Hughes v Irish Blood Transfusion Service

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date30 April 2019
Neutral Citation[2019] IEHC 439
Date30 April 2019
Docket Number[2017 No. 712 J. R.]

[2019] IEHC 439

THE HIGH COURT

McDermott J.

[2017 No. 712 J. R.]

BETWEEN
ANNETTE HUGHES
APPLICANT
AND
IRISH BLOOD TRANSFUSION SERVICE
RESPONDENT

Judicial review – Dismissal – Breach of fair procedures – Appellant seeking order of certiorari quashing the respondent’s decision to dismiss her – Whether the respondent erred in law and acted in breach of fair procedures

Facts: The applicant, Ms Hughes, was until her dismissal on 20th June, 2017, the Assistant Director of Nursing with the respondent, Irish Blood Transfusion Service. The applicant was granted leave to apply for judicial review and sought orders of certiorari, quashing the decision taken by Mr McKinney on behalf of the respondent to dismiss her and the decision on appeal dated 21st July, 2017, taken by the respondent’s then Chief Executive confirming that dismissal. The applicant also sought a declaration that the respondent erred in law and acted in breach of fair procedures. Numerous complaints were made in respect of the investigation process and the respondent’s subsequent reliance on the investigation report as a basis for initiating the stage 4 disciplinary procedure. Counsel for the applicant submitted that as a matter of fair procedures the employer had a duty to furnish the applicant with notice of the precise allegation made against her under the respondent’s disciplinary procedure. The applicant sought relief on the basis of the role and conduct of Mr Rickard, Director of Human Resources, in the disciplinary hearings both at first instance and on appeal. The applicant also raised other complaints in respect of the disciplinary hearing conducted by Mr McKinney. A number of complaints were made regarding the conduct of the appeal. It was contended on behalf of the applicant that her dismissal was manifestly disproportionate in the circumstances.

Held by the High Court (McDermott J) that it was made clear to the applicant that the investigation was to be carried out under the IBTS Disciplinary Procedure following which she agreed to the terms of reference for the investigation. McDermott J held that it was not the function of Mr Stirling, the investigator, to formulate disciplinary charges: that was a course of action to be determined following a consideration of the report by management. McDermott J was satisfied that Mr Rickard exercised his role under the Disciplinary Procedure in accordance with his duty and function in the managerial hierarchy and the disciplinary process. McDermott J was not satisfied that the decisions reached in this case were subject to the infirmities identified in Georgopoulus v Beaumont Hospital Board [1998] 3 IR 132 and Delaney v Central Bank of Ireland [2012] ELR 117. McDermott J was satisfied that Mr Kelly, the respondent’s Chief Executive, gave full and careful consideration to each of the grounds relied upon by the applicant in her appeal. McDermott J was not satisfied that the decision to dismiss the applicant was in all the circumstances of the case unreasonable, irrational or disproportionate.

McDermott J held that the application would be refused.

Application refused.

Judgment of Mr. Justice McDermott delivered on the 30th April 2019
1

The applicant was until her dismissal on 20th June, 2017, the Assistant Director of Nursing with the respondent. She was at the time of the initial application 61 years old, with 40 years” experience in the nursing service. The applicant was granted leave to apply for judicial review and seeks orders of certiorari, quashing the decision taken by Mr. Paul McKinney on behalf of the respondent to dismiss her on 20th June, 2017 and the decision on appeal dated 21st July, 2017, taken by the respondent's then Chief Executive confirming that dismissal. The applicant also seeks a declaration that the respondent erred in law and acted in breach of fair procedures.

Background
2

On 18th July, 2016, Ms. Mary McArdle, the respondent's Director of Nursing met four of the applicant's subordinates, who were managers within the organisation who had expressed a desire to meet her as a group to raise issues concerning the applicant's behaviour. Ms. McArdle took notes of this meeting in which she recorded various complaints made against the applicant. The complaints varied but central to each was the allegation that the applicant's behaviour had caused huge distress, due to alleged constant negative remarks by the applicant towards the complainants, lack of appropriate consultation, micromanagement and insinuations that she was being spoken about all the time; they also complained that the applicant took an adverse view of comments made by the complainants which were taken out of context. Two of the complainants became extremely stressed and cried during their interviews on the matter. A number of them felt that the applicant's behaviour placed them under huge pressure: all of them emphasised an alleged atmosphere of negativity which had been created in the workplace by the applicant. This was said to have been compounded by inconsistencies in the manner in which various issues were addressed by her and a constant feeling that she was undermining them as managers.

3

On 22nd July, 2016, Ms. McArdle held a meeting with the applicant concerning these complaints. Handwritten notes of this meeting taken by Ms. McArdle were furnished to the court. The applicant was informed that the four complainants had as a group raised a number of concerns including:-

(1) The way managers were treated, namely that one could be in favour one minute and out of favour the next and treated badly;

(2) The managers stated they could not continue to work in the current environment;

(3) They felt like handing in their notices and were very distressed;

(4) A complaint was made about criticism by the applicant of one member of staff to another in what was said by the applicant to be a confidential meeting or conversation and a sense of staff being caught in the ‘cross fire’ which made the recipients of the criticism of a colleague feel very uncomfortable. Staff members told each other what had been said about the other and complained about being called in by the applicant to ‘just to sound off about another member of staff’;

(5) They alleged that the applicant was constantly spinning or misrepresenting something said by one staff member to other staff members in an inappropriate way;

(6) There was no consistency in the applicant's approach;

(7) The group experienced a lack of trust and confidence;

(8) The applicant was always pushing for information about others;

(9) They felt their autonomy was gone and they were being micromanaged and could not use their own initiative;

(10) They felt that their professionalism was undermined by the applicant;

(11) The applicant on occasions stated that she had no recollection of conversations which had taken place with the managers, so the complainants were made to feel as if they were lying and stories were changed by the applicant to suit herself;

(12) There were a number of other different issues peculiar to each of the complainants;

(13) The complainants emphasised that the behaviour needed to stop;

(14) They were afraid to have a conversation because of the possible consequences and impact it would have;

(15) Each of the complainants highlighted the need for a change in the applicant's behaviour and that they had to move forward.

4

Each complainant felt that one of the managers (J. L.) was treated differently and was being actively bullied by the applicant. As a result, she had become disengaged and each of them felt very uncomfortable about how she was spoken to by the applicant.

5

Ms. McArdle then records the following as the course of action directed by her as Director of Nursing and agreed with the applicant at this meeting concerning the complaints:

(a) The applicant was not to speak to staff individually about the matter as they would not feel comfortable doing so and would only meet in a group. They were afraid of the fallout from the complaints;

(b) Ms. McArdle recorded ‘what to do going forward, the need for dignity and respect.

… (3)draw a line in the sand.

(4) working as a team.

(5)need to build up trust again.

(6)what to do if it continues – Stop, I feel uncomfortable about this –

Address it as it occurs.

• We need to address this as staff are going on annual leave, you are to say the following to them:-

‘I have been speaking to Mary and she has highlighted your issues and concerns. I apologise, things will change and we will discuss this when you come back from annual leave with a view to moving forward.’

6

In a typed note of the interview, Ms. McArdle recorded inter alia:-

‘I advised Annette that moving forward it was agreed that we would address this at a local level, draw a line in the sand and look at how we would build up trust again and that the behaviour would need to change. There was a need for dignity and respect to be upheld.

Annette was instructed not to speak to the staff individually about this, as they did not feel comfortable, they all stated that they were afraid of the fallout. As all the staff were going on holidays in the next week or two, Annette was instructed to approach them with the following statement:-

“I have been speaking to Mary and she has highlighted your issues and concerns. I apologise, things will change and we will discuss this when you come back from annual leave with a view to moving forward”

Annette agreed this and said she would speak to N. F. and J. L. that day (Fri. July 22nd) as she would be [in] Cork on Monday and Tuesday and they would be on annual leave on her return the following week. She stated that she would talk to E.O.C. on Monday (July 25th) and T. F(r). on Wednesday (27th).’

The last paragraph in that quotation appears to have been added to the typed note and did not appear in the handwritten note.

7

The applicant's note of this...

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