Dowling v Irish Prison Service

JurisdictionIreland
JudgeMs. Justice Ní Raifeartaigh
Judgment Date03 March 2020
Neutral Citation[2020] IEHC 460
Docket NumberRECORD NO. 2018/963 JR
CourtHigh Court
Date03 March 2020
BETWEEN
GERALD DOWLING
APPLICANT
AND
IRISH PRISON SERVICE, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2020] IEHC 460

Ní Raifeartaigh J.

RECORD NO. 2018/963 JR

THE HIGH COURT

Judicial review – Natural and constitutional justice – Mediation – Applicant seeking to quash the contents of a report prepared by a designated person under the Dignity at Work policy operating within the respondent – Whether the complaint made against the applicant was made in good faith

Facts: The applicant, Mr Dowling, sought to quash the contents of a report prepared by a person fulfilling the role of “designated person” under the Dignity at Work policy operating within the first respondent, the Irish Prison Service (IPS). The report was prepared after a complaint of bullying was made against the applicant and after certain steps had been taken by the designated person in accordance with the Policy, which sets out the procedures to be followed upon a complaint of bullying being made. In her report, the designated person recommended that the complainant and the applicant should engage in mediation. The applicant took issue with her report and, in particular, her view that the complaint was made in good faith, and its recommendation as to mediation, as well as the acceptance of the report by the Director of Human Resources. The applicant said that she failed to take certain crucial matters into account and that these might have affected her conclusion.

Held by the High Court (Ní Raifeartaigh J) that this case did not fall within the parameters of judicial review. Ní Raifeartaigh J noted that the Irish Prison Service is a body which carries out many functions of a public law character, but what was impugned in this case was a step taken in respect of an employee which was neither an adjudication on a disputed fact nor a sanction of any kind, such as dismissal, demotion, or warning; nor was it a finding in the course of an investigation preliminary to a disciplinary process. Ní Raifeartaigh J held that there was little or no nexus between the statutory or public law context of the respondent and the matter impugned, being a report of a designated person into an allegation of bullying as a preliminary exercise under the Dignity at Work procedure. Ní Raifeartaigh J noted that the applicant was not removed or suspended from his position. Ní Raifeartaigh J found that the height of the applicant’s case was that the designated person formed the view that a complaint had been made in good faith against him; an opinion which was embedded in a report to her superior, the Director of Human Resources, and which would not have been generally publicised if he had not brought these judicial proceedings. Ní Raifeartaigh J held that the designated person was performing functions in the most preliminary phase of a phased structure set out in a policy agreed between the employer and the trade unions. Ní Raifeartaigh J could not see how, on any of the tests described in the authorities, the applicant could bring himself within the parameters for judicial review. Ní Raifeartaigh J therefore concluded that the applicant should be refused the reliefs sought on this preliminary basis.

Ní Raifeartaigh J held that the reliefs sought would be refused.

Reliefs refused.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 3rd day of March, 2020
Nature of the Case
1

The applicant seeks to quash the contents of a report prepared by a person fulfilling the role of “designated person” under the Dignity at Work policy currently operating within the Irish Prison Service (“IPS”). The report was prepared after a complaint of bullying was made against the applicant and after certain steps had been taken by the designated person in accordance with the Policy, which sets out the procedures to be followed upon a complaint of bullying being made. In her report, the designated person recommended that the complainant and the applicant should engage in mediation.

2

The case was heard by me at the same time as the case of McDonald v. IPS and Buckley v IPS. Unlike those cases, there was never any question of transferring this applicant, Mr. Dowling, from one position to another within the IPS. Also, unlike the McDonald case, no question of any further investigation of a bullying complaint arises. What happened in the present case was simply this: a complaint of bullying was made against the applicant; a designated person was appointed; having carried out her duties, she wrote a report recommending mediation which was accepted by the Director of Human Resources; and that was where matters rested until this judicial review was commenced. The applicant takes issue with her report and, in particular, her view that the complaint was made in good faith, and its recommendation as to mediation, as well as the acceptance of the report by the Director. The applicant says that she failed to take certain crucial matters into account and that these might have affected her conclusion. It has to be said that the submissions on behalf of the applicant frequently came close to the proposition that the Court itself should view the bullying complaint against the applicant as being without merit. Of course, the Court can express no view whatsoever on this matter as this would be to enter into the merits of the complaint which this Court in exercising its judicial review function is not entitled to do.

The Dignity at Work policy
3

The Dignity at Work policy (“the Policy”) is a document which was developed in partnership between civil service management and staff unions. It replaced a previous policy and came into effect from 20th February, 2015. As part of the revised procedures, a new role, that of the “designated person,” was introduced into the process for the first time. The introduction of this role was required by the HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work. The Dignity at Work policy states that the role of the designated person is to oversee each complaint which is referred to the Human Resources (“HR”) Unit and a detailed description of the role is set out in Appendix B, to which I will return shortly.

4

The Policy states that its intention is to encourage the use of informal resolution methods and the use of mediation as often and as early as possible during disputes, and that complaints should only proceed to formal investigation once efforts to utilise local resolution methods or mediation have been exhausted or are considered unsuitable due to the nature of the complaint.

5

The Policy sets out detailed procedures to be followed when allegations of bullying, harassment or sexual harassment are made. One method of resolving complaints is described as ‘local resolution’ whereby the complainant approaches the respondent and/or the line manager and the matter is resolved at that level.

The Designated person

6

Another approach is that the complaint is raised with HR, in which case a “designated person” is appointed to oversee the complaint. The designated person is required to consult with the complainant within 10 days, and then to consult with the respondent within 10 days, having furnished them with the detail of the complaint. The designated person provides certain documents to the complainant and respondent (including the Policy itself and the Disciplinary Code) and explains the various procedures available for resolution, including mediation in particular. The designated person is required to produce a written report for HR which records all stages of the process that took place; an indication of whether the alleged behaviour may constitute bullying, harassment or sexual harassment; examples of alleged behaviour provided by the complainant including time, dates, location, names of witnesses; and a copy of the written complaint signed by the complainant. Interestingly, the policy states that “[t]hese records should not include comprehensive details of what was discussed” (emphasis added). It also states that “[t]he purpose of the records is to provide evidence of an organisational response and an attempt at resolution”.

7

Appendix B provides that the designated person will be a senior member of staff who will “oversee complaints which have been referred to the Human Resources Unit” and says that “[t]his individual will play a pivotal role in ensuring that complaints are dealt with in a timely and efficient manner”. It says that the designated person shall:

• Ensure that all parties have copies of this policy and other relevant information;

• Ascertain the details relevant to the complaint, the context, and advise on the potential resolution methods which may be explored;

• Provide information on mediation to all parties involved in a dispute;

• If complaints are in a verbal format, make a written note of what is complained of, and give a copy to the complainant; and

• Make a record of steps which have been taken in the process such as records of meetings, actions agreed, and the final report to the HR Manager. The purpose of these records, which do not include details of the discussions, are to provide evidence of the complaint being met with an organisational response and attempt at resolution.

Investigation

8

Upon receipt of the designated person's report, the HR Manager may decide to assign the matter to investigation. The investigator is to receive and consider all of the evidence. Within 10 working days of the receipt by the Manager of the investigation report, the complainant and respondent should be informed in writing of the findings of the investigation. They then have 10 days within which to comment upon them. Within 10 working days of the receipt of comments, the manager is required to consider the findings of the investigation and comments provided by both parties; decide upon the outcome of the...

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