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Performance of Decision-Making Functions by Quasi-Judicial Bodies – Implications of Zalewski v An Adjudication Officer, The Workplace Relations Commission and Others [2021] IESC 24

  • Ireland
  • Litigation and dispute management


On 6 April 2021, a seven-judge panel of the Supreme Court gave judgment in Zalewski v An Adjudication Officer, The Workplace Relations Commission and Others1. The focus of this article is the majority judgment delivered by Mr Justice O’Donnell (the “Judgment”).

The effect of the Judgment was to uphold the constitutional validity of the dispute resolution functions of the Workplace Relations Commission (the “WRC”). The Supreme Court did, however, find certain aspects of the procedural processes contained in the Workplace Relations Act 2015 (the “Act”) to be unconstitutional.

The Judgment is a generational dicta from the Supreme Court and of considerable significance in the field of public and administrative law. The Judgment has clarified, in many respects, the constitutional validity of quasi-judicial decision-making and set the parameters for the operation of those functions. This article seeks to set out the background to the Judgment, the rationale of the Supreme Court and its significance for quasi-judicial bodies. 


Mr Zalewski was dismissed by his employer on 26 April 2016 and brought a claim for unfair dismissal and non-payment in lieu of notice to the WRC.

At a hearing on 26 October 2016, an Adjudication Officer accepted written submissions and documentation from the parties. However, the hearing was adjourned in circumstances where a witness for Mr Zalewski’s employer was unavailable. A new hearing date was scheduled for 13 December 2016, at which the parties were informed that the hearing had been scheduled in error and the Adjudication Officer’s decision had been issued. That decision recorded that a full hearing had taken place and dismissed Mr Zalewski’s claims.

Constitutional Issues

Article 34.1 of the Constitution provides that justice shall be administered (1) in Courts established by law, by judges appointed in accordance with the Constitution, and (2) in public, except in “special and limited” cases as may be prescribed by law.

Article 37 of the Constitution provides an exception to the requirement that justice be administered by judges, and permits persons (or bodies of persons) other than the judiciary to exercise “functions and powers of a judicial nature” provided they are “limited” and do not involve criminal matters.

The principal issues considered by the Supreme Court were:

  • Whether the procedures under the Act amounted to an administration of justice pursuant to Article 34.1 of the Constitution; and
  • If the procedures under the Act amounted to an administration of justice, whether they fell within Article 37 of the Constitution (i.e. whether the WRC was exercising “limited functions and powers” of a judicial nature). 

The Supreme Court found that while the WRC breached Article 34.1 of the Constitution, it was ‘saved’ by Article 37. The Supreme Court found that the WRC was exercising functions that were judicial in nature but concluded that those powers were limited. As such, the WRC as a decision-making body was not unconstitutional. This finding is of considerable importance. The Supreme Court has now found that a statutory body, which is not a Court, can make decisions of a judicial nature.

Prior to the Judgment, the conventional wisdom, supported by case law, was that bodies such as the WRC were constitutional under Article 34.1 of the Constitution. The five-part test relied upon included whether a decision of such a body required some form of Court approval. In the High Court, Justice Simons found that the WRC was constitutional as its decisions were enforced in the District Court.

Procedural Implications

The Judgment also considered certain procedural matters contained in the Act. These procedural issues are relevant to bodies similar to the WRC and are;

  • Primary legislation cannot include an absolute ban on hearings being held in public. That does not mean that all hearings must be held in public but there cannot be an outright prohibition;
  • A party giving evidence must be in a position to be ‘punished’ for false evidence. Traditionally, this has been achieved by requiring individuals to give evidence on oath. An individual who gives false evidence on oath can be prosecuted for perjury. This can also be achieved, for example, by including a provision in the relevant primary legislation that false evidence is an offence;
  • Parties to a dispute must be able to cross-examine one another. This requirement does not need to be set out in legislation as it is a constitutional right and decision makers must ensure that those rights are afforded to parties.

What now?

The Judgment is of considerable interest to lawyers. It traces the historical evolution of administrative bodies from the Land Commission to the present day. However, it is not just of academic interest and it has a practical significance for the performance of duties by quasi-judicial bodies. There is debate as to whether it applies to all public bodies who exercise a decision-making function or to bodies who decide on an inter-partes dispute such as the WRC.

It is certainly likely that administrative bodies who exercise a decision-making function outside of the inter-partes disputes arena will be challenged. The reality is that the Judgment considers, in our view, administrative bodies who deal with disputes between parties. However, we do believe that all administrative bodies should be aware of and review the Judgment carefully to consider if they can amend their procedures in line with the Judgment.

If we take solely those bodies that deal with disputes we view the Judgment as being hugely beneficial. While those decisions were always subject to constitutional fairness and natural justice, the Judgment has given greater clarity in respect of the requirements to be followed. The reality is that for those bodies the Judgment cements their constitutionality and embodies them with greater legitimacy to resolve disputes in their particular area.

Crucially, from a policy perspective, the Judgment will also allow the Oireachtas to delegate other decision-making functions, in specific areas, to new tribunals or decision-making bodies. For example, we see no reason why certain intellectual property disputes could not be determined at first instance by an administrative tribunal.

That will of course be a matter of policy and the intent of the Judgment is most certainly not that the Courts are surplus to requirements. The Courts will remain the primary forum in which disputes are resolved. However, the Judgment does open up the possibility for new and innovative forums for the public to access justice.

For more information, please contact

Eoin Mac Aodha, Partner in Dispute Resolution and Litigation -

Paula Shine, Solicitor in in Dispute Resolution and Litigation -

1 [2021] IESC 24