Ishmael v Queen Elizabeth Hospital Board
| Jurisdiction | Barbados |
| Judge | Cornelius, J |
| Judgment Date | 24 June 2013 |
| Neutral Citation | BB 2013 HC 31 |
| Docket Number | 11 of 2011 |
| Court | High Court (Barbados) |
| Date | 24 June 2013 |
High Court
Cornelius, J.
11 of 2011
Mr. Leslie F. Haynes, Q.C. in association with Ms. Laura F. Harvey-Read and Ms. Karen A. Perreira for the claimant
Mr. Hal McLaren Gollop in association with Mr. Michael R. Yearwood and Mr. Wayne Clarke for the defendant
Employment Law - Contract of service — Breach — Whether claimant was wrongfully suspended.
In this action, Dr. Richard Ishmael seeks injunctive relief and damages for breach of his employment contract against his current employer, the Queen Elizabeth Hospital Board, for an allegedly wrongful suspension imposed upon him.
Dr. Ishmael, the claimant, is a Barbadian cardiologist of some repute, possessing impressive academic qualifications and professional experience. He is employed by the defendant under a fixed term contract and also lectures at the School of Clinical Medicine and Research at UWI, Cave Hill, specializing in pediatric cardiology.
The defendant is a body corporate established pursuant to section 5 of the Queen Elizabeth Hospital Act, Chapter 54 of the Laws of Barbados. Pursuant to section 6(1) of this Act its function is to administer and manage the sole public hospital on the Island, the Queen Elizabeth Hospital (hereinafter sometimes referred to as “QEH”).
Since 1988, the claimant has been employed at the QEH as a consultant within the Department of Cardiovascular Services. The terms and conditions of his employment have usually been governed by written contracts of employment for fixed terms of around three years. After the defendant was established by the Queen Elizabeth Hospital Act, these contracts of employment have been between Dr. Ishmael and the defendant instead of directly with the Government of Barbados.
By letter dated December 10, 2010, the QEH through its CEO suspended Dr. Ishmael with full pay subject to an investigation. It is this suspension and any proposed investigation that Dr. Ishmael seeks to impugn and prevent.
The facts leading to the letter of suspension are largely undisputed. On May 1, 2007, the claimant and the defendant entered into one of their usual formal contracts of employment (hereinafter called “the Agreement”). The Agreement was the last written contract of employment between them and, like the previous contracts, was for a fixed term. The fixed term of the Agreement was a period of three years commencing on May 1, 2007 and expiring on April 30, 2010.
By its fourth clause the Agreement was subject to the terms and conditions set forth in the schedules annexed to it, as well as the Letter of Appointment. Clause 4 further provided that the claimant was subject to the provisions of the QEH Act, the Terms and Conditions of Service for Employees of the Queen Elizabeth Hospital and any administrative directives as may be put in force by the defendant.
The Terms and Conditions of Service for Employees of the Queen Elizabeth Hospital (hereinafter called “the Terms and Conditions of Service”) include a Code of Conduct outlining the responsibilities owed by QEH employees to the Hospital and to patients in its care, as well as a Disciplinary Procedure to be followed where the conduct of an employee is called into question. The Terms and Conditions of Service also include separate sections on the Employment Policy, Training and Development, Performance Appraisal, Remuneration, Leave of Absence, Health and Safety, Security and Retirement.
The Disciplinary Procedure set out in the Terms and Conditions of Service categorizes the offences by employees meriting disciplinary action as being either major or minor in nature and establishes two different and separate procedures for the adjudication of each category of offence. The relevant provisions of the Terms and Conditions of Service incorporated into the Agreement will be discussed in greater detail further in the judgment.
Upon the expiry of the Agreement, the claimant continued to provide his services and exercise his duties as Consultant within the Department of Cardiovascular Services, while the defendant continued to pay him for so doing under the same terms and conditions as established under the Agreement. As of the date of trial, the claimant continues to be employed by the defendant under these same terms and conditions. Both parties appear to have accepted that these terms and conditions, including the Terms and Conditions of Service, remain applicable to their employment relationship.
On November 17, 2010, the claimant wrote a letter regarding an incident that had occurred at the Hospital involving attempts that were allegedly made to transfer the treatment of an English tourist admitted to the Hospital as a cardiac patient in October 2010 to a private institution. The letter was allegedly written in his capacity as Consultant Cardiologist of the QEH and bore the official QEH letterhead. In that letter, the claimant made some allegations about the conduct of certain individuals during the course of that incident.
The claimant's letter was addressed to Dr. Delores Lewis, who was the QEH Director of Medical Services. It was copied to the Hospital's Chief Executive Officer (CEO), its Chairman, the heads of various departments and other consultants within the claimant's own department of Cardiovascular Services. It was also copied to a number of persons outside the Hospital, namely the Minister of Health, the Chairman of the Medical Council and the President of the Barbados Association of Medical Practitioners (BAMP).
On December 1, 2010, some time after the letter was sent, the acting Director of Medical Services, Dr. Cave, telephoned Dr. Ishmael and invited him to attend a meeting with the defendant's CEO on that same date. Dr. Ishmael declined to do so, stating as his reason the fact that he had neither received the agenda of the meeting nor sufficient notice of it.
The very next day, the claimant received a letter dated December 2, 2010 from Dr. Dexter James, the CEO of the Hospital, in which Dr. James requested that the claimant meet with him that very day. Dr. James indicated in his letter that the purpose of the meeting was “to ascertain the reasoning precipitating the correspondence of November 17 2010 to the DMS and an explanation as to why it was circulated to persons other than personnel of the Board of Directors of the Queen Elizabeth Hospital”.
In his letter Dr. James also warned the claimant that if the claimant failed to attend the meeting, his failure to do so would be regarded “as an act of insubordination which merits the advice and direction of the Human Resources Committee”.
The claimant met with Dr. James as requested. Dr. Cave was also present at the meeting and in that meeting the claimant explained why he had written the letter. He indicated that all of the persons who received the letter were persons involved with the governance of medicine at the QEH specifically or in Barbados more generally and persons who he believed should be informed about the event that had taken place.
Dr. James, the CEO of the Hospital, wrote and had delivered to the claimant a letter dated December 10, 2010 entitled “Re – Notice of Suspension” (hereinafter called “the suspension letter”). Through the suspension letter, Dr. James informed the claimant that:
“By your letter of November 17, 2010 you alleged that the Director of Medical Services of the Queen Elizabeth Hospital and the Minister of Health engaged in conduct with a view of sending a seriously ill-patient of the Queen Elizabeth Hospital to a private institution run by Dr. Alfred Sparman, an unqualified individual with questionable credentials and a checkered history.
Further and in the alternative, you without lawful permission or authority and in breach of Clause 9.2.2 of the Terms and Conditions of Service for the Employees of the Queen Elizabeth Hospital thereof, on November 17, 2010, made use of the QEH letter head to transmit internal operational matters to persons other than those who are lawfully authorized to receive such matters and in so doing, conveyed information to persons outside the governance framework of the Queen Elizabeth Hospital.”
The letter from the CEO further stated that:
“Your action is an offence as set out at 5.2.1 and 5.2.5 of the Terms and Conditions of Service for the Employees of the Queen Elizabeth Hospital.”
The CEO, acting on behalf of the defendant, then sought in that letter to suspend Dr. Ishmael on full pay and with immediate effect allegedly pursuant to Clause 5.2.2 of the Terms and Conditions of Service.
The suspension letter also informed Dr. Ishmael that pursuant to Clause 5.2.17 of the Terms and Conditions of Service an enquiry into the allegations would be carried out on or before January 14, 2011 and that charges may be brought against him arising out of the investigations.
Despite the suspension, the claimant was summoned to, and did visit, the Hospital on two separate occasions in order to help treat critically ill pediatric patients. Neither visit was prevented by the defendant. Aside from these visits, the claimant complied with the suspension imposed upon him. However, by a letter dated December 27, 2010 addressed to the CEO of the Hospital, the claimant by his attorney-at-law, Mr. Leslie Haynes, Q.C., contested the suspension and outlined the grounds on which he did so.
Dr. James never responded to the letter sent by the claimant's attorney-at-law and the claimant by an Application filed on January 6, 2011 under a Certificate of Urgency and supported by an affidavit sworn by him, applied for an interim injunction restraining the defendant whether by its servants, agents or howsoever otherwise, until judgment in the matter or further order from (i) continuing and/or enforcing the suspension...
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