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Court of Appeal: Area Director of Nursing must be restored to her contractual position

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An employee of the Health Service Executive has been granted an injunction directing the HSE to restore her to her contractual position as Area Director of Nursing.

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About this case:

  • Judgment:
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The Court of Appeal had previously granted the woman a declaration to the effect that her unilateral reassignment was a breach of contract, however Mr Justice Gerard Hogan held that “absent the grant of a further and more coercive order” the declaratory order granted was “destined to remain little more than a thing writ in water”.

Background

In May 2017, the Court of Appeal held that the re-assignment of Ms Helen Earley, from the operational and clinical nursing duties specified in her contract of employment to non-operational duties amounted to a breach of that contract of employment.

No steps having been taken by the defendant to restore Ms Earley to her original position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area following the delivery of the first judgment, the question of what (if any) additional remedy should be granted was then put in for further hearing before this Court.

While acknowledging and respecting the Court’s decision, counsel for the HSE maintained at that subsequent hearing that Ms Earley’s only remedy in the light of the Court’s findings was an action for damages for breach of contract.

Counsel for Ms Earley submitted that this would be a purely empty remedy, since Ms Earley had suffered no financial loss by reason of the reason of the re-assignment.

He submitted that in order for Ms Earley to obtain an appropriate and effective remedy it would be necessary for this Court to make an order restoring Ms Earley to her original post.

Further Remedy

in the present proceedings, Justice Hogan had to consider what further remedy, if any, Ms Earley was entitled to.

Justice Hogan was of the opinion that there were several reasons why the Court should grant an order requiring the HSE to restore Ms Earley to her original position under the terms of her contract of employment:

  1. the proceedings do not involve an action for wrongful dismissal, where the traditional remedy remains that of an action for damages and where orders for the specific performance of contracts of employment remain exceptional. Ms Earley was not dismissed nor disciplined. Nor have there been any disciplinary findings against her and the HSE has assured the Court that the re-assignment is not for disciplinary reasons.

  2. Although Ms Earley could not claim to be an office holder as such, she was nonetheless appointed to a very specific post with very particular duties as specified in her contract of employment. Her entitlement to perform the specific duties associated with the position may rightly be regarded as a fundamental aspect of that contract of employment. The job specification refers to her as “the post holder”.

  3. The sequence of events leading up to Ms Earley’s re-assignment is also material: in July 2015 Ms Earley received a letter from the Chief Officer of the HSE Mid-West to the effect that she was to be temporarily reassigned from her position as an Area Director. Ms Early was then granted an interlocutory injunction which prevented the HSE giving effect to this re-assignment pending the trial of the action. Ms Earley accordingly remained in position pending the full hearing of the action in the High Court. In November 2015, Justice O’Connor found that the re-assignment of Ms Earley was lawful and refused to grant her any of the injunctive or declaratory relief which she had sought. The re-assignment of Ms Earley took effect shortly thereafter once the interlocutory injunction by lapsed following the delivery of the High Court judgment. The Court of Appeal concluded that Justice O’Connor was in error, and it followed that the interlocutory injunction restraining the unilateral re-assignment of Ms Earley should have been made permanent in November 2015. Justice Hogan was of the opinion that it would be strange if Ms Earley’s ability to secure an effective remedy should be compromised by reason of the fact that the High Court fell into error by falling to grant this order in November 2015, and by the subsequent delays, unless there had been other developments in the meantime which rendered this course of action impossible or otherwise inappropriate. Further, there was no tangible evidence to suggest that the re-instatement of Ms Earley to her original post would now be impossible or inappropriate.

  4. Any other conclusion would effectively render Ms Earley’s victory a purely pyrrhic one. Justice Hogan opined that he would ordinarily have expected that in a democratic State governed by the rule of law, the HSE would unhesitatingly respect the logical implications of a court order – however absent the grant of a further and more coercive order the declaratory order granted was “destined to remain little more than a thing writ in water”.

    5. Remedy cannot be theoretical

    Considering Wallace v. Irish Aviation Authority IEHC 178, 2 I.L.R.M. 345, and while accepting that there were differences between the two cases; justice Hogan was satisfied that the underlying principle was the same; that the courts should ensure that an effective – and not simply a theoretical – remedy should be available in employment cases where a clear breach of contract has been established.

    It was the HSE that decided to give Ms Earley a specific contractual position which was shrouded with a range of specific commitments which excluded unilateral action of the kind which was subsequently taken by the HSE.

    Citing his own judgment in Wallace, Justice Hogan held that the HSE “can hardly feign surprise or look askance if this Court merely holds it to its own word.”

    Finding in favour of Ms Early, Justice Hogan granted an injunction directing the HSE to restore Ms Early to her contractual position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon region.

    • by Seosamh Gráinséir for Irish Legal News

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