Ireland: Workplace Dispute Resolution In Ireland – Is It Time For Change?

Last Updated: 15 May 2019
Article by Cian Beecher, Helen Webb and Niamh Fennelly
Most Read Contributor in Ireland, July 2019

The Supreme Court has ruled that the Workplace Relations Act 2015 can be challenged on its constitutionality before the High Court.

Once an employee and an employer have passed the point where a dispute can be resolved between themselves, the next port of call is usually the Workplace Relations Commission ("WRC"). With no fees to raise a claim, a limited pleading / submissions process, no arduous disclosure of documents process, no requirement to prepare witness statements, and a private and fairly informal hearing environment, employees can obtain a decision on their workplace disputes cheaply and relatively quickly. According to the Workplace Relations Commission Annual Report 2017, 92% of cases received were processed in less than 6 months.

Employers also benefit from this approach to the process as costs in defending employee claims do not spiral, and early or unjustified settlements are not required to protect the company's reputation from potentially damaging allegations.

But are we sacrificing fair procedures and constitutional rights in the name of speed, cost savings and expediency? The Supreme Court has ruled in Tomasz Zalewski v Adjudication Officer, WRC & Ors [2019] IESC 17 that the Workplace Relations Act 2015 (the "2015 Act") can be challenged on its constitutionality before the High Court.

Why did Mr Zalewski raise a constitutional challenge to the 2015 Act?

Mr Zalewski raised unfair dismissal and non-payment of notice claims at the WRC. Mr Zalewski attended a WRC hearing on 26 October 2016, during which the Adjudication Officer accepted written submissions and documentation. An application was then made to adjourn the hearing as a witness for the employer was not available. The adjournment was granted but the new hearing date, as is usual in the WRC, was not scheduled at that point.

A hearing was subsequently fixed for 13 December 2016 but when Mr Zalewski attended the hearing, rather than being given the opportunity to cross examine employer, witnesses he was informed that the Adjudication Officer had already issued her decision and that the hearing had been scheduled in error. The written decision of the Adjudication Officer stated she had given the parties an opportunity to present evidence at the hearing on 26 October 2016 and, on the basis of the evidence provided, the complaint of unfair dismissal was not well founded.

Mr Zalewski lodged an appeal against the Adjudication Officer's decision with the Labour Court and entered judicial review proceedings in the civil courts asserting that certain provisions of the 2015 Act, under which his claims have to be determined, are a breach of his constitutional rights.

The constitutional challenge to the 2015 Act

In the course of the judicial review proceedings in February 2017, Mr Zalewski's lawyers argued that the provisions of the 2015 Act were constitutionally flawed and in breach of his rights to constitutional justice and fair procedures. The specific breaches were said to arise under Articles 34, 37, 40.3.1 and 40.3.2 of the Constitution and it was also argued the 2015 Act was incompatible with Articles 6 and/or 13 of the European Convention on Human Rights. His lawyers argued that the 2015 Act breaches the Constitution as:

  1. WRC hearings before adjudication officers are held in private;
  2. evidence is not heard on oath and there is no penalty for any person who gives false evidence; and
  3. adjudication officers are not required to have any legal qualification or experience, and the appeal process is to a body which does not require persons to be legally qualified.

His lawyers also contended that the administration of justice under the Constitution was not limited and that Mr Zalewski was entitled to have his claims determined by a court as opposed to within the confines of the statutory scheme set out in the 2015 Act. Mr Zalewski sought an order quashing the decision of the Adjudication Officer on that basis.

In April 2017, solicitors for the WRC issued a letter stating that the Adjudication Officer's decision had, due to an "administrative error", been filed as a "decision to issue" rather than "adjourned to further hearing". The WRC consented to court orders (i) quashing the Adjudication Officer's decision; (ii) remitting the complaint for rehearing before a different officer; and (iii) paying Mr Zalewski's legal costs. It also argued that, given the WRC decision was quashed, Mr Zalewski could no longer maintain a constitutional challenge against the 2015 Act. Mr Zalewski did not accept this. The WRC asked the Court to overturn the grant of leave for the constitutional challenge, arguing that, because it had conceded the Adjudication Officer's decision ought to be quashed, Mr Zalewski no longer had legal standing to challenge the constitutionality of the 2015 Act.

The High Court decision – Did Mr Zalewski have legal standing to mount a constitutional challenge?

The High Court ruled that Mr Zalewski had no legal standing to pursue the constitutional challenge as, in returning the case to the WRC to be heard by a different adjudication officer, Mr Zalewski was not "in real or imminent danger of being adversely affected by the operation of the statute..." The High Court concluded that if the WRC's own guidance called "Procedures in the Investigation and Adjudication of Employment and Equality Complaints" had been followed, which provides that "each party will have the opportunity to call witnesses, to question the other party and any witnesses, to respond and to address legal points", the incorrect WRC decision could have been avoided. In returning the case to the WRC, the High Court was satisfied that Mr Zalewski was not in real or imminent danger of being adversely affected by the statute.

However, Mr Zalewski was given leave to appeal this ruling to the Supreme Court. It accepted that whether Mr Zalewski had legal standing to challenge the validity of the 2015 Act, where the specific decision challenged had been quashed and remitted for a new hearing, was a matter of general public importance.

The Supreme Court – the arguments

Mr Zalewski contended before the Supreme Court that, as the person who made a claim of unfair dismissal and unpaid notice, he had legal standing to challenge the constitutionality of the Unfair Dismissals Act 1977 and the 2015 Act. This was because both Acts required that his claims be heard by an adjudication officer of the WRC – a statutory scheme which he contended was inconsistent with the Constitution and put him in real and imminent danger of being affected by the relevant provisions.

The WRC submitted that Mr Zalewski was not in real and imminent danger of being adversely affected by the operation of the statutes, and he was essentially in the same position as a person who had made a claim to the WRC and whose procedure had not yet commenced. It added that he had not challenged the 2015 Act when he first made the claim to the WRC, and had voluntarily made his claim under the statutory scheme which he later sought to challenge.

The WRC argued that this action was akin to a pre-emptive strike against an adverse decision, which was not permissible. It referred to prior case law which requires a court to first consider and decide non-constitutional issues, and if this determines the case between the parties, the court should refrain from expressing a view on the constitutional issues. It also referred to the presumption of constitutionality which applies to matters permitted or provided for by an Act of the Oireachtas.

The Supreme Court decision

The Supreme Court unanimously allowed Mr Zalewski's appeal and held that he was entitled to pursue claims that the procedures for determining workplace disputes under the 2015 Act were in breach of the Constitution and the European Convention on Human Rights Act 2003.

It stated that the High Court appeared to have misunderstood the nature of the constitutional challenge and to have considered the legal standing of Mr Zalewski 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.

The Supreme Court considered that this was not the correct approach and Mr Zalewski's challenge was to the statutory scheme itself, i.e. the provisions of the 2015 Act, rather than what an adjudication officer might or might not do under the 2015 Act. As such, it could not be said that the issues between the sides had been finally decided by the WRC's decision to have the matter heard by another adjudication officer as Mr Zalewski remained in the position of having his claims potentially decided under a statutory scheme which he alleged was unconstitutional.

The Supreme Court considered that the fact that Mr Zalewski had not raised constitutional issues prior to the initial hearing did not go to his legal standing to pursue his constitutional challenge but might be relevant in relation to an estoppel defence. The Court also did not agree that the reference to language regarding a "pre-emptive strike" from a prior case was related to the question of legal standing.

The Supreme Court remitted the constitutional challenge back to the High Court and the High Court hearing and decision is awaited.

What does this mean for the resolution of workplace disputes in the future?

We await with interest the decision of the High Court on this case. Any significant change to the 2015 Act, or the forum in which workplace disputes are dealt with, could have implications for all parties in relation to the strategy used and the costs incurred when handling workplace disputes.

Simply requiring witnesses to swear an oath before providing verbal evidence may not dramatically increase costs, but any move towards the provision of written witness statements (as occurs in the English system) could add substantially to hearing costs and inevitably adds time to the litigation process.

While employees may welcome the threat of a public claim as an additional negotiation tool, employers are likely to be less keen to air all laundry in public. Litigation strategy would need to be revisited to take account of potential reputational harm where claims are heard in a public forum and potentially with media in attendance, even where the employer is satisfied that the allegations are unsubstantiated.

Also, if all adjudication officers are required to have legal qualifications this could lead to a dramatic reduction in the number of adjudication officers, at least in the short to medium term, which would have a knock on effect on the speed with which cases are disposed. It may also lead to more legalistic approach to the process.

Do the Constitution, and justice, require a change to the current workplace dispute resolution processes under the 2015 Act? Are more formal processes such as those in the courts, or akin to those in England, required? In England, only the average, and not 92%, of claims are heard within 7 months. Happily this is not a question we have to answer. However, we would suggest it has long been the prevailing view that when handling employment disputes, a simplified and streamlined process, is in the interests of all parties.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions