Ammi Burke v an Adjudication Officer the Workplace Relations Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 November 2021
• Neutral Citation: [2021] IEHC 667
• Court: High Court
• Docket Number: 2021 No. 671 JR

Between

Ammi Burke

Applicant

and

An Adjudication Officer the Workplace Relations Commission

Respondents

Arthur Cox LLP

Notice Party

[2021] IEHC 667

2021 No. 671 JR

THE HIGH COURT

JUDICIAL REVIEW

Unfair dismissal – Procedure – Judicial review – Applicant seeking an order directing the first respondent to resume the hearing of the claim for unfair dismissal – Whether it was reasonable to direct that the fresh hearing be conducted by a different adjudication officer

Facts: The applicant, Ms Burke, applied to the High Court seeking to challenge the manner in which a claim for unfair dismissal had been dealt with. The claim had been submitted initially to the Director General of the second respondent, the Workplace Relations Commission, who duly referred it to the first respondent, an independent adjudication officer, for determination. The claim had been part heard, but not yet determined, when the Supreme Court delivered its landmark decision in Zalewski v An Adjudication Officer [2021] IESC 24. The Supreme Court held that, in the case of a claim for unfair dismissal, the absence from the Unfair Dismissals Act 1977 of any provision for the administration of an oath, or any possibility of punishment for giving false evidence, was inconsistent with the Constitution of Ireland. The legislation regulating the procedure for unfair dismissal claims was amended in an attempt to give effect to the decision of the Supreme Court. Prior to the introduction of the amending legislation, the adjudication officer notified the parties that the hearing of the claim would have to commence afresh before a different adjudication officer once the amending legislation had been enacted. The claimant sought to challenge the legality of that approach. It was said, variously, that the decision in Zalewski does not apply to claims which were already part heard, and that, in any event, there was no requirement for an oath to be administered in the context of this particular claim. The principal reliefs sought in the judicial review proceedings included, inter alia, an order directing the (original) adjudication officer to resume the hearing of the claim, and an order compelling the adjudication officer to direct the disclosure of certain documentation.

Held by Simons J that the procedural requirements identified by the Supreme Court in Zalewski apply, in principle, to pending claims for unfair dismissal which had not been subject to a final and conclusive determination prior to the date of the delivery of that judgment; it follows that the applicant’s part-heard claim for unfair dismissal was subject to those procedural requirements, and fell to be determined by reference to the amended procedures introduced under the Workplace Relations (Miscellaneous Provisions) Act 2021. Having regard to the serious and direct conflicts of evidence which had emerged at the hearings before the adjudication officer, and having regard to the allegation by the applicant that one witness had deliberately given false evidence to the adjudication officer, Simons J held that there could be no doubt but that the decision to discontinue the hearings, and to direct that the claim be heard and determined by a different adjudication officer, was legally correct. Simons J held that the determination of the claim had potentially grave implications for both parties, that it was essential that evidence be given on oath, and that both parties be entitled to defend their positions by way of cross-examination on oath. In order to ensure confidence in the process, Simons J held that it was entirely reasonable to direct that the fresh hearing be conducted by a different adjudication officer who had not heard any of the unsworn evidence previously tendered. Simons J held that considerations such as administrative convenience, efficiency or delay cannot trump the requirement that justice is not only done, but is seen to be done.

Simons J dismissed the application for judicial review in its entirety.

Application refused.

Appearances

The applicant represented herself

Catherine Donnelly, SC and Sharon Dillon-Lyons for the respondents instructed by the Workplace Relations Commission

Peter Ward, SC and Mairead McKenna for the notice party instructed by Daniel Spring & Co.

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 November 2021

INTRODUCTION

1 These judicial review proceedings seek to challenge the manner in which a claim for unfair dismissal has been dealt with. The claim for unfair dismissal had been submitted initially to the Director General of the Workplace Relations Commission, who duly referred it to an independent adjudication officer for determination.

2 The claim for unfair dismissal had been part heard, but not yet determined, when the Supreme Court delivered its landmark decision in Zalewski v. An Adjudication Officer [2021] IESC 24; [2021] 32 E.L.R. 213. This decision has significant implications for the hearing and determination of claims under the auspices of the Workplace Relations Commission. Relevantly, the Supreme Court held that, in the case of a claim for unfair dismissal, the absence from the Unfair Dismissals Act 1977 of any provision for the administration of an oath, or any possibility of punishment for giving false evidence, was inconsistent with the Constitution of Ireland.

3 The legislation regulating the procedure for unfair dismissal claims has since been amended in an attempt to give effect to the decision of the Supreme Court. Prior to the introduction of this amending legislation, the adjudication officer, who had been assigned to determine the claim the subject-matter of these judicial review proceedings, had notified the parties that the hearing of the claim would have to commence afresh before a different adjudication officer once the (then anticipated) amending legislation had been enacted.

4 The claimant in the unfair dismissal proceedings seeks to challenge the legality of this approach. It is said, variously, that the decision in Zalewski does not apply to claims which were already part heard, and that, in any event, there is no requirement for an oath to be administered in the context of this particular claim for unfair dismissal.

5 The principal reliefs sought in these judicial review proceedings include, inter alia, an order directing the (original) adjudication officer to resume the hearing of the claim, and an order compelling the adjudication officer to direct the disclosure of certain documentation. In oral submission, it was said that this court has a duty to put the adjudication officer back in “ her judging box” to hear out the rest of the claim for unfair dismissal.

PROCEDURAL HISTORY

6 The applicant for judicial review is a qualified solicitor and had been employed by the notice party, Arthur Cox Solicitors (“ the law firm” where convenient). The applicant's employment was terminated summarily in November 2019. The applicant has since brought a claim for unfair dismissal pursuant to the provisions of the Unfair Dismissals Act 1977.

7 The procedure governing unfair dismissal claims is prescribed principally under the Unfair Dismissals Act 1977, and partly under the Workplace Relations Act 2015.

8 The claim for unfair dismissal had been made to the Workplace Relations Commission on 31 January 2020. In accordance with the statutory procedure prescribed, the claim was referred by the Director General of the Workplace Relations Commission to an independent adjudication officer for determination. The claim has been part heard, having been before the adjudication officer on five separate occasions between September 2020 and May 2021. It should be explained that on a number of these days the hearing was limited to a matter of hours in compliance with the then applicable COVID-related public health measures.

9 This judgment is not concerned with the underlying merits of the claim for unfair dismissal. However, to allow the reader to understand certain of the grounds of judicial review advanced, it is necessary to rehearse one aspect of the claim as follows.

10 It appears that the applicant's former employer, Arthur Cox Solicitors, is seeking to defend the claim for unfair dismissal on the basis of the law firm's dissatisfaction with the applicant's (alleged) conduct and behaviour in the office and her relationship with her colleagues. It further appears that the law firm has sought to place particular reliance on an incident said to have taken place on Monday, 1 April 2019. There had been a conversation on that date between the applicant and a partner at the law firm, Mr. Kevin Lynch. This conversation related to events on the preceding Friday and Saturday. The applicant and Mr. Lynch had been acting on opposite sides of a so-called “ Chinese Wall” in respect of a commercial transaction. The applicant maintains that there had been delays on the part of Mr. Lynch's team in progressing the transaction, and that these delays were as a result of Mr. Lynch and members of his team having attended a social event that evening marking the departure of a senior associate from the law firm.

11 The applicant, in her grounding affidavit, has described the conversation on Monday, 1 April 2019 as involving her “ respectfully” mentioning to Mr. Lynch that she did not think it acceptable that she had been left in the office until 2 am as a result of his team's delays due to socialising. The applicant has explained, in submission to this court, that Mr. Lynch has described the conversation in very different terms, having told the adjudication officer that she (the applicant) had “ shouted” at him on 1 April 2019 and had accused him of delays. Mr. Lynch is also said to have told the adjudication officer that he had never been treated like that in all of his years at the law firm.

12 The parties had given (unsworn) evidence on this issue at a hearing...