Social care worker secures injunction halting disciplinary process against him

The High Court has granted a social care manager a temporary injunction against his employer, halting what he claims is a flawed disciplinary process against him from proceeding.

The injunction was granted in favour of Mr Mark Smyth, a social care manager with St John of God Community Services Dublin South East.

The order prevents Mr Smyth’s employer from conducting disciplinary meeting, called arising out of the contents of an investigation into certain allegations against his client, from taking place.

The court also heard that in correspondence St John of God’s says it is entitled to proceed with the disciplinary process.

In his proceedings Mr Smyth denies all allegations of wrongdoing against him, and says the complaints that were made about him in 2015, were vague and lacking in specifics.

Those complaints were made after he raised issues with his manager about false reports made by others working at a special school for young people operated by St John of God’s.

Represented in court by Frank Callinan SC, appearing with Johanna Mehigan BL and Conor Duff BL, Mr Smyth claims the investigation upon which the disciplinary process is based was highly flawed.

Mr Callanan said that the investigation into his client was part of a lengthy “saga”. His employer brought in an independent HR professional to conduct an investigation arising out of allegations against his client.

The investigation took place between 2016 and 2019, and involved over 4,000 pages of witness statements, counsel said.

During the course of the investigation the investigator themselves made a complaint about Mr Smyth to his employer.

Mr Smyth was cleared of any wrongdoing by his employer in regards to that complaint by the investigator at a very early stage.

Counsel said the investigator ultimately cleared his client of the allegations against him. However counsel said there was “a sting in the tail of the investigator’s report.”

The investigator made other adverse findings, which counsel said she was not entitled to do about Mr Smyth, and that the employer should take action.

As a result of the other findings an investigation is being conducted by his employer, which could have serious repercussions for Mr Smyth’s reputation, counsel said.

Counsel said his client’s health has been affected by the matter and Mr Smyth’s solicitors wrote to St John of God’s asking them to cease the investigation.

Despite this extraordinary situation Mr Smyth’s employer intends to proceed with a disciplinary process based on the report’s contents.

Counsel said that in correspondence St John of God’s has denied the investigation is flawed, and says it is entitled to proceed with it.

It also said that he would be afforded all fair procedures in the disciplinary process, and has a right to bring a legal adviser to the hearing.

Counsel added that there seemed to be an element of pre-judgment by the employer as it had failed to re-register Mr Smyth with Hiqa, which needs to be done so he can carry out his job.

Counsel said that Mr Smyth had made a protected disclosure to the Minister for Health over his concerns over the investigation of allegations against him.

The temporary injunction was granted, on an ex-parte basis, by Mr Justice Antony Barr.

The judge said that while he was not making any findings in the case, he noted the claim that the person carrying out the investigation had in fact made a complaint about Mr Smyth, before going on to make their findings was of concern.

The judge made the matter returnable to a date next week.