High Court: Solicitor fails in challenge to WRC handling of unfair dismissal claim against Arthur Cox

About this case:

• Citation:
  [2021] IEHC 667
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The applicant challenged the decision for the case to be reheard by a new adjudicator, claiming that this was done for the benefit of the respondent, Arthur Cox LLP. It was said that Zalewski did not apply to the present case for several reasons. However, the court rejected the applicant’s assertions and refused the reliefs sought.

Background

The applicant, Ms Ammi Burke, was a solicitor who issued proceedings in the WRC against her former employer, Arthur Cox LLP alleging that she had been unfairly dismissed. The circumstances of the dismissal were heavily contested by both parties. The applicant had been working on a commercial transaction in 2019, with several of her colleagues working on the other side of the transaction under a so-called “Chinese Wall” procedure.

She claimed that she had been left waiting until 2am for the deal to close and alleged that the delay was a result of the partner of the other team socialising at the time. The next day, she claimed to have respectfully talked with the partner about the situation, outlining her view that it was unacceptable.

The partner, Mr Kevin Lynch, had a different view of the conversation. The partner initially maintained that the transaction had closed at 10.30pm and that, further, Ms Burke had shouted at him. He said that “he had never been treated like that in all of his years at the law firm.” As a result of the incident, Ms Burke was summarily dismissed following the incident.

The WRC hearing commenced in October 2020. There was a significant dispute about the time that the deal closed, but it was accepted during the course of the hearing that the partner was mistaken and that the deal closed at 2am. As a result of this concession, the applicant made numerous requests for all the emails in the six-hour period prior to the transaction. The adjudication officer refused the requests but indicated that she would return to the issue if the situation required it.

The hearing was adjourned until May 2021 and in the interim period, the Supreme Court delivered its judgment in Zalewski. The WRC took steps to comply with the decision and published a notice on its website outlining certain procedural changes. These changes included that, where there was a “serious and direct conflict of evidence,” an officer was required to adjourn the matter for rehearing. This notice was subsequently amended to say that an officer “may” order a rehearing.

In the circumstances, the adjudicator determined that the applicant’s case would be set down for a fresh hearing due to the conflict in evidence between the parties. This decision was made despite the applicant wishing her case to continue.

The applicant alleged that the amended notice represented an “after the fact clean-up” and a “whitewashing” of the adjudicator’s decision. The applicant was also dissatisfied with the decision for a fresh hearing and brought judicial review proceedings seeking to quash the decision.

The applicant argued that Zalewski did not apply to part-heard cases and that Arthur Cox would receive a litigious advantage if the matter were reheard with sworn evidence. It was also alternatively argued that the adjudicator’s decision was wrong on the merits because there was no serious and direct conflict of evidence. Finally, Ms Burke sought an order of mandamus for the production of the emails relating to the night of the transaction.

High Court

Delivering judgment in the case, Mr Justice Garrett Simons began by outlining the import of the Zalewski decision to the constitutionality of WRC procedures. It was noted that legislation had been enacted since the decision which provided for sworn evidence and penalties for false evidence.

The court went on to reject each of Ms Burke’s submissions about the applicability of Zalewski to the present case. It was held that there was no difference in the effect of a finding of unconstitutionality between civil and criminal cases (A. v. Governor of Arbour Hill Prison [2006] IESC 45). Further, if the adjudication officer had continued to conduct the case, then the administration of justice would be carried out in a manner that had already been identified as insufficient in Zalewski.

The court also rejected that the Zalewski decision put her at a disadvantage and gave Arthur Cox an advantage in the case. On the contrary, the court held that the new provisions for sworn evidence were “undoubtedly to the advantage of all sides, including the applicant.”

Further, the court said there was no authority for the proposition that Zalewski did not apply to pending claims because the finding of unconstitutionality had been based on an omission from the offending legislation (Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71 considered).

The court then considered the merits of the adjudication officer’s decision to rehear the matter. Even though there was very little information given to the court about the case itself, there were “significant disputes of fact,” the court said. It was noted that Ms Burke was alleging that Mr Lynch had given “false evidence” which was a very serious accusation to make against a solicitor.

It was held that the factual controversy could only be resolved through oral testimony and cross-examination. The suggestion that the disclosure of emails would resolve all factual matters was incorrect in light of the dispute about Ms Burke’s argument with Mr Lynch. It was also noted that Ms Burke’s attack on Mr Lynch’s evidence would affect the evidence of two other partners at Arthur Cox. As such, the adjudication officer’s decision was legally correct and necessary to ensure confidence in the WRC process.

While every case would be subject to its own facts, the present case lay “at the far end of the spectrum” and required a fresh hearing. While there may be some delay to the case, it was “eminently sensible” for a new hearing to be ordered.

The court also held that it was “entirely improper” for Ms Burke to personally criticise the adjudication officer. It had been argued that the officer was acting to protect the interests of Arthur Cox.

The court held that there was no evidential basis for the allegation that the amendment to the WRC’s notices were attempts to “whitewash” the adjudicator’s decision. It was noted that adjudicators were independent in the exercise of their functions and not bound by the notices.

Finally, on the issue of the production of emails, the court held that the point was generally moot because a rehearing had been ordered. Further, it was obvious that the officer had not reached any concluded view on the necessity of the emails, so any application for same was premature.

Conclusion

The court concluded its judgment by making general observations about the appropriateness of judicial review in interim procedural rulings, noting that relief would only be granted in exceptional cases. It was determined that the applicant was not entitled to any of the reliefs sought in the proceedings and the application was dismissed.