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1. The Applicant is a Hospital Consultant employed by the Respondent under what is known as the Consultant’s Common Contract regulated by Comhairle na nOspidéal. It was last renewed on 1 July, 1998. The contract provides that he holds his appointment under Part II of the Health Act 1970. He holds the post of Consultant Chief Psychiatrist at St. Senan’s Hospital, Enniscorthy, Co. Wexford since 1 August, 1992. He is also the incumbent of the post of Resident Medical Superintendent at St. Senan’s under the Mental Treatment Act 1945.

2. The Applicant applied for liberty to apply for Judicial Review in respect of a decision of the Respondent made by its Chief Executive Officer (CEO) dated 8 June, 2000 to set up an investigation team to look into three allegations of bullying against the Applicant at St. Senan’s.

3. The terms of reference enclosed with the letter of 8 June, 2000 states

4. Leave was granted to apply by way of Judicial Review for various reliefs by O’Keeffe J. on 28 July, 2000. A Statement of Opposition dated 4 October, 2000 was duly filed.

5. Following an application by the Respondent, Kelly J. made an Order in January, 2001 directing a preliminary issue to be tried whether the Applicant’s proceedings contained any sufficient public law element so as to render the same justiciable by way of Judicial Review.

6. The Applicant’s contract with the Respondent provides that the disciplinary procedures at Appendix IV applied to the Applicant. In summary (as applicable to this case) Appendix IV provides at paragraph (1) that where the CEO of a Health Board is concerned about misconduct of a Consultant in relation to his appointment, he shall notify the Consultant in writing of the reasons for such concerns and inform him that representations may be received within two weeks and will be considered, and, at paragraph (4), that after considering representations and after such further examination as he considers necessary, the CEO may

7. The Respondent claims to act on foot of an anti-bullying policy which the CEO says was adopted by the Board of the Respondent on the 14 November, 1996 and which was introduced “in early 2000”. The CEO said he believed it was inappropriate to utilise the relevant disciplinary procedures.

8. Mr. Donal Duffy, Assistant General Secretary of the Irish Hospital Consultant’s Association (IHCA) said that in January, 1999 it was agreed a comprehensive policy for the Health Service would be negotiated to deal with allegations of workplace bullying. Negotiations concluded in August, 1999 and a document was published concerning bullying in the Health Service in October, 1999. In the foreword it is stated that it was intended that the policy should be adapted by employing authorities in consultation with local union representatives to suit their individual requirements.

9. It is also stated at page 6 (note 1)

10. In January 2000 Mr. Duffy wrote to the Board to inquire if an anti-bullying policy had been adopted. The reply of 18th February, 2000 from the Personnel Officer indicated it was in its final draft and awaited approval of the CEO. In October, 2000 Mr. Duffy received a booklet entitled South East Health Board Anti-Bullying Policy and wrote to the CEO on 26th October, 2000 to enquire if it was a draft or the Board’s final decision. He added that since it was the first time it was brought to the Association’s attention he could only assume that a consultation process was intended. He said if a Consultant was accused of bullying the appropriate course of action was laid out in the disciplinary procedure of the common contract. He got no reply despite a reminder of 10 January, 2001.

11. The Applicant submits that his contract sets out a disciplinary procedure which provides that the CEO may invoke Sections 22, 23 and 24 of the Health Act 1970. This contract is a public contract containing nationally negotiated terms. He is also Resident Medical Officer under the Mental Treatment Act 1945. The nationally negotiated anti-bullying policy for the Health Service has a caveat that previously agreed procedures would take preference. At the time the enquiry was set up the Respondents had not adopted an anti-bullying policy and no such policy had been agreed with the Applicant’s representative body, the IHCA.

12. The Respondent submits that even if there is no express agreement upon which the Respondent can rely, an employer has a duty to investigate matters giving rise to serious dissension among its workforce. In doing this the Respondent is not performing a public function but merely seeking to resolve internal complaints in a private setting. It claims the investigating team is not possessed of authority to impose liabilities or determine questions affecting the Applicant’s rights.

13. I am only concerned in this case with whether there is sufficient public law element to make the matter justiciable by way of Judicial Review. The first question is whether the matter falls to be dealt with under the anti-bullying policy which the Respondent claims to have adopted.

14. The uncontroverted evidence of Mr. Duffy is that no anti-bullying policy was agreed between the Respondent and the IHCA, the representative trade union of the Applicant. Therefore in my opinion it cannot be dealt with under the Respondent’s anti-bullying policy.

15. The other point put forward by the Respondent is whether the investigating committee could be regarded as merely an exercise of the CEO’s executive duty to ascertain facts as a preliminary to invoking the disciplinary procedure. I could not accept this proposition. The committee has been asked to find facts, which of necessity requires the committee to form opinions as to the truth of the evidence they hear. The finding of facts has the potential to affect the rights of the Applicant.

16. Under the disciplinary procedure in Appendix IV it is the CEO who makes an assessment of the situation and if the matter goes beyond the necessity for a warning, the statutory procedure has to be invoked by the CEO which involves the Minister setting up a committee to investigate the question of removal. In my opinion the Applicant is entitled to require that any preliminary investigation is carried out in accordance with the disciplinary procedure under the common contract.

17. It was accepted by the Respondent that if the matter was dealt with under the disciplinary procedures it was susceptible to challenge by way of Judicial Review. This is correct. Since the contract is nationally negotiated and invokes statutory provisions in its disciplinary procedures, this provides sufficient public law content to make the matter justiciable under Judicial Review proceedings. (See Beirne -v- Commissioner of An Garda Síochána [1993] ILRM 1 and Rafferty -v- Bus Éireann [1997] 2 IR 424).