Complainant

Respondent

Parties

Ammi Burke

Arthur Cox LLP

Representatives

Self-represented

Peter Ward SC and Mairead McKenna BL instructed by Daniel Spring & Co. solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977

CA-00034114-001

31/01/2020

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.

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 that he did not speak with the complainant about this and was hoping that it would be okay after this. He described that a pattern of behaviour came out over time. The next incident involved Kevin Lynch. Mr Lynch had called to the complainant on a Monday to thank her for a transaction that completed the previous Friday. The complainant had a go at Mr Lynch about having to work so late on the Friday night. Mr Shannon said that Mr Lynch described his exchange with the complainant and asked if the complainant can speak to him like this how would she speak with someone else. He described Mr Lynch as being angry as he had gone to thank a newly qualified associate and she gave out to him about working late. The issue was one of awareness and there is a manner of professional engagement, and he was utterly shocked as this was the response to a ‘thank you’. Mr Shannon said that there had been a social event on the Friday for an associate who was leaving, to which he had attended but not Mr Lynch. Mr Shannon said that he did not think that Mr Lynch would work with the complainant after this exchange. Mr Shannon said that the complainant’s response to the conversation was inappropriate and related to her awareness of how it is understood.

In respect of the complainant’s review in July 2019, Mr Shannon said that both he and Orla O’Connor reviewed the complainant. They said that the complainant’s work was good and suggested that she work with others. At the end of the review, Ms O’Connor asked the complainant were there any other issues the complainant wished to raise, and the complainant brought up two issues: a client lunch to which she was not invited and the January lunch. Ms O’Connor said that they did not want people to be excluded. Mr Shannon outlined that reviews were generally constructive and positive and he could not ever recall a negative review. This review lasted about an hour. At the end of this review, Ms O’Connor asked again were there any other issues. Mr Shannon said that Ms O’Connor is positively engaging and would ask several times at the end of a review whether there were any issues.

Mr Shannon said that following the review, he had a sense that something was up. Two days after the review, he approached the complainant and asked was everything okay. The complainant then told him that she had felt that she was being interrogated at the review. The complainant repeated this and said that she was being treated differently to others. She had been told that the review would only last 20 minutes. Mr Shannon said that he replied that reviews took different lengths of time and that the complainant had received a positive review. He also told the complainant that he and Ms O’Connor were supporters of her, but this did not get through. He described the complainant as having a passive aggressive tone and said that there was no listening. The complainant then left the office. The following day, the complainant asked him about a transaction, and this was a routine question. The complainant was very calm and did not mention at all their previous conversation. He said that he was astounded that the complainant was dealing with him calmly after challenging the review the day before.

Mr Shannon said that he tried to look after associates but none of what he was saying to the complainant was getting through. He described the complainant as being aggressive and that she had engaged in a tirade against him and had interrogated him. The complainant had said that she felt that she was being interrogated. Mr Shannon said that he had spoken to HR after the review to ask how he could reengage with the complainant. He told HR that he was slightly at a loss. He then went on annual leave, and this became a circuit breaker.

Mr Shannon said that it was the complainant who had raised the January incident. What he and Ms O’Connor had said about working with others was not related to the incidents with Ms Hennessy and Mr Lynch.

Mr Shannon outlined that the associate with whom the complainant had shared an office was to move to a new role. In September 2019, this associate took up a support role which was not fee earning. Mr Shannon asked this associate to stay for a while longer. This associate informed him that the complainant could be quite disrespectful with associates and the associate was finding it uncomfortable. The associate had asked to be moved office several times. Mr Shannon said that he met the associate who broke down and explained what had transpired with the complainant. He told the associate not to come in the following day and the associate was moved to a new office.

Mr Shannon said that the other associate told him that the complainant had asked her a legal question. The associate did not answer the email and the complainant approached her and repeatedly said that she was a disgrace. The complainant spoke about the associate enjoying a coffee but not answering the complainant’s query.

Mr Shannon discussed this matter with HR. He approached the complainant to ask her what her legal question was. The complainant would not tell him. The complainant said that it was disingenuous of him to ask about the question. The complainant said that he should ask the other associate what happened. Mr Shannon said that he asked the complainant to give her side of the story and the shutters came down. He said that he could not get a response or information from the complainant. He said that he was pleading with the complainant and asked her again what the legal question was. He said that the complainant had no awareness and could not communicate. After the conversation, he approached HR and was completely at a loss and he knew that the situation was serious.

Mr Shannon outlined that he then put things in motion for the other associate to switch offices. On the following Monday, the complainant approached him. He said that he thought she was going to apologise for the conversation the previous Thursday. He said that the complainant asked for an explanation why the other associate had been moved. He replied that the other associate had asked to move. The complainant said that she was a pariah and that she was being treated differently. The complainant spoke about the associate enjoying herself and not answering the question. The complainant repeated many times that she was taking this very seriously. The complainant said that she felt bullied and intimidated. Mr Shannon said that he replied by saying that he actually felt bullied and intimidated and said that they were taking it very seriously. He described that the complainant was not hearing and had no self-awareness.

Describing the meeting of the 11th November 2019, Mr Shannon said that the complainant had a tone of aggression when she was saying that she was being treated differently. It was like the respondent was the enemy. The complainant accused him of conspiring with the other associate. Mr Shannon said that the other associate had told him that she felt uncomfortable, and that the complainant had called her a disgrace. He said that the other associate was a top performing and senior associate, who was collaborative in her approach.

Mr Shannon spoke with HR about this conversation and a decision was made to terminate the complainant’s employment. He outlined that it was an impossibility to work with the complainant not just for him and his team but with the other teams. He said that it was not tenable for the business and for their clients. He asked what would happen if something arose with a client. He said that his trust in the complainant was gone; not the complainant’s ability to draft a document or memo but to do all the other things in the role. People who work at the respondent are not best friends, but they are hugely supportive of each other and have to work as a team. He said that they supported their colleagues and expect professional standards.

Mr Shannon said that this was a general breakdown in the relationship and not a matter of being 33.3%. He said that he had never come across a similar attitude and this level of lack of awareness. He had been a supporter of the complainant, so he was bothered.

Mr Shannon said that the meeting of the 11th November had lasted about 10 to 15 minutes. He wrote the handwritten notes straight after and confirmed that the exhibited notes were his. The complainant had asked whether he had given the other associate permission to move office and he said that he had. The meeting ended with the complainant walking out.

Mr Shannon outlined that he felt that their relationship was completely sundered. He found the behaviour as being not normal in any way. The complainant did not display any awareness and kept repeating how she was being treated, without hearing his explanations or being open to engagement. He said that he had not experienced anything even remotely like this in 23 years. He said that he could not see how this could continue. The complainant’s reaction showed him that his support for her did not mean anything for her. This support did not fit the discussion and it was all about how the complainant felt and that the respondent was all against her.

Mr Shannon outlined that they had already met on Friday, 8th November 2019 about the complainant. He did not feel that he could have a professional relationship with the complainant and could not do so now. He informed the banking partners of the decision to terminate the complainant’s employment. He said that reinstatement would be completely impossible and there would be no trust there and there would be another incident. After the complainant’s dismissal, there was a letter to all partners and a picket outside the offices as well as the case in the High Court. He said that the respondent had to know that they could trust an employee and trust them with clients. This went beyond working with three partners. He outlined that he had never had an incident or a series of incidents like this. He said that the respondent is close and tight knit so reinstatement would not be possible as someone could not just assimilate in these circumstances. Mr Shannon clarified that the bonus review process was a different process to the review that he and Ms O’Connor did in July 2019.

Mr Shannon said that the pickets at the respondent offices commenced in December 2019 and resumed in January and February 2020. He said that the office locked down the Thursday before St Patricks Day 2020 and there were more pickets in the summer of 2020. Commenting on the reference in placards to ‘Christian solicitor’, he outlined that religion was never a feature in their discussions and he would never ask an associate about their religion.

Cross-examination of Ultan Shannon

In cross-examination, it was put to Mr Shannon that he and the complainant had first met in 2016 as set out in the review; he replied that he could not recall this per se and he did not recall the positive feedback from a named colleague. It was put to Mr Shannon that he had used subjective language in what he said at the hearing and not much evidence, so that the complainant’s first rotation was important. Mr Shannon accepted that the review said that the complainant was professional. He did not recall that the complainant had shared an office with Ms O’Connor. Mr Shannon accepted that the 2017 review held that the complainant had exceeded expectations in oral communication. In respect of a nursing home construction project, Mr Shannon remembered the project and noted the very positive comment made about the complainant’s role in the project, but he could not recall them having lunch together.

The complainant put it to Mr Shannon that the named staff member had approached her in the summer of 2018 to ask that she work in finance and not property; the complainant had taken this away and agreed to it, to which the named staff member thanked her for being flexible. Mr Shannon replied ‘if you say so’. Mr Shannon accepted that the period from August to December 2018 was busy. He accepted that the complainant had dealt with a client who was anxious while he was away, and that the complainant had pitched in with late hours. He also accepted that the complainant had called to a client’s home late at night to finalise a matter.

It was put to Mr Shannon that the complainant was offered her first choice in banking; he replied that she received the only offer that she could take. It was put to Mr Shannon that she had a very positive meeting with the then Managing Partner and she told him of this at this time; Mr Shannon accepted this. He also accepted that the complainant had a good relationship with Ms O’Connor, although he was not aware of a particular research project.

It was put to Mr Shannon that the complainant had worked with all the partners in the department except Ms Hennessy and Mr Lynch; he replied that she had done so within expectations. He accepted that the complainant had worked with senior associates and that they encouraged her to work with others as it was important to learn. He accepted that a named partner had given a very positive character statement regarding the complainant (dated 7th May 2019).

Mr Shannon said that there was nothing in writing in respect of the issues raised by the other associate about the complainant. It was put to Mr Shannon that the complainant had asked the other associate on the Wednesday if she was available to answer a question and the other associate had replied not now. This person was a senior associate, so this frustrated the complainant. It was put to Mr Shannon that the office of the other associate was cleared the next day, and this did not add up. The complainant said that she had a civil conversation with the other associate and was shocked and felt that a judgement had been made about her. Mr Shannon said that he had met the other associate the day before and gave permission for her to move office. He did not accept that this meant that he had made a judgement about the complainant. He said that the other associate had previously asked to move office and he had this in train and proceeded to move the other associate. He said that he had informed the complainant that he had previously spoken to the other associate about this; the complainant refuted this. The complainant asked why would she have asked Mr Shannon for an explanation of why the other associate had moved office if he had already told her; he replied that he had told the complainant that he had spoken with the other associate and was looking for the complainant’s side of the story.

It was put to Mr Shannon that some partners had met on the previous Friday and decided to dismiss her; he replied that there was no meeting of the partners but that he, Ruth D’Alton, Geoff Moore and Cian Beecher had met, and they were pretty certain but had not decided what was going to happen. He said that any certainty was removed the following week.

It was put to Mr Shannon that the conversation with Ms Hennessy was five minutes and that with Mr Lynch was two minutes and that while he had given evidence of these conversations, they were not mentioned in the July 2019 review; he replied that the reviews were attempts at positive engagement and they sought to have the person identify any issues. It was put to Mr Shannon that the fact that the conversations were not mentioned at the review; he replied that the complainant had raised the conversation with Ms Hennessy. Mr Shannon was asked whether he had been hoping that she would bring the conversation up; he replied that he was not hoping, just giving the complainant the opportunity to bring this up. He accepted that he had not raised the exchange with Mr Lynch at the review, but this did not take away from his view that the conversation was inappropriate. He did not think that it was contradictory to refer to the complainant’s conversation with Ms Hennessy as a ‘kick’ and then not to say anything about it in the review months later. He did not accept the complainant’s proposition that the conversations were said to warrant dismissal but not serious enough to raise in the review.

The complainant outlined that she refuted that she had gone on a tirade, and she refuted that she had a go at people. The complainant said that she had raised concerns with Ms Hennessy, Mr Lynch and Mr Shannon. Mr Shannon said that the conversation with the complainant had taken place on the 11th November and not on the 12th November.

In re-examination, Mr Shannon said that he disagreed with the opinion and comments of the complainant. He said that the other associate had emailed asking to be moved and that she had asked to be moved before. The other associate also said that the complainant had called her a disgrace. He said that this had been a breaking point for the other associate and that she had been completely distraught at their meeting.

Evidence of Grainne Hennessy

Ms Hennessy outlined that she qualified as a solicitor in 1990 and became a partner in 1995. She had always worked in banking. She took a sabbatical in 2018 and returned to work in early 2019. Ms Hennessy said that she had never really met the complainant before and would have only passed her on the corridor. She had shared an office with one of the new associates and worked closely with another. On her return to work from sabbatical, she arranged to meet these two associates for a private lunch. Ms Hennessy said that she decided to also invite the complainant. Ms Hennessy said that the banking department had three new associates and she felt the need to be inclusive.

Ms Hennessy said that sending the invitation was the last thing on her to-do list of the day. She had not expected the complainant to reply but the complainant entered her office. Ms Hennessy said that the complainant was standing over her and she had remained seated. The complainant said that she was disgusted and offended and felt that Ms Hennessy was commenting on her work effort. Ms Hennessy said that she repeatedly tried to explain why she had sent the email and apologised over and over again. Ms Hennessy said that she explained that it was a personal lunch, and nothing was meant by it. Ms Hennessy said that she did not know how to bring the conversation to an end, and she had apologised at least 8 times.

Ms Hennessy said that she could not understand the complainant’s reaction and thought that she had sent her the wrong email. The complainant said that she was offended and excluded. Ms Hennessy said that she felt that this was someone who has a victim mentality and sees every engagement as a banana skin for them. Ms Hennessy said that the complainant had no understanding of how to behave and could not be trusted with a client or also with other trainees and associates.

Ms Hennessy said that she felt that she could not risk any interaction with the complainant. She could not then work with her. Ms Hennessy said that she was aware of the decision made to dismiss the complainant but was not involved in it. She said that she was aware that there was incident after incident involving the complainant, especially the incident with Mr Lynch and with the other associate. Ms Hennessy said that she was surprised that reinstatement was being sought as redress as she could not see how they could take a risk. She said that she had thought that the picket was sad as it was bringing publicity to the complainant’s dismissal. She said that the complainant is bright and has good legal skills.

Cross-examination of Grainne Hennessy

In cross-examination, it was put to Ms Hennessy that their conversation in January 2019 was a mild conversation, and that the complainant would refute everything Ms Hennessy had said. The complainant said that she was nervous and new to the team. She had felt that the lunch had already been organised and she was being asked to tag along. It was put to Ms Hennessy that she had made far reaching comments about the complainant following one conversation; Ms Hennessy agreed and said that the complainant saw every interaction as a banana skin. It was put to Ms Hennessy that she only had one interaction with the complainant; Ms Hennessy replied that she had 30 years of experience and had been flabbergasted by this interaction. Ms Hennessy said that she had invited the complainant to another lunch in May 2019.

Ms Hennessy was asked whether she had arranged to meet with HR after the January incident; Ms Hennessy replied that the complainant was less than two weeks in the job. Ms Hennessy said that she had serious questions about the complainant’s judgement and deliberately did not go to HR. Ms Hennessy said that the conversation lasted for longer than five minutes. Ms Hennessy said that she felt that she could not end the conversation. Ms Hennessy said that she was so shocked by what happened that she would not work with the complainant again. Ms Hennessy said that she questioned why they had taken the complainant into the department. Ms Hennessy said that the conversation revealed so much about the complainant. It had been at least a 15-minute interaction.

It was put to Ms Hennessy that the associate development framework lists five core competences and only one is technical skills; Ms Hennessy replied that there is not a different review form for different years of PQE (post qualification experience), so any review after six months would not discuss skills such as client skills. Ms Hennessy said that while client skills is listed in the form, they could not form part of discussions in the first six months in the role. She said that the conversation changes according to the amount of PQE. It was put to Ms Hennessy that the complainant had dealt directly with a named client in her second rotation as a trainee; Ms Hennessy replied that she was making a general statement and this form covers all associate roles. She said that what gets focussed on for a newly qualified solicitor is different to that with associates with more PQE. It was put to Ms Hennessy that this review covers people skills; Ms Hennessy replied that this referred to leadership and they did not discuss leadership with a NQ in the role for six months.

It was put to Ms Hennessy that it was strange that the January conversation was not mentioned in the review; Ms Hennessy replied that Mr Shannon is a nice guy and a supporter of the complainant. Ms Hennessy said that Mr Shannon had gone out on a line for the complainant and tried to put these things to a side. Ms Hennessy said that this was a kick to Mr Shannon and that the complainant had not realised what he did for her. It was put to Ms Hennessy that the complainant had worked across the respondent firm on major finance deals between January and November 2019 and this was inconsistent with how Ms Hennessy had portrayed the complainant; Ms Hennessy replied that she had formed this opinion in January, and she was not involved with the complainant thereafter. She said that the complainant was a member of her team. She said that the complainant had refused another invitation for lunch. Ms Hennessy said that she had welcomed the complainant on her first day back from sabbatical.

It was put to Ms Hennessy that there were only three incidents involving the complainant; Ms Hennessy replied that she was aware of other incidents involving the complainant and associates. In respect of the trainee reviews, Ms Hennessy said that this was the first time she had seen the forms regarding the complainant’s traineeship and said that they were positive. Ms Hennessy said that this positive review did not detract from her evidence. Ms Hennessy said while the complainant was bright, she had to interact with respect with all colleagues and be able to process an apology given to her. It was put to Ms Hennessy that the positive reviews refer to the complainant working in a team; Ms Hennessy said that being a team player has many facets and the attributes mentioned in the review - long hours and helping others – were one aspect, but it is also not being abusive and knowing how to interact with others. It was put to Ms Hennessy that in the assessment of the complainant’s people skills, the complainant obtained ‘exceeds expectations’ or ‘meets expectations’.

In opening submissions, the complainant outlined that on the 12th November 2019 she was unfairly dismissed by the respondent. Her employment commenced on the 10th May 2016, and she had qualified as a solicitor. She had an exemplary and unblemished record. The complainant outlined that no partner in the finance department ever approached her about any aspect of her conduct or employment. The complainant received excellent appraisals. The complainant said that she was summarily dismissed at a meeting with the Managing Partner. She had not been given notice of this meeting, nor the reason for the meeting. The complainant said that she had been in the middle of work. The complainant said that she was the subject of commentary online and the writer of the article wrote to the head of the London office for comment. No attempt was made by the respondent to prevent the publication of the article. The rumours preceded the publication of the article and began the night she was dismissed. The complainant said that reputational damage was a key part of the case. The complainant said that reinstatement was the only just and appropriate remedy in this case including because of the small and close-knit nature of the legal community. She said that dismissals of solicitors are rare, and this is a regulated profession.

The complainant outlined that both her and her mother would give evidence. She sought for a summons to issue for Kathleen Garrett to give evidence as she had worked with this partner throughout 2019. The complainant sought a summons for email correspondence sent on the night of the 29th March 2019 regarding the delayed transaction. The complainant outlined that the emails were essential and necessary. This arose because of the evidence given by Mr Lynch at the first adjudication. This evidence had been wrong about the time the deal finished and it was delayed. The emails were necessary as they went to what the respondent had said about her. The complainant outlined that the delays had been because Mr Lynch and the associate on that side of the transaction had been out socialising. The complainant said that she had raised a concern with Mr Lynch. On the following Monday, Mr Lynch popped his head in the door and said ‘well done’. The complainant told him that it was inacceptable that she be left in the office until 2am. The complainant said that no partner had approached her about the incident. The complainant submitted that the respondent was using the conversation as 33.3% of its grounds of dismissal. The complainant had met Ruth D’Alton eight days after her dismissal and she gave the reasons for the dismissal. She had mentioned three partners: Mr Lynch, Mr Shannon and Ms Hennessy.

During cross-examination, the complainant opened the respondent reviews of her performance as a trainee solicitor. The complainant also referred to positive comments made about her by partners, associates and others.

The complainant’s first trainee review is dated the 19th August 2016. The complainant was given 11 ‘meets expectations’ scorings in technical skills, people skills and practice management skills and 1 ‘exceeds expectations’ in ‘contribution to trainee/intern recruitment events and intern programme’. The complainant identified achievements and skills she had developed during the rotation. The reviewer commented ‘[the complainant] is on her first rotation but has adapted well and is always professional and confident. She takes responsibility for tasks allocated and her ability to meet deadlines is excellent.’

In the review of the complainant’s second rotation (dated the 6th March 2018), the complainant was awarded 8 ‘meets expectations’ and 4 ‘exceeds expectations’. The ‘exceeds expectations’ were for writing and drafting skills, oral communications and presentation (including interacting with clients and/or colleagues, taking ownership of work and time management). In the areas identified by the complainant as an example of ‘excellent performance’, she cites attending a Coroner’s Court where she had to unexpectedly address the court and faced unwarranted interruption and interrogation by counsel for the family of the deceased. The complainant states that this propelled her into court advocacy. The reviewer commented that the complainant had a very strong rotation and that her ability to take leadership is very impressive.

In the review of the fourth rotation (dated the 29th March 2018), the complainant was award 6 ‘meets expectations’, 5 ‘exceeds expectations’ and 1 ‘outstanding performance’. The ‘exceeds expectations’ were given for ‘solution-focused research’, ‘writing and drafting skills’, ‘teamwork with colleagues’ and promotion of the respondent. The ‘outstanding performance’ was for contribution to knowledge management. The complainant was awarded ‘exceeds expectation’ overall and the reviewer commented on the complainant’s strong commitment to the team and willingness to help others.

The complainant progressed from trainee to associate solicitor, and this included a substantial rise in her salary. The complainant was awarded a bonus in July 2019.

The complainant provided 11 character statements made by senior partners, partners and associates of the respondent between August 2016 and December 2019. They were mainly taken from emails or reviews. Three are attributed to Kathleen Garrett. All the comments are exceedingly positive about the complainant’s work and contribution to the respondent.

The trainee appraisals and the character statements form part of the record of this case and attest to the complainant’s professional contribution as a solicitor in a major firm. They attest to her skill, her work ethic and her people and communication skills when dealing with work.

In initial submissions, the complainant outlined that she had an exemplary and unblemished employment record with the respondent. The complainant submitted that she was dismissed in a summary fashion and the respondent stated that this was a ‘no-fault’ dismissal. The complainant submitted that reinstatement was the appropriate form of redress, citing ADJ-00019429. In this case, the adjudication officer had awarded reinstatement. She cited other cases where reinstatement was awarded, including because of the impact on the claimant’s career or reputation.

In further submissions of the 16th October 2020, the complainant submitted that there were no substantial grounds justifying her dismissal and her dismissal was utterly devoid of natural justice and fair procedures. The complainant did not accept that a breakdown of trust and confidence, the ground cited by the respondent, could constitute substantial other grounds to justify the dismissal, per section 6(6) of the Act. The complainant relied on the WRC decision of A Nurse v A Hospital (ADJ-00024009) which challenged that a loss of trust and confidence can be cited too easily by an employer to justify a dismissal. The complainant cited Gallacher v Abellio Scotrail [2020] EAT/0027/19/SS, where the Tribunal questioned whether trust and confidence could be cited where there is a disparity in seniority between the protagonists involved in a dispute and where the dismissed employee is the more junior.

The complainant stated that the alleged breakdown of trust and confidence was unfounded and untrue. The complainant outlined that she had never worked with two of the partners referred to by the respondent. The complainant stated that she had not heard anything about a breakdown in trust and confidence prior to the dismissal meeting of the 12th November 2019. The complainant stated that the respondent was unclear and contradictory in the reasons given for her dismissal. She outlined that the respondent now cited her behaviour and conduct, allegations she refuted.

The complainant submitted that the dismissal was procedurally unfair as she was dismissed without warning or notice. The complainant cited the provisions of SI 146/2000. Relying on ADJ-00024009, the complainant submitted that fair procedures were of particular importance in a regulated profession, for example nursing or that of a solicitor. The complainant outlined that the manner of the dismissal was a complete shock, including not having notice of the meeting or what it was about. After being told she was dismissed, she was not allowed back to her desk and was ‘effectively ordered out of the building’ to a waiting taxi. The complainant stated that the respondent had acted recklessly in dismissing her when there was the unresolved matter relating to the other associate. The respondent breached her confidentiality after the dismissal in material leaked to the media.

The complainant outlined that the manner of her dismissal should influence the appropriate form of redress to be awarded. The complainant cited ADJ-00001266 and ADJ-00001194 where reinstatement was ordered taking account of the effect of the dismissal. The complainant cited Bank of Ireland v Reilly [2015] IEHC 241 in respect of the manner in which the employer had acted and that an award of compensation would not provide adequate redress. The complainant submitted that the unfounded allegation of a breakdown of trust and confidence has had an extremely damaging effect on her career and because the allegation was untrue, it could not be a barrier to her reinstatement. The complainant submitted that the newspaper article and the picket, at which she did not participate, could not be a barrier to her reinstatement.

In additional submissions of the 24th March 2022, the complainant submitted that reinstatement was the only just and appropriate remedy. She referred to the post-dismissal conduct of the respondent and submitted that reinstatement was practicable. She outlined that many of the associates working there in 2019 have since left.

Complainant application for summons

The complainant submitted that Kevin Lynch and Ruth D’Alton were necessary witnesses to the case. The complainant submitted that the emails were necessary for a fair and full investigation of the case. The complainant outlined that the adjudication officer has the power to summons witnesses to attend a hearing and to require the production of documents.

The complainant said that there was a WRC requirement for a party to provide a list of witnesses. The complainant had emailed and phoned the WRC to ascertain the respondent witness list for this day of hearing. She had also contacted the respondent solicitor. The complainant said that it was a shock announcement that these two witnesses would not now attend. The complainant submitted that the case could not proceed without hearing from Ms D’Alton who was present on the 12th November 2019 and from Mr Lynch who was one of the three witnesses who had made witness statements as part of this case.

In respect of the emails, the complainant said that she had started work at 8am on the 29th March 2019 and finished at 2am. She was left on her own closing a big deal. She understood that the partner and the associate on the other side of the transaction were out socialising. The conversation with Mr Lynch the following Monday was for two or three minutes. The complainant said that she was dismissed because of what she had said to Mr Lynch and she, therefore, needed Mr Lynch to give evidence and for the emails to be produced.

The complainant said that the emails were important as the deal had closed at 2am. The respondent had got the time the deal closed wrong at the previous adjudication. There were significant delays in communication from the other side of the transaction. The complainant said that she had informed Mr Lynch that it was unacceptable that she had been left in the office until 2am because of his socialising. The complainant said that she needed to question Mr Lynch and that the adjudication officer should be interested in hearing his evidence. The complainant said that she had a right to have Mr Lynch give evidence. She said that there had been significant delays in communication from the respondent side.

Submission of the respondent

In respect of the interventions made by Mrs Burke, the respondent outlined that Mrs Burke had no right of audience other than as witness. It was submitted that the first day of hearing addressed whether the hearing should be in-person and the recusal application was dealt with on the second day.

It was submitted that the complainant had taken entirely unsuccessful judicial review proceedings. There was evidence on affidavit about what happened on the first five days of the adjudication regarding the unacceptable conduct of the complainant and her family. The recusal application was rendered farcical.

It was submitted that the complainant now wanted to determine how the case was going to run. It was submitted that the complainant had misunderstood how a case runs. It was for the respondent to proffer the evidence it wished in defence of the claim. The complainant did not have a right to dictate how the respondent ran its case. The complainant could not say that she would withdraw from the case. It was for the adjudication officer to determine the weight of the evidence adduced. Section 8(1)(c) provided that it was for the parties to present their evidence relevant to the claim.

The respondent submitted that the complainant could not dictate what evidence the respondent should adduce. The WRC procedures were in aid of the hearing and the course of the hearing is determined by the Unfair Dismissals Act. The witness statements and witness lists were procedural matters in aid of hearings and there is no statutory requirement for either. It was submitted that there was no rationale for any summons to issue. There was no requirement for either Mr Lynch or Ms D’Alton to attend. It referred to the evidence of the previous day regarding the conversation with Mr Lynch that showed that the complainant was at risk. Mr Shannon had to deal with the situation that Mr Lynch would not work with the complainant. It was submitted that everything else was irrelevant. It was submitted that it was for the adjudication officer to decide what weight to give to Mr Shannon’s account. The respondent outlined that the manner it decided to fight the case was influenced by what had transpired before. It was submitted that the complainant could not intervene in the respondent’s presentation of evidence, and which witnesses it adduced. The respondent later made an application that the complaint be dismissed on grounds that the hearing had become impossible to continue.

Further submission from the complainant

The complainant said that Mr Ward should retract his comments in relation to the complainant and her family, in particular the reference to them being a travelling circus. The complainant said that this was highly provocative. She said that it was highly defamatory, and they are in high standing in the local community.

In respect of the emails, the complainant said that Mr Shannon had given evidence the previous day that she had behaved inappropriately in the conversation with Mr Lynch. The complainant said that the parties were not in agreement that the delay in completing the transaction were due to failings on the other side, i.e. Mr Lynch’s side. The complainant said that the respondent was asking that the adjudication officer accept Mr Lynch’s description of the conversation of the 1st April 2019.

The complainant submitted that the case law regarding the dismissal of an employee in a regulated profession demanded strict procedures. The complainant cited the WRC decision in A Nurse v A Hospital ADJ-00024009. A strict standard had to be applied in the adjudication of a complaint of unfair dismissal in respect of an employee who worked in a regulated profession. The complainant outlined that Ms D’Alton had given her the names of three partners and that the decision to dismiss her was made on the Friday. Ms D’Alton had said that this was their first no-fault dismissal.

Ruling on the summons request

On the 1st April 2022, I gave a ruling verbally on the summons request. I first addressed the issues of language and tone. I said that I was not addressing any particular person nor referring to any particular remark. I recognised that there had been a lot of water under the bridge in this case. I said that it was important to ensure that this case be heard and be progressed. I said that all parties deserved respect and I asked people to choose their words carefully. When deciding what word to use, I asked that they deliberately choose the word or phrase that was the least provocative, so that this case could move forward. I said that this was about respect for each other. I said that I too deserved respect and should be allowed to speak and to manage the hearing. I said that people should stay seated during the hearing.

I said that I was not granting the requests to summons either Mr Lynch or Ms D’Alton. I said that the power to issue a summons in the Unfair Dismissals Act was permissive in nature. I said that the presumption in the Unfair Dismissals Act was that the dismissal was unfair and that the burden of proof was on the employer to show that there were substantial grounds justifying the dismissal. It was for the respondent to present evidence to dislodge the presumption of unfair dismissal. While the respondent had previously indicated that both Mr Lynch and Ms D’Alton would give evidence, the respondent was now electing that they not now give evidence. I said that the result of this is that where there was direct evidence from the complainant on a point and no direct evidence provided by the respondent, then I had to prefer the evidence of the complainant. I cited the example that Mr Shannon had given an account of the complainant’s conversation with Mr Lynch, but this evidence was hearsay evidence. If the complainant’s account of the conversation with Mr Lynch was different to the description given by Mr Shannon and with no evidence from Mr Lynch, then I had to prefer her account of the conversation. I said that I had reserved my position on the summons for the emails as I wished to first hear evidence from the complainant on the transaction of the 29th March 2019 before deciding whether the summons was required.

Events following the ruling

After giving the ruling and further exchanges with the complainant and her mother, I proceeded to call Mr Moore to swear the oath and commence his evidence. Mr Moore was Managing Partner at the time of the complainant’s dismissal and made the decision to dismiss the complainant. Mr Moore approached the witness desk and I sought to administer the oath. The complainant’s mother and the complainant continued to speak, objecting to my ruling on the summons issue. Mr Moore could not be sworn in.

I asked the complainant’s mother and the complainant to stop speaking and to allow the case to continue. Persistent interruptions from the complainant’s mother and the complainant caused me to suspend the hearing. On resuming the hearing, I warned the complainant’s mother and the complainant about their behaviour and their obstruction of the case proceeding. I then called Mr Moore again to go to the witness desk for me to administer the oath. Again, the complainant’s mother and the complainant raised their objections to the summons ruling and persisted in speaking. I could then not proceed with administering the oath to Mr Moore. Again, I asked the complainant’s mother and the complainant to desist, to no avail. I again suspended the hearing, and this was the pattern for the remainder of the day.

I made six attempts during the course of the day to administer the oath to Mr Moore. Each time, the complainant’s mother and the complainant interjected and repeated their objections to my initial ruling on the summons request. This prevented the oath being administered. Each time, I warned the complainant and her mother about these interjections and their obstructing the course of the hearing. I warned the complainant of the consequences of this obstruction of the hearing and asked the complainant to reflect on her position.

After the fourth attempt at swearing in the witness, I indicated that I would be invoking the WRC procedure on adjudication hearings (22nd December 2021). I explained that I would dismiss the complaint of unfair dismissal if I could not proceed with the hearing. I gave the parties two relevant decisions. I gave time for the parties to read the documents and to consider their position. I suspended the hearing on several more occasions. I ensured that the parties understood the consequences. The complainant stated that the hearing could proceed, and Mr Moore sworn in if I granted the summons requests. I declined to alter my ruling.

I tried to persuade the complainant to allow the hearing to proceed so that we could hear about what happened on the 12th November 2019 and to hear from her about the unfair dismissal. I explained that all we had to do was to get through this impasse and to swear in Mr Moore. I said that we had two full days of hearing scheduled for the following week, and because the parties had provided comprehensive submissions and documentation, we had plenty of time to complete the hearing in those two days.

I made two further attempts to call Mr Moore to swear the oath and to commence his evidence. On the final attempt, I was clear that this was the last occasion I would be calling Mr Moore and the consequences of me not being able to complete the swearing process. The complainant and her mother repeated their objections to my ruling on the summons request and the complainant repeated some of the points made at the recusal hearing, including that she had no confidence in me. I then dismissed the complaint of unfair dismissal, and I ended the hearing.

This is a complaint pursuant to the Unfair Dismissals Act. The following are the relevant statutory provisions of the Unfair Dismissals Act.

Statutory framework

Section 6 – Unfair dismissal

Section 6(1) of the Unfair Dismissals Act provides that a dismissal shall be deemed unfair, unless there are substantial grounds justifying the dismissal.

Section 6(4) provides that a dismissal will not be an unfair dismissal if it was wholly or mainly due to specified grounds, for example conduct. Section 6(6) makes it clear that the burden of proof is on the employer to show that any of the grounds cited in section 6(4) apply ‘or that there were other substantial grounds justifying the dismissal’.

Section 6(7) allows for regard to be had to the reasonableness of the employer’s conduct and the employer’s adherence to any rules or Code of Practice.

Section 7 – redress in unfair dismissal

The Unfair Dismissals Act provides the following forms of redress where a dismissal is deemed to be unfair:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances…’

Section 8(1) – determination of a claim of unfair dismissal

Section 8 provides for the determination of claims of unfair dismissal. Section 8(1)(c) sets out the duties of the adjudication officer, replicating the provisions of the Workplace Relations Act and other enabling statutes. Section 8(1)(c) provides:

‘An adjudication officer to whom a claim for redress is referred under this section shall —

(i) inquire into the claim,

(ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,

(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and

(iv) give the parties to the claim a copy of that decision in writing.’

Broken down, section 8(1)(c) requires the adjudication officer to inquire into the claim and in addition, to allow the parties the opportunity to be heard and also to present any evidence. The ‘duty to inquire into the claim’ was inserted in 2015. Subsection (iii) provides for a binary decision to a claim of unfair dismissal: an award of redress per section 7 or the dismissal of the claim of unfair dismissal. The word ‘dismissal’ is used in two different ways in section 8, i.e. the claimant’s ‘dismissal’ from their employment and in subsection (iii), the dismissal of the claim itself. This written decision represents compliance with subsection (iv), i.e. the provision of a written decision.

Section 8(13) - summons

Section 8(13) gives the adjudication officer the power to summons a witness to give evidence at the hearing of a claim of unfair dismissal or to produce relevant documents. This was added to the Unfair Dismissals Act by way of the Employment (Miscellaneous Provisions) Act 2018 to replicate similar provisions in the Workplace Relations Act and other enabling statutes.

Section 8(13) reads:

‘(13) (a) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.

(b) A person to whom a notice under paragraph (a) is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court.

(c) A person to whom a notice under paragraph (a) has been given who —

(i) fails or refuses to comply with the notice, or

(ii) refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates,

shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.’

Section 8 (14) – the power to administer the oath/affirmation

The power to require sworn evidence was inserted to the Unfair Dismissals Act by the Workplace Relations (Miscellaneous Provisions) Act 2021. This followed the judgment of the Supreme Court in Zalewski v Workplace Relations Commission, where it was held that such a power was required for the adjudication of unfair dismissal claims where there was a serious and direct conflict of evidence. In this case, there is no doubt that there is significant conflict in the evidence of the parties.

Section 8(14) provides:

‘(14) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person. 

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable— 

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or 

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.’

The applications for summons to be issued in this case

The impasse reached on the 1st April 2022 arose following my ruling on the complainant’s application that certain summons be issued in accordance with section 8(13) of the Act. Ultimately, the impasse and the refusal by the complainant and her mother to allow the hearing to proceed beyond this point, led to my decision to dismiss the claim of unfair dismissal per section 8 of the Act.

The hearing on the 1st April 2022 commenced at 10.30am and I gave the ruling at about 11.45am. The impasse and interruptions continued from 11.45am to 4pm, all at the point where I sought to progress the case to the swearing in of the respondent witness, Mr Moore. I was never able to swear in Mr Moore.

In advance of the hearing of the 31st March 2022, the complainant requested that Kathleen Garrett, partner with the respondent be summonsed to give evidence to the hearing and for certain emails to be produced as evidence (emails sent on the 29th/30th March 2019). On the 1st April 2022, the complainant applied for summons to be issued in respect of Kevin Lynch and Ruth D’Alton. This arose as the respondent had indicated the previous day that Mr Lynch and Ms D’Alton would not now be giving evidence. The complainant said that their evidence was required for the hearing, in particular that of Mr Lynch as he had given evidence at the hearing before the other adjudication officer.

The emails sought relate to the Friday night and Saturday morning the complainant worked on the Chinese Wall transaction. It was not apparent to me why they were required for the case as the complainant had initially sought them arising from Mr Lynch’s evidence at the first adjudication hearing. I indicated that I would reserve my position regarding whether a summons should issue for the emails. I stated this position on both the 31st March and the 1st April 2022, deciding that I should hear the complainant’s evidence before ruling on the email summons.

On the 31st March 2022, I indicated that I was minded to issue the summons in respect of Ms Kathleen Garrett. On the 18th February 2022, I had already indicated to the parties that I thought Ms Garrett’s evidence was important as she was the partner the complainant worked most with as an associate and the complainant’s line manager during the transaction of the 29th March 2019. [Mr Lynch was the partner on the other side of the Chinese Wall transaction]. I also thought it important to have evidence that was likely to be positive about the complainant’s work as an associate (as signalled in the character statements submitted by the complainant). Ms Garrett was not involved in the decision to dismiss the complainant. I was not aware on the 18th February 2022 that Ms Garrett had retired, but in any event, her evidence would be important. As she was going to be the complainant’s witness, Ms Garrett would be called after the respondent had finished their case, likely to be on the 7th or 8th April 2022. No summons was issued and nor did Ms Garrett give evidence because of the events of the 1st April 2022.

I indicated that the position in respect of Mr Lynch and Ms D’Alton was different to that of Ms Garrett. They participated in the decision to dismiss the complainant. While they were initially signalled as witnesses, the respondent outlined that they would not now be giving direct evidence to the hearing. The respondent outlined that it was entirely up to it to decide what evidence to proffer and how to defend the claim.

Calling witnesses / Resolving conflicts of evidence

McGrath on Evidence, 3rd edition (2020), at paragraph 3.42, opined that ‘In civil proceedings, each party is free to call any witnesses, in whatever order, it wishes. In general, a judge has no right to call witnesses without the consent of the parties, although he or she may do so in cases of civil contempt or child care proceedings. A judge also has the power to recall a witness previously called by a party.’

This extract provides that it is for parties, and not the judge or decision-maker to determine which witnesses to call. This is reflected in the permissive wording in section 8(13); it provides that an adjudication officer ‘may’ require the attendance of a witness or the production of documents. The hearing of unfair dismissal claims is evidence-based and decided according to the burden of proof. In the event of a conflict of evidence, a party must have direct evidence to counteract the evidence of the other party. A party can choose what evidence to proffer.

By definition, the adjudication of employment law disputes at the Workplace Relations Commission arises in the field of private law (arising from the contract of employment) and not public law. The role is to decide whether either party A or party B is successful. This is very different from the role of the Court or decision maker in, for example, childcare proceedings (see the example cited in the footnotes to paragraph 3.42 of McGrath on Evidence: AMQ v KJ [2018] IECA 97). A Court’s decision to issue directions per section 47 of the Family Law Act 1995, for example to obtain an independent welfare assessment regarding a child, reflects the court’s role in determining the best interests of the child, in line with the statutory framework and Article 42A of the Constitution. The decision regarding the best interests of a child and whether such an assessment should be made is not centred on whether party A or party B should win, but on the best interests of the child.

A decision regarding the best interests of a child is at the opposite end of the spectrum to the determination of an employment law claim, such as unfair dismissal. It is not that an unfair dismissal claim is less important, but that its determination is much more adversarial than inquisitorial. As stated, the decision per the Unfair Dismissals Act is a binary one: was the employee unfairly dismissed or should the claim of unfair dismissal be, itself, dismissed. The ‘duty to inquire’ in section 8(1)(c)(i) of the Act does not alter the essentially adversarial nature of an unfair dismissal claim. It cannot be a pure inquisitorial duty if the only possible outcomes are that the complainant was unfairly dismissed or that their claim is dismissed.

The complainant cited WRC adjudication decisions, in particular ADJ-00024009, as authority to support her submission that Mr Lynch and Ms D’Alton be summonsed. I consider these authorities below and they do not support the proposition that witnesses on the employer side must be summonsed to give evidence where the employer does not proffer them as witnesses.

Bank of Ireland v Reilly

What is striking from Bank of Ireland v Reilly [2015] IEHC 241 is the number of key respondent witnesses who did not give evidence to the various hearings, even though some had attended the proceedings before the EAT and the Circuit Court. This included three members of management who had investigated the claimant’s email account. The recipients of the emails forwarded by Mr Reilly as well as the independent appeal decision-maker, who made the final decision to affirm the dismissal were not called. None of these witnesses gave evidence, nor was a summons sought for them to give evidence. Mr Justice Noonan held at paragraph 53: ‘Mr. Reilly’s evidence was that the practice of circulating these inappropriate emails was widespread. The evidence put before me certainly demonstrated significant evidence of the circulation of this type of material not only within the bank but throughout a large number of public companies and state and semi-state bodies. No evidence was led by the bank to contradict Mr. Reilly’s evidence on this point, which I accept. Mr. Reilly struck me as an honest and truthful witness not given to exaggeration or hyperbole. I also believe that the bank was well aware of the practice.’

In Bank of Ireland v Reilly, the employer did not present evidence to contradict the employee’s evidence that the emails were widely disseminated, including originating from the employer’s headquarters. As the employer did not proffer evidence, the court preferred the evidence of the employee. There was no question of the court filling in the gaps in the employer’s case by summonsing the three management witnesses, the recipients of the emails or the independent party who determined the final appeal. This is akin to the approach I took in respect of the complainant’s case.

ADJ-00024009

As noted, the complainant relied heavily on the WRC decision in ADJ-00024009 (A Nurse v A Hospital) in submissions of the 1st April 2022. This decision refers to the ‘high standard’ required to justify the dismissal of a professional operating in a regulated environment, for example a solicitor or a nurse. The complainant submitted that this warranted that a summons be issued for both Mr Lynch and Ms D’Alton.

ADJ-00024009 arose from the dismissal of a nurse over ‘major non-compliances’ [as identified by HIQA] in care provided to an elderly patient. The employer relied on the investigation report and disciplinary process to justify the dismissal on grounds of serious misconduct. In his decision, the adjudication officer, Pat Brady, assiduously unpicked each of the grounds relied on by the employer. The adjudication officer pointed out that the investigation never made a definitive finding in respect of the central allegation against the claimant [that a sheet was tied around the patient]. The adjudication officer held that the employer could not demonstrate that it had adequately ‘heard’ the claimant’s points in mitigation, i.e. arising from the institutional failings in care. The adjudication officer held that the employer could not ‘unilaterally’ decide that trust and confidence was breached. He concluded that a reasonable employer would not have dismissed the employee and awarded re-instatement, in particular because of the effect a dismissal on grounds of ‘abuse’ would have on a nurse seeking new employment.

In ADJ-00024009, it was for the employer to present evidence to prove the conflicts of fact between the parties, for example whether a sheet was tied to the patient as opposed to being placed over his abdomen. No witnesses were summonsed to give additional direct evidence to the hearing. What the employer presented as evidence in respect of the relevant conflicts of fact was what they presented. For the detailed reasoning set out by Mr Brady, this evidence was wholly insufficient in resolving the conflicts of fact in the employer’s favour, thereby leading to the finding of unfair dismissal and the decision to re-instate the nurse.

I agree with the complainant’s submission that the assessment of ‘reasonableness’ involves regard for the serious consequences of a dismissal, for example to a nurse dismissed on grounds of ‘abuse’. I do not agree with the complainant that this also required that witnesses be summonsed. In ADJ-00024009, the employer presented its evidence, and this was found to be insufficient. It was not only that the employer had not discharged the presumption of unfair dismissal, but also that it did not have the evidence to prove the key fact in the case (whether the sheet was tied). The adjudication officer’s role was to assess the evidence and decide according to the strength of that evidence. Where the evidence is insufficient, the role of the adjudication officer is certainly not to replicate the work of the investigation team.

The approach I adopted in the complainant’s case is the same approach as adopted by the adjudication officer in ADJ-00024009. That case is not authority for the proposition that the adjudication officer must summons witnesses to give evidence not tendered by that party. Any conflict of fact will be determined against that party and that is sufficient for deciding the case.

ADJ-00019429

The complainant relied on ADJ-00019429 ‘An IT Tutor v A Community Training Organisation’, a decision of Thomas O’Driscoll, adjudication officer. The organisation’s Chair and the claimant’s line manager gave evidence for the respondent. The claimant and a colleague gave evidence for the claimant. The adjudication officer assessed the respondent’s evidence, finding that it was wholly insufficient. He identified shortcomings in the documentary evidence. He held that the dismissal was unfair and ordered re-instatement.

This reflects that the role of the adjudication officer is to decide the case before them, resolving conflicts in evidence according to the direct evidence presented at the hearing. There was no question of the adjudication officer seeking additional evidence from the parties, including summonsing additional witnesses of the respondent.

ADJ-00001194

In ADJ-00001194 ‘A Former Employee v An Excavation Company’, the adjudication officer Aideen Collard heard evidence from the claimant and four witnesses for the employer. The adjudication officer preferred the evidence of the claimant, finding that the evidence of the key witness for the employer was ‘wholly incredible’. The adjudication officer found the dismissal to be unfair and ordered reinstatement.

ADJ-00001266

The complainant relied on ADJ-00001266, a decision where I reinstated a bank official dismissed on grounds of theft and fraud. Two witnesses gave evidence for the employer: the investigator and the disciplinary manager. The evidence referred to eight traders actioning trades on behalf of the claimant, which the employer said were fraudulent. The evidence referred to many other bank officials involved in these transactions. The employer asserted that the claimant had ‘concealed’ his parents’ connection to the account; the claimant asserted that ‘everyone knew’. In adjudicating the case, there was no question of summonsing the traders or the other bank officials. It was for the parties to adduce evidence to address the relevant conflicts of evidence. The investigation had not interviewed the traders and bank officials as witnesses and nor did they give evidence to the hearing. There was, therefore, no rebutting evidence to the direct evidence of the complainant. I applied the same approach in hearing the complainant’s case, including in deciding the summons requests for the reasons set out in this decision.

Decisions regarding the summons

The above cases were cited by the complainant in support of her case, including on the question of whether a summons should be issued in respect of Mr Lynch and Ms D’Alton. No summons was issued in any of the above cases. Moreover, the approach of the High Court and the adjudication officers in the latter cases was to assess the evidence presented by the parties. The approach was to resolve conflicts of evidence according to the direct evidence presented. The approach was not to issue a summons to fill in gaps in a party’s evidence. I was not required to fill in gaps in the respondent case by issuing a summons to require the attendance of Mr Lynch and Ms D’Alton.

The power to summons is not a power to require a party to meet a case in a certain way. It is not a power to fill in the gaps in a party’s evidence. Here, the respondent decided to put three witnesses forward and not to call further witnesses. They are entitled to make such a call and so be it, if they do not have direct evidence to contradict any direct evidence the complainant may give. I cited the example of the tenor of the complainant’s conversation with Mr Lynch. The complainant denies that it was of the tenor described by the respondent. Mr Shannon gave an account of what Mr Lynch said to him about the conversation. While the evidence of the conversation between Mr Shannon and Mr Lynch is not hearsay (as Mr Shannon was a participant to the conversation), this was not evidence of the tenor of the conversation between Mr Lynch and Ms Burke as only they could attest to that. The summons is not a device to fill in the other party’s case. If Mr Lynch did not give evidence of the conversation, the only evidence would be that of the complainant. I said to the complainant that I would have to prefer her evidence as this would be the only direct evidence. 

The evidence that Ms Garrett might have given was of a different nature. It was not relied upon by the respondent as grounds to justify the complainant’s dismissal. Ms Garrett was also not involved in the decision to dismiss, unlike Mr Lynch and Ms D’Alton. While Ms Garrett had previously given a brief witness statement, the respondent did not intend to call her as part of this case. Of the partners, Ms Garrett had worked with the complainant the most and as set out in the character statements, was likely to have positive evidence regarding the complainant. Summonsing Ms Garret was not to fill in gaps in the respondent’s case but to add to the complainant’s case. While I indicated that I was minded to issue the summons in respect of Ms Garrett, no summons issued as the hearing ended on the 1st April 2022.

As stated, I reserved my position in respect of the emails. It was not clear to me why they were relevant to the conflicts of evidence in the case. I said that I would review the matter once I had heard evidence from the complainant.

I have set out above my ruling and my rationale in respect of the requests for summons. I stated this reasoning to the parties on the 31st March and the 1st April 2022. A party is perfectly entitled to disagree or agree with any ruling or with the rationale. Ultimately, however, I comprehensively addressed the summons issue and further discussed my reasoning with the complainant. Once I had done so and even if the complainant did not agree with my reasoning, it was for the case to proceed.

Solemnity of the oath/affirmation

The Workplace Relations (Miscellaneous Provisions) Act 2021 gave adjudication officers the power to administer an oath or affirmation to a witness giving evidence at a hearing. Section 37(13) of the Redundancy Payments Act had empowered the Redundancy Appeals Tribunal to administer the oath, a power extended to the Employment Appeals Tribunal by the Unfair Dismissals Act in the hearing of unfair dismissal claims. The 2015 reforms did not extend the power to administer the oath to adjudication officers and this formed part of deliberations in Zalewski v Workplace Relations Commission [2021] IESC 24.

At paragraph 144 of his judgment in Zalewski v Workplace Relations Commission, Mr Justice O’Donnell discussed the oath in the following terms:

‘It should be said that the significance of evidence on oath is not because of any importance attached to the procedure itself, but because it triggers the power to punish for false evidence and thus provides an incentive to truthful testimony. Those who designed the system, and who may have some familiarity with the standard type of dispute and how they are best resolved, may have considered that it is preferable not to have the formality of an oath or the capacity to punish for false evidence, although no evidence was presented in this case as to any such conclusion, or any basis for it. It is, moreover, noteworthy that there is a power to administer an oath to witnesses before the Labour Court. See s.21(1)(b) of the 1946 Act as amended by s.74 of the 2015 Act. It is, moreover, difficult to square this approach with the fact that there is a capacity to summon witnesses to give evidence, and produce documents, and that such witnesses are given the same immunities and privileges as witnesses before the High Court, and that failure or refusal to give such evidence is a criminal offence. Though there may be few prosecutions for perjury, there seems little doubt that the structure created by the requirement to give evidence on oath, and the possibility of prosecution for false evidence, is an important part of ensuring that justice is done in cases where there is serious and direct conflict of evidence. Certainly, we have yet to find a better one. There is nothing in the Act which suggests that such conflicts cannot arise in the context of the jurisdictions exercised by the W.R.C. In such circumstances, I consider that the absence of at least a capacity to allow the adjudication officer to require that certain evidence be given on oath is inconsistent with the Constitution. I appreciate that one possible contention is that a blanket rule is easier to apply since, if the question of evidence on oath becomes a matter for discretion and only applicable in certain cases, it is an issue which may be raised in many cases, and, if an incorrect decision is made, may lead to the overall decision being quashed. This, in turn, might lead to adjudication officers feeling that the safest route is to concede the procedure even when it is not required, and possibly unhelpful, and leading, inevitably therefore, to greater and unnecessary formality in the proceedings. However, this type of problem is inevitable in any form of judicial decision-making and is a reason to have experienced decision-makers. Difficulty of decision-making cannot be designed out of a system intended to decide difficult disputes.’

Mr Justice O’Donnell held that the power to administer the oath was required to ensure that justice was done in cases where there was a serious and direct conflict of evidence. The oath, and the power to prosecute perjury, form part of the administration of justice in such cases.

In its Report on the Consolidation of the Laws of Evidence (2017), the Law Reform Commission discussed evidence and the oath in the following terms (paragraph 1.34):

‘The principle of orality remains fundamental in all trials: evidence should ideally be placed before the court through testimony delivered orally by one or more witnesses for each side of the case or controversy. The Supreme Court has held that “the rule that witnesses at the trial of any action must be examined viva voce and in open court is of central importance in our system of justice and is not to be lightly departed from.” Giving evidence orally in person aims to ensure that the court can inspect the demeanour of the witness and to maximise the likelihood that the witness will tell the truth by compelling the witness to swear an oath to speak the truth and by forcing the witness to take an isolated position in a public forum where the focus of all present settles entirely on what the witness is saying.’

The Law Reform Commission highlighted the importance of oral evidence and the role of the oath in this, by placing the witness in an isolated position so that the veracity of their evidence can be assessed.

In Zalewski v Workplace Relations Commission, the Supreme Court emphasised the importance and constitutional requirement of sworn evidence in the hearing of claims before the Workplace Relations Commission where a serious and direct conflict of evidence arose. The oath introduces necessary formality to the proceedings, highlighting the consequences of giving false evidence. The Law Reform Commission highlighted the focus the oath brings to the witness who is to give evidence.

The swearing of the oath is a solemn part of the hearing. It is administered when the witness is to commence their evidence and, at this hearing, required the witness to move to the witness desk. It is the solemn moment when the witness declares that their evidence will be the truth, the whole truth and nothing but the truth. Crucially, it is essential for public confidence in the administration of justice that such a solemn moment as the swearing of the oath occurs in an orderly fashion. 

The decorum of proceedings

At the heart of adjudicating claims, for example unfair dismissals, is that proceedings are adversarial. Each side advances their case, and the decision-maker ensures adherence with fair procedures and decides the claim in accordance with the evidence and the law. As it is adversarial, parties may advance sharply diverging perspectives as to what should happen at a hearing. The decision-maker must be resilient and calm. Notwithstanding the fact that proceedings are adversarial, there must also be decorum in the running of the hearing. This is not for the ease of the decision-maker, but that the public can have confidence in the administration of justice.

In Walsh v Minister for Justice [2019] IESC 15, Mr Justice O’Donnell described court proceedings in the following terms:

‘No-one, not even a wholly successful party vindicated by the outcome of proceedings, can pretend that going to court is an enjoyable experience. Apart from the stress and anxiety involved in having the merits of a person’s actions, conduct and behaviour debated, sometimes challenged, and adjudicated upon, the courtroom also imposes certain requirements of tolerance on all participants which they can find extremely difficult. Judges must listen to arguments and evidence that strain both patience and credulity. Witnesses must submit to cross-examination, and may sometimes hear submissions that reflect upon their credibility, or contrary evidence which they believe to be misguided or even deliberately false. Judges may sometimes be required to give decisions they find uncongenial and contrary to their personal views, and lawyers and litigants must accept and abide by decisions with which they may profoundly disagree. This is not a complete catalogue of all the difficulties encountered in a given day by anyone attending court, but it leads to a recognition that it is central to a court’s capacity to administer justice that it should be capable of maintaining order. This in turn allows competing claims - sometimes highly charged, and always of importance to the participants - to be ventilated, fairly and dispassionately considered, and adjudicated upon. As was said long ago, of all the places where law and order must be maintained, the first place is in the courtrooms themselves. The administration of justice demands of parties that they trust this system and accept its outcomes. Parties are required to accept the decision of the court on the case itself, and on intermediate issues, even when they strongly disagree. Most individuals recognise that this is a price that must be paid, because it is an unavoidable component of the administration of justice. That is the idea, and perhaps the ideal, that disputes between parties (and indeed between parties and the State itself) can be submitted to an independent adjudicator where the outcome is to be determined by reason and law alone, rather than the physical or financial strength of the parties, their position, status, or influence, or their popularity or lack thereof in public discourse or on social media. A courtroom should provide an opportunity for any person to have their say on exactly the same terms as every other person coming to court, whatever their position, class, race, religion, sexual orientation, wealth, reputation, or political affiliation. It provides an opportunity, moreover, that any dispute will be determined only on the evidence adduced and argument advanced in that courtroom, and will be resolved by a decision pronounced in public. This ideal is not easily realised, but an essential component in achieving it is that a courtroom is, as it were, a safe space for everyone who comes to it to be heard, in particular perhaps the victimised, the marginalised, and the weak, those who are shy, reticent and often overlooked, and those temporarily or permanently unpopular and to whom no one else is obliged to listen fairly and dispassionately.’

Mr Justice O’Donnell addressed the disruption of proceedings in the following terms:

‘The disruption of proceedings, the refusal to accept court rulings, and an insistence on continuing to speak when a matter has been determined by the judge, should not be mischaracterised as speaking truth to power, or merely challenging authority. A judge sitting in a crowded courtroom has little power other than respect for the law itself. The refusal to accept rulings and decisions, the constant interruption of court proceedings, and the making of offensive interjections and comments is at best rude and inconsiderate to all other court users who are obliged to accept the necessity for calm in court proceedings, but more often amounts to simple bullying. When carried out in a concerted manner, it is, and is often intended to be, menacing and intimidatory. These are serious concerns which should not be ignored or lightly dismissed. Disruption of proceedings attacks the very essence of a fair hearing which it is the court’s obligation to provide, and every litigant’s right to obtain.’

In Burke v A District Court Judge [2009] IEHC 37, Edwards J held as follows in respect of proceedings being conducted with decorum:

‘It is essential for the preservation of confidence in the administration of justice that Judges should be shown appropriate respect; that a Judge’s decisions should be respected and that proceedings in court should be conducted with appropriate decorum. It would be absolutely inimical to the proper and effective administration of justice if a dissatisfied party or parties were to be allowed to dispute a judge’s ruling after it had been given, to argue against the correctness of the judge’s decision before the same Court, to seek to have a matter re-opened, or to abuse the judge because of his decision.’

In the same judgement, the Court set out how follow-up queries should be ventilated following a ruling on a matter: ‘Having said all of that, a Court cannot refuse absolutely to hear a party after it has given its ruling. A Judge must be prepared to hear and deal with an appropriate application from any party in respect of a matter arising, providing that the application is made respectfully, e.g. a legitimate request for clarification of an aspect of the Court’s judgment or order, or as to a consequence of the ruling, or a request for a stay, or for leave to appeal. In the instant case the applicant claims to have been inhibited from asking a question concerning a procedural point, namely whether he needed to enter into recognisances for the purpose of appealing the judge’s ruling.’

Applying Walsh v Minister for Justice and Burke v A District Court Judge to this case, it is equally important for the public to have confidence in the administration of justice in the hearing of a claim of unfair dismissal. It is also important to note that the context is different in some ways. An adjudication officer hears a case on their own, without the presence of a registrar or any other court official. There is no regular Garda presence as there would be, say, in the District Court. Parties are given an appointed time for the hearing of their case and lists are not used; therefore, the only people present are the parties and any members of the public there to observe. There is no digital audio recording (although there was a stenographer present in the instant case). The hearings are deliberately more informal than court proceedings. Moreover, the Workplace Relations Act and practice at the WRC extend the right of audience to categories of people far beyond those who have a right of audience in the courts.

Disruption of proceedings at the employment law fora

The Workplace Relations Commission and the Labour Court hear thousands of cases every year. Inevitably, some are hard-fought and will be challenging for the decision-maker to manage. This is par for the course. There are other, rare cases (such as this instant case) which face sustained and deliberate obstruction and disruptions.

As outlined above, I gave the parties the relevant Workplace Relations Commission procedure on the adjudication of complaints. I highlighted the section of the procedure that addresses ‘Conduct at the hearing’. This provides at paragraph 9 d. ‘Conduct at the Hearing: Parties should treat each other and the Adjudication Officer and WRC staff members with respect. If a party’s behaviour impacts on the conduct of the case it may be necessary for the Adjudication Officer to terminate proceedings: see case ADJ-00020017 by way of example. If a party is unhappy with a decision, they have a right of appeal. However, harassment or defamation of Adjudication Officers or staff will not be tolerated. See also the WRC’s policy on unreasonable conduct by service users.’

I also circulated two relevant decisions and asked the parties to consider them. The first was the case cited in the procedure: ADJ-00020017. This was a case where one party made a direct threat to physically harm the other party (‘I’m going to knock your block off’ was one such threat). I immediately ended the hearing and later issued a substantive decision on each claim. There was no question of rescheduling the case for hearing before the WRC, although the parties retained the right to appeal.

The second decision I circulated was ADJ-00029223. The issue in this case was that the hearing reached an impasse, following which the claimant and her solicitor withdrew from the case. While there was no conduct or behaviour issue, it was relevant to the instant case because it addressed what happened when an impasse arose with one party at the time that the burden of proof lay with the other party. In the instant case, the statutory burden lay with the respondent (per section 6 of the Unfair Dismissals Act) as I found that it did in ADJ-00029223 (following the seminal judgment of the CJEU in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank C-55/18).

In ADJ-00029223, the impasse arose when the claimant declined to be cross-examined. She had not given evidence and her solicitor submitted that she should not be cross-examined as the burden of proof lay with the employer. I agreed that in the absence of working time records, the evidential burden of proof lay with the employer. I disagreed with the claimant’s solicitor whether his client should be cross-examined. I stated that cross-examination was a procedural right that was not dependent on any burden of proof. I outlined that the employer was entitled to cross-examine the claimant, notwithstanding that the burden lay with the employer and the claimant had not given evidence.

Also in ADJ-00029223, the claimant and her solicitor ended their participation at the hearing. Subsequently, I issued a substantive decision on each complaint, in line with the relevant redress provision. I held that while the burden of proof lay with the employer, I was not in a position to find that the complaints were well-founded as this would disregard the employer’s right to fair procedures, i.e. the right to cross-examine. As I issued a substantive decision on each claim, the complainant retained the right to appeal. The claimant pursued the appeal to the Labour Court, where she was cross-examined and ultimately successful.

In the instant case, I was clear that Mr Moore, as the person who made the decision to dismiss the complainant, had the right to give evidence and also the right to swear an oath or to affirm prior to giving evidence. I was clear that the consequence of him not being allowed to swear an oath in a decorous fashion would lead to the claim of unfair dismissal being dismissed. To do otherwise would disregard the respondent’s entitlement to fair procedures.

I also note the approach adopted by the Labour Court in addressing disruptive behaviour. In An Garda Siochana v O’Reilly HSD127, the Labour Court dismissed the appeal due to the failure of the appellant to advance submissions or arguments in support of her appeal. The Labour Court had been considering the preliminary matter of whether there was reasonable cause to extend time to allow the late submission of the claim. The Court held:

‘In this case the Court found itself in the unfortunate and (in the experience of this Division) unprecedented position where it became practically impossible to conduct a hearing with any degree of decorum or orderliness. Throughout the hearing the Claimant persisted in raising minor procedural points and in directing personalised invective at the Court and at the Respondent. The Court was conscious of the fact that the Claimant appeared as an unrepresented party and that she was clearly affected by the events giving rise to her complaints. It tried to exercise as much restraint as possible in dealing with her disruptive behaviour. However, it became abundantly clear that the Claimant was not prepared to present any coherent arguments directed at advancing her appeal and that her behaviour rendered the conduct of a fair and orderly hearing impossible. The Court considered adjourning the appeal sine die but decided against doing so for two principal reasons. Firstly, the Court could have no confidence that the demeanour of the Claimant would change so as to allow for a resumption of the hearing at some future date with any degree of expectation that it could proceed in a normal fashion. Secondly, the Court took account of the objections of Counsel for the Respondent to such a course. The Respondent is entitled to have this matter brought to finality. It is the Claimant's appeal and it is her responsibility to prosecute her appeal. The Court is obligated by s.29(1) of the Act to give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal. The Court provided the Claimant with such an opportunity. She persistently failed to avail of the opportunity afforded to her to advance her appeal. The nature and intensity of her disruptive behaviour left the Court with no option but to conclude that she had no intention of conducting her appeal with any degree of coherence, or at all. Accordingly the Court was left with no option but to terminate thehearing and determine the case on the basis of the material before it.’

In O’Reilly v An Garda Siochana, the Labour Court was able to judge the net extension of time preliminary issue on the papers, having allowed the claimant the opportunity to adduce further evidence.

Decision in respect of the instant case

On the 1st April 2022, I dismissed the claim of unfair dismissal in accordance with section 8 of the Unfair Dismissals Act. I did so for the following reasons.

The 1st April 2022 was the fourth day of hearing. The first day (18th February 2022) dealt with preliminary matters arising from the end of judicial review proceedings before the High Court. The second day (25th March 2022) dealt with the recusal application. The third day (the 31st March 2022) was in-person and heard evidence as well as the applications for summons. The fourth day was to hear evidence from the last respondent witness and also addressed the complainant’s request that further summons issue.

The hearing on the 1st April 2022 commenced at 10.30am and I issued my ruling on the summons request at about 11.45am. Between that time and the closure of proceedings, I repeatedly sought to swear in Mr Moore as the final respondent witness. Each time, the complainant’s mother and the complainant spoke over me and repeated their objections to my ruling on the summons for Mr Lynch and Ms D’Alton. They would not desist, in spite of my repeated warnings to them. I suspended the hearing and warned as to the consequences of their actions. I escalated this during the day, formally invoking the WRC procedure in the afternoon. I warned the complainant that the hearing must progress with the swearing in of Mr Moore. I repeated my rationale in respect of the summons ruling. There was nothing more for me to say on the matter. The complainant said that the hearing could progress if I agreed to issue the summons. I explained why I would not do so and said that I would dismiss her claim if Mr Moore could not be sworn in.

As outlined, I made six attempts to swear in Mr Moore. This could not be completed because of interruptions from the complainant’s mother and the complainant. This took place over several hours, i.e. from about 11.45am to 4pm. The hearing was suspended many times in order to give the parties time to collect their thoughts. I warned the complainant and escalated the warnings throughout the day. Unfortunately, the complainant did not desist with her objections and Mr Moore could not swear the oath, nor commence his evidence. I dismissed the claim of unfair dismissal on the basis that I had discharged my statutory functions and I could not find against the respondent as the respondent had not been afforded fair procedures, irrespective of the burden of proof on it and the statutory presumption of unfair dismissal.

This was a measured, deliberate process. I suspended the hearing when it was not orderly. I warned the complainant’s mother and the complainant as to their behaviour. I said that the case must be allowed to proceed to the swearing in of Mr Moore. I repeated the rationale for the ruling regarding the summons. The hearing could not progress beyond this point.

I was left with five options. The first was to do as the complainant suggested. This was to reverse my ruling in respect of the summons and to issue the summons for Mr Lynch and Ms D’Alton as well as for the emails. Had I actually changed my mind in respect of the summons for Mr Lynch or Ms D’Alton, I could have easily reversed my decision. However, I had not altered my position, so there was no basis for me to now issue the summons. To reverse my decision for the sole reason of placating a party would be that party usurping control over the proceedings. This would inevitably have wiped out public confidence in the hearing as an administration of justice as it had become an exercise in placating that party.

The second option was to proceed with the swearing in and the subsequent evidence with the complainant and her mother speaking over Mr Moore and I with their objections and interrupting proceedings. This too was unacceptable. First, the swearing in of any witness is a moment of solemnity and cannot take place against the background of someone speaking over or interrupting the administering of the oath and the witness’ solemn undertaking to tell the truth. Second, there was no suggestion that the speaking over and interrupting would stop. The hearing was repeatedly suspended, and warnings issued over several hours. All to no avail. The complainant maintained her position that the hearing could not proceed in an orderly fashion until the summons had issued.

Just as it would have been unacceptable to reverse the summons ruling for the sole reason of placating a party, it would also have been unacceptable to proceed with the swearing in and the evidence against the backdrop of interruptions. This is because of the decorum that can be expected of any proceeding. Writing metaphorically, issuing a summons for the sole reason of placating a party or allowing a party to hector the swearing in and evidence of a witness effectively amount to the defenestration of the adjudication officer, i.e. the extinguishment of the adjudication officer’s authority for all the world to see. Any member of the public observing a hearing where the oath was administered against the backdrop of such interruptions would say that the adjudication officer had no authority and was not in control of the hearing.

The third option was to remove the complainant’s mother from the hearing. While the complainant certainly prevented Mr Moore’s swearing in, it was the complainant’s mother who led the interruptions. This was deliberate obstruction to stop the case proceeding. As noted in Walsh v Minister for Justice, such removal necessarily involves the attendance of the Gardai. Whatever of the Circuit Court or the District Court (which both deal with heavy criminal lists), it would be completely at odds for the Workplace Relations Commission to have Gardai attend Lansdowne House or another venue to exclude a person from the hearing. Having to resort to calling the Gardai to exclude someone who was interrupting proceedings would also have undermined public confidence in the hearing and my authority as adjudication officer.

The fourth option was to resume proceedings the following Thursday. Given that there were many hours of impasse on the 1st April 2022, it was not viable that the hearing resume the following week without an indication from the complainant that she would allow the hearing to proceed. I stated to the complainant that all we had to do was get through the impasse, i.e. to swear in Mr Moore, and we would have enough time to complete the hearing in the two remaining days. The complainant made the deliberate choice to continue to interrupt proceedings. Just as in O’Reilly v An Garda Siochana, I could then not have confidence that resuming on a later date would allow the hearing progress. Instead, the hearing would have resumed and rehearsed the exact same impasse as occurred on the 1st April 2022.

The remaining option was to dismiss the claim of unfair dismissal, and this fifth option was the only viable one. This step was merited as I had discharged my statutory duty per section 8 of the Unfair Dismissals Act. I had inquired into the claim and allowed the parties the opportunity to be heard and to present evidence in respect of the claim. This took place over four days. There was certainly scope for more evidence, but the course of the hearing was interrupted by the complainant and her mother. Even though there was scope for more evidence, I had heard from the parties and the hearing was obstructed by the complainant and her mother. Given the multiple opportunities afforded to the complainant to allow the hearing to proceed, and the opportunities to hear from her, the only course was to dismiss the complaint. Having discharged my statutory duty in respect of the complaint per section 8, this was the only course of action that could foster public confidence in the proceedings.

I, therefore, dismissed the claim of unfair dismissal in accordance with section 8 of the Unfair Dismissals Act. This is a substantive determination of the claim, in accordance with the Act. 

CA-00034114-001

I dismiss the claim of unfair dismissal in accordance with section 8 of the Unfair Dismissals Act.

Unfair Dismissals Act / dismissal of claim / resolving conflicts of evidence / Zalewski v Workplace Relations Commission / interruptions / decorum / Walsh v Minister for Justice

ADJ-00026883 Application for recusal 1.           This relates to a recusal application made by the complainant in ADJ 26883 in correspondence to the Workplace Relations Commission of the 16th March 2022. The adjudication officer decided that the recusal application should be made to him in accordance with the established case law. The application was addressed at a preliminary remote hearing on the 25th March 2022.  2.           It is an essential part of an adjudication officer’s due diligence in hearing a complaint that they are vigilant to any possible conflict of interest and address any party’s concerns that such a conflict might arise. A party who has a concern should make this concern known and it should be fairly and comprehensively addressed by the adjudication officer. This is about ensuring that the hearing is fair but also that the public can have confidence in the administration of justice. 3.           The first day of hearing before this adjudication officer took place on the 18th February 2022. No issue is raised in respect of anything that occurred during the first day of hearing, which took place over three hours and where several preliminary issues were addressed.  4.           The case was assigned further dates for in-person hearing, and notice served that they would be the 31st March, 1st April, 7th April and 8th April 2022. The respondent has indicated that counsel is not available on the 7th April, and this is a matter to be addressed on the 31st March.  5.           As agreed on the 18th February, the parties submitted revised submissions and supporting documentation in emails of the 24th March 2022. The complainant has sought to summons a witness and for certain emails to be produced. This will be addressed on the 31st March. 6.           The application for recusal was dealt with by way of preliminary hearing on the 25th March 2022. The complainant, Ammi Burke, attended. The respondent attended and was represented by Peter Ward, SC, Mairead McKenna, BL and Donal Spring, solicitor. 7.           The complainant outlined that a person with knowledge of the relevant facts would have a reasonable apprehension that the hearing would not be impartial or fair. In respect of objective bias, the complainant outlined that where there is doubt, a decision-maker should recuse themselves. The complainant also made allegations that amount to actual bias and said that she did not have confidence in the adjudication officer. Legal basis of an application for recusal 8.           In respect of objective bias, and as set out in the complainant’s submissions, the test is whether a reasonable person in the position of the complainant would reasonably apprehend bias on the part of the decision-maker. As set out by the Chief Justice in Goode Concrete v CRH [2015] 3 IR 493: ‘54. The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.’ 9.           The complainant further relied on O’Driscoll v Hurley [2016] IESC 32. The challenge in O’Driscoll was in respect of a judge, then of the Court of Appeal, and objective bias in respect of connections between the judge and the State Claims Agency. The judge had spoken at a conference organised by a firm of solicitors and her photograph posted on their website. The conference related to personal injury awards and the firm of solicitors acted for the State Claims Agency.  10.        Ms Justice Dunne addressed the issue of a photograph and the judge’s connection with a party in the following terms: ‘It is difficult to see how the reasonable person looking at circumstances in which a judge of the High Court attended and chaired a conference on a topic which was of general importance and relevance to those working in the area of medical negligence litigation and which was attended by large numbers of the stakeholders in that area of litigation from all sides of such litigation could have such an apprehension. It seems to me that the reasonable observer would see a situation in which the judge was acting appropriately in furthering the state of knowledge of those involved in that area of litigation as to the work of the Working Group of which she was the Chair, given her particular knowledge and familiarity with the issues, the subject matter of the conference. This was an appropriate forum for the discussion of such issues. The fact that the conference was hosted by one firm of solicitors and that those solicitors were acting for the State Claims Agency in the particular case in which the judge was asked to recuse herself does not in my view lead to the conclusion that the reasonable observer would have any such apprehension. The engagement of Ms. Justice Irvine in the particular conference is something that was beneficial to the legal practitioners in that field of litigation and is the sort of engagement by judges in the legal development and learning of those involved in litigation which is to be viewed as desirable and not to be criticised. Judges have to be careful in their extra-judicial activities as pointed out previously and must take care not to be put into situations which could lead to applications to recuse themselves. Nevertheless I think that an examination of the website in this particular case and a consideration of the nature of the conference and the topics covered and discussed would lead any fair minded observer to the view that there was no question of partiality at all. The use made by photographs of the judge on the website does not in my view alter or change the situation. To put it another way, assume for the moment that there were no photographs of Ms. Justice Irvine taken at the conference but that the information that appeared on the website remained the same, could anyone take any objection to the presence of Ms. Justice Irvine at the conference and by virtue of her presence take any objection to her hearing a case in which that firm of solicitors representing the State Claims Agency were involved in litigation before her? I think not. Does the use of the photographs in the website alter the position? Again, I think the answer must be no. One is judging this question not by the standards of an over-scrupulous, over-cautious individual who takes an unreasonable and unrealistic view of the situation. It is inevitable that judges attending at conferences are photographed and their photographs may be used subsequently in a description of the events that had occurred. This is neither exceptional nor unusual. It is not an endorsement by the judge of the particular firm of solicitors. Quite simply, I am satisfied that the reasonable observer would come to the conclusion that the judge was attending at and participating in and chairing a conference on an issue of public and legal interest in a topic of importance in the field of medical negligence litigation. Such participation would, I think, be viewed by the reasonable observer as being appropriate and a helpful activity on the part of the judge in question in describing the work of the Working Group and the concerns that had arisen in the course of such litigation. I find it impossible to see how this could possibly give rise to any apprehension of objective bias on the part of the reasonable person.’ 11.        In O Ceallaigh v An Bord Altranais [2009] IEHC 470, the High Court set out the following principles: ‘(1) Objective bias is shown where a reasonable, well informed observer would reasonably apprehend that the plaintiff would not receive a fair and impartial hearing because of the risk of bias on the part of the judge. (2) A relationship between the judge and a party, or a witness to the proceedings, or another member of public involved with a case, be it personal, social or professional, is not sufficient of itself to prove objective bias. It must be shown that the circumstances of that relationship and its connection with the proceedings are such that it has the capacity to influence the mind of the decision-maker. (3) The impugned relationship between the judge and the party, witness or other relevant person, must normally display a community of interest between them which is directly related to the subject matter of the proceedings for objective bias to arise. This link must be cogent and rational.  (4) Where the impugned relationship concerns a witness or other person, not a party, who does not have a stake in the outcome in the proceedings, the threshold to establish objective bias will necessarily be higher’. 12.        As opened by the complainant, the High Court in Ryanair v Terravision London Finance [2011] 3 IR 192 held that recusal should be granted where there was ‘real ground for doubt’ and including where the application did not meet the standard of proof. 13.        The case law refers to a ‘reasonable observer’ being in possession of all the relevant facts or of being well-informed. This brings with it a duty to provide relevant facts or clarifications. It does not, however, allow for the interrogation of the decision-maker about whom the application for recusal is made. The allegation of actual bias 14.        During submissions, the complainant suggested that the adjudication officer had been in contact with Mr Ward and/or Mr Spring about this complaint in advance of being delegated this complaint. The complainant did not present evidence to support this allegation, nor refer to any fact that could form the basis of such an allegation. The complainant also questioned whether it was a coincidence that this adjudication officer was appointed to hear the case in the light of what the complainant said were pre-existing connections. These amount to allegations of actual bias against both the adjudication officer and the Workplace Relations Commission. Decision on the allegation of actual bias 15.        I decide that there is no basis for any allegation of actual bias against the Workplace Relations Commission or I. No factual basis was advanced to support either allegation. I reject the allegation that there was any surreptitious contact between any person associated with this case and I. There is no evidence of any bias by the Workplace Relations Commission.  Allegation in respect of the respondent 16.        The respondent in this case is Arthur Cox solicitors. The complainant asked whether the adjudication officer had worked for Arthur Cox or whether a family member had worked for them. The adjudication officer said that he had neither been briefed by the respondent in a professional capacity and nor had he or a family member ever worked for them. The complainant asked whether the adjudication officer had other connections and was asked what she meant by connections. The complainant did not detail what further possible connections she could be alluding to.  Decision in respect of the respondent 17.        I confirmed with the parties that I have no connection with Arthur Cox solicitors from which there could be any apprehension of partiality. I have not worked for them and neither has a family member. It follows that there is no basis for any apprehension of bias or any other form of bias. Allegation in respect of connections to the lawyers for the respondent 18.        The complainant outlined that there was objective bias arising in respect of the adjudication officer and the lawyers instructed by the respondent.  19.        In respect of Peter Ward SC, this involved the adjudication officer volunteering for Free Legal Advice Centre (FLAC), an organisation Peter Ward chaired for many years. The complainant referred to online material from Ciaran Ahern (a Labour candidate), from which she said an inference could be made that the adjudication officer and Mr Ward also knew each other for many years. 20.        The complainant referred to a group photograph of 20 people in a FLAC newsletter from 2014 which the adjudication officer and Mr Ward feature. This was an award ceremony for FLAC volunteers. The adjudication officer said that he did not recall Mr Ward being there or meeting him on that occasion. 21.        The adjudication officer explained the nature of the FLAC volunteer role. It is to give pro bono advice to members of the public who attend clinics. The adjudication officer does not interact with the FLAC board or FLAC management in this role. The role is to meet with and give advice to the public, mainly employees in the case of the specialist employment clinic. There is the obvious social good associated with this role, but it also benefits the volunteer as they have a first-hand insight of, for example, current employment disputes. Mr Ward outlined that there are hundreds of FLAC volunteers, and many lawyers do the role. Decision in respect of the FLAC connection 22.        In deciding this matter, I note that the role of volunteer does not involve any engagement with FLAC board members including Mr Ward. The extent of the role is giving information to members of the public. It is true that Mr Ward and the adjudication officer attended an award ceremony in 2014 and feature in the photograph of 20 people. The adjudication officer said that he could not recall meeting Mr Ward on that occasion or any occasion. Even if they had met on this or another occasion, this is not grounds for recusal. 23.        While the adjudication officer said that he could not recall ever meeting Mr Ward (or as the complainant would say, that he did not meet Mr Ward), the test is not whether two people had ever met. Even if the adjudication officer had met a representative at an event, this would not amount to reasonable grounds, especially as it occurred several years ago. Reflecting the reasoning in the O’Driscoll case, the fact of two people featuring in a photograph or being in the same room are not itself grounds of challenge. The photograph exhibited by the complainant features 20 people, with Mr Ward and the adjudication officer at opposite ends of the shot (so far apart that the shot spreads across two pages in the appendices attached to the complainant’s submission of the 25th March 2022).  24.        The complainant suggested that this was a ‘lie’ on the part of the adjudication officer. It was not a lie. Even if the adjudication officer could not recall the photograph, there is no basis to indicate that this was an untruth. This event was eight years ago, in 2014. The information was gleaned from publicly available information and therefore not at all concealed. 25.        The height of the complainant’s assertion is that the adjudication officer misspoke (or as she says ‘lied’) in recollecting whether he had met Mr Ward, in this case being at opposite sides of the same group shot. The fact of being in the group shot or even of meeting would not be grounds; misremembering the occasion can also not be grounds. The complainant was able to gather large amounts of information about the adjudication officer as this is all available on websites such as Linkedin. This is the opposite of concealment and any effort to misrepresent. Connection via a political party 26.        The complainant outlined that there was a longstanding connection via the Labour Party between the adjudication officer and both Mr Ward and Mr Spring. The complainant relied on the adjudication officer’s Linkedin page and other materials in the public domain. 27.        The adjudication officer clarified that he was now a civil servant and not politically affiliated. He said that he resigned from the Labour Party in 2021 and not politically active in a role since 2012. He clarified that his two-year appointment to the National Oversight and Audit Commission was not by a Labour Party Minister. These clarifications were to assist the parties have the fullest information to hand in order to ascertain whether a conflict of interest could be apprehended.  28.        The complainant referred to an endorsement from Mary Upton on the Linkedin page as evidence of a current relationship between the adjudication officer and the Labour Party. The complainant referred to the association of Mr Ward and Mr Spring to the Labour Party.  Decision in respect of a connection via a political party  29.        My decision is that the connection with the named political party are historic and speculative and do not create a reasonable apprehension of bias. It is speculative because there was no fact of any direct connection between either Mr Ward or Mr Spring and I. There is nothing akin to the endorsement of Mr Ahern by Mr Ward. 30.        The complainant speculates that the lawyers who are members of this party are a ‘small and tight membership’ but there is no basis for this assertion. The adjudication officer’s role was to work for three Labour TDs as parliamentary assistant and not as a lawyer. The last of these roles ended a decade ago and did not involve either of the two representatives of the respondent. 31.        A positive online endorsement by a TD who retired 10 years ago is not grounds to say that there is a current connection between a person and a political party. Conclusions 32.        I have carefully considered the grounds set out by the complainant and the well-established case law, in particular that opened by the complainant (Goode Concrete, O’Driscoll and Ryanair).  33.        I note that no issue is raised regarding the proceedings of the 18th February last. There is no suggestion that anything said at the hearing caused a concern of bias. This is significant in particular with regard to the allegation of actual bias.  34.        Furthermore, no factual basis is advanced to support the allegations of actual bias made against the WRC and the adjudication officer. There is nothing to support the grave allegation that the adjudication officer and the respondent or its representatives were in surreptitious contact about the case prior to the 18th February 2022. 35.        I set out that I have no connection with the respondent and gave the complainant the information sought about any connection. There is no basis for any apprehension to be drawn in respect of the respondent. 36.        I conclude that a connection with Mr Ward via FLAC is too tenuous to raise an apprehension of bias. The FLAC volunteer role does not involve any interaction with FLAC board members or FLAC management. The unremunerated role involves giving advice to members of the public, in this case, generally, employees.  37.        It is true that Mr Ward and I attended a FLAC event in 2014 (as depicted in the photograph). I do not recall meeting Mr Ward at this event and even if I had met him or been in the same room as him at this or any other occasion, such an encounter would not raise an apprehension of bias. This was also before my appointment as an external adjudication officer and many years ago. Applying the reasoning in O’Driscoll, I do not see how the photograph and the event could raise an apprehension of bias. Neither the event, nor my recollection of it, raise an apprehension of a conflict of interest, in particular as it took place so long ago.  38.        I conclude that my previous work for TDs and a Minister do not raise an apprehension of bias. First, this role was entirely unconnected to whatever connection Mr Ward and Mr Spring might have with the political party in question. These are roles I did many years ago and were not themselves legal roles. I did not engage with either respondent representative in any of these roles. 39.        Applying O Ceallaigh, there are no circumstances that would suggest that my decision in respect of the complaint would be influenced in any way by any connection with the respondent or a representative. There is also no ‘community of interest’ between me as adjudication officer and the respondent or its representative. Applying Ryanair, there are no grounds on which an objective observer would have ‘real doubt’ in respect of the hearing of the case.  40.        For the above reasons, I do not accede to the application for recusal. I have also considered whether I should continue to hear the case in the light of the recusal application itself. Hearing and deciding an application for recusal does not, itself, create grounds for the decision maker to recuse themselves. I note that the case is ready to proceed on Thursday, 31st March and the parties have submitted their documentation, as I had requested on the 18th February. No complaint is made about anything that occurred on the 18th February. The application for recusal was comprehensively dealt with and I provided the parties with information and clarifications in order that they have in their possession all relevant facts. I have produced this detailed reasoning. I, therefore, decide that I should continue to hear the complaint. 41.        For the above reasons, I will proceed with the hearing as scheduled on the 31st March 2022. I do not see the need to hold a second preliminary hearing in advance of the 31st March and any consequential issues from this application can be addressed on the 31st March 2022. Kevin Baneham 28 March 2022