A High Court judge will rule on Wednesday on whether she should recuse herself from hearing solicitor Ammi Burke’s challenge to the Workplace Relations Commission’s (WRC’s) rejection of her claim she was unfairly dismissed by law firm Arthur Cox.
At the opening of her case against the WRC on Tuesday, Ms Burke applied for Ms Justice Marguerite Bolger to recuse herself on grounds including that she previously expressed views concerning the core issue in her proceedings and that she had a “particularly close relationship” with Arthur Cox’s senior counsel in the “tight-knit community” of employment law specialists.
Ms Burke alleged Ms Justice Bolger and Arthur Cox’s barrister, Peter Ward, were founding members of the Employment Law Bar Association and had appeared on panels together. Ms Burke also produced a letter she received from Arthur Cox’s solicitors in 2020 that included the judge’s name, then a senior counsel, as one of three potential barristers who could mediate her claim.
The judge asked: “Ms Burke, are you seriously suggesting that because I am proposed as a mediator that I should recuse myself?”
She directed Arthur Cox’s solicitor, Donal Spring, to file an affidavit on Tuesday evening setting out his contention that the then-barrister was never actually contacted in relation to the proposed mediation.
The judge said she had a busy practice before being elected to the bench and could not recall if Mr Spring had contacted her about potentially mediating this matter.
Ms Burke, from Cloonsunna, Castlebar, Co Mayo, further claimed the judge wrote, in a 2015 article published in the Irish Employment Law Journal, that the right to a fair hearing requires unfair dismissal proceedings of this nature to be “adversarial”.
This, Ms Burke said, “effectively decides the core issue in these proceedings”, as she, to the contrary, contends the procedure mandated in the 1977 Unfair Dismissal Acts is “inquisitorial” in nature.
It was also “extremely concerning”, said Ms Burke, that Ms Justice Bolger did not retract a statement, made in July 2022 after permitting Ms Burke to pursue all of the reliefs she seeks, to the effect that this was not a public interest action.
Mr Ward, for notice party Arthur Cox, opposed the recusal application, submitting Ms Burke did not meet the legal test that a reasonable observer would perceive objective bias.
He submitted Ms Burke had made “offensive” comments in not accepting the court’s decision when permission was given to bring the case.
Ms Burke objected to his characterisation of her previous words, saying: “I will not have my name brought to the gutter”
Mr Ward said Ms Burke had adopted an “extraordinary” position where she refused to accept any ruling of the court.
Senior counsel for the WRC, Catherine Donnelly, said Ms Burke’s application was not well-founded and there was “simply no basis” for the judge to recuse herself.
Replying, Ms Burke said she had been subjected to a “personalised and sustained attack” on her character by Arthur Cox’s barrister. She also criticised the court for what she claimed were “constant” interruptions, and she frequently proceeded to make her points while the judge was speaking.
Ms Justice Bolger said she would give her decision on the application at 11am on Wednesday. If she rules against Ms Burke she will begin to hear the substantial case that day. If Ms Burke is successful, the case will be assigned to a different judge.
Ms Burke’s action asks the court to judicially review the WRC’s April 2022 rejection of her claim that she was unfairly dismissed by Arthur Cox LLP in November 2019.
She alleged she had an exemplary and unblemished record during her time at the law firm, which she joined in May 2016. Her firing at a meeting with the managing partner came without warning, she claimed.
The explanation for her dismissal – an alleged breakdown of trust and confidence – was unclear and contradictory, she alleged.
She had been left in the office until 2am working on a transaction while a partner was out socialising, she alleged. No partner approached her about a conversation in which she raised this matter and which formed part of the basis for her dismissal, she said.
Ms Burke claimed she suffered reputational damage and sought reinstatement.
Arthur Cox, represented by Mr Ward and barrister Mairead McKenna, instructed by Daniel Spring & Co, opposed her case at the WRC.
The law firm accepted reviews of her employment were positive, but certain exchanges she was involved in led to a breakdown of trust and confidence.
Ms Burke’s behaviour during and after her employment, including picketing its offices, meant reinstating her was not possible, it said. She was paid three months’ pay in lieu of notice and an ex gratia payment of €70,000.
WRC adjudication officer Kevin Baneham rejected her complaint in a 46-page decision.
Mr Baneham said there was scope for more evidence but Ms Burke and her mother interrupted the hearing after he refused Ms Burke’s request to summon an Arthur Cox partner and a human resources director to give evidence.
He also declined to order the firm to discover certain emails she requested about the late-night working.
Following his decision on these two elements, at 11.45am on April 1st, 2022, Ms Burke and her mother spent several hours making objections. He attempted to swear in the managing partner at 4pm to continue with the evidence, but, he said, the Burkes’ objections prevented this.
The Burkes were given multiple opportunities to allow the hearing to proceed and when they did not take those, the only viable option was to dismiss the complaint, he said.
Prior to April 1st, Mr Baneham had rejected an application by Ms Burke to recuse himself from dealing with the case.
In her High Court judicial review, Ms Burke says it was unfair, unreasonable and contrary to law for him to refuse to summon the two Arthur Cox witnesses for cross-examination by her and to direct production of the emails, she contends.
Further, she alleges his termination of the proceedings and dismissal of her complaint was unfair, unlawful and/or outside his powers.