Complainant

Respondent

Anonymised Parties

{A Doctor}

{A Hospital}

Representatives

David Murphy Irish Medical Organisation

Peter Flood Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00016348-001

15/12/2017

The Worker is a doctor on a training contract and was employed on a fixed-term contract with the Respondent until July 2017.

The Worker was verbally informed in March 2017 that she would be retained on a second training contract until July 2018. This is usual practice and other doctors informed of their contracts in this manner did not have their contracts denied. The role involves constant rotation. The contract was also confirmed by agreed leave requests and the Worker did not seek a role with another hospital due to her understanding that her contract was being extended.

The Worker was absent on certified sick-leave from 3rd July 2017 which was the last week of her fixed-term contract. The hospital issues the new contracts in the last week of the rotation. She was then contacted by HR who sought a meeting, for which she was unavailable. She was subsequently informed by HR that her contract expired on 9th July 2017. The Worker says that the written confirmation of the extension of the contract had already been agreed. This is usual practice for doctors in training. S27 (c ) of the contract provides the option for an employer to withdraw an offer of employment up until 2 weeks before the employment is due to start. This never occurred. Accordingly, the Worker should have received her sick-pay for the term of a twelve month contract under HSE policy and NCHD contract.

The Complainant relies on the ruling in O’ Reilly v Minister for Industry & Commerce (1997 ELR 48) where Justice Carroll said an employer had an obligation to act “with consideration and good faith” so that the employee “did not act under a misstatement”.

The Complainant seeks payment of sick-pay for a 12 month contract of 6 months full pay and 6 month’s half pay.

The Respondent says the Worker was on a six month fixed-term training contract which expired on 9 July 2017. The teaching hospitals facilitate training by offering placements if available. The contract states that the Worker “is obliged to fulfil the training requirements of ….the programme and employment… Your continued employment for the duration stated above, in this location is contingent on you participating in and fulfilling the requirements of this training programme…”

A serious issue arose with the training body and the Worker, and the Respondent’s HR sought an urgent meeting with the Worker on 4th July 2017. The Worker was suspended by the training body subject to appeal on 4th July 2017. The Worker went out on sick-leave on 5th July 2017.

The Respondent says that the Complainant has not provided evidence of written offer or acceptance. It relies on Puntis v Isambard Brunel Junior School UK EAT where the UK Tribunal found that a party could not rely on a deputy headteacher’s assurance that temporary promotions would be made permanent and any discussions about cover and leave were made in this context. Without prejudice to the above, the Respondent says that the purpose of the Worker’s employment is to participate in the training programme, and this was frustrated by the Worker’s inability to perform the contract due to the suspension. If an offer had been made the Worker would have been precluded from accepting this contract due to the declaration required.

I have listened carefully to the evidence and submissions presented by the parties in relation to this dispute. The rotation of trainee doctors is based on the contract between the parties. The practice is that written offers of contracts of employment are issued to doctors in the last week of the rotation. This is the practice across the sector. Any withdrawal from a contract must be notified by a hospital at least 2 weeks in advance.

The Worker has been very committed and hard working in a demanding role. The Worker relied on the assurances given regarding the extension of her contract to her detriment. No hearing or other process was put in place by the Respondent to consider the impact of the serious issue raised by the training body regarding the Worker’s ongoing service. The Worker was not allowed to put her case forward. The loss of sick pay has had a significant impact upon the Worker.

In these specific circumstances and bearing in mind the sick pay provisions applicable, I recommend payment of 3 months full sick pay and 3 months half sick pay to the Worker by the Respondent.

I recommend payment of 3 months full sick pay and 3 months half sick pay to the Worker by the Respondent.

Serious issue with training body, NCHD, offer of contract, withdrawal from contract