May 07, 2021
Last month, the Supreme Court rejected a legal challenge to the constitutionality of the Workplace Relations Commission. The finding stated that the WRC’s power to adjudicate disputes between employers and employees “does not offend the Constitution”.
However, it did raise questions around the constitutionality of some elements of the WRC.
The case came about when lawyers for an employee who claimed he was unfairly dismissed from Buywise Discount Stores Ltd, owners of a local Costcutter shop, argued that part of the Workplace Relations Act was unconstitutional. They argued that when the WRC made a ruling on a workplace dispute, it was administering justice, a power only given to courts and judges as per Article 34 of the Constitution.
While the Supreme Court agreed, it ruled that the WRC was only exercising limited jurisdiction, allowed under Article 37 of the Constitution. It pointed out that the decisions of the WRC adjudication officers are limited to employment law issues, which can be appealed to The Labour Court and the High Court.
The panel of judges concluded that the “WRC is exercising limited powers and functions of judicial nature, which exercise of power is therefore covered by Article 37 and does not, therefore, offend the Constitution”. The Court stated that as a result, they do not accept that the blanket ban on hearings before the WRC is justified.
However, the Court stated that some of the questions raised by the complainant’s senior counsel over the WRC’s procedures were justified. These included the lack of provision for the administration of oath and evidence provided under oath.
The lack of an express right to cross-examine witnesses was also criticised. The Supreme Court also dismissed suggestions that only legally trained people could carry out the duties of the WRC.
The Supreme Court has returned the constitutional challenge back to the High Court and a hearing and decision will be forthcoming.
What does this mean from a practical point of view?
Given the hearings can be held publicly, it will not be something that employers would necessarily like given the potential harm to corporate reputations; so, this could play into employees’ hands somewhat.
Swearing an oath in and of itself will not necessarily cause an issue, however if evidence given under oath is intentionally wrong, there may be legal consequences.
It was also reassuring that adjudication officers do not have to be legal professionals as this would cause an issue with the number of officers available, resulting in further backlogs.