Title:	Zalewski -v- Adjudication Officer & Ors
Neutral Citation:	[2019] IESC 17
Supreme Court Record Number:	45/2018
High Court Record Number:	2017 146 JR
Date of Delivery:	03/20/2019
Court:	Supreme Court
Composition of Court:	Clarke C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., Finlay Geoghegan J.
Judgment by:	Finlay Geoghegan J.
Status:	Approved
Result:	Appeal allowed

THE SUPREME COURT

Between/

1. This appeal concerns the requisite locus standi to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 (“the 2015 Act”) and the Unfair Dismissals Act 1977 (“the 1977 Act”), as amended. The challenge is in reliance on Articles 34.1 and 37.1 and also Article 40.3 of the Constitution.

2. The appeal is from an order of the High Court (Meenan J.) made on 13 March 2018, for the reasons set out in two written judgments delivered on 8 February 2018: [2018] IEHC 59 and 13 March 2018: [2018] IEHC 156. The first judgment determined the locus standi issue and the second relates only to costs.

Background Facts
3. The facts relevant to the issues on this appeal are not in dispute. They are set out in the High Court judgment and it is sufficient to outline the facts relevant to the issue in this appeal. The appellant was dismissed from his employment with the notice party in April 2016. He made a claim of unfair dismissal under the 1977 Act and a claim for non-payment of money in lieu of notice under the Payment of Wages Act 1991as amended (“the 1991 Act”). The claims are made pursuant to rights conferred by the 1977 Act and the 1991 Act and, as required by the statutes, the complaints were referred to the Workplace Relations Commission (“the WRC”) pursuant to the provisions of the 1977, 1991 and 2015 Acts.

4. The appellant was notified of a hearing before the first named respondent, the Adjudication Officer, on 26 October 2016. The hearing was opened by the Adjudication Officer, who accepted written submissions and documentation. An application was then made to adjourn the hearing in circumstances where a witness for the employer was not available. No evidence was heard. The adjournment was granted but the Adjudication Officer was not in a position to fix the date of the adjourned hearing.

5. A hearing date of 13 December 2016 was subsequently fixed to hear evidence. However, on that date, when the appellant and his lawyers attended the hearing, he was informed that the Adjudication Officer had already issued her decision in relation to his claims the previous week and that the hearing that morning had been scheduled in error.

6. A written decision in respect of the appellant’s claim was issued by the Adjudication Officer on 16 December 2016, in which she recorded that she gave the parties an opportunity to present evidence and “on the basis of the evidence and written submissions” made findings and held inter alia that the complaint of unfair dismissal was not well founded. She also dismissed the claim pursuant to the 1991 Act. A protective appeal to the Labour Court was lodged on behalf of the applicant on 25 January 2017, without prejudice to the judicial review proceedings.

Judicial Review Proceedings
7. By order of the High Court (Noonan J.) made on 20 February 2017, leave was granted to seek all the reliefs sought at para. (d) of the statement of grounds dated 20 February 2017, on all the grounds set out at para. (e) therein.

8. The first three reliefs sought were declarations in the following terms:-

“(i) A Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015, as amended and/or section 8 of the Unfair Dismissals Act 1977, as amended, are invalid having regard to the provisions of the Constitution and in particular Article 34.1 and Article 37.1 thereof.

(ii) A Declaration that the powers and functions granted to an Adjudication Officer pursuant to the provisions of the Workplace Relations Act 2015, as amended, constitute the administration of justice, and/or the discharge of constitutional functions and powers of a judicial nature, for the purposes of Article 34 of the Constitution which are not limited within the meaning of Article 37 of the Constitution, such that the provisions of the Workplace Relations Act 2015 in relation to Adjudication Officers (including, inter alia, sections 40, 41, 42, 43 and 44 thereof) are invalid having regard to the provisions of the Constitution and in particular articles 34 and 37 thereof.

(iii) Further and/or in the alternative, a Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015 and/or section 8 of the Unfair Dismissal Act 1977 (as amended by section 80 of the Workplace Relations Act 2015) are invalid having regard to the provisions of the Constitution in failing to respect and vindicate the Applicant’s right to constitutional justice and fair procedures, pursuant to the provisions of Article 34.1 and Article 37.1 and Article 40.3.1 and Article 40.3.2 of the Constitution, in the determination of his proceedings pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) and the Payment of Wages Act 1991 (as amended).”

10. Paragraph (e) of the statement of grounds includes detailed grounds upon which it is contended that the identified sections of the 2015 Act and the 1977 Act are invalid having regard to the provisions of the Constitution and in particular, Articles 34 and 37. The statement of grounds is verified by the appellant and in addition, an affidavit was sworn by his solicitor verifying certain of the facts in relation to the treatment of the appellant’s claim before the first and second named respondents and also other facts relating to his experience in other claims before the WRC.

11. No notice of opposition has been filed by or on behalf of the respondents or notice party. The solicitor for the respondents issued a letter dated 4 April 2017, in which it was accepted that the adjournment was granted by the Adjudication Officer on 26 October 2016 for the purpose of enabling a witness to give evidence and stated that after the conclusion of that hearing, the Adjudication Officer “in error filed the complaint as a ‘Decision to Issue’ rather than ‘Adjourned to further Hearing’”. The letter also stated that the Adjudication Officer subsequently prepared her decision to enable it issue within 28 days and identified each of these as an “administrative error on the part of the Adjudication Officer”, which her clients sincerely regretted.

12. It was accepted that the decision of 16 December 2016 could not stand and must be set aside. The letter then stated:-

“… In those circumstances, I am instructed to consent to an Order being made in the following terms on the return date of 25 April 2017:

1. An order of certiorari quashing the Decision.

2. An order remitting the complaint of Tomasz Zalewski bearing the Complaint Reference Numbers CA-0004535-001 and CA-00004535-002 to the Workplace Relations Commission to be investigated and heard by an Adjudication Officer other than the First Respondent.

3. An order for the costs of the proceedings to be made in favour of the Application, to be taxed in default of agreement.

In my view, the making of an Order in the above terms will resolve the proceedings. It is my view that, given that our clients are consenting to the quashing of the Decision made by the Adjudication Officer which is the fundamental object of these proceedings to impugn, there is no basis on which your client may properly maintain a challenge to the validity of the Workplace Relations Act, 2015 (as amended), the Unfair Dismissals Act, 1977 (as amended) and/or any of the provisions of those Acts, whether by reference to the Constitution, the European Convention on Human Rights Act 2003 or otherwise.”

14. The respondents’ application was made primarily on the ground that the appellant no longer had locus standi to pursue the claims for the declarations sought pursuant to the Constitution and 2003 Act, as he had obtained the order of certiorari which, it was contended, was the primary relief sought.

High Court Judgment
15. The High Court judge, having earlier cited a well-known passage from the judgment of Henchy J. in Cahill v. Sutton [1980] I.R. 269, identified at para. 26 of his judgment the issue which he had to determine as whether, in returning the appellant’s claim for hearing to the Workplace Relations Commission to be heard by a different adjudication officer, he will be “in real or imminent danger of being adversely affected by the operation of the statute…”. The conclusion reached by the High Court judge was that the appellant was not in danger of being adversely affected by the operation of the statute.

16. His reasons related to a document issued by the WRC exhibited by the solicitor for the respondents entitled “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”. The particular passage relied upon was that set out at p. 6 of the document, which provides:-

“The adjudication officer can ask questions of each party and of any witnesses attending. He or she will give each party the opportunity to give evidence, to call witnesses, to question the other party and any witnesses, to respond and to address legal points…”

18. The subsequent High Court judgment of 13 March 2018 concerned costs. The appellant was granted the costs of the proceedings up to 4 April 2017 only, the date which the letter of concession was issued by the respondents.

19. The appellant was granted leave to appeal from the entire order of the High Court by a determination issued on 3 July 2018: [2018] IESCDET 94. In that, the Court decided that the locus standi of the applicant to continue with his challenge to the validity of the identified sections of the 2015 Act (and possibly the 1977 Act) for which leave had been granted, in circumstances where the specific decision also challenged had been quashed by agreement and his claim remitted for determination in accordance with those Acts, involves a matter of general public importance.

Appeal
20. The core submission of the appellant is that, as a person who has made a claim that he has been unfairly dismissed within the meaning of the 1977 Act and to the remedies provided by that Act and to unpaid wages in lieu of notice under the 1991 Act, that he has locus standi to challenge the constitutionality of provisions of the 1977 Act and the 2015 Act which require those claims to be determined by an adjudication officer of the WRC and on appeal by the Labour Court. He submits that as a person who is about to have his claims for redress and compensation for his alleged unfair dismissal and unpaid wages determined in accordance with a statutory scheme which he contends is inconsistent with the Constitution, he is in real and imminent danger of being adversely affected by the operation of the relevant provisions of the 2015 Act and the 1977 Act, as amended.

21. The respondents submit that he is not in such real and imminent danger of being adversely affected. They rely upon the fact that these judicial review proceedings were prompted by the decision of the first named respondent issued on 16 December 2015. They submit that he is in the same position as a person who has made a claim to the WRC and whose procedure has not yet commenced and that he did not challenge the statutory scheme when he first made the claim to the WRC. They seek to rely upon the fact that he voluntarily made the claim under the statutory scheme which he now seeks to challenge. They also submit that, in pursuing the constitutional challenge in the present judicial review proceedings, he is seeking to make a pre-emptive strike and that, in accordance with the judgment of Clarke J. (as he then was) in this Court in Nawaz v. Minister for Justice, Equality and Law Reform & ors [2012] IESC 58, [2013] 1 I.R. 142, he does not have the requisite locus standi to do so.

22. Counsel for the respondents referred also to the well-known presumption of constitutionality which applies to the challenged sections, and includes that the Oireachtas intend “that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice”: see East Donegal Cooperative Limited v. Attorney General [1970] I.R. 317 at 341.

23. The respondents rely, in addition, upon the general approach of judicial restraint to the determination of challenges to the constitutionality of Acts of the Oireachtas. They refer to the line of authority which requires a court to first consider and decide non-constitutional issues and if such decision determines the case between the parties, that it should then refrain from expressing any view on constitutional issues which have been raised: see Murphy v. Roche [1987] I.R. 106.

24. There is no dispute that the single issue on appeal is whether or not the appellant, following the making of the order of certiorari and the remittal of his claims for unfair dismissal and unpaid wages to the WRC for determination by a different adjudication officer, has the requisite standing, in accordance with the test set out in Cahill v. Sutton, to pursue the challenges to the identified sections of the 2015 Act and the 1977 Act for which leave has been granted. The Court has not been asked to review the test for standing in Cahill v. Sutton

Constitutional Challenge
25. The appellant’s locus standi to challenge the constitutionality of the relevant provisions of the 2015 Act and the 1977 Act on the grounds set out in the statement of grounds requires a brief consideration of the relevant statutory provisions.

26. The 1977 Act, as amended, defines what constitutes an unfair dismissal. A person who has been unfairly dismissed within the meaning of the Act is entitled to redress. Section 7 provides that the potential redress is to be whichever of the matters set out in subss. 7(1)(a), (b) or (c) which “the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all these circumstances”. The types of redress are (a) reinstatement, (b) re-engagement and (c) compensation. Section 8 of the 1977 Act, as amended, provides for claims to be referred to the Director General of the WRC, who in turn refers it to an adjudication officer. In accordance with subs. 8(1)(c), the adjudication officer is required to; enquire into the claim; give the parties an opportunity to be heard and present any evidence relevant to the claim; make a decision in relation to the claim consisting of either an award of redress or its dismissal; and give a copy of the decision in writing to the claimant. There are also other more detailed provisions which are not relevant to the issues under appeal.

27. Section 5 of the 1991 Act imposes obligations on employers in relation to the payment of wages. Section 6 of the 1991 Act provides for decisions by an adjudication officer under s. 41 of the 2015 Act in relation to complaints concerning a breach of s. 5 of the 1991 Act. Section 41(1) of the 2015 Act provides for the making of complaints to the Director General of the WRC that an employer has contravened a provision specified in Part 1 or Part 2 of Schedule 5 to that Act. The 1991 Act is included in that schedule.

28. Section 40 of the 2015 Act provides for the appointment by the Minister of adjudication officers for the purposes of the Act. It is only necessary to note that the section does not require that a person have any particular qualification to be eligible for appointment as an adjudication officer.

29. The net effect of these provisions relevant to the plaintiff’s claim is that his claim for redress in respect of the alleged unfair dismissal pursuant to the 1977 Act and his claim in respect of unpaid wages pursuant to the 1991 Act must, in accordance with the statutory scheme, be made and determined by making the complaint to the WRC and having the claim determined by an adjudication officer appointed by the Minister. Further, the adjudication officer is not required to have any particular qualification and more precisely no legal qualification. In addition, the statutory provisions do not provide for and hence, do not permit an adjudication officer to take evidence upon oath and there is no penalty provided for any person who gives untrue evidence in the course of an inquiry into a claim.

Discussion and Decision
30. It is necessary to consider the challenge to the constitutionality of the sections of the 2015 Act and the 1977 Act being made by the appellant on the grounds set out in the statement of grounds in respect of which leave was granted.

31. The first challenge is based upon Articles 34 and 37 of the Constitution. It is contended that the sections of the Act which both require and provide for the determination of the claims of the appellant that he is entitled to redress for an unfair dismissal under the 1977 Act and is entitled to the payment of wages wrongfully retained under the 1991 Act constitutes the administration of justice which is not limited, and accordingly, he is entitled to have those claims determined by a court. That challenge is clearly independent of any question of the procedures which an individual adjudication officer might follow in determining the claims of the appellant.

32. The second challenge made is that the sections of the Act which provide for the determination of the claims by an adjudication officer, the manner of appointment of same, the fact that they are to be heard in private and the provisions in relating to the taking of evidence are such that they are contended to be in breach of the appellant’s rights to constitutional justice and fair procedures in the determination of his claims pursuant to the 1977 Act and the 1991 Act and hence, are inconsistent with Article 40.3 of the Constitution. It is important to emphasise, as counsel for the appellant confirmed, that this challenge is being made on the basis of what is either required by the statute or not provided for in the statute, and hence, it is contended, not permitted by the statute, as distinct from the probability or possibility that an adjudication officer, in any individual case, might not determine the claims in accordance with constitutional justice and fair procedures.

33. The grounds identified in submission by counsel in support of the Article 40.3 challenge are (i) the absence of any requirement of a legal qualification for a person who might be appointed an adjudication officer pursuant to s. 40 of the 2015 Act; (ii) the fact that proceedings are to be held otherwise than in public pursuant to s. 41(13) of the 2015 Act; (iii) the absence of any provision for the taking of sworn evidence or any penalty for giving untrue evidence; and (iv) an appeal process to a body which does not include persons required to be legally qualified.

34. It forms no part of any assessment required by this Court on this appeal to consider whether each or any of the foregoing grounds are arguable. That has been determined by the High Court, at the low threshold required by the decision of this Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 by the order granting leave. What is relevant is that the grounds sought to be advanced on behalf of the appellant are ones which go to the statutory scheme established by the challenged sections and do not relate to potential actions or inactions which might be taken or not taken by an adjudication officer in exercise of the powers conferred or permitted by the 2015 Act or any other relevant statute.

35. The High Court judge appears to have misunderstood the nature of the constitutional challenge and to have considered the locus standi of the appellant in relation to a challenge based upon a concern or contention that the second adjudication officer would not exercise his or her statutory functions in accordance with the principles of constitutional justice and fair procedures. If that were the challenge, then the High Court judge would have been correct in concluding that a person who has made a claim which is not yet determined would not normally have standing to pursue a constitutional challenge to the enabling sections by reason of the aforesaid presumption of constitutionality. The cited presumption that the statutory powers would be exercised in accordance with the principles of constitutional justice and fair procedures applies. That is not to exclude the possibility of unusual circumstances which could give a person whose claim has not yet been determined the requisite standing. However, I am in agreement with the trial judge that a single, albeit significant, breach of fair procedures by one adjudication officer would not be sufficient to give standing to challenge the sections from which the powers derive, where a matter was remitted to a different adjudication officer and there existed a handbook setting out procedures as quoted.

36. However, I am satisfied that the constitutional challenge sought to be made by the appellant as set out in the statement of grounds and upon which he seeks the declarations of unconstitutionality are challenges to the statutory scheme which subsist independently of anything permitted by the statutes in question, which an individual adjudication officer might or might not do.

37. I have also considered the submission that the courts in general exercise judicial restraint in considering challenges to the constitutional validity of Acts of the Oireachtas. This is well established, as exemplified by the judgment of Finlay C.J. in Murphy v. Roche, relied upon by the respondents. In that judgment he stated at p. 110, “where the issues between parties can be determined and finally disposed of by the resolution of an issue of law other than constitutional law, the Court should proceed to consider that issue first and, if it determines the case, should refrain from expressing any view on the constitutional issue that may have been raised”. However, as also stated in Murphy v. Roche, these principles “must of course be subject in any individual case to the overriding consideration of doing justice between the parties”.

38. It does not follow, that on the facts of this appeal, the courts should refrain from considering the claims for declarations of invalidity of the identified sections of the 2015 Act and 1977 Act by reason of the order of certiorari. The appellant is a person who, because of the order of certiorari, now returns to have his claims for unfair dismissal and payment of unpaid wages determined by an adjudication officer in accordance with the statutory scheme which he contends to be inconsistent with Articles 34 and 37 of the Constitution and also with his right, pursuant to Article 40.3, to have his entitlement to redress (if any) for the alleged wrongs determined in accordance with constitutional justice and fair procedures. He was granted leave to seek those reliefs and it cannot be said that the issues between the parties in the judicial review proceedings have been finally determined by the order of certiorari. He remains in the position of having his claims potentially determined in accordance with a statutory scheme which he contends is inconsistent with the Constitution.

39. The respondents also sought to rely upon the fact that the appellant had not challenged the constitutionality of the statutory scheme prior to the initial hearing before the adjudication officer. That is not a submission which in my view goes to the standing of the appellant to pursue the constitutional challenge. If anything, it is in the nature of a defence of estoppel and does not appear appropriate to express any further comment as a notice of opposition has not yet been delivered.

40. The final submission made on behalf of the respondents which I have considered and rejected is that made in reliance upon the judgment of Clarke J. in this Court in Nawaz. It is that the appellant does not have locus standi, as the claim sought to be made is a pre-emptive strike against an adverse decision which is not permissible. Nawaz does not appear to me to so decide.

41. Nawaz concerned a challenge in plenary proceedings to the constitutionality of s. 3 of the Immigration Act 1999 (“the 1999 Act”). That section provides for the issue by the Minister for Justice and Equality of certain specified notices to a person in respect of whom he proposes to make a deportation order and for the making of deportation orders. Mr. Nawaz, at the time he issued proceedings, had applied for humanitarian leave to remain in Ireland but no decision had been made. If, however, he was refused leave to remain he would have been at risk of the Minister issuing notices under s. 3 of the 1999 Act and making a deportation order against him.

42. In the High Court, the primary assertion made on behalf of the State was that the substance of Mr. Nawaz’s constitutional challenge was a collateral attack on the process provided for by s. 3 of the 1999 Act and that as such, it was caught by the requirements of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”). Section 5(1) of the 2000 Act precludes a person questioning the validity of certain notifications and a deportation order issued under s. 3 of the 1999 Act “otherwise than by way of an application for judicial review…”. Hence, the State contended that the purpose of Mr. Nawaz in challenging the constitutionality of s. 3 of the1999 Act was to attack the validity of any notice which might be issued to him or deportation order made under s. 3 of the 1999 Act and as such, could not be brought by plenary summons.

43. That contention was rejected by Laffoy J. in the High Court. She concluded that the challenge sought to be made to the constitutionality of s. 3 of the 1999 Act was not caught by s. 5 of the 2000 Act.

44. Following this conclusion, Laffoy J. also considered the standing of Mr. Nawaz to pursue the constitutional challenge notwithstanding no deportation order had been made against him. She held, in reliance upon Cahill v. Sutton and Curtis v. The Attorney General [1985] I.R. 458 and Desmond v. Glackin (No.2) [1993] 3 I.R. 67, that Mr. Nawaz had sufficient locus standi to bring his claim, despite the fact that the final determination on the application for leave had yet to be made by the Minister.

45. In the Supreme Court, the appeal was decided on the entitlement of Mr. Nawaz to pursue the constitutional challenge to s. 3 of the 1999 Act in the plenary proceedings, by considering and determining the question as to whether or not Mr. Nawaz was on the facts of the appeal constrained to pursue any such challenge in judicial review proceedings by reason of s. 5 of the 2000 Act. No decision was made on his locus standi. The conclusions of Clarke J. are set out at paras. 53 and 54:-

“53. In those circumstances it seems to me that two conclusions can be reached. First, the substance of the challenge to s. 3 brought in these plenary proceedings does involve a questioning, albeit indirectly, of the validity of measures which were feared might be taken in Mr. Nawaz's case, which measures come within those listed in s. 5 of the Act of 2000. The second consequence of that analysis is that there was no reason in practice why appropriately constituted judicial review proceedings could not have been maintained.

54. It follows that I respectfully disagree with the trial judge and would conclude that those aspects of the challenge brought in these plenary proceedings which assert the constitutional invalidity of s. 3 of the Act of 1999 are caught by s. 5 of the Act of 2000 and, thus, cannot validly be brought by plenary summons. However, for reasons which I would hope to explore, it does not seem to me that that is the end of the matter.”

47. The respondents, in submissions, had relied upon certain observations of Clarke J. at para. 45 of his judgment in which he referred to the constitutional challenge as being a “pre-emptive strike”. These observations were, however, made in the context of considering whether or not the challenge to s. 3 of the 1999 Act was caught by s. 5 of the 2000 Act and not in relation to a locus standi of Mr. Nawaz to challenge s. 3 of the 1999 Act. By reason of the decision in the Supreme Court that the challenge to s. 3 of the 1999 Act was caught by s. 5 of the 2000 Act, it was unnecessary for the Supreme Court to consider whether or not Mr. Nawaz had standing to challenge the constitutionality of s. 3 of the 1999 Act. The only decision on locus standi was that of the High Court which found in favour of Mr Nawaz.

Conclusion
48. For all the foregoing reasons, I have concluded that the appellant does have locus standi to pursue the constitutional challenge and the appeal should be allowed. No distinction was made in relation to his locus standi to pursue the claims pursuant to the 2003 Act. It follows that so much of the order of the High Court made on 13 March 2018 as ordered that the appellant does not have locus standi to challenge the constitutional validity of the identified provisions of the 2015 Act and the 1977 Act or maintain a claim under the 2003 Act and dismissed the balance of the proceedings should be vacated and that the balance of the judicial review proceedings be remitted to continue in the High Court.

49. It is important to make clear that this decision does not determine the arguments which the appellant is entitled to pursue in his constitutional challenge relevant to the grounds upon which he has been granted leave. I make this observation by reason of the distinction made, in my view correctly, by McCarthy J. in his dissenting judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 90 that locus standi “… means the status or qualification, as it were, to maintain the action, and not the right to advance arguments of a particular kind, unrelated to the facts of the case, in support of the challenge made to the statute…”. I respectfully agree with this observation. If there is objection made to any of the arguments sought to be advanced on behalf of the appellant who has locus standi to pursue the constitutional challenge, that would be initially a matter for the High Court and may involve different considerations.

50. The other observation I wish to make is that the respondents sought to advance arguments that the constitutional challenge should have been brought by way of plenary proceedings, whilst acknowledging that it is permissible to pursue a constitutional challenge to an Act of the Oireachtas in judicial review proceedings. The High Court may of course remit an application for judicial review for plenary hearing in accordance with the provisions of O. 84, r. 26(5). If the respondents consider that this is required in the present case, it remains open for such an application to be made and a matter for the High Court to determine whether any such order should be made.