The High Court has ordered Ireland and the Attorney General to pay half of Tomasz Zalewski’s costs for the substantive hearing of his unsuccessful constitutional challenge to aspects of the Workplace Relations Act 2015.
In a judgment delivered electronically on 21 May 2020, Mr Justice Garrett Simons said the case raised difficult and novel constitutional questions about the separation of powers and whether deciding certain employment disputes amounted to the administration of justice. He found it was in the public interest for those questions to be considered, even though the challenge had been dismissed in full in an earlier judgment delivered on 21 April.
The challenge concerned the Workplace Relations Commission’s process for deciding claims including unfair dismissal and wages in lieu of notice. Zalewski also raised fair-procedure concerns, including the absence of provision for evidence on oath, express cross-examination and public hearings, and no requirement that adjudication officers hold legal qualifications. The court said the grounds were substantial and required careful consideration, but concluded in the principal judgment that the statutory regime did not breach the Constitution.
Justice Simons said the relatively modest value of many employment claims could make the risk of legal costs a deterrent to constitutional challenges. He said Zalewski’s average weekly wage appeared to be €400 and the maximum compensation available under the Unfair Dismissals Act 1977 could be about €40,000, a fraction of the costs of a six-day constitutional hearing.
The court rejected the State respondents’ argument that an earlier costs award concerning Zalewski’s standing should affect the costs of the substantive hearing. It treated the two costs issues separately, explaining that the earlier award concerned the standing dispute, while the present order covered preparation for and participation in the six-day hearing.
The final order quashes the adjudication officer’s decision of 16 December 2016 and remits Zalewski’s complaints to the Workplace Relations Commission for assignment to an adjudication officer other than Rosaleen Glackin. Ireland and the Attorney General must pay half of his costs from 14 March 2018 until the order is perfected, including specified counsel and written-submission costs. If the parties cannot agree the amount, it is to be adjudicated by the Office of the Legal Costs Adjudicator.
The order was stayed for 28 days to allow an appeal or an application for leave to appeal, and the stay is to continue while any such appeal or application is determined.