The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Doctors Hospital employee has been awarded more than $30,000 after the BISX-listed healthcare provider was found to have unfairly terminated him following an industrial accident.

Simone Fitzcharles, the Industrial Tribunal's vice-president, ruled on September 18, 2020, that the hospital had breached both its own policy on "accommodating" injured workers and the Employment Act over how it treated Preston Clarke.

Her verdict revealed that Doctors Hospital had already decided to "disengage" Mr Clarke prior to receiving a doctor's letter, which gave him "the all-clear" but "recommended he be given light duties", one day before he was due to return to work.

And, in a decision all Bahamian employers should note, Ms Fitzcharles said the healthcare provider's defence that it had paid Mr Clarke all severance due to him under the Employment Act "does not obliterate a claim for unfair dismissal" by a worker.

Setting out the background to the dispute, the Industrial Tribunal vice-president said Mr Clarke had been employed as an assistant technician in the facilities maintenance department at Doctors Hospital's Blake Road facility from January 3, 2013, with a salary that was $612 per week at the time of his dismissal.

His problems started when he sustained an on-the-job injury on May 30, 2016, resulting in his absence from work on several occasions "for an extended period of time". Doctors Hospital did not dispute the circumstances of Mr Clarke's injury, with the trial hearing it was triggered by a succession of events stemming from a broken Water & Sewerage Corporation water main.

The Corporation was forced to turn off the Blake Road facility's water supply to effect repairs, and to provide temporary water in the interim Mr Clarke had to install an electric pump that had only recently been repaired.

Mr Clarke called his Collins Avenue-based supervisor, Desmond Wallace, Doctors Hospital's engineering co-ordinator, to request that someone be sent to assist him with the pump installation. He was also being pressured to act by phone calls from the Blake Road emergency room, physicians, tenants and the cafeteria complaining about the inability to do their jobs due to the lack of water.

With no help coming despite a further phone call to Mr Wallace, Mr Clarke went ahead and installed the pump "but in so doing the floor got wet with water and, as he lifted the pump, he slipped and fell to the floor as a result of the weight of the pump".

While managing to complete the installation, the Industrial Tribunal verdict noted: "After the installation, Mr Clarke said he felt a shocking pain in his lower back and groin area." After being advised to go to the emergency room to have his injuries checked, the person sent to assist with the pump arrived - albeit some "three hours later" after help was first requested.

Mr Clarke was initially prescribed painkillers and sent home, resulting in an initial seven days' absence from work. While working through to later September 2016, he added that every time the painkillers ran out the pain from his injuries returned.

Upon his doctor's orders, Mr Clarke remained away from work between November 15, 2016, to March 27, 2017. He ultimately saw Dr Dane Bowe, an orthopaedic surgery specialist, who found he was suffering from bilateral groin pain. A subsequent MRI test also revealed a bulging disc and osteoarthropathy in the lumbar spine

"On the day before he was due back to work, Mr Clarke received the 'all-clear' from the doctor, but the doctor recommended he be given light duties involving no lifting of objects," Ms Fitzcharles wrote. "This recommendation was embodied in a letter from the physician dated March 27, 2017."

That same day, Mr Clarke went to Doctors Hospital and presented the letter to its assistant director of human resources, who said: "Preston, I can't let you go back to work because you are not 100 percent." He responded that despite some minor pain he was fit to work, but the assistant director told him to return for a meeting on March 29, 2017, with her superior.

Paul Haven, Doctors Hospital's vice-president of human resources, testified that prior to March 27, 2017, he met with Cynthia Sawyers, the company's vice-president of operations, and Mr Clarke's manager, Mr Wallace, to discuss the status of workers in the latter's department who had been out sick for a long time.

He "recalled that concerns were raised" about Mr Clarke either aggravating an existing injury or sustaining new ones while at work, and therefore "a decision was made to disengage" him. Doctors Hospital gave him a cheque for just over $6,000, and informed him of his termination at the March 29, 2017, meeting with Mr Haven.

Explaining the company's decision, Mr Haven said Doctors Hospital's engineering department was facing "severe staff shortages" because several employees were on sick leave, thus forcing the healthcare provider "to incur increased overtime and double-time charges" through calling in personnel not scheduled to work. The department's ability to meet the company's needs was under "strain".

However, under cross-examination, Mr Haven admitted that only Mr Clarke and one other person were on sick leave. And while engineering had five persons on-staff, it had approval to employ nine.

"As Mr Haven's initial testimony was that there were two facilities technicians on staff, and both were absent and ill, this gave the Tribunal the overall impression that there was no one else covering their work," Ms Fitzcharles noted.

"However, under cross-examination Mr Haven admitted there were two additional technicians on staff - Junior Ariste and Tristan Moss. The hospital also used the services of one Mr Simmons who was an independent contractor."

She also concluded that Mr Clarke's extended absences were due solely to the injuries suffered lifting the water pump. The former employee argued that Doctors Hospital had been "unreasonable, and failed to follow its own policy, over the decision to terminate him.

The healthcare provider, for its part, argued that the Employment Act allowed it to legally dismiss an employee "without cause", and that it had done so by paying Mr Clarke what he was entitled to in severance pay. It also argued that it was under no duty to "accommodate" him because it had not known he was fit to return to work when the termination decision was taken.

Having ruled that payment of due severance does not eliminate an Employment Act claim for unfair dismissal, Ms Fitzcharles found that the effective date of Mr Clarke's dismissal was March 29, 2017 - not two days before, as indicated by his termination letter, because the former date was when he was first notified.

"Whatever the reason why the package was not ready on March 27 when Mr Clarke delivered his letter, it was within the power of the hospital to have it prepared in time for delivery on the date the dismissal was purported to take effect. It was not. Timing was everything, and Mr Clarke seized the day," she ruled.

And, the day prior to the March 29 dismissal, Doctors Hospital had "full knowledge" of the doctor's letter saying Mr Clarke could return to work but only for 'light duties' - avoiding lifting - for the initial six weeks.

Ms Fitzcharles found Doctors Hospital did not follow its policies to "accommodate" Mr Clarke despite having two days to alter its approach, adding that it did not show via the evidence it would have suffered "undue hardship" to take him back.

As a result, she awarded him $7,344, representing a "basic award" of three weeks' pay for every year Mr Clarke had worked, plus a further 12 months' basic pay of $29,376 as compensatory damages. Deducting the $6,008 already paid to him by Doctors Hospital resulted in a $30,712 net award.