The High Court cannot give “credence” to the claim that it is legitimate for a litigant to disrupt proceedings if she is dissatisfied with a ruling, counsel for the Workplace Relations Commission (WRC) has submitted.
It is “startling”, said Catherine Donnelly SC, that Ammi Burke argued it was reasonable for her and her mother, Martina, to repeatedly ask WRC adjudication officer Kevin Baneham to reverse his refusal to summon two witnesses and to order law firm Arthur Cox to disclose certain emails Ms Burke wanted.
There is an obligation on litigants to abide by rulings, and a WRC officer is entitled to dismiss a claim due to obstructive conduct, she said.
There is also “no basis” for the court to conclude that the WRC’s guidance is unreasonable, unfair or beyond the WRC’s powers, as is contended by Ms Burke, Ms Donnelly added.
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Mr Baneham rejected Ms Burke’s complaint that she was unfairly dismissed from Arthur Cox in November 2019. He said, in his April 2022 decision, he had inquired into her claim but the hearing could not proceed due to persistent interruptions by members of the Burke family.
Ms Burke submitted to the High Court on Thursday that it was “not at all unreasonable” for her and her mother to repeatedly request the officer to conduct the hearing lawfully, and “reasonable” for them to maintain that Arthur Cox should be required to disclose the emails.
It was “irrational” for Mr Baneham not to order the email disclosure, she said. Ms Burke pointed to a “power imbalance” at WRC hearings between a “small employee and a big employer” and claimed she was not afforded fair procedures.
She submitted that the officer was “directed, forced and compelled into error by none other than Mr [Peter] Ward”, senior counsel for notice party Arthur Cox.
Ms Justice Marguerite Bolger said the court must deal with the judicial review that Ms Burke drafted and she could not see where this alleged direction of Mr Baneham by Mr Ward was in Ms Burke’s filed pleadings.
She asked Ms Burke not to repeat submissions she had already made, as it is a “waste of court time and, as you pointed out yesterday… it is not in the interests of the taxpayer”.
Ms Burke responded: “You have said my submissions are a waste of time”. The judge was showing “no concern” for an “integral” component of her case, she said.
The judge said the time wastage came about by her repeating herself.
Ms Burke asked the judge to quash the WRC’s April 2022 decision and to remit her unfair dismissal claim to a different adjudication officer for fresh consideration.
Ms Burke has claimed she had a faultless record during her time at the law firm from May 2016 until she was fired without warning in November 2019.
Opposing her case at the WRC, Arthur Cox, represented by Mr Ward and Mairéad McKenna SC, said she received three months’ pay in lieu of notice and a €70,000 ex gratia payment. The firm accepted reviews of her employment were positive, but certain exchanges she was involved in led to a breakdown of trust and confidence.
On Wednesday, Ms Justice Bolger refused to recuse herself from hearing the case on grounds, advanced by Ms Burke, that there was a reasonable apprehension of bias. She did not believe a reasonable observer informed of the facts would apprehend there is a risk Ms Burke would not receive a fair trial by an objective judge.
