The Administration of Justice in Administrative Tribunals: Zalewski v. Adjudication Office [2021] IESC 24 (Article 34.1)

See my introductory note here.

The settled approach to Article 34.1 was set out in McDonald v. Bord na gCon [1965] I.R. 217, where Kenny J elaborated a set of criteria for determining whether a body is administering justice.

(i.)               a dispute or controversy as to the existence of legal rights or a violation of the law;

(ii.)             the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

(iii.)           the final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

(iv.)           the enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;

(v.)             the making of an order by the court which, as a matter of history, is an order characteristic of courts in this country.

This test has been justly criticized for its hopeless circularity, as it seeks to identify what should be treated as a judicial function by reference to what is or has been treated as a judicial function (Eoin Carolan, “Separation of Powers and Administrative Governance” in Oran Doyle & Eoin Carolan, eds, The Irish Constitution: Governance and Values (Dublin: Thomson Round hall, 2008) 195 at 220). For his part, O’Donnell J thought it “helpful to look at the issue in a much broader perspective” (at para. 89):

The great expansion in the role of the State in the 20th century, and the transfer by the legislature of functions, which previously might have been considered to be matters for the executive branch alone, to newly-created statutory bodies, and the concurrent general expansion of the power of judicial review of administrative action, has meant that the boundaries of law’s empire, as it were, extend much further than might have been contemplated in 1922 or 1937.  Looked at functionally, therefore, rather than from the perspective of legal theory, the decisions of the courts in this field have tended to a pragmatic outcome in which the assignment of the administration of justice to the judicial branch has not operated to hinder these developments, even if that has not been achieved by reasoning which … is not always necessarily intellectually satisfying or elegant, although, in that regard, it must be said that the approach of the case law is firmly in line with international comparators (at para. 90).

The attraction of the McDonald test was that its relative vagueness allowed courts, in a pragmatic way, to validate new developments in public administration: “it perhaps owes its longevity to the fact that, by emphasising the historical, it tends to exclude novelty and thus achieves a desired balance and avoids any undue restriction on the capacity of the State to provide for a range of decision-making functions with particular expertise, or informal procedures, or both” (at para. 91). Indeed, examples of functions being held to amount to an ‘administration of justice’ pursuant to the McDonald test are few and far between.

On the one hand, in Re Solicitors Act 1954, [1960] I.R. 239, striking a solicitor off the roll was held to be an administration of justice, as was the power of an election court to remove an elected representative in Cowan v. The Attorney General & Ors. [1961] I.R. 411. On the other hand, however, in McDonald itself, the power to exclude an individual from racecourses was not considered to be a judicial function, nor was the purported revocation of a certificate of naturalization in Damache v. Minister for Justice & Ors [2020] IESC 63. More significantly, in in Keady v. Commissioner of An Garda Síochána [1992] 2 I.R. 197, the dismissal of a member of the police force was held not to be an administration of justice and it was suggested that Re Solicitors should be confined to its special facts. As for Cowan, the election court also had the power to try criminal offences, which was straightforwardly an administration of justice (attributable, probably, to the fact that its jurisdiction was based in 19th century statutes passed long before the adoption of the Constitution).

Nonetheless, O’Donnell J insisted, “the Constitution establishes an area which is the administration of justice, and the courts must uphold that command” (at para. 96) and the test must be applied not as a checklist but as a heuristic device for separating those things that have to be done by courts from those things that may be done by non-courts (at para. 91; see also McKechnie J, at para. 83 of his dissent). There must be, as McKechnie J put it in his dissent, “a core or principal area, that no other entity or body save for judges, may adjudicate upon … separate to, and protected from encroachment by, all other arms of government” (at para. 123).

Applying the McDonald criteria in this way, O’Donnell J held that the process before the Commission amounted to an administration of justice. On this point, in fact, the court was unanimous, as the dissenters agreed that the Commission fell within Article 34.1. As Charleton J pithily put it in his dissent, “a claim for unfair dismissal involves the administration of justice: the determination of who is right and who is wrong in a matter closely allied to contract law and involving decisions of fact in aid of uncovering truth” (at para. 71). For the majority, O’Donnell J held that as far as the first three criteria were concerned, the process was unmistakably judicial and clearly an administration of justice:

A jurisdiction is established to make binding determinations of legal disputes between private parties according to law.  That, in itself, is normally a core business of the courts.  Once invoked by a claimant, the jurisdiction is established.  An employer is not free to decline to participate, and if he or she refused to participate, that does not prevent the case proceeding or a decision being made.  The adjudication officer is, by statute, independent in the performance of his or her functions (s. 40(8)), has power to compel the attendance of witnesses to give evidence (s. 41(10)), or provide documents, and failure to comply is an offence (s. 41(12)).  The adjudication officer gives the parties an opportunity to“be heard” and to “present … any evidence relevant to the complaint or dispute” (s. 41(5)), and makes “a decision” in relation to the complaint “in accordance with the relevant redress provision” (s. 41(5)).  A complaint may be either that there has been a “contravention of a provision” specified in Part 1 or 2 of Schedule 5 or a dispute as “to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5” (s. 41(2)). (All emphases added.)  The decision of the adjudicating officer is binding on the parties, and there is mechanism for enforcement under s. 43(1) to which it will be necessary to return.  These provisions create a machinery for the determination and decision by an independent body of complaints seeking relief, as a matter of law, and which permits the adjudication officer to make a binding decision on such complaint which can be enforced against the losing party.  In these respects, the process is indistinguishable from the determination of a legal dispute before a court (at para. 98).

As for the fifth McDonald criterion, the State had argued that the relief available from the Commission was both innovative and went over and above that available at common law. O’Donnell J was not persuaded:

In the first place, an order of compensation under the Act is an order which, as a matter of history, was made by courts, and redress by way of reinstatement or reengagement is akin to an order of specific performance which is a familiar type of order made by the courts, even if, as a matter of common law, it would rarely — if at all — be made in the context of an employment relationship.  If, for example, the 1977 Act had merely implied into all contracts of employment an entitlement not to be unfairly dismissed, and permitted a court to make orders of reinstatement or reengagement, such proceedings could not be said to be incompatible with or alien to the functions of a court.  The form of order made by a decision pursuant to the 2015 Act is a final order determining the dispute and awarding redress of a kind known to the courts (at para. 98). 

The nub of the issue therefore became the enforceability of decisions of the Commission. Under the legislation prior to the 2015 Act, a party could appeal the decisions of the Commission’s predecessor to the Circuit Court (an inferior court): this was a full right of re-hearing. It had generally been taken in the academic literature, such as it was, that this generous right of appeal was critically important to the constitutionality of the arrangement. But as part of the package of reforms made by the 2015 Act, which were designed to simplify and speed up a complex, slow decision-making process, the full right of re-hearing was eliminated, replaced by a power to apply to the District Court for enforcement. Importantly, the District Court had little or no discretion in this and could not examine the merits of the decision, as it was empowered only to substitute an award of compensation for an order of reinstatement (at para. 104). As MacMenamin J put it in dissent, the procedure was “as near to automatic as is possible, and does not allow for input by a losing party” (at para. 101). This meant that for all practical purposes the Commission’s decision was a final and binding enforcement of legal rights and obligations:

An unsuccessful party who had received an adverse decision from the W.R.C. would, I think, consider themselves in no different a position to a party emerging from the District Court or Circuit Court having lost a case.  They would consider that, unless appealed, they would have to comply with the decision, and nearly all would.  The evidence on behalf of the respondents was, indeed, that 90% of W.R.C. orders were complied with and only 10% were appealed.  A losing party would know that if they did not comply of their own volition, they could be forced to do so by the power of the State.  Most importantly of all, they would know that the legal consequences of their actions had been determined and that, unless appealed, that determination was the definitive decision by a body provided by the State and backed by it and which, as a matter of law, had determined their rights and responsibilities in respect of the matter in dispute (at para. 105).

A Canadian reader might at this point be wondering why the institutional setting housing the Commission did not save it from unconstitutionality, especially because the stated purpose of the 2015 reform was to achieve a more efficient dispute-resolution process. In Canada, when a judicial function is put into a different institutional setting as part of a law reform project, or as an ancillary feature of an integrated regulatory and legislative scheme, this will generally militate strongly in favour of a finding of constitutionality. O’Donnell J had an answer for this proposition. He found that the 1977 Act had marked a shift from collective to individual enforcement of employment rights and “a form of State-enforced official judicial determination of individual disputes…, a determination of the legal rights of parties in relation to the past events” (at para. 107). This finding made the 1977 Act and 2015 Act the converse of the shift from individual rights to collective enforcement that ordinarily prompts the creation of a new dispute-resolution function (though there was, nonetheless, clearly a paradigm shift). O’Donnell J also noted that the fact that “a determination in respect of a claim for unfair dismissal, whether favourable or not, precludes pursuit of a claim for wrongful dismissal (and vice versa) is a clear illustration of the fact that the respective processes were understood to occupy the same ground” (at para. 108; see also at para. 126). But these processes occupied the ground in rather different ways: “Unfair dismissal is a statutory concept and is to be distinguished from wrongful dismissal at common law…[under the law of unfair dismissal] a dismissing employer must prove the reason or reasons for dismissal and must satisfy [an adjudicator] that it had good cause and acted reasonably in the circumstances” whereas under the common law (in Ireland at any rate) the only question is whether the dismissing employer acted in compliance with the terms of the contract (Mary Redmond and Paula Murphy, “Dismissal” in Ailbhe Murphy and Maeve Regan eds., Employment Law, 2nd ed. (Bloomsbury Professional, London, 2017), at p. 743; see also Charleton J’s dissent at paras. 8-10).

I will return to this nascent comparative critique at a later date. In all events, and regardless of what one thinks of O’Donnell J’s treatment of the Commission in the instant case, it is clear that Article 34.1 is to be interpreted in a manner protective of the jurisdiction of the courts.

This content has been updated on October 18, 2023 at 12:29.