Traynor v Ryan

• Jurisdiction: Ireland
• Judge: Justice McCracken
• Judgment Date: 17 July 2002
• Neutral Citation: [2002] IEHC 76
• Court: High Court
• Docket Number: No. 98P/2002
• Date: 17 July 2002

[2002] IEHC 76

THE HIGH COURT

No. 98P/2002

TRAYNOR v. RYAN

BETWEEN

CELINE TRAYNOR

PLAINTIFF

AND

JOHN RYAN

DEFENDANT

Citations:

HEALTH ACT 1970 S22

HEALTH ACT 1970 S23

HEALTH ACT 1970 S24

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

O'CEALLAIGH V BORD ALTRANAIS 2000 4 IR 54

REES V CRANE 1994 2 AC 173

Synopsis:

EMPLOYMENT LAW

Disciplinary procedures

Declaration - Whether defendant has jurisdiction to initiate disciplinary proceedings - Nature of proceedings - Fair procedures - Whether fair procedures followed - Reasonableness - Whether evidence to support decision to initiate disciplinary proceedings - Whether disciplinary proceedings invalid (2002/98P - McCracken J - 17/7/2002)

Traynor v Ryan

Facts: the plaintiff was appointed as a consultant in the Coombe Hospital where the defendant was engaged as the manager pursuant to a contract containing a clause on disciplinary procedures. Pursuant to that disciplinary procedure, the defendant referred the plaintiff's conduct to a disciplinary committee on grounds of misconduct. The plaintiff brought proceedings seeking declarations to quash that decision on the grounds that fair procedures had not been followed and that the decision was unreasonable. She also contended that the defendant had no jurisdiction to initiate the disciplinary procedures as there had been no formal complaints concerning her conduct.

Held by McCracken J. in dismissing the plaintiff's claim that the defendant had jurisdiction to initiate the procedures as there was no requirement that formal complaints be made and that under the plaintiff's contract concerns were sufficient to refer her conduct to a committee. Fair procedures, which had been agreed to in advance by the plaintiff, were followed. The plaintiff had been given notice of all allegations against her, the procedures followed were those set out in the common contract and were therefore procedures which she had accepted at the commencement of her employment to be proper and fair procedures in disciplinary matters. The defendant had a large body of evidence to support his findings that there had been misconduct such as to warrant that it should go before a committee for consideration and were not unreasonable and could not be set aside therefore.

1 Justice McCrackendelivered the 17th day of July, 2002.

2 The plaintiff is a Consultant Anaesthetist and holds that appointment in St. James'Hospital and Coombe Woman's Hospital in Dublin under a contract dated 4th February 1998 in the form commonly known as the consultants common contract. These proceedings only concern her appointment to the Coombe Woman's Hospital, and the plaintiff seeks a series of declarations relating to disciplinary proceedings taken against her. The defendant is the Secretary/Manager of the Coombe Woman's Hospital.

3 Appendix IV of the plaintiff's contract deals with disciplinary procedure. The preamble to the appendix states:-

"The purpose of the disciplinary procedure is to ensure that complaints concerning the competence, capability or conduct of consultants will be dealt with in a manner which has due regard to the rights and obligations of the parties. Where a complaint concerning a consultant is considered under this procedure it shall be dealt with expeditiously while affording the consultant adequate opportunity to reply to any complaint or allegation made against him. The consultant shall be entitled to be represented at all stages of the procedure should he so desire."

4 The procedure set out distinguishes in a number of ways between a health board hospital and a private hospital. The Coombe Woman's Hospital is a private hospital, and therefore in considering elements of the disciplinary procedure, I only propose to cite the portions relevant to a private hospital. The relevant portion of paragraph one reads:-

"Where the Chief Executive Officer, Secretary/Manager of a hospital or some other person authorised by him of a hospital not being a health board hospital hereinafter called "the appropriate person" is concerned that a consultant may have failed to comply with any of the terms of his appointment or may have otherwise misconducted himself in relation to his appointment, he shall notify the consultant in writing of the reasons for such concerns and inform him that any representations in regard to the matter may be received by the Chief Executive Officer or the appropriate person, as the case may be, from the consultant within two weeks of the issue of the notification and will be considered."

5 Paragraph two relates to a complaint relating to an individual living patient and paragraph three provides for the Chief Executive Officer or secretary/Manager of a hospital to suspend a consultant on full pay for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant.

6 Paragraph four, which is central to the present proceedings,reads:-

"The Chief Executive Officer of a health board, Chief Executive Officer, Secretary/Manager of a hospital or other health agency or the appropriate person, after consideration of any representations which the consultant may make in regard to the matter, and after carrying out such further examination into the matter as he considers necessary may:- "

(a) if he is satisfied that the matter was trivial or without foundation, so inform the consultant in writing, or

(b) if he is satisfied that the consultant had not complied with the terms of his appointment or had otherwise misconducted himself in relation to his appointment, and if he thinks fit, issue a warning or other like communication to the consultant, or

(c) where he is the Chief Executive Officer of a health board, decide to act in accordance with the provisions of Sections 22, 23 and 24 of the Health Act 1970and the Regulations made thereunder, or

(d) where he is not the Chief Executive Officer of a health board, decide to act by way of the following analogousprovisions."

7 The appendix then goes on to set out the procedure to be followed under paragraph 4(d), which involves a request to the Minister for Health to appoint a committee to enquire into the matter.

8 Pursuant to paragraph one of the disciplinary procedure, by letter dated 21st June 2001 the then acting Secretary and General Manager of the hospital wrote to the plaintiff informing her of concerns arising from five written complaints from some of the plaintiff's colleagues and a sixth verbal complaint which was subsequently made in writing. That letter also required the plaintiff to take administrative leave with pay with immediate effect and notified her that an investigation in accordance with the disciplinary procedure would take place. The procedure envisaged was set out in the letter as follows:-

"This investigation will take place with all practicable speed and shall be conducted in the utmost confidence. You are entitled to make representations in relation to these matters. It is envisaged that there will be a furtherexamination of the complaints, at which stage the hospital will write to you inviting you to attend a meeting. At this meeting you will have the opportunity to make further representations. You should be aware that you will be furnished with the relevant evidence in relation to the allegations prior to this meeting.

I would remind you that you are entitled to be represented at all stages of procedure should you so desire."

9 On 25th September 2001 the plaintiff issued proceedings against the defendant under record number 2001 No. 14308P and subsequently brought a motion seeking interlocutory relief including inter alia an injunction restraining the purported disciplinary proceedings. The interlocutory proceedings were settled on 20th November 2001 on the following terms:-

10 2 "1. Strike out motion.

11 2. Reserve costs.

12 3. Dr. Traynor to furnish statement forthwith to Mr.Ryan.

13 4. If Dr. Traynor wishes to furnish further statements, will do so within 48 hours.

14 5. Dr. Traynor will attend the meeting with Mr. Ryan (solicitor and, if necessary, senior counsel in attendance) to make whatever oral representations she wishes and to answer questions posed by Mr.Ryan.

15 6. Within seven days of the latest of the above (5) absent force majeure or by agreement Mr. Ryan will issue his decision.

16 7. If the decision is within (a) or (b) of Appendix IV paragraph 4 administrative leave terminates.If the decision is to refer to a committee pursuant to the agreed procedure reasons will be given in writing by Mr. Ryan at the time he gives his decision.

17 8. This is in settlement of the INT.INJ.app only and the parties reserve absolutely all other rights."

18 At this stage the plaintiff had been furnished with a considerable amount of documentation, largely consisting of reports which had been requested by the defendant from other members of the staff involved in the six incidents. In the interlocutory proceedings a large number of affidavits had been filed on both sides and the parties were very well aware of the disputes involved. In due course, pursuant to the settlement, the plaintiff furnished the defendant with a lengthy statement on 20th November 2001, and an interview took place on 29th November 2001 between the plaintiff and the defendant, at which the plaintiff was represented by solicitor and senior counsel. At the outset of that interview, senior counsel for the plaintiff made two points. Firstly, he raised the issue that the disciplinary procedure only dealt with complaints, and contended that in five of the six matters there had been no complaint made. He stated, however, that the plaintiff was willing to proceed in any event, reserving the plaintiff's rights to raise this point again after a decision had been made. The second preliminary matter raised on behalf of the plaintiff was that under the terms...