Complainant

Respondent

Anonymised Parties

A Doctor

A Hospital/Medical Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008995-001 withdrawn before adjudication

09/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008995-002

09/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008995-003

09/01/2017

The issue concerns a Doctor on a GP Training Scheme and a Health Board. The Doctor concerned was allegedly dismissed by the Health Board.

CA-00008995-003 - Unfair Dismissals Act complaint.

The Complainant commenced employment with the Respondent Midlands Training programme in general practice in July 2013. She availed of maternity leave from July 2015 to April 2016. In February 2016, she requested an Inter Scheme Transfer (called here an IST) from the Midlands Scheme to a Dublin scheme. Her personal circumstances had changed considerably as by now she had two children under the age of two years. Under the Terms of the IST programme the Complainant felt that her additional responsibility for her children qualified her for a favourable response to the transfer request.

In April 2016 the Complainant was offered a placement in Portlaoise, which she declined, and in May a placement in Tullamore which she also declined. The decision to decline was due to the Complainant’s family circumstances.

The Complainant was, throughout this period, in constant correspondence with the Respondent, the ICGP (Irish College of General Practitioners) and relevant senior Medical /Administrative personnel.

On the 29th of July 2016, the Complainant received a letter from the Program Director, Ms. XA, informing her that her employment was being terminated.

The Complainant and her assisting friend/representative maintained that she was effectively denied Natural Justice, she was not appraised that her employment status was ever in jeopardy, she was not informed that a review process with a potential outcome of the ending of her Contract could follow from her declining offered placements. She was not afforded an appeal against the termination decision. In fact the Respondent did not follow their own internal Grievance and Disciplinary procedures.

A considerable volume of written evidence was provided in support of the Complainant’s case.

The Complainant signed her employment contract with the Midlands GP Training Programme in June 2013. The Contract was unambiguous in the number and locations of Hospital Placements required. There was no entitlement to any automatic Inter Scheme Transfer.

In February 2016, the Complainant initiated an IST request. The Respondent made strenuous efforts to accommodate this request and contacted the major Dublin based schemes to seek their agreement to accept the Complainant. Both declined, and the Complainant was required to complete her outstanding placements, as per her contract, in the Midlands scheme. The offers of Portlaoise and Tullamore were declined by the Complainant.

On 13th May 2016 the Programme Director Ms. XA, wrote to the Complainant advising her of the consequences of declining the offered placements. On the 17th June 2016, the Director wrote again stating that the Complainant was “effectively removing yourself from the scheme and employment with the Respondent as and from July 2016”. This was followed by the Termination letter of the 29th July 2016.

Several meetings had taken place during this period between the Complainant and the Director (Ms XA) in Naas and crucially with the Programme Medical Director Dr B. on the 7th July 2016. There could be no doubt that the Complainant was fully aware of the consequences of her turning down the offered placements.

In oral evidence the Medical Organisation maintained that in final essence the Complainant had frustrated her contract and her dismissal was, in these circumstance, fair and equitable.

As with the Complainant’s case; a considerable volume of written evidence was presented in support of the Respondent case

3:1     The Relevant Law.

This case is presented under the Unfair Dismissal Act, 1977 and by extension the Code of Practice SI 146: Code of Practice on Grievance and Disciplinary issues.

In essence the key principles here, as set out in numerous legal precedents, are those of Natural Justice. The Complainant must be made aware at all times of the charges against her, be offered proper representation, ideally of her choice and given proper time to consider all matters being put to her that may lead to her dismissal. Dismissal must be considered carefully by the employer and all alternative options considered. After the Dismissal, an Appeal Hearing by an Independent party must be afforded.

3:2       Consideration of the Evidence

A considerable volume of evidence, both oral and written, was presented in this case. Several key issues were evident.

The Complainant had clearly signed a Contract of Employment that required in the most unambiguous terms placements across a range of Midland Hospitals. There was no suggestion of any possibility of an Inter Scheme Transfer to a Dublin scheme.

None the less Inter Scheme Transfers do take place and the Complainant was perfectly within her rights to seek one. The Respondent made every effort, as demonstrated by the evidence, to seek a suitable placement for the Complainant in another Dublin based scheme but to no avail. Accordingly, this left the Complainant with no option but to accept the Midlands placements, Portlaoise or Tullamore as offered.

What was very unclear to me was what was the level of understanding of the Complainant of the likely consequences for her of declining offered placements. Evidence was given of the Medical training implications of not taking up placements with a specified time frame – effectively the training already received could not be let lapse by a long period of absence before completing the programme. In addition, the logistics faced by the Respondent in managing a scheme involving some 80 plus trainee Doctors were not inconsiderable and having a Trainee “on hold” would be a considerable additional headache.

The Oral evidence from the Administrative Director, Ms. XA who wrote the Dismissal letter, was interesting. She agreed that in her considerable experience she was well used to handling difficulties with Trainee Doctors as regards the Training Scheme. It was her view that with some reasonableness on all sides the issue could be, eventually, sorted out. In her view, Reasonableness from the Complainant would have involved the acceptance of the offered placements until such time as a Transfer could be sorted out. It was ,after all, a question of a Receiving Scheme agreeing to accept the Complainant -this had not happened despite the efforts of the Respondent at that time.

It was not clear to me if the “Frustration of Contract” argument advanced by the HR Representative was fully appreciated by the Medical /Administrative personnel involved or indeed by the Complainant. Frustration of Contract arguments in Employment Law are referenced by Redmond in Dismissal Law in Ireland: Tottel 2007 where she states that

“Frustration is a term of art to the Lawyer. It may be loosely used by non-lawyers in connection with the effects of ill health on a contract of employment. The word should be used with caution”. P304.15.13 2007 Edition.

Redmond also referencesthe Supreme Court case of Re the Trusts of the Will of Simon Sheil (Nov 1977 Unreported). The tests of Justice Kenny are mentioned in considering Frustration. Suffice to say the Redmond is of the view that Frustration is not an easy concept to adopt or rely upon in an Employment Law case.

Considering the evidence further in this case a crucial meeting seemed to have been the final meeting with the Medical Director Dr. B on the 7th July 2016. The clear impression given by the Complainant was that Dr B had been sympathetic and at the very least had “bought her time”. She was clearly unaware that her continued employment was now seriously in jeopardy. Dr. B did not give direct evidence. However, a minute of the meeting was considered in evidence. The other Director Ms. XA maintained, in oral evidence, that she had discussed the issue with Dr. B and he was most unlikely to have done something contrary to the agreed management position. The Complainant was most emphatic, in her evidence, that Dr. B had given her strong positive hope of a satisfactory resolution. There was a distinct impression given by the Complainant that Dr. B, being a senior medic, could be relied upon on more than other, non-medical, personnel involved.

The dismissal letter referred to the Complainant’s “failure to respond in any meaningful manner”. Looking at the large volumes of correspondence I found this assertion hard to sustain.

Having reviewed the evidence, I was not convinced that sufficient efforts had been made by the Respondent to ensure that the Complainant was fully appreciative that her employment was going to end as opposed to remaining in some form of “Trainee in abstentia” state while waiting for a Dublin placement. It was accepted that required medical/hospital time limits on Training was an issue but not so insurmountable as to make a dismissal inevitable.

Keeping in mind SI 146 of 2000 – referred to above the lack of an offer of a formal appeal to the decision of the 29th July was also hard to understand. The Complainant was an employee and was covered by the agreed Grievance and Disciplinary Procedures. It appeared to me that these were not fully followed with an over reliance being placed on the “frustration” concept.

In any consideration of a Dismissal decision by the former EAT or latterly by an Adjudicator the issue of proportionality of the sanction must be considered. The Adjudicator does not rerun he dismal process and suggest his own outcome. The question is one of whether or not a Reasonable Employer would come up with a similar decision as the Respondent Employer – the phrase is whether or not the decision or penalty falls within the “Band of Reasonableness”.

In this case, having heard the oral evidence of all the parties, which I found sincere and heartfelt, I could not agree that the sanction of a final Dismissal was the warranted approach. The argument by the Respondent of a “Frustration of Contract” is a very heavy weight legal construction and not generally appropriate to the difficult circumstances of this case. The usual Grievance and Disciplinary procedure might have been more relied upon.

Accordingly, and in summary I find that the Dismissal was unfair on the grounds of reasonableness and procedurally, specifically, the lack of an offered appeal and the apparent non-utilisation of the normal Grievance and Disciplinary procedures.

3:3     Redress.

In terms of Redress the option preferred by the Complainant was financial compensation.   Considerable financial sums were mentioned during the oral hearing.

Having considered all the written evidence and heard the oral evidence of the parties I do not feel that Financial compensation is the “appropriate having regard to all the circumstances” option in the case. Section 7 of the Unfair Dismissal Act ,1977 refers.

The Complainant mentioned that she had had severe difficulty securing any appropriate Medical employment post the dismissal. Effectively she is still a Trainee GP, in an almost limbo state without all of her required Training. The Complainant’s insistence on almost getting an “IST or nothing” has also to be considered in the context of her unambiguous employment contract.

Accordingly, I am ordering that the Complainant be re-engaged by the Respondent and afforded the opportunity to complete her GP training as per her original contract with the Midlands scheme. If an IST becomes available this will be a fortuitous development, but the re-engagement is with the original Scheme.

The Medical Training and time lime issues that this will give rise to can be considered by the relevant training body, the Irish College of General Practitioners. The ICGP were present at the hearing in what developed into an observer and witness category of attendance. They gave some commentary on the Training issues during the Hearing. A claim against the Institute directly had been withdrawn at the start of the Hearing. From reviewing, on a preliminary preparatory basis, the written evidence and documentation supplied for that hearing I do not consider the case of the Complainant’s resumption of training to be insurmountable.

3:3       CA-00008995-002   Minimum Notice & Terms of Employment Act, 1973 complaint

As the Complainant, has been successful in her Unfair Dismissal Act complaint she is due two weeks’ minimum notice pay. From information on the claim form this equates to €2,500.

3:4     CA-00008995-001     Employment Equality Act ,1998 claim.

This claim was withdrawn on the 11th April 2017.

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008995-001

Claim withdrawn before Hearing.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008995-002

Two weeks’ notice pay awarded.

A Sum of €2,500.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008995-003

Dismissal deemed to be Unfair on grounds on Proportionality and procedural shortcomings.