The High Court refused a pharmacist’s application for an interlocutory injunction to stop her employer proceeding with a disciplinary hearing over an alleged medication dispensing error. The court found that she had not, to that point, been deprived of fair procedures and that the hearing could go ahead.
The pharmacist, Marla O’Connor, worked at Burke’s Pharmacy, which is owned by Adigun Limited. The alleged error occurred on 1 February 2017. Letters given to O’Connor on 6 February referred instead to 3 February, when she was not working. The judgment records that O’Connor had discussed the alleged errors with the company’s managing director, Joan Kilgallen, by telephone on 2 February, and the court concluded that O’Connor knew the alleged error had occurred on 1 February.
O’Connor had obtained an ex parte injunction from the High Court on 9 February, restraining the disciplinary hearing. In the later application, the court considered whether that order should remain in place. It found that her affidavit in the ex parte application had not mentioned the earlier conversation and had stated that she did not understand how an error could have occurred on a day she was not at work. The court said this gave the impression that the company knew, or should have known, she was innocent. It concluded that she had failed to provide full and frank disclosure, possibly inadvertently. The court also said she should have included a document listing previous dispensing errors, which had been attached to the company’s hearing letter and described as relevant evidence.
O’Connor argued that the company had prejudged the disciplinary process and that Kilgallen should not chair the hearing. The court noted that the letter used definitive wording about the alleged error in one place, but conditional wording elsewhere. It said the letter was imperfectly drafted, including because it referred to an incident of gross negligence rather than an allegation. Read as a whole, however, the letter set out the complaint, gave O’Connor an opportunity to respond, allowed her to bring a representative, and provided a right of appeal. The court concluded that no adverse decision had yet been made. It also found, on the evidence before it, that Kilgallen was not the person who had made the allegation.
The court therefore refused the requested relief. Its ruling addressed whether the disciplinary process should be restrained at that stage; it did not determine whether the alleged dispensing error occurred or whether disciplinary action was warranted. O’Connor remained on full pay pending the process.