Solicitor Ammi Burke has asked a High Court judge to recuse herself from hearing her challenge to the Workplace Relations Commission’s (WRC’s) rejection of her claim that she was unfairly dismissed by law firm Arthur Cox.
The application, made at the opening of her case against the WRC, asked Ms Justice Marguerite Bolger to recuse herself on a number of grounds, including that she has previously expressed views concerning the core issue in her proceedings and that she has a “particularly close relationship” with Arthur Cox’s senior counsel in the “tight-knit community” of employment law specialists.
The application will continue on Tuesday afternoon when the judge is expected to rule on the matter.
Ms Burke alleged Ms Justice Bolger and Arthur Cox’s barrister Peter Ward were founding members of the Employment Law Bar Association and have appeared on panels together.
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 under the 1977 Unfair Dismissal Acts is “inquisitorial” in nature.
It was also “extremely concerning”, Ms Burke said, that Ms Justice Bolger did not retract a statement, made at an earlier stage of the proceedings, to the effect that this was not a public interest action.
Ms Burke produced a letter she received from Arthur Cox’s solicitors in 2020 which included the judge’s name, who was 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?”
I will not have my name dragged through the mud
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Senior counsel for the WRC, Catherine Donnelly, said Ms Burke’s grounds do not meet the test required for moving a successful recusal request.
Mr Ward, for notice party Arthur Cox, agreed with the WRC’s submissions in opposing the recusal application, which came on the first morning of the hearing of her case. He submitted that Ms Burke made “offensive” comments to the judge at an earlier stage of her case.
Ms Burke objected to his characterisation of her previous words, saying: “I will not have my name dragged through the mud.”
Her case is asking the court to judicially review the WRC’s rejection of her claim that she was unfairly dismissed by Arthur Cox LLP in November 2019.
Ms Burke 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.
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 during which she raised this matter, which formed part of the basis for her dismissal, she said.
The explanation for her dismissal – an alleged breakdown of trust and confidence– was unclear and contradictory, she alleged.
Ms Burke claimed she suffered reputational damage and sought reinstatement.
Dismissal
Arthur Cox, represented by Mr Ward and barrister Mairead McKenna, instructed by Daniel Spring & Co, opposed her case at the WRC, submitting that certain exchanges she was involved in led to a breakdown of trust and confidence and to the decision to dismiss her.
The law firm accepted reviews of her employment were positive, but her relationship with three partners broke down.
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.
She is seeking judicial review of adjudication officer Kevin Baneham’s April 2022 decision to reject 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, 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, 2022, 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.
