A decision by the chief medical officer to transfer a qualified nurse from a highly specialised cardiac suite at Mater Dei hospital to St Vincent de Paul was again struck down as abusive, this time by a court of appeal.

An action for judicial review of that decision had been instituted by Rita Vella after she was slapped with an order for immediate transfer from the cardiac catheterisation suite to the hospital for the elderly in August 2011.

That order came in the wake of an incident with a fellow nurse about a pager which had led both nurses to file separate reports to the human resources department.

An internal inquiry had kicked off against Vella, but before that process had reached its conclusion, she was targeted by a permanent transfer order. 

Her union had advised her not to follow the order from her superiors but subsequently stepped in to negotiate Vella’s transfer to the Qormi health centre after the nurse was told that, unless she obeyed the transfer order, her salary would be withheld. 

She subsequently filed proceedings against the chief medical officer and the Foundation for Medical Services, calling upon the courts to review that administrative decision.

In November 2016, the First Hall, Civil Court, presided over by Mr Justice Joseph R. Micallef upheld her claims, declaring that the chief medical officer (CMO) had acted beyond his powers, breaching the principles of natural justice.

Vella was awarded €16,270 by way of compensation and the court ordered her reinstatement to her former position.

The CMO  filed an appeal, arguing in the first place that the transfer was an internal matter rather than an administrative decision subject to review in terms of law. 

However, the court, presided over by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul, said that the issue was not simply about the transfer but as to how and why that transfer had taken place. 

“Public authorities are always legally bound to perform their duties and exercise their powers strictly within legal limits,” observed the court.

Vella claimed that her transfer was discriminatory and that she had not been allowed the chance to defend her position following the workplace incident, whereas her colleague had been afforded more favourable treatment, without any valid reason. 

The appellant did not justify why Vella had been targeted with “an immediate permanent transfer,” observed the court, adding that it would have been different had that transfer been resorted to temporarily pending the outcome of the internal inquiry. 

Such behaviour was precisely what the legislator wanted the courts to review, remarked the judges. 

The appellant also completely ignored the fact that evidence showed that he had “failed to abide by the most basic principles of natural justice” and had turned a deaf ear to Vella’s complaint about the other nurse’s behaviour. 

Nor had it been proved that Vella’s transfer was needed to ensure that human resources were used in the best possible manner.

The appellant’s argument that Vella was needed at St Vincent de Paul was not credible, even in light of the fact that such a decision was changed within a day or two when she was re-directed to the Qormi clinic. 

Moreover, Vella’s departure as well as that of her husband, who also previously worked at the specialised cardiac suite, brought about a staff shortage in that ward. 

The appellant also failed to prove why it was Vella rather than the other nurse who had to face transfer, went on the court. 

The CMO further contested the compensation awarded to Vella and the first court’s order cancelling her transfer. 

It would be difficult to implement that court order since there were currently no vacancies within that suite and the issue would create both technical as well as administrative problems which would impinge upon the functioning of that ward, argued the appellant. 

Besides, Vella had requested the transfer to Qormi health centre where she had since settled down, the appellant continued. 

But the court shot down those arguments. 

That was the whole purpose behind such action for judicial review and the appellant could “not escape it simply because he found it inconvenient,” remarked the court. 

Vella had bowed down to the move to Qormi only because to defy the transfer order would have meant that her pay was to be withheld.

Otherwise, she had “an excellent relationship” with doctors, nurses and even patients who had questioned her absence.

She used to attend courses and even conferences abroad to further her knowledge in the field because she loved her job, observed the court, fully confirmed the first judgment and ordered the appellant to foot legal expenses.

Lawyer Michael Tanti-Dougall assisted Vella.