WRC throws out solicitor’s unfair dismissal claim against Arthur Cox

Sacked solicitor Ammi Burke’s unfair dismissal claim against law firm Arthur Cox has been thrown out by the Workplace Relations Commission (WRC) after her summons request for additional witnesses and repeated interruptions by her mother prevented the hearing from proceeding for more than five hours on Friday.

Ms Burke also demanded that senior counsel for the defence withdraw his remark that the Burke family was like a “travelling circus” – calling it “highly defamatory”.

The company denies unfairly dismissing Ms Burke, of Castlebar, Co Mayo, arguing there was a breakdown in her relationship with three senior partners at the banking and finance division, where she was a junior associate on her first placement following her qualification.

The commission was told on Thursday by Ultan Shannon, a partner in the firm’s banking and finance group, that the incidents had included Ms Burke “having a go” at the most senior partner in her division after the partner sent an email inviting her to a lunch with two other new solicitors on her team to “celebrate” her qualification.

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He also said Ms Burke had criticised another partner, Kevin Lynch, when he stopped by to congratulate her for completing a deal. The witness said Ms Burke told Mr Lynch “she wouldn’t have had to work so late on that transaction if his team had been doing their work”.

Managing partner

Peter Ward SC, who appeared for the company with Mairéad McKenna BL, instructed by Daniel Spring & Co Solicitors had on Friday morning been set to call the company’s managing partner, Geoff Moore, to give evidence on his decision to dismiss Ms Burke.

But before Mr Moore could swear the oath, Ms Burke renewed her application to have the adjudicating officer summon former Arthur Cox partner Mr Lynch and the firm’s HR director Ruth D’Alton as witnesses.

“My position very strongly this morning is that this case must not proceed without hearing from Ms Dalton, the HR manager who was at the dismissal meeting, and Mr Lynch, who is one of the three directors grounding the case,” she said, calling on the adjudication officer, Kevin Baneham, to issue witness summons and an evidence order for emails.

Ms Burke said the firm was relying on her interaction with Mr Lynch when he came to thank her for her work on the deal the following Monday as a “pillar” of its defence.

“I simply said I did not think it acceptable that I be left in the office because of his team’s socialising,” she told the commission. “This tribunal needs to have Mr Lynch in here to give evidence,” she said.

She said the emails she sought would support her account of the timeline of the night.

Emails

At that point, Ms Burke’s mother Martina Burke, who was attending in support of her daughter and was expected to be called as a witness, spoke up.

“It’s the press of a button, What’s the problem getting the emails? Why is there such hesitation? It’s the press of a button,” Mrs Burke said.

“The emails go to the rightness of a young female solicitor being dismissed on the basis of a two-minute conversation over what happened on the previous weekend,” her daughter said.

“What is the problem? My daughter worked from 8am to 2am . . . that’s 18 hours she worked, non-stop for Arthur Cox,” Mrs Burke continued.

“Mrs Burke, please,” the adjudicating officer said, as Mrs Burke continued to speak over him. “Let me do my job here please, your daughter is making an application,” he said.

“I don’t understand why it’s taking so long. Why is it taking so long to bring this man in,” Mrs Burke said.

“I would echo the words of my mother,” Ammi Burke said.

“My duty is either to dismiss the claim or find it unfair,” Mr Baneham said. “If I find it unfair, I move to redress,” he said.

Ms Burke’s mother had “no right to speak at the hearing”, Mr Ward said, given her daughter had indicated that she was representing herself.

He said it was unacceptable that the adjudicating officer was being “berated” by Mrs Burke.

Picketing

Mr Ward said the Burke family had gone as far as picketing the law firm’s offices in the months following their daughter’s dismissal.

“It needs to end and an end needs to be put to it,” he said. “It is for the respondent to proffer what evidence it wishes to proffer – that is the respondent’s right – to defend itself as it sees fit,” he said.

Mr Ward said Ms Burke’s refusal to proceed with the matter unless her applications were granted was “petulant” and that he objected to her family’s behaviour – calling them a “travelling circus”.

“I object . . . How dare you call me and my mother a ‘travelling circus’,” Ms Burke said. “Ask him to retract that remark,” she added – going on to call it “highly defamatory”.

Mr Ward urged the adjudicator to reject Ms Burke’s application.

Ms Burke said Mr Ward’s “travelling circus” remark was “highly defamatory”.

“My family is held in very high regard in the local community in Castlebar, Co Mayo. My mother is a qualified teacher and has taught for over 30 years. It is the height of insult and a defamatory comment to speak as Mr Ward did,” Ms Burke said.

Mr Baneham said if there was no sworn evidence for the defence to contradict the oral testimony Ms Burke would give later in the case, then he would have to prefer her account of events.

He declined to summon Mr Lynch and Ms D’Alton and said he would reserve his position on the emails.

However, the hearing did not move to Mr Moore’s evidence as Ms Burke stuck to her position on the application and her mother continued to make protests.

Mr Baneham suspended the hearing three times before taking a fourth, extended break at lunchtime.

Application

“If I can’t continue, I’ll suspend the hearing to allow people to reflect on their position,” he said, telling Mrs Burke: “I’m warning you now for a third time about that behaviour.”

“I’ve a right to be here to support my daughter when she’s been treated in this despicable manner,” Mrs Burke replied.

Mr Moore went to the witness chair again after lunch, but Mrs Burke’s protests continued and Mr Baneham gave her a fourth and a fifth warning. Ms Burke stuck to her position on her application and the hearing was suspended twice again between 2pm and 3pm.

Mrs Burke maintained that Mr Baneham had a duty to deliver “righteous justice” by calling in Mr Lynch to give evidence.

“I’m being obstructed from proceeding with the case,” the adjudicating officer said.

Following a sixth suspension, Mr Baneham said Mrs Burke’s behaviour was “obstructive”.

Mr Ward made a formal motion on behalf of Arthur Cox to have the claim dismissed on the grounds that Arthur Cox was being prevented from presenting its evidence.

Mr Baneham furnished the parties with copies of the WRC procedures for adjudication hearings along with two decisions of precedent and invited them to study them during a further break.

Evidence

On his return at 3pm, he said he was satisfied the parties were on notice that the consequence of him being unable to proceed with hearing the evidence of Mr Moore would be the termination of the hearing and the ending of the case and the complaint.

He said the precedent established was that the complaint could be terminated in the case of an impasse at hearing, even where the burden of proof was on the respondent.

“My case is, my position is, that the emails and Mr Lynch are central to the adjudication of this case, Ms Burke said. “It is wrong, we’re pleading with you all day,” she added.

“Criminal. Criminal,” her mother said.

“Chair, we can’t be expected to stay in the room,” Mr Ward said.

“I’ve given you my position,” Mr Baneham said.

Addressing her mother, Ms Burke said: “He’s asking you to be silent.”

Mr Ward said it was clear Ms Burke’s side “will not allow the evidence to proceed” and repeated his application to dismiss.

Ms Burke said there was a threat over her that her complaint would be “aborted, thrown out” if she did not “agree to your refusal to request the attendance of Mr Lynch and Ms D’Alton” and called it “blatantly and patently unfair”.

Mrs Burke began to applaud her submission.

Mr Baneham said there was no threat.

Terms

“I’m satisfied everyone understands the importance of what happens if I’m not able to proceed,” he said.

He said he would proceed with swearing in Mr Moore, the last respondent witness.

“If it doesn’t proceed, I’ll be bringing this matter to an end,” he said. “That will end the involvement of the Workplace Relations Commission,” Mr Baneham said.

Shortly before 4pm, Mr Baneham called on Mr Moore to take the affirmation, but Mrs Burke again began to speak.

“Mrs Burke, please desist,” Mr Baneham said. “I call Mr Moore.”

Mrs Burke continued to speak.

“Thank you, Mr Moore,” the adjudicator said, and dismissed the Arthur Cox managing partner.

“I formally bring this hearing to an end on the terms I outlined this afternoon,” Mr Baneham said.

He said he would issue the parties with a written version of his ruling.