The High Court has dismissed solicitor Ammi Burke’s challenge to a decision that her part-heard unfair dismissal claim against Arthur Cox Solicitors must begin again before a different Workplace Relations Commission adjudication officer.
Mr Justice Garrett Simons ruled on 11 November 2021 that the serious disputes of evidence in the claim required witnesses to give evidence under oath and be subject to cross-examination. He said a fresh hearing before an officer who had not heard the earlier unsworn evidence was reasonable and legally correct. The court did not decide whether Burke was unfairly dismissed.
Burke’s claim had been heard on five occasions between September 2020 and May 2021. The Supreme Court’s April 2021 decision in Zalewski v An Adjudication Officer found that the absence of a power to administer an oath or punish false evidence in unfair dismissal proceedings was unconstitutional. Legislation giving adjudication officers those powers took effect on 29 July 2021.
The original adjudication officer concluded that there was a serious and direct conflict of evidence in Burke’s case and said it should start afresh before another officer. The High Court rejected Burke’s argument that the Supreme Court ruling did not apply to part-heard claims. Because her claim had not been finally determined, it had to proceed under the amended procedures, the judge said.
The court referred to conflicting accounts of a conversation on 1 April 2019 between Burke and Arthur Cox partner Kevin Lynch. Burke said she had respectfully raised concerns about delays on a commercial transaction; Lynch was said to have described her as shouting at him. There was also a dispute about when the transaction closed. Arthur Cox later confirmed that Burke’s account of the closing time—about 2am—was correct, saying Lynch had confused it with another transaction.
Burke had sought emails from a six-hour period on the night of 29 March 2019, arguing that they would help establish the transaction timeline and the reason for the delay. The original officer had not reached a final decision on that request. The High Court declined to order production: the issue could be raised afresh with the new officer, and the request for mandatory relief was premature in the circumstances.
The judgment also stressed that judicial review of interim rulings in WRC unfair dismissal cases would generally be exceptional, particularly where statutory appeal routes remain available. The court dismissed the application in its entirety. It did not make a costs order at this stage; it directed the parties to file submissions and listed a further hearing on costs for 16 December 2021.