting point in Zalewski. First, Article 34.1 vests the administration of justice in the courts:
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.
Second, however, Article 37.1 ‘saves’ functions that would otherwise be an administration of justice by providing that non-courts may exercise “limited” judicial functions:
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 authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
Interpreting these two provisions has proved difficult, so much so that Ireland really only has an esoteric line of cases to show for the judiciary’s interpretive endeavours. In 1996, the Constitution Review Group recognized the unsatisfactory state of the law but could not come up with any workable alternative:
[S]ince experience has shown that there is no completely satisfactory answer to the problem raised and since there are great difficulties in formulating a different set of words which would deal adequately with these complex issues, Article 34.1 and 37 should be retained in their present form (Pn 2632, at p. 155).
Into this morass stepped the Irish Supreme Court in Zalewski. The majority judgment of O’Donnell J (as he then was) found and declared the legislative provision requiring Commission hearings to be conducted in private to be unconstitutional and also found and declared that the absence of a power to administer an oath to witnesses was unconstitutional (this was remedied by legislation: Workplace Relations (Miscellaneous Provisions) Act 2021). The judgment is, however, more far-reaching than these relatively narrow, targeted remedies might suggest. For one thing, the majority set out a new approach to the relationship between Articles 34.1 and 37.1. For another, the majority explained that where administrative tribunals are administering justice within the meaning of Article 34.1, this carries significant consequences for their procedures and structures, even when they are exercising only “limited” functions.
O’Donnell J cautioned that no interpretive course would be “free from difficulty”:
If Article 37 is shrunk almost to vanishing point as covering no more than adjectival and somewhat inconsequential functions not previously thought to potentially contravene Article 34, then the law would be faced with a stark binary choice between either the administration of justice required to be carried out by judges appointed under the Constitution or the performance of administrative functions by persons subject to appointment and removal by the executive and required only to comply with unspecified fair procedures. Such a stark division is not attractive, particularly in an area where history shows that precision is impossible and some flexibility is required (at para. 129).
Whilst I think (with respect) that this may be a false dichotomy, it is nonetheless instructive as to the challenge the Supreme Court felt it was facing in Zalewski. In future posts, we will see how the judges addressed it and look at the practical consequences.
This content has been updated on October 18, 2023 at 12:28.