Thursday, July 28, 2022

High Court reporter

A High Court judge has refused an application from solicitor Ammi Burke seeking an expedited hearing date for her challenge to the Workplace Relations Commission’s (WRC’s) rejection of her unfair dismissal claim.

Last May an independent adjudication officer threw out her complaint to the WRC that she had been unfairly dismissed in November 2019 from leading law firm Arthur Cox LLP.

Earlier this week, Ms Justice Marguerite Bolger gave permission for Ms Burke, from Cloonsunna, Castlebar, Co Mayo, to bring her High Court judicial review action claiming the adjudication officer’s decision was flawed, made in breach of fair procedures, and should be set aside.

On Thursday, Ms Burke brought what she said was an “urgent” application seeking an earlier return date and an expedited hearing of her claim. She sought this in the “extremely rare circumstances” of a summary dismissal of a solicitor.

At the remote hearing, Ms Burke said it has been more than two years since she was dismissed from Arthur Cox and she has been unsuccessful in obtaining legal employment since then. The situation, she added, has had a “severe impact” on her legal career and the prospect of her obtaining future employment.

Public interest

An expedited hearing was also sought on the basis that her claim was “strongly” in the public interest, as it concerns the WRC’s adoption of certain procedures, she submitted.

Ms Burke pointed to her claim that the officer’s ruling that the adjudication of an unfair dismissal claim is adversarial or essentially adversarial is “unfair, incorrect and contrary to law”. If she is successful in obtaining a declaration to the effect that an inquisitorial approach to adjudicating unfair dismissal claims is required, it will have implications for all such claims, she said.

Ms Burke said it was relevant that Ms Justice Bolger was an expert in employment law, with significant experience in the field from when she was a practising barrister.

“You will know, therefore, that issues of public importance are raised in this judicial review,” she added.

A matter of “grave concern” to Ms Burke, was the judge’s statement at the Monday hearing to the effect that the applicant’s case does not raise issues of public importance. Ms Burke said the assertion was “unwarranted” and it was also “unprecedented” that she had not been allowed to amend her statement of grounds, as requested.

The solicitor said it was a “misstatement” to classify the case as not in the public interest and said this “needs to be retracted as a matter of urgency”.

Interruption

In giving her ruling on the application, Ms Justice Bolger repeatedly asked Ms Burke not to interrupt her. The judge warned that the court registrar would have to mute Ms Burke’s microphone if she continued to speak over her.

Ms Justice Bolger said Ms Burke was entitled to appeal her decisions made on Monday. The appropriate route to do this was through the Court of Appeal, she said.

The judge also said she appreciated that a dismissal is a matter of “considerable stress” to any employee. She did not make a distinction between a solicitor and other employees who are dismissed.

She refused Ms Burke’s application for an earlier hearing, saying she would have to take her place in the queue of judicial review cases.

Following the ruling, Ms Burke said it was a “very sad day in Ireland when a High Court judge makes a decision that she knows is wrong”. Ms Justice Bolger responded: “In that case you should appeal it.”

In her action against the WRC, with Arthur Cox LLP on notice, Ms Burke claims that under the 1977 Unfair Dismissal Acts any such procedures in the adjudication of such claims must be inquisitorial in nature.

She also alleges the decision was flawed because the adjudication officer refused to summon two witnesses employed by Arthur Cox before the hearing and failed to have certain emails produced. She says both the witnesses, who she wanted to cross-examine, and the emails are very important to her claim.

The case will return before the court in November.

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