CASE NAME AND REFERENCE: Margaret Kelly V Bon Secours Health System Limited

COURT OR TRIBUNAL: High Court. (Mr. Justice Cross) (26th January 2012)

JURISDICTION/SUBJECT MATTER: Bullying and Harassment personal injury claim; award of €60,000


Background

The plaintiff employee began working in February, 2003 at the defendant’s hospital in Tralee, Co. Kerry, as a temporary/part-time receptionist and then in the Records department in February 2004. She subsequently went on certified sick leave and ceased work in 2006.

She claimed damages for injury, loss and damage caused by two distinct matters.

The first was a back injury sustained in August, 2004 when carrying files.

The much more involved aspect of the plaintiff’s claim was a claim for injury and loss caused by the alleged harassment, bullying, abuse, intimidation and discrimination in the course of her employment with the defendants.


Grievances

The Plaintiff had a number of grievances, not all of which were accepted by the Court, but the Court did find that there was employer was liable in respect of a number of matters:

1. The accident and its aftermath

The Plaintiff said that following her back injury in August, 2004, her immediate superior did not specify any such accident in an incident report form, even though she had witnessed it.

The Court accepted that the plaintiff’s superior was hostile to the plaintiff. Moreover, the Court noted that the acting manager of the department was aware or ought to have been aware of this hostility and had notice of it and initially took no effective steps to deal with this and accordingly the plaintiff suffered stress.

2. The application for a permanent position

A permanent position was advertised in the hospital and was awarded to an external candidate. The Court accepted Union evidence that the proper procedure ought to have involved only internal candidates being selected from current employees of the hospital

The Court accepted the Plaintiff’s contention that the breach of agreed procedures was because management were in some way of the view that the plaintiff was “trouble” and wished to do her down or not to see her attain a permanent position for which on the face of it she seemed entitled.

The Court noted that procedure that was adopted by the hospital was most unfortunate in that it led to increased tensions in the workplace, and in particular to the start of the plaintiff’s complaints of bullying and to most of what followed.

The Court concluded that it constituted corporate bullying and harassment and discrimination against the plaintiff and resulted in stress to her.

3. The suspension of the plaintiff

In November 2004, complaints were made against the plaintiff by the new appointees that the plaintiff was ignoring them and being rude to them and carrying out conversations about them behind their back.

Ultimately, a meeting took place at which the plaintiff read out a prepared statement which was taken down by a note taker on behalf of management.

This statement was typed out and what purported to be the plaintiff’s statement was presented to the plaintiff for signature in January, 2005, but the Plaintiff said the typed version did not reflect what she had said. She indicated that every paragraph in it was inaccurate.

Her trade union advised her not to sign the document. She wrote a letter to the assistant hospital accountant/office manager advising that she had been advised “not to engage in further dialogue” and stating “I believe it (statement) does not reflect accurately and wholly the information I imparted at the meeting held…18th January, 2005…Please contact …./SIPTU in order that this matter and correction to same can be facilitated”.


The Court said:

“Following that not unreasonable action, the defendants proceeded to a most extraordinary and in my view unwarranted course of events.

At approximately 4pm on 21st, the plaintiff who was in the file section of the records department was approached by …the chair of the panel who had held the meeting who asked the plaintiff why she was advised not to enter into any further dialogue to get the response from the plaintiff that they were to contact her union.

The plaintiff was then told … that as it appeared that she was no longer willing to cooperate with the grievance panel or H.R. in order to have the grievances (which she herself had invoked) investigated that they were “left with no alternative” but to suspend her from active duty with immediate effect.

The plaintiff then stated and I accept that she was in effect manhandled from the premises by management and barred therefrom.”

The Court said that as a result of this incident the plaintiff has suffered an injury and an actionable wrong which may be classified as breach of contract, discrimination and bullying and harassment.


Post Suspension Grievance Procedures

The Plaintiff brought her grievances to the Rights Commissioner and the Labour Court, both of which rejected her complaints. Ultimately, a Mr. Wall investigated her complaints and did not uphold the plaintiff’s grievances except in relation to the allegation that the plaintiff was wrongly suspended and the manner of the suspension. However, he viewed that incident as being an isolated one and that accordingly he did not fulfil the definitions of bullying.

The report of Mr. Wall was then appealed by the plaintiff to the Rights Commissioner under the Industrial Relations Act. The plaintiff complained that Mr. Wall did not hear evidence from a number of witnesses that she had available to her but rather took evidence on behalf of the plaintiff from herself only. The Rights Commissioner decided that Mr. Wall should reconvene his hearing to deal with the issue of the witnesses but there was apparently no change of mind from Mr. Wall.

After this impasse the issue of the plaintiff’s bullying complaints was by agreement of the parties then referred to another independent third party Polaris Human Resources” (Polaris) and it was agreed between the parties that Polaris were to investigate without any sight of any previous decisions on this matter.

Before the Polaris investigation could proceed, the new Human Relations Manager wrote to Polaris advising Polaris that the hospital had received correspondence from solicitors saying they are now issuing a High Court personal injuries summons on behalf of the plaintiff. The plaintiff took the view that this note breached the agreement that Polaris should enter into its investigations without any knowledge of previous developments.

The Court held that the note to Polaris was clearly intended to be prejudicial against the plaintiff and it was an example of the defendants taking a bullying attitude to the plaintiff and it contributed to the stress the plaintiff was suffering.


Award

Having analysed the case law, Cross J. stated that in the present case he found the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-

“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;

(b) if so, was that injury attributable to the workplace and;

(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”

He concluded that the defendant’s conduct is to be strongly criticised on a number of matters i.e. the behaviour of the immediate supervisor towards the plaintiff immediately after the accident, the alteration of normal work practices to open the permanent position to “outside candidates” to the detriment of the plaintiff, the suspension and manhandling the plaintiff out of the hospital after the refusal to sign the statement and the interference with the mediation procedures of Polaris by the defendant.

He believed that the defendants must, subject to any defences that they have, be prima facie liable for the above mentioned bullying and harassment of the plaintiff insofar as the plaintiff has suffered an actionable injury as a result.

The defendants criticised the Plaintiff for failing to involve herself in the defendant’s grievance procedure and to engage with them.

The Court did not believe that the plaintiff failed to engage in the grievance procedures. The plaintiff clearly did engage with the grievance procedure. She did not accept the results of a number of the hearings/inquiries as she was entitled not to accept but her engagement was at a very high level indeed.

The defendants contended that the plaintiff cannot proceed with a number of the grievances due to findings made by the LRC and others. The Court, however, held that this is a civil case claiming damages for bullying and harassment, which the LRC was not inquiring into at the time. There is no question of estoppel or res judicata arising.

For the complaint of bullying and discrimination, the Court found that the trust between the plaintiff and the defendants has irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered is a sum of €60,000.