The High Court has refused an employee’s application to stop an investigation into complaints made against him by an emergency medicine consultant at Adelaide and Meath Hospital Dublin, incorporating the National Children’s Hospital.
Mr Justice David Keane said there had been “inordinate and inexcusable delay” in the hospital’s handling of Consultant B’s complaints under the HSE Dignity at Work policy. But, in a judgment delivered on 22 July 2016, he concluded that the employee had not made out a clear case for an injunction halting the process.
The employee, John O’Connell, had sought to restrain an investigation into complaints by three doctors, as well as other relief in underlying proceedings that include claims for breach of contract, defamation, intimidation and infliction of emotional suffering. The judge said the evidence showed no extant complaint against him from Consultant A or Consultant C. The screening process before the court concerned only Consultant B’s complaints, and the proposed investigation was limited to those complaints.
Consultant B’s 2011 letter alleged bullying connected with her advocacy about overcrowding and patient safety in the hospital’s Emergency Department. The court did not determine whether those allegations were true. An independent preliminary screening in October 2015 found that complaints about the employee’s conduct at a March 2011 meeting and at an August 2011 coroner’s inquest fell within the policy’s scope for possible investigation as workplace bullying. The screening was preliminary; it was not a finding that bullying had occurred.
The employee argued that the complaints were out of time, that a 2014 employment agreement prevented their investigation, and that the delay made continuing the process unfair. The judge found no time limit in the policy and rejected the interpretation of the agreement advanced by the employee. He said it did not bind the hospital to treat the complaints as out of time.
In considering delay, the judge noted there was no evidence at that stage of specific prejudice such as lost evidence or an unavailable witness. He also said the investigation itself could not impose a disciplinary sanction or end the employee’s employment. If a complaint were upheld, the immediate consequence would be appropriate action, which could include progression through disciplinary procedures, counselling or mediation.
The ruling concerned an interlocutory application to stop an incomplete process, not the final determination of the employee’s underlying claims or Consultant B’s allegations. The judge said the employee could pursue the action and seek permanent relief if he established incurable prejudice caused by the delay. He refused the application.