Rogan (Patrick Joseph) and South Eastern Health and Social Care Trust
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 13 October 2009 |
| Neutral Citation | [2009] NICA 47 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 13 October 2009 |
| Year | 2009 |
1
Neutral Citation No. [2009] NICA 47 Ref:
MOR7642
Judgment: approved by the Court for handing down Delivered:
13/10/09
(subject to editorial corrections)*
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________
AND IN THE MATTER OF AN APPEAL FROM THE OFFICE OF
INDUSTRIAL TRIBUNALS
_________
AND IN THE MATTER OF A CASE STATED BY AN INDUSTRIAL
TRIBUNAL UNDER ARTICLE 22 OF THE INDUSTRIAL TRIBUNALS
(NORTHERN IRELAND) ORDER 1996 AND IN ACCORDANCE WITH
ORDER 61 OF THE RULES OF THE SUPREME COURT (NORTHERN
IRELAND) 1980 ARISING FROM THE DECISION OF THE INDUSTRIAL
TRIBUNAL ON A QUESTION OF LAW FOR THE OPINION OF HER
MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
PATRICK JOSEPH ROGAN
Claimant/Respondent;
-and-
SOUTH EASTERN HEALTH AND SOCIAL CARE TRUST
Respondent/Appellant.
________
Morgan LCJ, Higgins LJ and Girvan LJ
________
MORGAN LCJ
[1] This appeal is by way of case stated by the South Eastern Health and
Social Care Trust (the appellant) against the decision of an industrial tribunal
issued on 29 August 2008 whereby the tribunal held that the appellant had
unfairly dismissed Patrick Joseph Rogan (the respondent) when he was
summarily dismissed by the appellant on 13 February 2007.
2
Background
[2] The appellant is a Health and Social Care Trust with responsibility for
a residential care facility for vulnerable adults. During the period with which
this appeal is concerned patients with advanced dementia and other
significant health difficulties were cared for in a particular ward to which the
respondent, a Registered Mental Nurse, had been tasked since 2003.
[3] By letter dated 1 August 2006 an auxiliary nurse, Isobel Tweedie,
submitted a written complaint to the Night Charge Nurse on duty, Mrs
Walsh, on 2/3 August describing an incident where she and the respondent
attempted to assist a patient, WM, who had slipped out of bed onto the floor,
back into his bed. Mrs Tweedie stated that they were having difficulty
completing this manoeuvre because the patient was not co-operating. She
alleged that the respondent "buried his boot" to the right side of the patient's
head. When they made a further attempt to assist the patient which failed
Mrs Tweedie alleged that the respondent then punched him in the stomach
and kicked him a second time. The respondent filled in a report form in
relation to the incident approximately 1 hour after it occurred in which he
described how the patient had slipped out of bed as a result of which he had
sustained a bruise behind his left ear.
[4] Mrs Walsh provided the letter of complaint to the Clinical Services
Manager, who happened to be her husband, at the end of her shift. She had
come onto the ward on the night of 1/2 August quite shortly after the time at
which Mrs Tweedie alleged that the assault upon the patient had occurred.
Mrs Walsh had assisted the respondent with the patient. She had observed
nothing of note in relation to either the patient or Mrs Tweedie nor was any
complaint made to her at that time.
[5] The matter was brought to the attention of the Operations Manager on
3 August 2006 and he appointed Mr Walsh, the Clinical Services Manager, as
investigating officer and directed that the patient be examined by a doctor
who noted no injuries other than 2 old areas of bruising on the anterior aspect
of the lower legs bilaterally. The respondent was suspended at that time.
[6] On 14 August 2006 the ward manager, Mr O'Reilly, spoke to Mr Walsh
advising him that three members of staff wanted to speak to Mr Walsh
regarding untoward incidents that had taken place on the ward. Mr Walsh
asked Mr O'Reilly to put this in writing to him and said that it would be
formally investigated. He assured Mr O'Reilly that the staff would not be
disadvantaged for not reporting any matter when it had happened. Mr
Walsh made a note of the conversation on the date on which it had occurred.
[7] On 16 August 2006 a nursing assistant, Mr Mathew, made a statement
alleging that more than six months beforehand he had witnessed the
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