Complainant

Respondent

Anonymised Parties

A Doctor

A Health Service Provider

Representatives

Thomas Smyth, Irish Medical Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021183-001

16/08/2018

On behalf of the complainant, Mr Smyth outlined his career up to 2018. When he finished his medical degree, the complainant did a year’s placement in a hospital, then a research doctorate, followed by three and a half years in a surgical department in a hospital. In 2012, he commenced on the Specialist Registrar (SPR) training programme in radiation oncology. The course comprises a number of rotations between various hospitals over a minimum of five years. The programme on which the complainant was a participant had four SPRs and just three hospitals (or hospital networks) provided the training.   This dispute is related to the fact that the hospital in which the complainant trained between 2012 and 2017 refused to re-admit him for training in July 2018.

In his capacity as a SPR, the complainant was employed in the hospital from July 2012 until July 2017.   While he was there, issues arose regarding his conduct and performance. In July 2017, he transferred to another hospital as part of his training rotation. It appears that problems arose there between July and November 2017. From December 2017 until May 2018, the complainant agreed to engage in a programme of enhanced training and assessment and he planned to return to the hospital in July 2018 to complete his training.   In April however, he heard that he wasn’t on the SPR roster for July. He discovered that, in February 2018, the hospital’s Clinical Director informed the Training Co-ordinator at the Faculty of Radiologists at the Royal College of Surgeons in Ireland (RCSI) that she was “not in a position” to allow the complainant to return to the hospital to resume his training.

The complainant contacted the Dean of the Faculty of Radiologists who informed him that the situation would be resolved once he completed his enhanced training in May. He completed the training to the satisfaction of his supervisors and on June 12th 2018, the Dean wrote to the Clinical Director at the hospital to inform her that the complainant completed the period of enhanced training and “there have been no issues arising.” He sought confirmation from the Clinical Director that she would employ the complainant so that he could resume his training from July 2018 until July 2019.   This confirmation was not forthcoming and on June 22nd, the Clinical Director replied in writing setting out her reasons why. In this letter, which was submitted in evidence at the hearing, it is apparent that the Clinical Director was informed in July 2017 that, at his end-of-year assessment, the complainant was told that he was no longer on the SPR training programme. However, in February 2018, she heard that the complainant had, in fact, resumed his training in a different hospital and was due to return to her hospital in July of that year. This prompted her letter to the National Training Co-ordinator in Radiation Oncology in which she said that she would not permit the complainant to resume employment and training in her hospital. In July 2018, the Clinical Director submitted a complaint regarding the complainant’s performance to the Medical Council.

Since July 2018 therefore, as no other hospital has offered him a position, the complainant has not been able to complete his SPR training and he has been unemployed.

In July and August 2018, on behalf of the complainant, Mr David Murphy of the IMO wrote to the National Doctors Training and Planning Office.   Mr Murphy asked if the funding for the complainant’s final year of training could remain with him so that he could find a position in another hospital. Following an enquiry from the National Doctors Training and Planning Office, in September, the Dean of the Faculty of Radiologists agreed to contact the Royal College of Radiologists in London to seek its assistance to find a suitable role for the complainant to continue his training. While a suitable 12-month post was found in Scotland, no hospital in Ireland had confirmed that the complainant would be offered a post at the end of that assignment and he decided not to pursue this option. In addition, a second complaint submitted to the Medical Council in October 2018, by the hospital’s Clinical Director effectively prevented him from taking up a post in the United Kingdom.

Mr Smyth said that the hospital was “the assigned rotational point” for the complainant and he understood that he would return there in July 2018. However, Mr Smyth said that the hospital “made the unilateral decision not to employ him and did not contact him to advise him accordingly.” He claimed that the hospital’s Clinical Director made a number of accusations and has made findings regarding the complainant’s performance and conduct without following any disciplinary process. In addition, the Clinical Director obtained a written record of the complainant’s performance between July and November 2017, when he was employed in another hospital, and used this information to support her decision not to allow him to resume his training in July 2018.

It is the complainant’s case that the hospital and the respondent in this dispute have acted to effectively discipline and dismiss the complainant without due process. The first indication that he would not be permitted to complete his training was 10 days before he assumed that he was due to return. The complainant’s ability to complete his training and to further his career have been ended by the actions of the Clinical Director. While the respondent in this complaint has made some efforts to support him, Mr Smyth argued that “they have not taken sufficient or serious action” to protect the complainant’s position. He referred to HR Circular 012/2017, “Employer Obligations to Doctors on Postgraduate Specialist Medical Training Scheme” which provides that employers must ensure that:

1. Non-consultant hospital doctors (NCHDs) are provided with the NCHD contract for all periods of employment;

2. Trainees who require remediation are accommodated with periods of remediation as required in a paid post;

3. Trainees who require reasonable workplace adjustments are accommodated;

4. Trainees are not disadvantaged because they are rotating between employers at regular intervals;

5. Where clinical sites receive trainees on international collaborative schemes, the conditions of the scheme must be met.

Mr Smyth submitted that the respondent has not met its obligations as set out in this circular and he said that the hospital “should not be allowed to escape from these provisions by refusing to take on a trainee.” In conclusion, Mr Smyth said that an award should be made to the complainant to reflect his loss of earnings as a result of the withdrawal of the position he claims that he was due to fill.

A spokesperson did not attend the hearing to represent the respondent.

It is evident that the complainant has been prevented from completing his training as a consultant oncologist, which he commenced in 2012 and which has now come to nothing.   This predicament has been arrived at by a circuitous route. From the correspondence submitted by the hospital’s HR Manager, it appears that, in July 2017, the Clinical Director was informed that the complainant was told at his end of year assessment that he was no longer on the SPR training scheme and she took no further action. In January 2018, she became aware that he had in fact continued training in another hospital and that he expected to return to her hospital in July.   In February, she wrote to the Faculty of Radiologists and informed them that she was “not in a position to employ” the complainant in July 2018.

When he was not offered his next rotation in the hospital, the complainant made some efforts to be re-assigned to a hospital in Scotland, but he abandoned this plan when he failed to get an assurance that he would be offered a position to complete his training at the end of 12 months abroad. It also appears that the decision of the Clinical Director to make a complaint to the Medical Council may have put paid to this plan.

Having considered this dispute, and having read the correspondence between the various parties, it seems to me that the complainant must have known that, by July 2017, he had burned his bridges in the hospital and that it was unlikely that he would be permitted to resume his training there. I find it difficult to understand why he didn’t apply to other hospitals in Cork or Galway to continue his training.

At the hearing, I asked Mr Smyth what was required to resolve the situation in which the complainant finds himself and he said that what is needed is for some people to co-operate. I agree that this is the case, but it occurs to me that if certain people were motivated to co-operate to resolve this matter, they would have done so by now.   The oncology / radiology profession is a small community in Ireland, supported by a Faculty and a programme of training under the auspices of the RCSI and it would not be impossible for the complainant to call on the support of his supervisors and professional colleagues to facilitate his placement in a hospital, if they were minded to do so.   Unfortunately, this support has not materialised and no recommendation on my part will bring it about. This leads me to conclude that there is substance to the issues raised by the Clinical Director regarding the complainant’s performance and that he may not be suitable for the SPR training.

At the date of writing this recommendation, I have no information regarding the outcome of the October 2018 complaint to the Medical Council. If there are no adverse findings against the complainant, he will be in a stronger position to apply to another hospital, or to a hospital in the United Kingdom to continue his training. A negative outcome will present him with virtually no prospect of progressing in his career.

As an alternative, Mr Smyth suggested that I should recommend an award of compensation to the complainant. Having considered this, I have decided that it would not be appropriate to make any award. I have reached this conclusion because the complainant has been employed for six years on a training programme funded by the Exchequer and he has failed to progress successfully and to complete the training. He received his full salary for the six years that he was on the programme. Any compensation, if it was to be paid, would be funded by the Exchequer and it is my view that this would be an improper use of public funds.

Any prospect of the complainant completing his training must depend on the outcome of the second complaint to the Medical Council. If the outcome is in his favour and, if he wishes to continue his training, I recommend that, with the support of the National Doctors Training and Planning Office, the complainant should re-consider the option of training in a hospital in England or Scotland. By the time he completes his training, much of the negative reputation he has gained will have abated and he will be in a more positive position to take up a role as a consultant in Ireland.

Non-consultant hospital doctor, Specialist Registrar Training programme