Solicitor Ammi Burke has complained that taxpayers’ money was being spent while the Workplace Relations Commission (WRC) hearing of her complaint of unfair dismissal from law firm Arthur Cox was being “held up”.
In April 2022, WRC adjudication officer Kevin Baneham rejected her claim of unfair dismissal, saying the hearing could not proceed due to persistent interruptions by members of the Burke family.
Ms Burke and her mother declined to accept his earlier decisions, at 11.45am on April 1st, 2022, refusing Ms Burke’s request to summon an Arthur Cox partner and a human resources director to give evidence and to order the firm to discover certain emails, he said.
He said he could not swear in Arthur Cox’s managing partner at 4pm to continue with the evidence due to the objections.
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Making submissions on Wednesday as part of her High Court challenge to the WRC’s rejection of her complaint, Ms Burke said the WRC hearing was held up and “taxpayers’ money is spent while an adjudicating officer is sitting there”.
“Why? All to ensure the truth does not get out,” she said.
She accused Mr Baneham of “capitulating” to a “direction” by Arthur Cox’s senior counsel, Peter Ward, for the hearing to be conducted in an adversarial manner, rather than under an inquisitorial procedure that she contends should have been followed.
Ms Burke refused to retract an allegation that Mr Ward had “directed” WRC officer Kevin Baneham to “break the law” by adopting this adversarial approach.
Mr Ward said he had refrained from objecting to earlier submissions of Ms Burke, but she had now “strayed into the utterly objectionable”. It was not appropriate for a solicitor “who should know better” to go far beyond her pleaded case, he said, and he wanted her to withdraw the statement.
Ms Burke said she could not withdraw the comment “because it is the truth”.
Ms Justice Marguerite Bolger, who proceeded to hear the judicial review case after rejecting Ms Burke’s application for her recusal, asked to be directed to where Ms Burke’s point was pleaded in her legal papers.
The judge and the applicant conversed back and forth on this, without finding the point in the pleadings, before Mr Ward said he was happy to deal with the matter when replying on Thursday to Ms Burke’s submissions.
On a number of occasions during the hearing, Ms Justice Bolger told Ms Burke that she had a duty to behave appropriately in court. The judge also asked Ms Burke not to point her finger at her while making submissions, as it was “quite distracting”.
Ms Burke said she was behaving appropriately.
Judgment
Earlier, Ms Justice Bolger delivered a 16-page judgment explaining why she was refusing to recuse herself from hearing the case.
Ms Burke had alleged there was a reasonable apprehension of objective bias on the part of Ms Justice Bolger and applied for her to step aside.
The judge said the legal test for objective bias is “well established”, requiring a reasonable observer informed of the relevant facts to reasonably apprehend there was a risk the judge would not be fair and impartial.
She did not believe a reasonable observer informed of the facts would conclude she could not hear the case objectively and impartially. She rejected all four grounds Ms Burke had advanced.
Ms Justice Bolger said the fact that she had written an article in 2015, while she was a practising barrister, that had touched on the adversarial versus inquisitorial nature of the WRC did not “decide” the issues raised in this case, as was alleged by Ms Burke.
A reasonable bystander would be deemed to understand the distinction between a barrister’s comments in an academic journal and the judicial function to make decisions based on law and precedent, she said.
Ms Burke also alleged the judge had a “close relationship” with Arthur Cox’s senior counsel, Mr Ward, on account of them being founding members of the Employment Bar Association and appearing on professional panels together. Ms Justice Bolger said a reasonable viewer would understand the nature of a barrister’s professional relationships with their colleagues.
Ms Burke had produced a letter she received in 2020 from Arthur Cox’s solicitor that included the name of Ms Justice Bolger, then a senior counsel, alongside two other barristers’ names as potential mediators of Ms Burke’s claim.
Arthur Cox’s solicitor, Donal Spring of Daniel Spring & Co, said in a sworn statement that Ms Justice Bolger had never been contacted about potentially mediating the claim.
The judge said there was also “no basis” to Ms Burke’s contention that the proposal of a barrister to mediate a dispute that subsequently came before that lawyer when they were a judge could give a reasonable person concern about that judge’s impartiality.
The judge also rejected a claim in relation to a statement she made in ruling at an earlier stage, in 2022, to the effect that this was not a public-interest case.
The WRC and Arthur Cox, a notice party in the proceedings, argued there was no basis for the judge to step aside.
After Ms Justice Bolger concluded her ruling on Wednesday morning, Ms Burke immediately objected to being “forced” to proceed with her case before the judge.
The judge left the courtroom for several minutes so the parties could consider her ruling. Ms Burke opened her case upon the judge’s return.
During Ms Burke’s submissions, Ms Justice Bolger said she was “anxious” the High Court stayed within the parameters of the claim Ms Burke had been permitted to pursue.
Ms Burke said there was “no limit” on the duty of the High Court: “Everything before the WRC, facts or otherwise, is up for grabs.” There may be a “fear of upturning certain stones in this litigation”, she said, but “there should be no stone unturned”.
The WRC and Arthur Cox are due to make submissions on Thursday.
Ms Burke has said she had an unblemished record during her time at the law firm from May 2016 until she was fired without warning in November 2019.
Dismissal
The explanation for her dismissal – an alleged breakdown of trust and confidence – was unclear and contradictory, she claimed.
She alleged she had been left in the office until 2am working on a transaction while a partner was out socialising. A conversation in which she raised this matter, and which formed part of the basis for her dismissal, had never been addressed through a conversation with a partner, she said.
Ms Burke claimed she suffered reputational damage and sought reinstatement. The court heard she has not secured employment since.
Arthur Cox opposed her case at the WRC. It accepted reviews of her employment were positive, but certain exchanges she was involved in led to a breakdown of trust and confidence.
She received three months’ pay in lieu of notice and an ex-gratia payment of €70,000.
