Earley v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Connor
• Judgment Date: 27 November 2015
• Neutral Citation: [2015] IEHC 841
• Docket Number: [2015 No. 5504 P]
• Court: High Court
• Date: 27 November 2015

BETWEEN

HELEN EARLEY

PLAINTIFF/APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

DEFENDANT/RESPONDENT

[2015] IEHC 841

[2015 No. 5504 P]

THE HIGH COURT

Employment – Health – Reassignment of duties – Modification of job duties – Contract of employment – Principles of natural justice

Facts: The plaintiff sought a declaration that the decision of the defendant to temporarily reassign her was unlawful. The defendant contended that the decision to reassign was within the terms of the contract of employment and it did not fundamentally constitute a different job.

Mr. Justice O'Connor refused to grant the declaration sought by the plaintiff. The Court held that the decision of the defendant in relation to the reassignment was appropriate and in line with the terms of the employment. The Court observed that it had no jurisdiction to supervise employment contracts and the defendant had the vested right and the ability to reassign staff. The Court found that since there were no mala fides or bias alleged against the defendant, the shuffling of place of employment with the same designation and role would not warrant the grant of the declaration sought by the plaintiff.

JUDGMENT of Mr. Justice O'Connor delivered on Friday the 27th day of November, 2015

Background

1 The plenary hearing of this case ran over nine days during the period from the 10th November, 2015, to the 24th November, 2015. The proceedings had been case-managed in order to achieve an early determination in view of the effects of the granting or refusal of the reliefs sought as urged upon the Court by counsel from the time when both parties were first represented in court at the beginning of July, 2015.

2 The Court alluded to its concern in the first week of the trial as to the time and resources that were devoted to this litigation. A considerable number of working hours of the defendant's staff were taken up with this litigation and the plaintiff herself attended throughout the trial. Furthermore, much time must also have been spent on preparing for the various hearings from July, 2015 to date.

3 The Court shared the desire of the parties for delivery of an early judgment. In this judgment the Court concentrates on the submissions most pertinent to its decision. The Court refers in a general way to the evidence adduced and the legal issues which have been raised that are ultimately relevant to the reliefs sought.

Informing Events

4 The following are facts which cause the Court to deliver its judgment in early course and which contribute to its final decision in relation to the reliefs sought:-

1. The Mental Health Commission (‘MHC’), as long ago as the 22nd April, 2015, most unusually contacted Ms. Anne O'Connor, national director for the mental health services of the defendant, on an urgent basis, as opposed to anyone in the relevant local area mental health management of the defendant for the Roscommon area. In a subsequent teleconference call with Ms. O'Connor and four other high ranking members of the defendant, the MHC described its very serious concerns following an inspection on the 16th April about the welfare of some service users in Roscommon and the local management's response to welfare issues and incidents. The MHC is effectively a regulator and supervisor of the defendant in regard to the provision of mental health services;

2. The letter from the Nursing and Midwifery Board of Ireland (‘NMBI’) to the director general of the defendant on the 8th May, 2015, about its notification to An Garda Síochána pursuant to the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012, which begged the question about the failure of the defendant's local management to notify An Garda Síochána about allegations relating to service users in a facility of the defendant;

3. The reasoned, bona fide and honestly held opinion of Mr. Gloster (whose evidence will be described later) which he formed on the 21st May, 2015, that the mental health services in Roscommon, which incorporated a number of residential units (two named units in particular), required a special review to provide the assurance expected by the defendant and the MHC. In other words, questions had arisen about whether established procedures and reporting policies of the defendant concerning service users, facilities and the provision of mental health services were operating as envisaged by the defendant in the Roscommon area;

4. The meeting on the 15th June, 2006, between representatives of the defendant and the MHC focusing on Roscommon lead to the decision to have an external review. The MHC had specifically reserved its right to initiate its own review under s.55 of the Mental Act 2001 (‘MHA’). The evidence to the Court was that s.55 reviews Health had only been sought on two previous occasions and the reference to a possibility of such a review underscored the grave concern of the MHC;

5. The voluntary, albeit ‘under protest’, reassignment of Ms. Catherine Cunningham (the plaintiff's line manager at this time) while a systems analysis, independent review and screening of anonymous complaints were undertaken. The Court stresses that the reassignment of Ms. Cunningham did not occur as a result of any allegation of wrongdoing made by the defendant against Ms. Cunningham;

6. The understanding afforded to the plaintiff by Ms. Cunningham around the 21st May, 2015, when her temporary reassignment was first suggested to her by Ms. Cunningham. Ms. Cunningham had agreed to discuss this with the plaintiff during her earlier meeting with Mr. Gloster and Dr. Burke (executive clinical director). Similar care, patience and understanding was given by Mr. Gloster to the plaintiff through her then union representative on the 24th June, 2015, and later by Mr. Gloster to the plaintiff up to and after his communication of the decision on the 1st July, 2015 (the subject of the plaintiff's claim);

The following description of events up to the remark which the Court feels obliged to make is only relevant to the granting of reliefs if the plaintiff established that the decision communicated on the 1st July was unlawful:-

7. The plaintiff's disregard, if not defiance, of the directions of Mr. Gloster whose authority to issue directions on the 1st July, 2015, were not challenged by the plaintiff. This is further evidence of the state of the working relationships in the relevant area. There was no excuse for such disregard despite the plaintiff's mantra that she was denied ‘natural justice’ in the making of the decision to reassign her which she attributed to alleged incidents of a sexual nature. The resistance of the plaintiff was ratcheted up even more when her solicitor entered the scene by emailing a six page letter at 15:44 on Saturday the 4th July to Mr. Gloster. Mr. Gloster in his evidence made little of the effort which he undertook in preparing a three page email reply which he sent to the solicitors at 10:58 on Sunday, 5th July. In this email Mr. Gloster summarised the prior relevant communications and spelt out in a remarkably moderate tone the consequences of the plaintiff's proposed defiance. The plaintiff was coy in her evidence about her knowledge of the evolving situation and the consequences of her defiance. Bluntly put, the plaintiff was exerting pressure in an inappropriate manner to get her own way and she paid little regard to the effect on her colleagues and the team of which she had been part for many years, whatever about the effect on the vulnerable service users. She was effectively jeopardising the provision of mental health services in order to thwart what she feared was going to be a permanent reassignment without her perceived right to due process;

8. Mr. Brian O'Malley started as acting area director of nursing mental health services on Monday, 8th July while the plaintiff was temporarily reassigned which she consciously ignored without any authority. Good governance and appreciation of management responsibilities clearly dictate that the plaintiff ought to have abided by the directions of Mr. Gloster. Nothing which the Court heard, excuses the plaintiff from the position which she took at that time and right up to and including the date of the hearing of the interlocutory application at the end of July, 2015;

9. The failure of the plaintiff to mend her hand following a reading of the perfected order of Gilligan J. on Friday 10th July, 2015, which specifically stated that no injunction was granted at that stage restraining the defendant from reassigning the plaintiff;

10. The situation whereby the Court granted an interlocutory injunction on the 30th July, 2015, having been informed by way of affidavit sworn on the 8th July, 2015, that the plaintiff had continued to carry out her full range of duties as director of nursing since the 1st July. This assertion was not corrected or clarified by or on behalf of the plaintiff until she answered questions under cross examination in the first week of the trial that she actually confined herself to clerical duties and photocopying at that time. The plaintiff remained out of contact with Mr. Gloster despite attempts by and on behalf of Mr. Gloster. This caused concern to Mr. Gloster about her personal well being. She or her solicitor should have given assurances at the earliest opportunity. The plaintiff did not seek to offer any credible excuse for this conduct;

11. REMARK: The Court feels obliged to remark that an area director of nursing who thinks and instructs her solicitor that she has carried out her full range of duties during the days following in such circumstances shows a lack of objectivity at that time, at the very least. By all accounts, the plaintiff had an unblemished record as a nurse and a director of nursing and it is worrying to...