In a move that is likely to call into question the quality and credibility of health services offered in some hospitals, a court has ordered a private hospital to pay a doctor Sh16.2 million for wrongful and unfair dismissal.
Dr Jigar Patel was sacked for refusing to carry out 'unnecessary tests', admissions and CT scans on patients to generate revenue for Maxcure Hospital Limited, which is based in Kisumu.
Dr Patel was awarded Sh2,500,000 in aggravated damages, salary arrears of Sh5,850,000 for November and December 2021 and January to April 2022, and three months' salary in lieu of notice of Sh2,925,000.
The court also ordered that the doctor be paid Sh141,922 as return airfare to India and five months' salary as compensation for wrongful dismissal amounting to Sh4,875,000.
The hospital was also ordered to issue the doctor with a service certificate and a letter of no objection.
The judgment seemed to highlight the underhand dealings that doctors are subjected to by some private health facilities in order to generate and meet revenue targets at the expense of patients.
Dr Patel was employed as a consultant physician on a two-year fixed-term contract in a letter of appointment dated September 13, 2021.
Between August 30, 2022 and September 15, 2022, the hospital management began summoning him to several meetings where he was asked to take a pay cut on the grounds that the hospital was not doing well financially, which he refused.
He was then issued with a notice to show cause why disciplinary action should not be taken against him in a letter dated September 15, 2022.
He stated that he responded to the notice and that on September 16, 2022, he received an invitation to a disciplinary hearing scheduled for September 19, 2022.
The hospital had claimed that for a year, there had been no visible growth in Dr Patel's practice in terms of the number of patients visiting the clinic.
There were also few in-patient admissions. He was also accused of being rude to his peers and colleagues.
The main issue raised by the hospital in the evidence submitted to the tribunal was that the claimant was paid a higher salary than he generated in terms of revenue.
However, according to Dr Patel, he was asked to carry out unnecessary tests, hospital admissions and CT scans on patients in order to generate revenue for the hospital, but he refused to do so as it was against his oath.
He stated that his role was to treat patients who came to the hospital without pre-set targets for tests or admissions, and that it was not his duty to go out and get patients for the hospital.
According to him, he was never placed on a performance improvement plan (PIP) and that his performance was the best in the hospital.
In his testimony, the hospital's human resources manager admitted that it was not Dr Patel's job to improve the flow of patients to the hospital, to do marketing or to collect revenue.
"Further, there was nothing that linked the plaintiff to low patient volumes or low business sales, and his testimony that the institution required him to send patients for unnecessary tests in order to increase revenue was not rebutted," the ruling said.
In its response, the hospital said the doctor was underperforming.
The facility said that Dr Patel did not assist the hospital with business development, causing losses to the hospital.
It also accused the claimant of failing to take advice, consultation and/or direction from anyone, failing to adhere to reporting times, being a habitual latecomer, failing to co-operate with other departments and getting upset if anyone suggested a procedure.
They also accused him of seeing clients in private, for which he was summarily dismissed.
The facility argued that the notice to show cause was the result of the plaintiff's poor performance and that he was represented by a lawyer during the disciplinary hearing.
Maxcure also contended that the plaintiff's requests should not be granted because the dismissal was in accordance with the law and, therefore, compensation for unfair dismissal is not factual and actionable.
According to Labour court Judge Christine Baari, when Dr Patel asked for the minutes of the disciplinary hearing, he was instead dismissed and told to leave a company house where he lived with his wife and three-year-old baby, and to immediately hand over the keys to the hospital's car.
He says he asked for a few days to pack and leave, but his request was refused.
The day after his dismissal, on September 19, 2022, he received a phone call from immigration officials, who told him that he was an illegal immigrant and demanded that he comply with the hospital's demands or risk deportation.
He stated that his passport had been withheld by the facility, but that the agreement he had made with his employer stipulated that the hospital would provide him with a ticket back to India.
The facility claimed to have paid Dr Patel all his salaries for the months of October, November, December 2021, and January and February 2022.
Justice Baari ruled that the hospital had failed to comply with the mandatory minimum principles of a fair hearing, rendering Dr Patel's dismissal unfair.
Dr Patel had sought a declaration that his dismissal by the hospital was unfair because it did not comply with the rules of natural justice and the mandatory provisions of the Employment Act 2007 and the Constitution of Kenya 2010.
"I find and hold that the plaintiff's dismissal was both procedurally and substantively unfair. This finding entitles him to compensation," said Justice Baari.
The judge said the hospital had failed to provide sufficient evidence that it had identified Dr Patel's poor performance and the efforts it had made to address the issue before resorting to dismissal.
The court ruled that the hospital's allegations that Dr Patel was seeing patients privately, thereby reducing its income, were not proven, let alone part of the reasons for dismissing the doctor.
The tribunal ruled that Dr Patel had not been given notice of his dismissal and that there was no evidence that he had been paid in lieu of notice, as provided for in his contract of employment.
According to the court, the manner in which he was treated, including deportation, caused Dr Patel distress and anxiety.
