A High Court judge has said he expects to rule next month on a solicitor's action over the handling by a Workplace Relations Commission (WRC) adjudication officer of her complaint she was unfairly dismissed by top law firm Arthur Cox.
Ammi Burke brought proceedings after an adjudication officer, Marie Flynn, aborted her case in the wake of a significant Supreme Court decision with implications for WRC procedures. Ms Flynn also recused herself from the case and said it would need to be heard by a different officer.
The Supreme Court’s Zalewski decision last April held that the exercise of powers by WRC adjudication officers was an administration of justice, and found that two sections of the Workplace Relations Act incompatible with the Constitution. The court ruled there was no justification for a blanket ban on private hearings before adjudication officers and highlighted the importance of giving evidence on oath to encourage truthful testimony.
The WRC published new guidelines to reflect its practice changes in response to the judgment and updated these guidelines a month later with further detail relating to part-heard cases, stating some evidence “may need to be heard afresh, on oath or affirmation”.
In her judicial review proceedings, Ms Burke, from Castlebar, Co Mayo, has told the court she had an unblemished work record at the law firm and her firing on November 12th, 2019 came "out of the blue" without warning.
She was prevented from returning to her office to collect her personal belongings, handed her bag and coat by another colleague and directed to leave the building under threat of calling security, she said.
She 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 the partner was socialising with a colleague.
She claims Arthur Cox gave no reasons for the dismissal other than a breakdown in the relationship with her. That explanation is a “fabrication” and “groundless”, she claims.
After her proceedings concluded on Tuesday, Mr Justice Garrett Simons said he hoped to give judgment in some three weeks time.
In closing arguments, Ms Burke, representing herself, argued the adjudication officer made errors of law which had the effect of benefitting Arthur Cox. The court could remedy this by granting her the reliefs she seeks, including an order that the WRC hearing resume, she said.
Errors of law
The adjudication officer erred in recusing herself from further hearing the case, in not ordering the law firm to disclose emails “critical” to Ms Burke’s case and in relying on the Zalewski decision to abort the hearing of her case, she said.
Her case relies on facts established by her, she said.
She was not alleging bias by either the adjudication officer or the WRC but rather that errors of law were made by the officer which had the effect of benefitting the firm. She rejected submissions on behalf of Cox’s that she was advancing a “conspiracy theory”.
In opposing the action, Catherine Donnelly SC, for the WRC, has submitted the Zalewski decision must apply to ongoing part-heard cases and it is appropriate a new hearing would involve a new officer.
Peter Ward SC for Arthur Cox, has argued the adjudication officer's decision was lawful and correct.
On Tuesday, Mr Ward said the firm contends there is more than one serious conflict of evidence in this matter. The firm would have adduced an “entire narrative” of further evidence had the WRC hearing continued, he said.