O'Sullivan v Mercy Hospital Cork Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 03 June 2005
• Neutral Citation: [2005] IEHC 170
• Docket Number: [No. 1503 P/2005]
• Court: High Court
• Date: 03 June 2005

[2005] IEHC 170

THE HIGH COURT

[No. 1503 P/2005]

O'SULLIVAN v MERCY HOSPITAL CORK LTD

BETWEEN

NOREEN O'SULLIVAN

PLAINTIFF

AND

MERCY HOSPITAL CORK LIMITED

DEFENDANT

O'BRIEN v AON INSURANCE MANAGERS (DUBLIN) LTD UNREP CLARKE 14.1.2005 2004/37/8572 2005 IEHC 3

MORGAN v TRINITY COLLEGE DUBLIN & ORS 2003 3 IR 157 2004 ELR 235 2003/38/9088

EMPLOYMENT:

Injunction

Fair procedures - Inquiry - Bullying and harassment - Flawed preliminary investigation - Whether report of first investigation could be relied on in second inquiry - Whether second inquiry tainted - Whether fair issue to be tried - Balance of convenience - O'Brien v Aon Insurance Managers (Dublin) Ltd [2005] IEHC 3 (Unrep, Clarke J, 14/1/2005) and Morgan v Trinity College [2003] 3 IR 157 followed - Injunction granted (2005/1503P - Clarke J - 3/6/2005) [2005] IEHC 170

O'Sullivan v Mercy Hospital Cork Ltd

Mr. Justice Clarke

1 In this application the plaintiff seeks a variety of interlocutory orders designed to restrain the defendants from progressing, in a manner which she contends is unlawful, with enquires and procedures relating to her employment.

2 Despite the lengthy affidavits filed by both sides the facts that are material to the issues as they became refined in the course of the hearing before me are not unduly complex and are, to a significant extent, not in dispute.

3 The plaintiff is Assistant Director of Nursing at Mercy University Hospital in Cork City. She has been employed by the defendant for almost 30 years and has never been the subject of disciplinary proceedings of any sort. She was promoted to her current position in 2002 as a result of an open and nationally-advertised competition. The current grade of Assistant Director of Nursing compares to the previous grade of Assistant Matron.

4 The events which lead to the current difficulties between the parties may be said to commence in the latter part of 2003 when, it would appear, concerns emerged about the performance of certain members of staff, and one in particular, employed in a clerical capacity in a department of the defendant hospital with which the plaintiff was not involved. It would appear that a record may have been taken of alleged failures on the part of the member of staff concerned to carry out her duties in a proper manner. It would also appear that a report was compiled setting out those failures ("the performance report"). In unusual circumstances the performance report came into the hands of the staff member concerned while she was legitimately and with permission opening the post of a more senior individual who was on holidays. As a result of reading the contents of the performance report the individual concerned complained that the contents of that report reflected bullying and harassment on the part of certain individuals.

5 It is important to note that in her complaint the individual concerned named two other members of staff whom she state were the persons whom she believed had compiled the performance report and also in a general way and without naming any individual, indicated that her complaint extended to those who had caused the performance report to come into existence.

6 Arising from her complaint the defendant appointed Mr. Declan Brown a Consultant Occupational Psychologist to investigate the allegations made. The terms of reference given to Mr. Brown were not put in evidence at this interlocutory hearing. However he did produce two separate reports dated the 17th December, 2004 ("the Brown Reports"). The two reports are respectively headed by naming the individual who made complaint as the complainant and each of the named persons against whom complaint was made as respondent in the respective reports. Insofar as the reports are material to these proceedings Mr. Brown concluded that the two named individuals had, indeed, compiled the performance report. Mr. Brown also concluded that the plaintiff and another named senior member of the nursing staff were involved with the initiation of that report. He went on to conclude that:-

"Furthermore where a report is compiled over a seven month period without the knowledge of the particular employee and where monitoring is formalised without communication about alleged performance problems is such action indirect bullying?"

7 He further concluded that bullying occurred by what he described as the initiators (who he named as the plaintiff and the other senior nurse to whom I referred above) as well as those whom he described as the narrators and compilers who he identified as the two named individuals against whom complaint was expressly made.

8 Thus the Brown Reports contain a clear and unequivocal finding that the plaintiff had been guilty of bullying.

9 The principal complaint which the plaintiff makes as to the Brown Reports is to the effect that she was never informed that Mr. Brown was considering making an adverse finding against her at all. She was interviewed by Mr. Brown. She also gave a written account of her position on the matters which were put to her at interview which she compiled in the days immediately after the interview. That written account is annexed to the report. She has deposed on affidavit that when she was asked to become involved in what I might call the Brown enquiry she herself asked whether she should be represented by her trade union but was informed that she was simply a witness. At no stage in the course of the enquiry was she ever informed that the situation had changed and that Mr. Brown was now considering making adverse findings in relation to her. No evidence was presented at the hearing before me from Mr. Brown. At certain stages in the course of the filing of affidavits the defendant hospital seemed to reserve its position. For example at para. 12 of the initial replying affidavit Mr. John Murphy the Chief Executive Officer of the hospital indicated that he "cannot comment on whether Mr. Declan Brown will allege that at any time during the investigation process the plaintiff was made aware that any finding of any nature whatsoever would be made against her or whether she was ever afforded an opportunity to respond to such complaint as might exist against her or otherwise have professional advice or representation in relation to such complaint". However it would seem to be the case that by the time the hearing was concluded it was accepted on the part of the hospital that Mr. Brown had not taken any such action. For the purposes of this application there is no evidence before me that Mr. Brown did any of the things which the plaintiff claims he did not do by way of alerting her to the possibility of an adverse finding being made against her. In those circumstances, and for the purposes of this interlocutory hearing, it seems to me that I must operate on the basis that Mr. Brown was guilty of a significant failure in the manner in which he conducted his enquiry in failing to give any advance notice to the plaintiff that he was considering making a finding adverse to her interest. Indeed it appears that Mr. Brown made a finding of bullying against a number of individuals arising out of the fact that, in his view, they monitored or caused to be monitored an individual's conduct and reached conclusions about the adequacy thereof without informing the individual concerned. It is not, in my view, putting it too far to suggest that on the evidence before me Mr. Brown did virtually the same thing in respect of the plaintiff. There is evidence that other persons called as witnesses to his enquiry were questioned about the conduct of the plaintiff. This has not been denied. He thus conducted an enquiry which had at least as part of its focus and undoubtedly had as part of its findings matters adverse to the plaintiff and yet gave the plaintiff no notice of the fact that he was so doing. It seems to me, therefore, that I must approach this application on the basis that no reliance can be placed upon the report of Mr. Brown insofar as it relates to the plaintiff.

10 I can readily understand that the fact that the Brown Reports were compiled in such flawed circumstances placed the hospital in a difficult position. The issue which is now before the court concerns the manner in which the hospital has attempted to deal with that difficult situation.

11 The hospital decided to set up a second enquiry and appointed a distinguished member of the Cork Bar, Ms. Ann O'Brien, to conduct same. No suggestion is made that there is anything inappropriate about the identity of the person so appointed. However the plaintiff contends that the nature of the enquiry now being sought to be put in place by the hospital is legally flawed for a number of reasons:-

12 1. That the terms of reference incorporate, by reference, the findings of the Brown Reports and as such, it is contended, any enquiry will necessarily be tainted by the flawed nature of the Brown Inquiry.

13 2. It is suggested that the factual basis for the findings set out in the Brown Reports as against the plaintiff could not, in any event, amount to bullying and that there is thus, no basis for the O'Brien Inquiry.

14 3. It is suggested that certain of the procedures proposed for O'Brien Inquiry do not conform with the plaintiff's contract of employment.

15 On that basis it is sought to restrain the conduct of the O'Brien Inquiry.

16 Before analysing each of those claims it should be noted that in the course of his submissions to the court counsel for the defendant made clear the hospital's position in relation to the O'Brien Inquiry.

17 It was made clear that it was accepted by the hospital that no reliance of any sort could be placed upon the Brown Reports insofar as they affected the plaintiff. It was suggested that Ms. O'Brien would be asked to look again at all of the matters...