Justice Peter Charleton argued that Ireland’s unfair dismissal system under the Workplace Relations Act 2015 unconstitutionally denied employees and employers access to a full factual appeal in court. His judgment, delivered on 6 April 2021 in the Supreme Court appeal brought by Tomasz Zalewski, was a dissent: the supplied text does not set out the majority’s reasoning or the Court’s final orders.
The appeal concerned provisions that allow an adjudication officer of the Workplace Relations Commission to decide an unfair dismissal claim, with an appeal to the Labour Court. A party may refer a point of law to the High Court, but there is no appeal to a court that rehears the facts. Charleton considered whether that arrangement amounted to the administration of justice reserved to courts under Article 34 of the Constitution, or instead fell within the exception for limited judicial functions under Article 37.
Zalewski had worked at a Dublin shop trading under the Costcutter brand, owned by Buywise Discount Stores, from 2012 until his dismissal in April 2016. The employer’s dismissal letter alleged gross misconduct, including that he had associated with and used money removed from tills. Those were allegations, not findings made in the proceedings described in this judgment. Charleton recounted that the Commission’s adjudication officer dismissed Zalewski’s complaint after a hearing process that, in Charleton’s account, included no evidence being presented. The High Court later quashed that decision by consent in February 2018. The Supreme Court had restored Zalewski’s standing to bring the constitutional challenge in 2019.
Charleton said deciding an unfair dismissal claim can require weighing conflicting accounts and making consequential findings about a person’s conduct and competence. He concluded that judicial review, which examines matters such as legality and reasonableness, could not replace a full reconsideration of the facts by a judge. In his view, the absence of that appeal meant the scheme crossed the constitutional boundary between limited functions and the administration of justice.
He also found section 43 unconstitutional. That section allowed an employee or the Commission to seek enforcement of an adjudication decision in the District Court without hearing the employer, subject to limited evidence about compliance. Where the original decision ordered reinstatement or re-engagement, the District Court could instead award compensation of up to 104 weeks’ remuneration. Charleton said changing the remedy without hearing the employer violated fair procedures.
The judgment is Charleton’s individual opinion, not a statement of the majority’s decision. Although it discusses the constitutional challenge and identifies the High Court decision under appeal, the supplied text does not specify the Supreme Court’s operative order.