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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Earley -v- The Health Service Executive [2015] IEHC 520 (30 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H520.html
Cite as: [2015] IEHC 520
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Judgment
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Neutral Citation [2015] IEHC 520 THE HIGH COURT [Record No. 2015/5504 P] BETWEEN HELEN EARLEY PLAINTIFF AND
THE HEALTH SERVICE EXECUTIVE DEFENDANT JUDGMENT of Ms. Justice Kennedy delivered 30th day of July, 2015 Introduction 2. The plaintiff has been employed by the defendant since 1998 and was appointed to her current position in 2012. She is the Senior Manager with responsibility for the management, control and direction of nursing within those areas. She has responsibility for more than 60 facilities across the counties of Galway and Roscommon. She is now 55 years old and has an unblemished history of employment with the defendant. 3. By way of letter dated the 1st July, 2015, she was advised by Mr. Gloster, Chief Officer of The Health Service Executive Mid-West and interim chief officer of the HSE West, that she was to be temporarily reassigned, without prejudice, as an Area Director of Nursing, in a specialised capacity to the Programme Management Office of the National Mental Health Division of the HSE. This reassignment took effect from the 6th July, 2015, on which date Mr. Brian O’Malley was appointed as Acting Area Director of Nursing. Mr. O’Malley is only in this position pending the determination of these interlocutory proceedings. 4. It is common case that there have been alleged incidents within the relevant area involving service users, and that anonymous letters of complaint have been received by the defendant, some of which relate to these incidents. The defendant contends that it has determined to carry out appropriate enquiries by reason of these matters, the manner in which they were handled and the concerns of the Mental Health Commission. Such enquiries are threefold: specifically, a “systems analyses”, a full “national review” and a “screening process”. The latter relates to an investigation of the anonymous correspondence. 5. The defendant contends that the plaintiff has been validly reassigned on a temporary basis and that she remains in the employ of the defendant, instructed to perform duties commensurate with her skills, experience and status as a director of nursing. Such reassignment, the defendant asserts, is imperative in the short term. 6. It is undisputed that the plaintiff has been the focus of personalised attacks from the Psychiatric Nurses Association (“PNA”), which she believes is as a result of her role in implementing changes within the HSE. She contends that the true motivation behind her reassignment is that of industrial relations considerations and not for the reasons advanced by the defendant. She contends that the anonymous complaints are without foundation and have been wrongly seized upon by the defendant as purported justification for the reassignment. 7. In summary, the plaintiff objects to her temporary reassignment, saying that what is being forced upon her is in breach of her contract of employment, fair procedures and without any lawful basis. She seeks an interlocutory injunction which would restrain the defendant from so doing. 8. The defendant relies upon s. 22 of the Health Act 2004 and clause 4 of the plaintiff’s contract of employment. The defendant contends that there is an implied term in every contract of employment permitting an employer to manage its affairs in an appropriate manner. Background 10. Three of the alleged incidents occurred in 2014, the remaining two were in 2015, the latest of these incidents having occurred on the 6th June, 2015. The anonymous letters are dated in April, May and June, 2015. 11. The first approach to the plaintiff by her direct line manager, Ms. Cunningham was on the 21st May, 2015. Mr. Quinn S.C., for the plaintiff, points out that this approach was before the final alleged incident and before the second and third anonymous letter. However, Mr. Ward S.C. argues that the defendant determined to carry out the aforementioned enquiries, not based merely upon receipt of the anonymous letters but that the factual matrix leading to the defendant’s decision to temporarily transfer the plaintiff is much broader than merely the anonymous letters. 12. Mr. Gloster deposes that arising from the decision to conduct the aforementioned enquiries, the plaintiff was requested initially to move to another position, which she declined. Thereafter, she was instructed to take up the aforementioned position on a temporary basis. He avers that the plaintiff was not singled out in any way but that other steps have been taken or are being taken in respect of other senior personnel who have responsibility for mental health services in county Roscommon. Further, it is necessary and appropriate that certain interim measures are put in place so that the defendant can be assured that the day to day care and management arrangements are appropriate. The defendant, it is submitted, cannot provide the necessary assurances until the aforementioned processes are complete and that, in those circumstances, it is imperative that the plaintiff take on an alternative assignment in the short term. 13. The plaintiff deposes that she subsequently sought the reasons in writing for requesting her voluntary reassignment and that she ultimately received a voicemail message on the 27th June, 2015 requesting her attendance at a meeting on the 29th June, 2015. She did not respond until the 29th June, 2015, repeating her request for reasons in writing and expressing her concern that she was being victimised for her efforts to implement reform. She avers that she received an email on the 29th June, 2015 which she states did not explain in cogent terms the reasons for requiring her reassignment. The email referenced, inter alia, the five incidents, a national HSE decision to conduct a full review of the Roscommon Mental Health Service and an unspecified “protected disclosure”. On the 1st July, 2015, the plaintiff received a formal letter from Mr. Gloster informing her of the defendant’s decision to reassign her temporarily without prejudice. 14. The plaintiff deposes that the first three incidents were investigated and risk assesses locally and that it was determined not to escalate them. She refers to a letter from Dr. Byrne, consultant psychiatrist, dated the 17th July, 2015. This letter she states was furnished to her without her request which is important for two reasons, the second of which I will refer to later in this judgment. Firstly, Dr. Byrne is the Clinical Director for County Roscommon with responsibility for a particular residential facility with relevance to the alleged incidents. Dr. Byrne confirms in his letter that he decided to deal with the incidents locally and communicated the July incidents to his line manager, Dr. Burke and to Ms. Cunningham, the plaintiff’s line manager in November, 2014. The plaintiff avers she duly reported the July incidents to Ms. Cunningham on the 29th July, 2014. The date of the communication to Dr. Burke and, in particular, Ms. Cunningham is significant, as this information was known to Ms. Cunningham as of November, 2014 yet no request was made of the plaintiff until the 21st May, 2015. 15. The plaintiff deposes that the incidents of March and June, 2015 were reported and assessed by local managers and are being dealt with in accordance with the policy of the HSE on these matters. This averment has not been contradicted by the defendants. 16. The plaintiff asserts that the trust in care policy applies and that the defendant is incorrect in failing to do so. Application of the Maha Lingham Principles.
19. Mr. Quinn accepts the plaintiff must establish that she has a strong likelihood of success but submits that Mr. Ward’s analyses of the meaning of such is incorrect. He argues that inevitably the remedy ultimately sought will be different than that sought at the interlocutory stage and that the facts of this case neatly illustrate this point. I am satisfied that there is considerable merit in this argument. 20. Further, in Maha Lingham, the Supreme Court held that the plaintiff seeking an injunction had to show that he had a strong case, that is, that he was probably going to be successful at trial. It is undoubtedly so that the decision in Maha Lingham prescribes a higher threshold in instances such as in the present case, but it cannot be the position, and I do not accept that it is the position, that a plaintiff seeking interlocutory relief must reach the kind of threshold posited by Mr. Ward. If so, it would be difficult to see how any application for an injunction could be successful at the interlocutory stage. As Fennelly J. said in Maha Lingham p. 140.:
The Legal Basis for the Reassignment
23. The defendant also seeks to rely on s. 22 of the Health Act, 2004, which it is contended provides an express statutory power to determine the duties of employees. The defendant also seeks to rely on an implied power to manage its affairs in an appropriate manner. Section 22(1) of the Health Act 2004 provides:-
(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of employees appointed under this section, and (b) the grades of the employees of the Executive and the numbers of employees in each grade”. 25. Finally, on the third legal basis put forward by the defendant, that is the implied power, Mr. Quinn submits that if such an implied power existed, it would radically alter the terms and conditions of employment. 26. Clarke J. in AIB plc & Ors v Diamond & Ors [2011] IEHC 505., in considering the “least risk of injustice” said it can be useful in deciding whether a different approach is needed in certain cases. He goes on to say:
29. Furthermore, it is the plaintiff’s position that there is no factual basis for the defendant’s decision to reassign her temporarily. It is contended on her behalf that the five incidents and the manner in which they were addressed cannot support the defendant’s position. She asserts that the motivation is simply to appease the PNA. It is the position that the fifth incident occurred after she was first approached by Ms. Cunningham, her line manager, and that this approach predated the second and third anonymous letters. It appears from Dr. Byrne’s letter that Ms. Cunningham was notified of the decision on the first three incidents in November 2014. 30. All the authorities make it abundantly clear, that the court should not seek to resolve contested issues of fact in an application for an interlocutory injunction and I do not intend to make any findings of fact. The above matters, however, are relevant and are undisputed. It is also undisputed that in temporarily reassigning the plaintiff, such must be for an unspecified duration in that Mr. Gloster states that it may be necessary to undertake other procedures including, if appropriate, the potential discipline of staff members during this time. Therefore, while it is the position, that the plaintiff is not currently the subject of any disciplinary or trust in care processes, the reality is that she finds herself in a position whereby she cannot respond to any allegations, because she has not been suspended and may find herself in a worse position. 31. While, as Hogan J. outlines in Wallace, the courts are slow to grant relief in instances of contracts of employment, the grant of such relief cannot always be excluded as to do so would mean in effect “a denial of effective access to the courts”. The adequacy of damages.
The balance of convenience. 35. I am told that the plaintiff is in a managerial position, without one to one contact with patients. The plaintiff continues to manage the facilities in Galway which does not appear to trouble the defendant. Therefore, one could deduct that there is no question of her competence. She continues to be paid her salary and therefore the defendant will not be at any financial loss if she returns to her duties. In fact, it may be unnecessary for Mr. O’Malley to continue, particularly where I have been informed that he remains in that position only until the determination of these interlocutory proceedings. As to tensions within the workplace, I said I would return to the fact that Dr. Byrne furnished voluntarily the document regarding the manner in which three of the incidents were dealt with. This assists me in considering that there is a good working relationship within management. 36. These enquiries may take some time and, in fact, no timeframe has been given regarding the National review. Consequently, the plaintiff would remain on the temporary reassignment for an unknown and, therefore, uncertain duration. The plaintiff continues to work from the same office and I am told may have the same personal assistant. Conclusion |