A private hospital that was this week ordered by the Employment and Labour Relations Court in Kisumu to pay Sh16 million to a former employee has gone to court to appeal the ruling.
Citing dissatisfaction, Maxcure Hospitals Limited has filed an appeal, case number COACA/E289/2023, against the judgment and orders made by Justice Christine Baari.
In her judgment, Justice Baari had awarded Dr Jigar Patel, a former employee of Maxcure Hospitals Limited, aggravated damages of Sh2,500,000, arrears of salary 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. It had also ordered that the doctor be paid Sh141,922 as return airfare to India and five months' salary as wrongful dismissal compensation of Sh4,875,000.
The hospital now argues that the Sh5,850,000 the judge awarded the claimant as salary owed for November and December 2021 and January to April 2022 was erroneous. According to the memorandum of appeal, the hospital had produced evidence to show that the claimant had been paid the said salaries in full, and the claimant himself admitted receiving them.
"In the decision, we can see that everything we even proved in court was awarded to the claimant," said Rohan Patel, Managing Director and Founder of Maxcure Hospitals Limited.
Located in Kisumu, Maxcure Hospitals Limited is an 80-bed tertiary healthcare facility that provides both inpatient and outpatient treatment and other medical services to Kenyans under the National Health Insurance Fund (NHIF) comprehensive care.
"We operate with integrity and within the framework of a medical facility. We have not been sued by any staff member or patient".
The court had also ordered Maxcure Hospitals Limited to furnish the ex-employee with a letter of no objection and a letter of termination. But Mr Rohan explains that Dr Patel cannot get a letter of no objection because he did not have a work permit when he was terminated.
"In his case, there was a termination and the Immigration Department was notified immediately. We informed him that he should collect his certificate of service from the human resources department within 24 hours of the termination, which he never did."
In its rejoinder, through a memorandum of appeal filed by Aloo Romanus & Company Advocates, the hospital argues that Justice Baari erred in fact and in law by declaring that the claimant's termination was unfair. This, says Mr Rohan, is in addition to the fact that the hospital had presented all the evidence to show that the termination was fair and in accordance with all applicable laws.
Dr Patel was not 'unfairly dismissed', Maxcure Hospitals Limited argues. The hospital faults Justice Baari's ruling that Dr Patel's dismissal was both procedurally and substantively unfair. The CEO explains that although Dr Patel was a full-time employee, he used to see patients privately from his home in the evenings or at weekends.
While the judge found that there was nothing to link Dr Patel to low patient volumes or low business turnover, the hospital said that the doctor was underperforming because he was providing medical services outside the hospital in breach of his employment contract.
As such, he was subjected to disciplinary hearings for not making an effort to provide timely services.
"As a full-time physician, he was required to work around the clock, but patients would wait a long time because he did not follow the work policy, time schedule and professional ethics."
The executive, however, denies allegations that Dr Patel was given a pay cut after the disciplinary hearings because he was not generating enough revenue. "Such allegations are not true as they are not documented anywhere as they were not part of the disciplinary hearings. They are totally baseless.
Besides not complying with working hours, Mr Rohan says Dr Patel had issues with colleagues and that they had raised concerns that he was being rude to them. "He was always warning them not to tell him what to do with his work. He was not cooperative with colleagues on a professional level."
Dr Patel was given a letter of immediate termination within a day of the disciplinary hearing because of the loss of confidence, says Mr Rohan. "It was in his employment contract that if at any point there was a loss of confidence in his work - there would be immediate termination."
Lieu of notice is given in a normal dismissal case, it does not apply in a summary dismissal, the lawyer says.
Maxcure Hospitals Limited claims that the judge erred in law and fact by awarding Dr Patel Sh2.5 million in damages without any legal basis for doing so. Also, Justice Baari erred in awarding Sh141,922 as an air ticket back to India after the termination of his employment contract when there was no employment contract between the two parties and no legal basis for the same.
In the memorandum of appeal, the hospital argues that Justice Baari did not consider the evidence it presented in court when deciding the case. The hospital also states that Justice Baari erred by awarding the claimant's legal costs on the basis that the claimant's suit should have been dismissed.
The multi-speciality hospital, which opened its doors in July 2021, offers services including surgery, gynaecology, paediatrics, neurology and critical care such as high dependency unit (HDU) and intensive care unit (ICU).
We have maintained a clean track record in the two years since we opened," says Mr Rohan, an economics and finance graduate from Manchester Business School in the UK. Mr Rohan has assured members of the public and business partners that this is a domestic matter between an employer and an employee that has been "blown out of proportion" and should not be taken out of context. "Of the more than 40 doctors working at the facility, only one has sued the hospital. This raises questions about his credibility.
Dr Patel had told the court that he had been asked to perform unnecessary tests, hospital admissions and CT scans on patients to generate revenue for the hospital but had refused to do so as it was against his oath. However, Mr Rohan has denied that the hospital asked Dr Patel to perform unnecessary tests on patients. "There were no unnecessary tests. He just wanted to paint us in a bad light."
Through his lawyers, Dr Patel had told the court that his passport had been withheld by the facility and that the agreement he had made with his employer was that the hospital would provide him with a ticket back to India. His former employer, however, denies the allegations and says it does not have his passport.
He explains that after the summary dismissal from work, the hospital wrote to the State Department of Immigration noting that Dr Patel was no longer their employee. “He was given time – a month – to clear and leave the country. He was not meant to leave overnight.”
