A High Court judge has refused to recuse herself from hearing Ammi Burke’s challenge to a rejection of her claim of unfair dismissal from law firm Arthur Cox.
Ms Justice Marguerite Bolger ruled against Ms Burke in her application seeking the judge’s recusal from her case against the Workplace Relations Commission (WRC) due to an alleged reasonable apprehension of objective bias.
Ms Burke is challenging the WRC’s decision to rejection of her complaint over her November 2019 dismissal from Arthur Cox LLP.
The legal test for objective bias is "well established", requiring a reasonable observer informed of the relevant facts to reasonably apprehend there is a risk an applicant will not receive a fair trial by an objective judge, she said.
The judge said she did not believe a reasonable observer informed of the facts would come to this conclusion in this case and rejected all four grounds Ms Burke advanced in support of her claim of bias on the part of the judge.
Ms Burke alleged Ms Justice Bolger had a "particularly close relationship" with Arthur Cox’s senior counsel, Peter Ward, in the "tight-knit community" of employment law specialists. They were founding members of the Employment Bar Association and appeared on professional panels together over the years, she alleged.
She further claimed Ms Justice Bolger authored a 2015 article which expressed a view on whether unfair dismissal hearings should be adversarial or inquisitorial in nature. Ms Burke contends in her action that the procedure must be inquisitorial, and the judge’s statement eight years ago "effectively decides" this "core issue" to the contrary, she alleged.
Mediation
Arthur Cox’s solicitor, Donal Spring of Daniel Spring & Co, was directed on Tuesday to file a sworn statement setting out his contention that Ms Justice Bolger, then a senior counsel, was never contacted about potentially mediating Ms Burke’s claim against the law firm.
Ms Burke had produced a letter she received from the solicitor in 2020 that contained the then-barrister’s name, among two other senior counsels, proposed as possible mediators.
The judge said Mr Spring confirmed no such conversation took place.
Also, Ms Burke said it was "extremely concerning" that Ms Justice Bolger would not retract a statement, made in July 2022 at an earlier stage of this case, to the effect that Ms Burke’s claim was not a public interest case.
The WRC and Arthur Cox, a notice party in the proceedings, opposed the recusal application, arguing there was no basis for the judge to step aside.
Ms Burke said she had an exemplary and unblemished record during her time at the law firm and was fired without warning at a meeting with the managing partner, she alleged.
The explanation for her dismissal – an alleged breakdown of trust and confidence– was unclear and contradictory, she alleged.
She claimed 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, was never addressed through a conversation with a partner, she said.
Ms Burke claimed she suffered reputational damage and sought reinstatement. She has not secured employment since, the court heard.
Breakdown
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.
Reinstating Ms Burke was not possible due to her post-employment behaviour, including picketing its offices, it said. She received three months’ pay in lieu of notice and an ex gratia payment of €70,000.
In April 2022, WRC adjudication officer Kevin Baneham rejected her complaint, saying the hearing could not proceed due to persistent interruptions by the Burkes.
They had objected to her earlier procedural decisions, on April 1st, 2022, refusing Ms Burke’s request to summon a partner at Arthur Cox and a human resources director to give evidence and to order the firm to discover certain emails.
Prior to this, Mr Baneham had rejected Ms Burke’s application to recuse himself from dealing with the case.
In her judicial review, Ms Burke alleges 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.
She also claims his termination of the proceedings and dismissal of her complaint was unfair, unlawful and/or outside his powers.
After the judge concluded her judgment, Ms Burke immediately rose to object to being "forced" to proceed with her case before Ms Justice Bolger.
The judge left the courtroom to give the parties time to consider her ruling.
