Solicitor loses case over WRC handling of Arthur Cox unfair dismissal complaint

The High Court has dismissed a challenge brought by solicitor Ammi Burke over a Workplace Relations Commission (WRC) officer's handling of her complaint of unfair dismissal from top law firm Arthur Cox.

Mr Justice Garrett Simons "dismissed in its entirety" Ms Burke's proceedings against adjudication officer Marie Flynn, who aborted her case in the wake of a landmark Supreme Court decision with significant implications for WRC hearings and determinations.

Ms Burke's claim for unfair dismissal had been part-heard when the Supreme Court's Zalewski decision last April found that two sections of the Workplace Relations Act were incompatible with the Constitution.

That ruling found there was no justification for a blanket prohibition on hearings in public before adjudication officers and emphasised the importance of giving evidence on oath to promote truthful testimony.

In her judicial review proceedings, Ms Burke, from Castlebar, Co Mayo, representing herself, sought to assert that the Zalewski decision does not apply to part-heard claims. She also sought court orders to direct Ms Flynn to resume hearing her case and disclose certain documentation. The WRC and adjudication officer submitted that the guidance they used was correct.

Mr Justice Simons said the correct interpretation of the amendments introduced under the Workplace Relations Act 2021 in response to the Zalewski decision is that they apply to cases that had not been finally and conclusively determined. He said Ms Burke cannot have any legitimate expectation that her claim for unfair dismissal would be completed under the "unamended, invalid version" of the legislation.

Legally correct

He said that, in order to ensure confidence in the process, it was “entirely reasonable” and “legally correct” for Ms Flynn to direct that Ms Burke’s case be heard afresh by a different adjudication officer who has not heard any of the unsworn evidence given previously. Considerations as to administrative convenience and efficiency “cannot trump the requirement that justice is not only done, but is seen to be done”, the judge said.

On Ms Burke’s argument that an adjudication officer is obliged to give parties “any evidence” relevant to a dispute, as opposed to evidence the officer herself considers relevant, Mr Justice Simons found it was “not appropriate” for the court to grant the relief sought. He also said there was “no basis whatsoever” for Ms Burke’s attempted criticisms of the adjudication officer personally.

The judge noted that the judicial review process is a discretionary remedy, and relief can be refused in circumstances where the application is premature or where there is an adequate alternative route of remedy. Only in “exceptional cases”, he said, is it appropriate to challenge an interim procedural ruling via judicial review.

Last month, Ms Burke told the court that her firing from Arthur Cox, a notice party, in November 2019 came “out of the blue”. She said she was prevented from returning to her office to collect her personal belongings, was handed her bag and coat by another colleague and was directed to leave the building under threat of calling security.

Ms Burke claims she was dismissed over her criticism of a partner at the firm after she was left working until 2am on March 29th, 2019, while other colleagues allegedly were socialising.

She claims Arthur Cox gave no reasons for the dismissal other than a breakdown in the relationship with her, which she alleges is “groundless”.