Supreme Court of Ireland Decisions

THE SUPREME COURT

245/2002

Murray J.

McGuinness J.

Fennelly J.

BETWEEN

CELINE TRAYNOR

Appellant/Plaintiff

and JOHN RYAN

Respondent/Defendant

JUDGMENT delivered on the 4^th day of June, 2003 by FENNELLY J. [Nem Diss]

1. The Plaintiff/Appellant (hereinafter "the Appellant") is employed as a Consultant Anaesthetist at the Coombe Women's Hospital (hereinafter "the hospital"), which is a voluntary private hospital, not a health board hospital. The Respondent is the Secretary and General Manager of the hospital. This is an appeal from the judgment and order of McCracken J dated the 17th of July 2002, wherein he rejected the claim of the Appellant for an order quashing a decision of the Respondent to refer certain matters to a committee to be appointed by the Minister for Health (hereinafter "the Minister") pursuant to the disciplinary provisions of the Consultants' Common Contract (hereinafter "the Common Contract").
2. The Appellant was first appointed as Consultant Anaesthetist to the hospital in 1986. Her employment is governed by the terms of the Common Contract. Her present contract is dated 4^th February 1998. She is also a consultant, though it is not relevant to this case, to St. James's Hospital. She was placed on administrative leave with pay, pursuant to paragraph 3 of Appendix IV, in June 2001. This case concerns the ensuing disciplinary procedures.
3. It is common case that Appendix IV to the Common Contract contains the applicable Disciplinary Procedure. There is a Preamble, followed by two paragraphs providing for the investigation of matters of concern. Paragraph 4 enumerates the powers of the Chief Executive Officer, following investigation. The preamble is as follows.

"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 matter [sic, recte 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. There follow paragraphs 1 and 2.

"1. Where:

(a) The Chief Executive Officer of a Health Board

or

(b) 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.

2. A complaint relating to an individual living patient shall not be considered except where:-

(a) It is made by the patient, by a member of his family or by the employer, colleagues, statutory authorities or, by another person with the written consent of, the patient or where the patient is a child, of his parent or guardian and it is in writing and signed by the person making it, and

(b) It is made within six weeks of the alleged event in relation to which the complaint is made or within such longer period as appears reasonable to the Chief Executive Officer or the appropriate person."

Paragraph 4 provides:

"4. The Chief Executive Officer of a Health Board, Chief Executive Officer, Secretary/Manager of a hospital or another 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, 1970 and 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 analogous provisions."

Paragraph 5(1) provides:

"5.(1) Where the appropriate person decides to proceed under the provisions of paragraph 4(d), he may request the Minister to appoint a committee under this paragraph to inquire into the matter and the Minister shall thereupon appoint such a committee."

5. The ensuing parts of paragraph 5 deal with the composition and appointment of the committee. It is to consist of five persons: a chairman appointed by agreement of the Irish Medical Organisation, the Irish Hospital Consultants Association and the "appropriate person" pursuant to paragraph 1; two persons selected by the Minister from lists supplied by the Irish Medical Organisation; two persons selected by the Minister following consultation with the employing body.
6. The initiating act in the procedure in the present case took the form of a letter of 21st June 2001, in which Ms. Carol Kenny, the Acting Secretary and General Manager of the hospital said she was writing to the Appellant "in accordance with the Disciplinary Procedure provided for in [the Appellant's] contract of employment with the hospital … to formally inform [her] of … … concerns in relation to [her] conduct as a Consultant Anaesthetist." He went on to say that the "concerns [arose] from a number of complaints made by [the Appellant's] colleagues in relation to [her] alleged behaviour from September 2000 to date..
7. The letter went on to refer to six particular matters, describing each of them as a "complaint." In five cases, the alleged complaint was stated to be in writing and in the sixth the letter stated that the Master of the hospital had received a verbal complaint but that it was expected that this complaint would also be made in writing.
8. For reasons which will appear later in this judgment, it is not necessary and in fact it is undesirable, to detail the nature or substance of the stated complaints. It is not the function of this Court to comment upon them to any extent. It is sufficient to say that they all related to the alleged behaviour of the Appellant while performing her duties as Consultant Anaesthetist at the hospital. The ingredients of the alleged complaints concerned both matters of personal behaviour and of clinical practice. .

The letter gave the Appellant notice, as required by paragraph 1 of Appendix IV of the Common Contract, of an impending investigation of six matters, described as "complaints." The use of this term is the basis of one of the principal points in the appeal. The letter also notified her that she was to take "administrative leave, with pay, with immediate effect, for such time as [might] be necessary for completion of the investigation … in accordance with the provisions of the Disciplinary Procedure." She was also informed that the investigation would take place with all practicable speed and of her right to make representations. The letter went on:

"It is envisaged that there will be a further examination 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."

9. On 10^th July 2001, the Respondent wrote to the Appellant's solicitors, stating that he was taking over the investigation, and outlining the procedure he intended to follow. He said that, as soon as he had finished his examination of the complaints, he would furnish copies of all written complaints and all memoranda of any meetings with the complainants or with Dr Daly, the Master of the hospital, and would seek further representations from the Appellant. The Respondent commenced his investigation by obtaining letters and statements and arranging meetings with a number of the relevant witnesses or participants in the events outlined in the letter of 21^st June. The Appellant was invited to make written observations.
10. On 25^th September 2001, the Appellant commenced a first set of proceedings against the Respondent in the High Court. In that action, which is still extant, the Appellant contests the validity of what she calls her "suspension," which is clearly a reference to the decision placing her on "administrative leave." She alleges, as she puts it in the Statement of Claim in the present action, that her "purported suspension was and is contrived, unlawful and mala fide and an abuse of the provisions of [her] Consultancy Contract and that it was effected for an unlawful purpose, that is [her] permanent exclusion from the … Hospital at the behest of the Master, Dr Sean Daly." In the context of those proceedings, the Appellant brought a motion seeking various injunctions to prevent the hospital from giving effect to the terms of the letter of 21st June, including holding any disciplinary investigation. As many as sixteen affidavits were exchanged in the context of that motion. All of the Appellant's allegations were strenuously contested. The motion did not proceed, but was compromised upon the following terms.

"1. Strike out motion.

2. Reserve costs.

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

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

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.

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

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.

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

11. In effect, therefore, the Appellant agreed that the investigation should proceed on the agreed terms and that she would appear before the Respondent..
12. The Respondent continued with the investigation following the settlement agreement. In the course of the investigation as a whole, He obtained the original letters which were referred to as complaints in the letter of 21^st June 2001. He also obtained further letters, statements and reports from persons involved in the six incidents. In some cases, he had meetings with them. Where he did, he recorded what had taken place. The persons involved included consultants and other medical personnel as well as nursing and midwifery staff. He furnished copies of all documents to the Appellant. Of course, the Respondent also had available to him the very extensive material contained in the affidavits exchanged in the interlocutory motion. The Appellant, in turn, submitted detailed written statements to the Respondent. Finally, the Appellant had a lengthy meeting with the Respondent on 29^th November 2001. While the Appellant was represented by solicitor and counsel throughout, there was no inter parties hearing and no cross-examination.
13. The Respondent's decision takes the form of a twenty two page report dated 6^th December 2001. He stated that he had quoted only limited excerpts from the evidence, but that he had, nonetheless, taken it all into account. In fact, the decision contains a very detailed account of the nature of each of the six incidents and of the evidence of each of the persons involved, including the Appellant. In one case, he decided against the complaint. In the case of each of the other five, he assessed the evidence in some detail and arrived at a conclusion adverse to the Appellant either in respect of her behaviour in her relations with her colleagues or in relation to her clinical conduct. The Respondent concluded accordingly that the Appellant had "misconducted herself in relation to her appointment" at the hospital. He stated that, "having regard to the seriousness of the totality" of the Appellant's conduct, he did not think that "a warning would be sufficient in the circumstances" and "decided on foot of paragraph 4(d) of the agreed disciplinary procedure to refer the matter to the Minister for Health and Children [hereinafter "the Minister"] under paragraph 5(1) with the request that the Minister appoint a committee to inquire into the matter..
14. The Respondent wrote to the Minister on 18^th December 2001, furnishing a copy of the decision and requesting the appointment of a committee.
15. The parties have informed the Court that, in yet a third set of proceedings, of which the Court has no other information, but in which the Minister is named as defendant, that the Appellant obtained orders in the High Court prohibiting the Minister from proceeding to the appointment of a committee, pending (initially) the High Court proceedings in this action and (subsequently) this appeal..
16. In the present proceedings, issued on 4^th January 202, the Appellant claims a number of declarations that the Respondent's decision of 6t December 2001 (hereinafter "the decision") is invalid, for reasons which I will explain.
17. The Appellant has advanced, both in the High Court, and on this appeal, two essential grounds for criticising the decision.

1. In four of the five cases, where the Respondent made findings adverse to the Appellant, there was no complaint in the sense of the Common Contract. Firstly, there is nothing to indicate that the writers of the letters of complaint intended their letters to constitute a complaint in the required sense. Secondly, in some, at least, of the cases, the letters are expressed in a neutral and non-critical fashion and do not even contain the material subject-matter of a complaint. Since the Respondent's decision to refer the matter to the Minister was based on the "totality" of the complaint, if even one of the letters does not constitute a complaint, it will invalidate the decision. 

2. The Respondent was not entitled to reach substantive conclusions on the alleged complaints. He had no function to do so under the Common Contract. He did not have the professional qualifications to reach any conclusions on clinical matters. The investigation actually carried out constituted a serious breach of the Appellant's right to fair procedures. She was not afforded, in particular, any right to confront or cross-examine witnesses.

18. More generally, the Appellant argued that her claims to have her rights guaranteed pursuant to the Common Contract ought to be considered a matter of public law, by reason of the contract being applicable nationally to all private hospitals, the contractual terms for treatment analogous to the statutory provisions relating to public hospitals and, of course, the involvement of the Minister. The disciplinary procedure is officially sanctioned and nationally negotiated. However, McCracken J did not consider that the distinction between a public and a private hospital was of any great relevance and held that the principle that Respondent was bound to conduct his investigation in accordance with fair procedures was applicable to the Appellant's situation. In my own opinion, nothing turns on this issue. The Common Contract contains explicit guarantees of fair procedures. It is common case that the Respondent was obliged to respect them. I do not find it necessary to discuss the circumstances in which public law principles apply.
19. McCracken J, in dismissing her claim, rejected both of the Appellant's principal arguments. He held that the disciplinary procedure did not envisage a mandatory formal complaints procedure, that it was sufficient for the appropriate person, here the Respondent, to be "concerned" and that the basis for the initiation of the disciplinary procedure might arise from various sources. On the second issue, he held that the Respondent did not have the function of making findings of misconduct and that "his only function was to determine whether the case should go before a committee of inquiry." I should interpolate that the Respondent has not appealed against this ruling. He went on, however, to say, regarding the express finding by the Respondent that the Appellant had been guilty of misconduct, that he "would not consider this to be a finding of misconduct in the sense that it has any validity as such, but it is an expression of the [Respondent's] opinion upon which he based his decision..
20. Mr Gerard Hogan, Senior Counsel, on behalf of the Appellant disputed the correctness of the learned trial judge's conclusion in respect of the two main points in the case.
21. Mr Hogan accepted that the disciplinary procedure could be initiated either on the basis of a formal complaint or of concerns of management. An investigation pursuant to paragraph 2, "relating to an individual living patient" clearly envisaged a written signed complaint emanating from one of a number of named types of person. Mr Hogan agreed with the statement of learned trial judge, quoted above, that the initiation of the disciplinary may arise from various sources. However, he insisted that, in this case, the procedure was entirely premised on the existence of complaints, which were described as such in every case. It was important, he said, for the consultant to know whether a communication constitutes a complaint. He or she will need to know whether to seek legal advice or representation. He contended, by reference to the terms of certain of the letters referred to in the letter of 21^st June 201 that the writers had not expressed any intention to make a complaint and that the language used was entirely neutral. In certain cases, the relevant letters were merely descriptive of an incident. The entire tenor of the disciplinary procedure is that there must be at least an intention to request the initiation of the procedure and the learned trial judge erred by eliding the distinction between paragraphs I and 2 of the Appendix. .
22. Mr Ercus Stewart, Senior Counsel, on behalf of the Respondent submitted that there is no requirement in the disciplinary procedure that an investigation may be initiated only following a complaint. The settlement agreement of November 2001 contains no suggestion that the Respondent was not entitled to investigate, as complaints, the matters referred to in the letter of 21^st June 2001. The disciplinary procedure does not state that the Respondent can only be "concerned" if there is a formal complaint..
23. Mr Hogan submitted, in relation to the second point that the decision should be set aside. The learned trial judge correctly decided that the Respondent had no function to make findings of misconduct, but he had expressly done so. His only role was to determine whether there was a case to answer. The Appellant had not anticipated that any such findings could be made. Had she done so, she would have insisted on the right to cross-examine witnesses. In reality, the Respondent's powers, following an investigation were limited to those prescribed in paragraph 4. Where he decided to refer the matter to the Minister for the establishment of a committee pursuant to paragraph 5, his only power was to make that decision and not to express opinions.
24. Mr Stewart pointed out that the Appellant, in the settlement of the interlocutory proceedings, had agreed to the continuing investigation and had required the Respondent to give reasons for his decision. In any event, the Respondent was doing no more than expressing his own opinion. This was not binding on the committee, who need not even see the document. The Appellant would have the benefit of a full hearing, de novo, before the committee, once it was established.
25. The Respondent also pointed out that the Appellant has been on administrative leave with full pay since June 2001, but that, in separate proceedings, already referred to, to which the Respondent is not a party, the Minister has been restrained from appointing a committee. The Respondent contends that all the Appellant's proceedings are an attempt to block the procedure for the referral of the matters in dispute to a committee, where fair procedures will be applied..

Conclusion

26. The purpose of the disciplinary procedure contained in Appendix IV of the Common Contract is stated to be "to ensure that complaints concerning the competence, capability or conduct of consultants will be dealt with manner] which has due regard to the rights an obligations of the parties." The management of a hospital has an obligation to ensure the competence, capability and good conduct of the consultants employed there. It is under a concomitant obligation to respect the rights, express and implied, of consultants and to follow fair procedures when investigating any such complaints.
27. The term, complaint, is twice used in the Preamble to Appendix IV. That would scarcely constitute a sufficient reason to conclude that the management was entitled to pursue only matters which were the subject of explicit complaints from other parties, whether patients, their relatives, fellow consultants or other medical or nursing staff. If a literal approach is appropriate, it may be noted that the term, complaint, is not qualified by any such requirement. Such an interpretation would, more importantly, leave the management devoid of power to investigate a serious matter of its own motion. It would have to await a complaint in every case.
28. In fact, that interpretation is not confirmed by the words used in the operative part of the Appendix. Paragraph 1 does not contain the word at all. It entitles the management to initiate the procedure if it is "concerned that a consultant may have failed to comply with any of the terms of his appointment…" The matter of which the consultant is entitled to written notice is a statement "of the reasons of such concerns …" Furthermore, paragraph 4 provides for the four conclusions to which the management is entitled to reach but after not only "consideration of any representations which the consultant may make in regard to the matter", but also "after carrying out such further examination into the matter as he considers necessary …" (emphasis added). It will be noted that, here in both cases, the word used is matter and not complaint..
29. Thus, it is clear that the management may conduct an investigation without a complaint. It may pursue "concerns." Mr Hogan's argument is that, where, as in the letter of 21^st June, the word, complaint is used, there must actually and objectively be a complaint from some interested person and it must be intended as such. I regret to say that I find it difficult to follow the logic of this argument. Where the management of a hospital is "concerned" about the behaviour or competence of a consultant, based on observation or general information, it is clearly entitled to initiate the procedure. Where there is an explicit complaint, it is equally entitled to do so. Neither of these propositions seems to be contested by the Appellant. Where, as here, the matters of concern are described as complaints in the initiating letter, it is suggested that there is no power to investigate, unless they are both expressed as complaints and intended to be complaints. This, in my view, is an unreal distinction, not supported by the terms of the Appendix. It is true that paragraph 2 envisages a particular regime for complaints "relating to an individual living patient." That has not been the basis of the argument in this case. Presumably, it is intended to deal with complaint of mistreatment of a patient. It is true that the matters listed in the letter of 21^st June were all described as complaints. Clearly, the word is used loosely in the Appendix. It appears in the Preamble and in paragraph 3, but not in paragraphs 1 or 4..
30. In my opinion, the investigation or the decision were not invalidated by the use of the term complaints or by the fact, if it be the fact, that one or more of the letters did not make or intend to make a complaint. The management of the hospital was entitled to initiate the disciplinary investigation, based upon its own concerns about the matters referred to in the various letters it had received. Thus, it is unnecessary to consider Mr Hogan's argument that the actual terms used in the letters did not in all cases constitute complaints. For this reason alone, I do not propose to do so. Furthermore, it is desirable to ensure that as little as possible is said about the subject-mater of the complaints so as not to prejudice the working of any committee which the Minister may appoint.
31. The remaining question is the effect of the findings of misconduct made by the Respondent. It is fair to say, before concluding on this issue, that the terms of the settlement may possibly have misled the Respondent as to the nature of his function, by obliging him to give reasons, in the event of deciding to refer to the Minister. The Appellant's detailed arguments presented on the merits of the individual cases obviously caused the Respondent to conduct a detailed analysis of the merits of each of the six cases.
32. However, the reality is that it was no function of the Respondent to pronounce final conclusions on each of the cases. It emerged, at the hearing, that the parties had not adverted to the significance of the decision of this Court in O'Flynn and another v Mid-Western Health Board and others [1991] 1 I.R. 223. That case concerned an investigation by the chief executive officer of a health board of an allegation, made against two medical practitioners, of fraudulent practices in relation to prescriptions presented to a pharmacy for reimbursement pursuant to the General Medical Services Scheme. A paragraph of the scheme entitled the chief executive officer, following notice to the medical practitioner concerned and after hearing representations from him to "arrange for referral of the matter for investigation by a committee established under Article 8 of the Health Services Regulations, 1972." It also contained options similar to those expressed in paragraph 4 of the Common Contract. The High Court had held that the scheme established a two-part machinery under which the Health Board were obliged to notify a doctor fully of any complaints so as to enable him to make a meaningful response, before deciding to refer the matter to the Minister. The Supreme Court disagreed. Hederman J, delivering the unanimous judgment of the Court stated, at page 235.

"The duty to act fairly is not one-sided. Mr. Robinson had to be fair to the doctors; he had to be fair to the complainants; he had to be fair to the Board, and, indeed, to the public generally. His duty was to make a judgment not on the truth or falsity of the complaint; nor, it need hardly be said, on the guilt or innocence of the doctors; nor even should be have reached a conclusion that there was a prima facie case against them. His sole function, to which he had to apply himself honestly and fairly, was to decide whether he had a complaint of substance, which he could not resolve in any summary fashion, worthy to be referred to the committee."

33. In my opinion, that passage accurately describes the function to be performed by the Respondent in this case. If the complaints or any of them were without merit, he could dismiss it pursuant to paragraph 4(a). If any complaints were made out, but were relatively minor, he might warn or admonish the consultant pursuant to paragraph 4(b). To that extent, he would have to reach a conclusion. However, if he decides that it is appropriate to refer the matter to the Minister, that is all he has to do. The matter or matters of concern will be investigated by a committee appointed by the Minister. In that situation, it is of prime importance that the committee be in a position to approach the matter in an entirely independent way and unaffected by the views of any other person..
34. Having regard to the extent and nature of the matters in dispute in the course of his investigation, and to his own conclusion that the case was not an appropriate one for a warning pursuant to paragraph 4 (b), it was clearly incumbent on him to refer the matter to the Minister pursuant to paragraph 4 (d). This is what he did. The next question is whether the fact that the Respondent exceeded his functions by making positive findings vitiated the decision to refer. It is said that he approached the matter on an incorrect basis. It is not, however, the case that he approached the question of referring to the Minister on an incorrect basis. Indeed, it seems clear that the views of the Respondent, as disclosed by his report and decision of 6^th December 2001 demonstrate a superfluity of justification for referring. The defect in the decision, insofar as it is a defect, is not such as to undermine the decision to refer. On the contrary, if he was entitled to refer on the basis of the reasoning of Hederman J, namely that he had a complaint of substance, which he could not resolve in a summary fashion, a fortiori his decision was well grounded if he thought that the Appellant had actually misconducted herself. The Appellant cannot therefore, succeed in having the decision annulled on that ground.
35. Next, it has to be considered whether the conclusions of the Respondent so infect the entire procedure that it is no longer possible for the Appellant to have a fair hearing before the committee. The Minister has been restrained by order of the High Court from acting on foot of the decision of the Respondent referring the matter to him. Accordingly, there is no committee in existence before which the decision of 6^th December could have been placed. Counsel for the Respondent has emphasised that there is no requirement that the report be placed before the committee. The committee can perform its task without ever seeing the decision. At this point, it seems to me that the Court should presume, in the absence of any indication to the contrary, that the Minister will ensure that all aspects of the procedure before the committee will be conducted fairly. However, I have already stated that it was not any function of the Respondent to pronounce conclusions on the merits of the matters in issue. Therefore, such findings, would be wholly immaterial to any subsequent step taken in relation to them. All that could be material is the decision simpliciter to refer the matter to the Minister. The possibility of its influencing the deliberations of the committee does not, for these reasons warrant quashing the decision.
36. Finally, it is argued by Mr Hogan that the Appellant is prejudiced by the mere existence on the record of the hospital or elsewhere of a decision containing adverse comments and conclusions concerning the Appellant's professional behaviour. It was suggested that there have been examples of adverse findings of a tribunal of inquiry being set aside, upon demonstration that they had been reached in breach of the requirements of a fair hearing..
37. In my view, the Appellant fails also on this ground. Acknowledging, as a hypothesis, that the findings of a public tribunal of inquiry can be set aside, in similar circumstances, there are, nonetheless, two important points of distinction. Such findings are both public and final. They are final in the sense that they are the culmination of the work of the tribunal, even if they have no other binding legal effect. The subject of the findings has no other redress than to seek to have the findings set aside. In this case, the decision is not public, except to the extent that the Appellant herself has opened them to debate in the course of these proceedings. It is in order to avoid giving them further currency that I have refrained, as already explained, from any detailed reference to the subject matter of the investigation. Finally, I would observe that no order of any court can put the clock back. It is, from the Appellant's point of view, regrettable that the decision contains detailed adverse findings, but that is because the Respondent, in fact, whether entitled or not, reached those conclusions. No order of the court will alter that fact or expunge the findings from existence. On the other hand, the Appellant has a clear right to be guaranteed a fair hearing before a committee of independent persons appointed in accordance with an agreed procedure. That committee must approach the matter de novo with an open mind and must follow fair procedures. Conclusions of that committee, favourable to the Appellant on the merits and substance of the alleged complaints, will be a much more effective remedy than an order of the Court setting aside the decision on legal grounds.
38. For all these reasons, I would dismiss the appeal and affirm the order of the High Court. I would add that cases such as the present exemplify a regrettable tendency in some employment cases to treat procedural safeguards as the real battlefield, in preference to facing the substance of complaints in accordance with an agreed procedure. The consequence of such procedural skirmishing is, all too often, to increase costs and delay resolution. In the present case, as emphasised by Respondent, a committee could have been appointed some seventeen months ago. It may well be that the Appellant did not bring these proceedings for the purpose blocking the reference to a committee, as alleged by Respondent, but they, in combination with the injunctions obtained against the Minister, have certainly had that effect.