McDonald v Irish Prison Service
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 03 March 2020 |
| Neutral Citation | [2020] IEHC 458 |
| Date | 03 March 2020 |
| Court | High Court |
| Docket Number | [RECORD NO. 2019/27JR] |
AND
AND
[2020] IEHC 458
Ní Raifeartaigh J.
[RECORD NO. 2019/27JR]
[RECORD NO. 2018/785JR]
THE HIGH COURT
Judicial review – Natural and constitutional justice – Mootness – Applicant challenging by way of judicial review a decision of the respondent to transfer him – Whether the case was moot
Facts: A decision was made within the first respondent, the Irish Prison Service (the IPS), to effect a temporary transfer of the applicant, Mr McDonald, out of one particular unit within the prison service following complaints of bullying made by two prison officers and while investigation of those complaints was underway. The applicant was a prison officer of the rank of Assistant Chief Officer and the unit out of which it was intended to transfer him was the Operational Support Group. The question of whether the entirety of the case was moot was a central issue because the temporary transfer of the applicant did not take place and was no longer envisaged. This was because the prison officers who had made the complaints of bullying voluntarily agreed to a change in the rostering arrangements, with the result that the complainants and the applicant would no longer be working together, and the transfer was then deemed by the IPS to be unnecessary. The applicant, who had instituted the proceedings after the transfer decision had been made but before it had been implemented, refused to discontinue the proceedings when the new rostering arrangement was arrived at, and contended at the hearing before the High Court (Ní Raifeartaigh J) that although certain reliefs were moot, the other reliefs that he had sought were not.
Held by Ní Raifeartaigh J that once the second transfer decision had been rescinded or abandoned by the IPS in February 2019, the applicant should have terminated the proceedings and engaged with the investigation by Raise a Concern into the complaint of “prison officer O’C” where he could have set out his case fully before the investigators with a view to persuading them that the complaints of bullying made by prison officer O’C completely lacked substance. Ní Raifeartaigh J noted that the applicant chose to prolong and bring to trial proceedings which had originally been brought for a very different purpose (namely, to prevent his transfer) and sought to shoe-horn what was essentially a moot case into the remaining reliefs sought, most of which was attempted by conflating issues relating to the transfer decision and issues relating to the bullying complaints/Dignity at Work procedure, and by seeking to import into a preliminary procedure under the Policy standards of procedural rigour more suited to an investigative or disciplinary process.
Ní Raifeartaigh J held that the reliefs sought would be refused.
Reliefs refused.
This case has its origins in a decision made within the Irish Prison Service (“the IPS”) to effect a temporary transfer of the applicant out of one particular unit within the prison service following complaints of bullying made by two prison officers and while investigation of those complaints was underway. The applicant is a prison officer of the rank of Assistant Chief Officer and the unit out of which it was intended to transfer him is the Operational Support Group (“the OSG”). The question of whether the entirety of the case is now moot is now a central issue because the temporary transfer of the applicant did not take place and is no longer envisaged. This is because the prison officers who had made the complaints of bullying voluntarily agreed to a change in the rostering arrangements, with the result that the complainants and the applicant would no longer be working together, and the transfer was then deemed by the IPS to be unnecessary. The applicant, who had instituted these proceedings after the transfer decision had been made but before it had been implemented, refused to discontinue the proceedings when the new rostering arrangement was arrived at, and contended at the hearing before me that although certain reliefs were moot, the other reliefs that he had sought were not.
For the avoidance of doubt, it should be noted that all references in this judgment to the proposed transfer of the applicant relate to a transfer which was always intended to be temporary in nature; that is to say, a transfer pending the outcome of the investigation into the allegations of bullying made against him.
The chronology of relevant events will be set out in further detail below. At the outset, it may be noted that the timeline is slightly complicated because there were two successive decisions to transfer the applicant and two sets of judicial review proceedings, one in respect of each proposed transfer. The first decision to transfer the applicant was made on 24th August, 2018. The applicant brought judicial review proceedings to prevent this transfer and to quash the decision. The IPS then accepted that the applicant should have been allowed to make submissions concerning the fact of, and potential location of, any transfer, and consented to certiorari being granted in respect of that transfer. This was dealt with by the High Court (Noonan J.) on 9th October, 2018. A second decision to transfer the applicant was subsequently reached after a process during which he was given an opportunity to make submissions (but about which he also makes complaint) and this decision was communicated to the applicant by letter dated 19th December, 2018. The applicant then commenced a second set of judicial review proceedings (record number 2019/27). However, following the applicant's return to work on 22nd December, 2018 after having been on sick leave for some months, the prison officers who had made the allegations of bullying agreed to work on a different side of the roster to the applicant. The IPS then decided that it was not necessary to transfer the applicant and he was so notified. The respondent contends that in those circumstances, the entire case is moot. The applicant, however, maintains that certain parts of the case remain live, including his challenge to the procedures employed thus far in the process dealing with the allegations of bullying, as well as certain declarations relating to the procedures leading up to the transfer decision(s).
I will turn first to the Dignity at Work policy, which is part of the background to the present case.
The Dignity at Work policy is a document which was developed in partnership between civil service management and staff unions. It replaced a previous policy. The new policy 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.
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 to be unsuitable due to the nature of the complaint.
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 it is resolved at that level.
The Designated Person
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 details 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”.
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;
•...
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