Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank the Minister of State for bringing forward this legislation. We all know the reason we are here is because of the recent Supreme Court decision in the Zalewski case. It was probably one of the most important decisions given by the Supreme Court this century and has resulted in this legislation coming before the House.

I am conscious that my colleagues in the House know the facts of the Zalewski case, but it is important to remind other people who may not be here about it and to recall what happened in that particular claim. Mr. Zalewski claimed he was unfairly dismissed. He was entitled to bring a claim against his employer under the Unfair Dismissals Act 1977. Under the procedure and architecture we have put in place, he did so pursuant to the Workplace Relations Act 2015 and his claim was heard by an adjudication officer at the Workplace Relations Commission. Mr. Zalewski did not get a fair hearing. In fact, he did not really get any hearing. Rather than listening to my description of it, I urge colleagues to reflect again on what Mr. Justice McMenamin said in the Supreme Court about the hearing Mr. Zalewski got, which he described as "Kafkaesque".

In any event, Mr. Zalewski's claim was rejected by the WRC and, as a result, he decided to challenge the constitutionality of the Workplace Relations Commission and the fact that it operated over such a wide, broad range of legislation, such as the redundancy Acts, the Unfair Dismissals Act and the Employment Equality Act. His contention was that the Workplace Relations Commission was administering justice; it stated it was not. That is something we should probably all reflect on because I am conscious that if a person is sacked from their job and brings a claim against an employer, it is probably one of the most significant steps they will take in their life. Nobody lightly takes a claim against their employer or anyone else.

However, there are circumstances where employees and workers are entitled to bring claims against their employers. I have listened very carefully to what Deputies O'Reilly and Ó Ríordáin said and it appears to be the case that criticism can be made of an employee who brings a claim against his or her employer. The chilling effect that can have on an employee was referred to. That may be correct. I know my friends were not in any way criticising employees who take such an action, but it is important to emphasise that in our system people are entitled to bring claims. It should not be stated or thought that because an employee is taking a claim against an employer that in some way that employee should be criticised.

In any event, Mr. Zalewski went to the High Court. The High Court looked at the case and at what was happening in the Workplace Relations Commission. It applied the tests established in McDonald v.Bord na gCon back in the 1960s, which set out five tests for the administration of justice. The High Court stated this was not the administration of justice because the Workplace Relations Commission did not have the power to enforce its own orders or judgments. Instead, if you are trying to enforce a decision of the Workplace Relations Commission, you have to go to the District Court. Mr. Zalewski lost that case because the determination in the High Court was that it was not the administration of justice. He appealed to the Supreme Court, which said it was the administration of justice. That is a very significant development because throughout the High Court and Supreme Court cases, and from 2015 onwards, the WRC stated it was not administering justice. We now know that it is. Ultimately, there was a split decision, four-three, in the Supreme Court, in favour of a finding that while this was not unconstitutional, certain aspects, as identified by speakers here, were regarded as requiring change.

It is a big question to determine whether or not a body is administering justice. Article 34 of our Constitution states that justice shall be administered by our courts in public save in certain circumstances. The article then sets out the courts we have for the administration of justice. However, we also recognise in this House that justice can be administered elsewhere if it is for the purpose of limited or local jurisdiction. That is why Article 37 of the Constitution is very important, because it provides for limited functions that can be carried out by statutory bodies other than the courts, which are established under the Constitution.

We have seen a trend, both in recent years and over the past 100 years, that legislation is enacted by a parliament in any country, but it will also allocate responsibility for the determination of disputes under that legislation to a new statutory body. There are many such bodies in Ireland. The Workplace Relations Commission, the Residential Tenancies Board and other boards and functions fulfil determinations of disputes. They are administering justice but doing so on a limited basis. The Supreme Court in the Zalewski case stated that the administration of justice is in fact happening at the WRC but is being done on a limited basis, since it relates to workplace disputes and has some limitation in terms of financial awards. However, there are extensive powers available to the Workplace Relations Commission when it comes to the determination of issues and making of awards.

Behind all of this, the Oireachtas has a certain amount of concern that if we do not take issues concerning the administration of justice away from the courts, it will result in lawyers and in inefficiencies. The well-intentioned objective and purpose behind establishing the Workplace Relations Commission as the place where employment disputes are resolved is to try to make the system more efficient and cheaper and to ensure it does not get bogged down with lawyers. All I would say in respect of that is that it is absolutely vital that anyone who brings a claim, and is involved in the administration of justice and is seeking justice, gets fair procedures and a fair hearing. I believe this legislation will go a considerable way towards that but we have to ensure that all claims before the Workplace Relations Commission are heard in a very fair and just way.

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