Friday 23 March 2018

Sacked nurse fails to get job back despite tribunal order

Ray Managh

A PRISON nurse, sacked after years of sick leave, has not been given her job back despite the Minister for Justice being ordered to re-engage her, a court has heard.

Judge Matthew Deery refused to delay an appeal by the Minister against the Employment Appeals Tribunal direction on the grounds that a key witness for the State, Sean Aylward, would be on holiday and could not attend the hearing.

Marcus Dowling, counsel for Catherine Fitzgerald, a former nurse officer at Arbour Hill Prison, said the planned four-day appeal should go ahead and the evidence of Mr Aylward, ex-Secretary General of the Department and ex-Director of the Prison Service, be heard at a later date.

Mr Aylward, who had received detailed submissions recommending dismissal, had deemed the termination of Ms Fitzgerald’s employment as appropriate on the basis there did not seem at the time any prospect of her ever returning to work.

Mr Dowling said the Tribunal determination was that Ms Fitzgerald, of The Oaks, Hollystown, Dublin, be re-engaged on the basis she had been unfairly dismissed while on certified sick leave, but to date she remained unemployed and unpaid by the Minister.

David Keane, SC, had asked the court to adjourn the hearing until the end of November to facilitate Mr Alyward, a member of the Council of Europe’s Committee for the Prevention of Torture, who is currently attending a meeting of the committee in Strasbourg.

Mr Keane, who appeared for the Minister with Rosemary Healy Rea, said it would be better if all of the evidence was taken together.

Ms Fitzgerald told the earlier Tribunal hearing that following “a serious incident in the prison” she had difficulty with kneeling down to perform Cardiopulmonary Resuscitation (CPR). She had chronic pain in her knee as well as hip problems and was distressed at the time. She had later suffered from depression.

She had been unable to return to work and had been absent on certified sick leave from October 2004 until her dismissal in December 2009. She had been on full pay for six months, half pay for six months and on pension rate of pay until October 2007.

Ms Fitzgerald said the stumbling block to her return had been her inability to administer CPR and the Department’s insistence, for health and safety reasons, on her doing so. She had offered to return as an officer in the prison tuck shop.

The Tribunal was told Ms Fitzgerald had secured new employment in February 2010 and was currently working in an administrative division of private industry. She had significant ongoing medical difficulties and had been absent from work in excess of five years prior to her dismissal.

The Tribunal, chaired by Ms N O’Carroll-Kelly, BL, decided there had been very serious breaches of disciplinary procedures by the Department of Justice which had unfairly dismissed her for failure to report for duty “while on certified sick leave”.

It held the appropriate redress was re-engagement on mutually acceptable terms as and from March 26, 2012, with no break in continuity of service for all purposes other than her remuneration. Ms Fitzgerald still wished to return to the prison service.

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