Case Number: ADJ-00026883. Workplace Relations Commission

• Judgment Date: 16 March 2022
• Docket Number: ADJ-00026883
• Year: 2022
• Date: 16 March 2022
• Court: Workplace Relations Commission
• Respondent: Arthur Cox LLP

Procedure:

On the 31st January 2020, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was heard at adjudication on the 18th February, 25th March, 31st March and 1st April 2022. The first two days were held remotely and addressed preliminary matters. The second two days were in person at the offices of the Workplace Relations Commission, Lansdowne House, Dublin.

The complainant represented herself and was accompanied by her mother, Mrs Martina Burke, her brother, Isaac Burke and other family members. The respondent was represented by Peter Ward, SC, Mairead McKenna, BL, instructed by Daniel Spring & Company solicitors. Grainne Hennessy, Cian Beecher, Ultan Shannon and Geoff Moore attended for the respondent.

The first day of hearing dealt with case management and took place remotely on the 18th February 2022. The parties made submissions on the format of the hearing, the presentation of evidence and the witnesses to attend.

Having considered the submissions, I decided that the interests of justice required that the hearing proceed on an in-person basis because of the complexity of the case, the number of witnesses and the importance of the documentary evidence. I also ruled that all documentation was required to be submitted prior to the hearing and could not be introduced during proceedings, for example during cross-examination. The parties provided their submissions and documentary evidence on the 24th March 2022.

The hearings were scheduled for in-person hearing over four days: 31st March, 1st April and the 7th and 8th April 2022. The latter two days were not required. The complainant made a recusal application on the 16th March 2022, and this was subject to a hearing on the 25th March 2022. The ruling in respect of the recusal application was circulated to the parties on the 28th March 2022 and is appended to this decision.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant worked for the respondent between the 10th May 2016 and the 12th November 2019. The complainant was initially employed as a trainee solicitor and later as an associate solicitor. The respondent terminated the complainant’s employment. The complainant asserts that the dismissal was unfair, and the respondent denies this.

Summary of Respondent’s Case:

In submissions of the 31st March 2022, the respondent outlined that the complainant’s employment was terminated in accordance with her contract. The complainant was employed as an associate solicitor in the finance department during the course of 2019. It was submitted that the complainant’s relationship with three partners broke down as a result of the complainant’s behaviour, rendering their relationship to be unsustainable and untenable. The respondent identified Ms Hennessy, Mr Shannon and Mr Lynch as the three partners. The respondent submitted that the exchanges were such that it lost trust and confidence in the complainant because of the nature and content of those exchanges. The complainant was paid three months’ pay in lieu of notice and an ex gratia payment of €70,000. The respondent submitted that there were substantial grounds justifying the dismissal. The respondent submitted that reinstatement could not be countenanced in this case. The respondent submitted that the evidence would show that the complainant is incapable of communicating in a professional manner and this is so fundamental to the role. The nature of the complainant’s communications sundered her relationship with the respondent. The complainant’s behaviour in the aftermath of the dismissal made reinstatement impossible, including the picket at the offices of the respondent. The respondent outlined that the complainant had taken judicial review proceedings on grounds including that the adjudication officer and the Workplace Relations Commission had made decisions to protect the interests of the respondent. These were serious allegations against the adjudication officer and the Workplace Relations Commission, and it was found that this was an allegation of bias. This embroiled the respondent in a serious and damaging public controversy and this is sufficient grounds to render a resumed employment relationship an impossibility. It was submitted that the complainant is incapable of dealing with the partners in a professional way as demonstrated during her employment and afterwards. It was submitted that the complainant had accused the respondent and solicitors acting on its behalf of giving false evidence. It was submitted that there was a pattern of people being accused of the most serious things and having to defend themselves. It was submitted that these were grounds not to reinstate the employment relationship. Evidence of Ultan Shannon Mr Shannon outlined that he commenced as a trainee at the respondent in 1996. He had spent most of his career in banking and finance. He qualified in early 2000 and then became a partner in 2005 and then a senior partner in 2010. He had occupied senior roles in the respondent. There were 6 senior partners and 20 associates in the finance department at the time the complainant started. Trainees are brought through and taught. He said that you see how they work with the team and see their legal technical skills as well as how they interact with clients and their business acumen. They try to bring them up the curve. Partners assigned work to the associates and an associate could be working across groups, for example property or tax. The respondent had five rotations for trainees to give them as much exposure as possible and for them to learn as much as possible. Solicitors work with trainees as soon as they are made associates. Mr Shannon said that he had worked with a huge number of associates and trainees. Mr Shannon outlined that the complainant had finished her final trainee rotation in the finance group. He outlined that he had been asked by a named staff member to take the complainant into his group and this was the first time he had ever been asked to take in a trainee. He said that he was informed that other groups were reluctant to take the complainant. Mr Shannon said that he knew that the complainant had ability and could get on with her team. He outlined that in 2019 the finance group was allocated three associates when they had been looking for five. Both he and Orla O’Connor had pushed for the complainant. He was satisfied with the complainant’s work, and they wanted the complainant because she was good. Mr Shannon said that the complainant did well initially. One associate asked that they not share an office with the complainant because this associate said that she swore a lot. Another associate was on secondment, so Mr Shannon asked this associate if the complainant could share with her. He outlined that this associate raised some issues about the complainant’s attitude, and he suggested that the associate try this for a while. Mr Shannon outlined that Grainne Hennessy was then on sabbatical. She is a senior partner and one of the most senior partners in the respondent. She had shared an office with two trainees who were also now becoming associates. On her first day back to work from sabbatical, Ms Hennessy had arranged to meet these two associates for lunch later that week. Ms Hennessy approached Mr Shannon to ask what the story was about the complainant. Ms Hennessy described to him how she had invited the complainant to join them at the lunch and the complainant then had a go at her. The complainant spoke about being excluded and Ms Hennessy had explained her previous relationship with the two associates and that she had asked the complainant to join them. Ms Hennessy described to him that while she was speaking, the complainant was not listening and kept repeating about being excluded. Ms Hennessy informed him that she was dumbfounded that she could send an email to a newly qualified associate to invite her to a lunch but then for the complainant to have a go at her and to say that she felt excluded. He said that this was maybe their first interaction. He described Ms Hennessy as being in shock. He said that he was in shock as the complainant was only in the role for a few days and this incident had already arisen with one of the senior partners. He outlined that this felt like a ‘kick’ as he had supported the complainant in coming to the group. The lunch invitation was a polite gesture and was turned into something bigger. He said that he could not believe that the complainant would behave in this way, and it demonstrated a lack of awareness. He said that he then thought that Ms Hennessy would not work with the complainant. He described that the complainant had been passive aggressive and was accusatory and she kept saying ‘excluded’. Mr Shannon said that one could not engage with your team and across teams and with clients if these behaviours are going to come out. He said that he was surprised and disappointed. He said...