The Supreme Court has declined to make two broader declarations sought by Tomasz Zalewski, while making declarations agreed by the parties about private hearings and safeguards for evidence, and awarding him his full costs in both courts.
The ruling, delivered on 15 April 2021, dealt with outstanding orders and costs after the Court’s 6 April judgment in Zalewski v Adjudication Officer & ors [2021] IESC 24. The Court had invited the parties to agree as much as possible; the remaining issues were argued before it.
Zalewski sought a declaration, based on the unanimous view of the Court, that the adjudicative function in his case involved the administration of justice under Article 34 of the Constitution. He accepted that this would need to be accompanied by a declaration, reflecting the majority view, that the functions were limited and could constitutionally be conferred on an adjudication officer under Article 37.
A majority declined both declarations. It said the matters had been addressed in the judgments and a declaration could have unintended consequences without detailed consideration of the range of functions that might be affected. The Court stressed that this did not diminish the unanimous conclusion that, in this case, the adjudication officer was engaged in the administration of justice.
The parties agreed that section 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977 were inconsistent with the Constitution because they required relevant proceedings to be held in private, removing the possibility of a public hearing where appropriate. The parties also agreed in principle on a declaration concerning the absence of provisions for oaths or affirmations and penalties for untruthful evidence. The Court accepted the State’s submission that such requirements might not apply to every adjudication officer function, and proposed a declaration in the terms the State had suggested. The ruling does not set out those terms.
The Court made no declaration on enhanced independence for adjudication officers, saying that issue had not been specifically challenged. It also declined to make its own orders quashing the original decision in Zalewski’s case and remitting it to the Workplace Relations Commission: the High Court had already made those orders, and no appeal had been brought against them.
The Court awarded Zalewski his full costs in both courts, to be adjudicated if the parties could not agree, and certified for two senior and two junior counsel. It cited the public interest in the proceedings and his significant success on appeal. The Court noted that he had not succeeded in arguing that the regime unconstitutionally conferred an impermissible judicial function on a non-judicial body.