Solicitor Ammi Burke, who is seeking her old job back at one of Ireland’s top law firms, has demanded the adjudicator appointed to hear her unfair dismissal case recuse himself – claiming he is a Labour Party “comrade” of the opposing barrister.
During the hearing Peter Ward SC told the inquiry that Ms Burke had “wittered on” for an hour making outrageous and groundless accusations. He said that he had crossed paths with the adjudicator only once and described as “specious” Ms Burke’s claim that a conflict of interest arose because both men were members of the Law Library at the same time.
Ms Burke, of Castlebar, Co Mayo, has lodged a complaint under Section 8 of the Unfair Dismissals Act against Arthur Cox Solicitors, Earlsfort Terrace, Dublin 2 alleging she was unfairly dismissed by the firm in November 2019.
Complaints
Last November, the High Court upheld the Workplace Relations Commission’s (WRC) decision to re-start the case from the beginning, after the original hearing was interrupted by the Supreme Court ruling in the Zalewski case, which saw wholesale reform in how complaints before the commission are heard.
At a remote preliminary hearing on Friday, Ms Burke claimed the adjudicating officer, Kevin Baneham, had a “close and long-standing relationship” with Peter Ward SC, leading counsel for Arthur Cox, and Donal Spring, the principal solicitor at the instructing firm for the defence, Daniel Spring & Co.
She submitted that the High Court had ruled the resolution of the unfair dismissal case had “potentially grave implications for both parties”, adding that it “goes without saying that there be no taint of partiality” and said she would meet the objective test for perceived bias.
Ms Burke referenced Mr Ward’s and Mr Baneham’s Linkedin pages which she said showed both were involved with the Free Legal Advice Centre (Flac). She further stated that the social media pages indicated both were practising barristers at the Four Courts.
Mr Baneham said he had not updated his LinkedIn page since taking on a full-time job as an in-house adjudicator at the WRC and that he had previously been a part-time contractor as an equality officer before the opportunity to join at assistant principal officer grade.
“I’m a civil servant now, so I have no political affiliation, nor am I a member of the Law Library,” he said.
“Would it be possible to get that in writing, Mr Baneham?” Ms Burke asked.
“Absolutely,” he said.
Charity
Ms Burke submitted that Mr Ward had previously been the chairman of Flac and remained on its board – and that according to Mr Baneham’s LinkedIn page he had volunteered for the charity.
Mr Baneham said he continued to volunteer for Flac at an office in Meath Street in Dublin to advise members of the public on their employment rights and gave some talks on employment law years earlier.
“I’ve never met Mr Ward, never had any engagement with him,” Mr Baneham said.
“Sorry, you’ve never met Mr Ward?” Ms Burke said.
“No, I haven’t actually, no,” Mr Baneham said. “Except for the hearing last week, I don’t recall any time where I’ve ever had any direct involvement with him,” he added.
Ms Burke produced a copy of a photograph of a Flac awards ceremony in 2014, when she said Mr Baneham was one of a number of volunteers given a golden pin “for their longstanding commitment to volunteering”.
“On the left-hand side we have Mr Ward, on the far right-hand side we have you, Mr Baneham,” she said.
“You’re right,” Mr Baneham said.
“What you’ve just stated to me is a lie, it’s untrue,” Ms Burke said.
“Ms Burke, Ms Burke,” Mr Baneham began, as she spoke across him.
“You stated that you had never met Mr Ward in all of your years in Flac,” she went on. “Now that in itself is very hard to understand, I do not take it as fact that you never met Mr Ward,” she said, continuing to talk over Mr Baneham.
“Ms Burke, no Ms Burke, I’m speaking now – no-one speaks when I speak. Ms Burke, I am speaking, please desist.”
“You did meet Mr Ward in 2014 . . . that is very serious,” she said.
“Ms Burke, please cease. Please allow me to speak,” Mr Baneham said. “I didn’t see the latter part of the photo. I do recall the event, I don’t recall Mr Ward being there . . . I don’t recall meeting him on that occasion but I do know who Mr Ward is,” he said.
“Mr Baneham you said you’d never met Mr Ward,” Ms Burke said.
“I don’t recall having met him but we were at the same event, okay?” he said.
“It’s very strange that a comrade, if you like, is representing Arthur Cox,” she said, and repeated her allegation that Mr Baneham had denied ever knowing Mr Ward.
“Ms Burke, you don’t have a basis to say [I was] untruthful,” Mr Baneham said.
Election
Ms Burke went on to outline alleged connections between Mr Baneham and the Arthur Cox legal team via the Labour Party.
She said Mr Ward had stood for election for Labour on several occasions, including during the time Mr Baneham was a parliamentary assistant from 1997 to 2005.
Ms Burke also said the principal solicitor at the firm instructing Mr Ward was Dónal Spring, the brother of former Labour leader and tánaiste, Dick Spring.
She suggested Mr Baneham, Mr Ward and Mr Spring shared values as members of the Labour Party and again said it was “very strange” that an adjudicating officer with a duty to be impartial would agree to take a case defended by “a comrade, for want of a better word”.
She said she noted Mr Spring and Mr Ward laughing at these submissions.
“The Labour Party does have a relatively small and tight membership in Ireland. For this reason links arise, and they give a conflict of interest,” she said.
Mr Baneham said he had resigned his party membership when he became a civil servant.
“There’s nothing from me politically since 2012,” he said.
Ms Burke said he had not removed an endorsement on his LinkedIn page by former Labour TD Mary Upton.
“That gives the impression that you’re not ashamed of it,” she said.
“I’m certainly not ashamed,” Mr Baneham said.
Ms Burke then asked whether the adjudicating officer had had any advance contact with either Mr Spring or Mr Ward about her case.
“Absolutely none,” he said.
Mr Ward said Mr Baneham had been “incredibly indulgent” of Ms Burke and said he was not obliged to answer this line of questioning.
“I’m making an objection. You’ve wittered on for an hour – I haven’t spoken once,” he told Ms Burke.
“Unfortunately you’re the latest in a long line of people to be subjected to outrageous accusations [by Ms Burke],” he told the adjudicator. “This ought to end,” he added.
Questions
“This is now descending into farce. The complainant has now taken up an hour of everyone’s time with groundless accusations – instructive and all as it is to see what one is dealing with,” he said.
“Will my unfair dismissal complaint be heard by an impartial judge . . . or will it be heard by a friend of the legal team of Arthur Cox?” Ms Burke asked.
“I’ve suffered a detriment – I was kicked out summarily on a winter’s night from Arthur Cox. I see you’re raising your eyes Mr Baneham,” she said.
Mr Baneham said further questions by Ms Burke seemed to be straying from her initial submission that there could be a perceived bias in the case into allegations of direct bias.
“You’re making an application, you must have facts,” he said.
He said he had no relationship with Arthur Cox and would have disclosed one if he had.
Mr Ward said he and Mr Baneham were one of hundreds of legal volunteers who had given time and energy to Flac – and despite that, “our paths crossed on only one occasion”.
He said it was a “specious” assertion that a conflict of interest could exist because they shared membership of the Law Library at the same time.
Mr Ward said the links asserted by Ms Burke were “a groundless basis” for suggesting Mr Baneham recuse himself. He said the adjudicator had been subjected to inappropriate questioning which matched what he said happened during the previous High Court judicial review proceedings.
He said there could be no reasonable apprehension of partiality.
Ms Burke said she had “no confidence” in Mr Baneham and that if he proceeded to hear the matter “no-one would have a real doubt as to what the outcome of the case will be” .
Mr Ward said she had subjected Mr Baneham to “an hour’s worth of abuse”.
The adjudicating officer said he was reserving his position and would pause to consider the matter before returning to give an oral decision at a public hearing later on Friday afternoon. When the hearing resumed, he said he would require more time to consider the matter, and said he would deliver the decision by email.
Ms Burke objected to this course and argued the decision should be given at the hearing.
Mr Ward said he had taken further instruction and made an objection to Ms Burke’s manner of questioning the adjudicator earlier.
“That is a matter which will not just simply rest here today – I want the chair to note that,” he said.
Mr Baneham then closed the hearing.
The case is set to open next Thursday for four days of in-person hearings at Lansdowne House in Dublin.
