Medical consultants suffer Supreme Court blow

In a defeat for medical consultants in the public sector, the Supreme Court has ruled that emergency duty allowance paid to the group as part of their salaries is not pensionable.

The court has also ruled against using the allowance to compute gratuity payments for consultant doctors on fixed-term contracts.

In a 20-page judgment on Friday, Justice Tara Carr concluded that the consultants failed to establish that they had a legitimate expectation that the allowance would be made pensionable.

Through their union, the Association of Government Medical Consultants, the consultants sought a declaration from the court that the emergency duty allowance paid to them is a part of the salary/remuneration in keeping with an Industrial Disputes Tribunal (IDT) award and is to be treated as part of their pensionable salary/emoluments with effect from April 1, 1996.

In July 2016, the IDT ruled that the Government’s 2012 decision to withdraw the payment of the allowance from consultants who were on leave for more than 20 days was “unfair and unreasonable” and that it formed part of their basic salary. The Government continued making the payment but without incorporating it or making it pensionable.

The consultants also sought a declaration that the allowance paid to them be used to compute gratuity payments for doctors on fixed-term contracts.

The defendants in the matter were the island’s four regional health authorities, the Ministry of Health & Wellness, the Ministry of Finance and the Public Service, and the attorney general.

The Supreme Court looked at whether the consultants had a legitimate expectation that the allowance would be incorporated into salary and made pensionable; whether the allowance should be used to compute gratuity payments for those on fixed-term contracts; the effect of the IDT award in determining the issue of legitimate expectation; if the defendants stopped from refusing to honour a promise made in a 1997 heads of agreement; and if so, were the defendants justified in departing from what was previously promised.

AGREEMENT

In the November 6, 1997 agreement, the involved parties decided on incorporating the allowance in the senior doctors’ basic salary and that it be made pensionable.

The doctors argued that the provisions of the agreement were not honoured and that they had a legitimate expectation that the agreement implemented in 1997 would be fulfilled. They further argued that, in reliance on the promise as set out in the agreement, they have been faced with undue hardship as the value of the allowance is more than a half of their salary.

The group said the failure to make it pensionable meant that this portion of their salary would be excluded upon retirement, and that they are unable to make ends meet on the basic pension which they have received.

But lawyers for the Government argued that, since the 1997 agreement, there had been several rounds of negotiations with the consultants where it was requested that the allowance be incorporated into pensionable salary.

The attorneys argued that these requests were seen by the Government as an acknowledgement that the allowance was never pensionable.

Further, the Government said it was under certain fiscal constraints and could not accede to the request.

Additionally, the lawyers said the agreement was for the allowance to be included in basic salary and that this action was taken with reference to the flat rate being rolled into the salary for junior doctors.

CONSEQUENTIAL EFFECT

They argued that this had the consequential effect on the salaries of the consultants who had 75 per cent of the midpoint of their respective salaries rolled into their salaries and that amount was used in the calculation of their pensions.

They further insisted that the IDT award had nothing to do with the question of the computation of the salary as pensionable but instead whether the medical consultants were entitled to the allowance when on leave.

They noted that not meeting the 1997 agreement was an issue of contract and that the consultants failed to address the breach in court and therefore could not seek to rely on it now.

The attorneys said the consultants’ claim was without merit because, following the 1997 agreement, there has been no promise made on the part of the Government which would intimate that the intention was to make the allowance a part of basic salary or to make it pensionable.

Carr agreed that while the Government breached the agreement, the consultants did nothing to enforce the terms and were no longer at liberty to do so.

The judge said the consultants, despite this failure, entered new negotiations over several contractual periods. She said none of these agreements reiterated what was stated in the 1997 agreement as it relates to making the allowance pensionable.

She noted that, under the Pension Act, pensionable emoluments is defined as, “in respect of service in this island, includes salary, personal allowance and house allowance but does not include duty allowance or any other emoluments whatever”.

She said the duty allowance is not included in this definition and is the reason 1997 agreement specifically states that it is to be incorporated into salary and made pensionable.

Carr said the act defines salary as, the figure “attached to a pensionable office or where provision is made for taking service in a non-pensionable office into account as pensionable service, the salary attached to that office”.

PENSIONABLE EMOLUMENTS

She said if the allowance is included in salary, it would only become pensionable emoluments pursuant to the Pensions Act.

“In the circumstances therefore, I do not find that the evidence presented by the consultants establish a promise or course of conduct which gives rise to a legitimate expectation by them that the allowance would be made pensionable.

“The clear and unambiguous representation after 1997 is that the Government would continue negotiations on this matter,” said Carr.

She said, too, that the consultants could not claim that they were not given an opportunity to be heard or that they were not a party to any discussions, as the evidence presented is that at every turn they were in negotiations with the Government.

Further, she said on the issue of gratuity that payment did not form a part of the 1997 agreement and that there was no evidence that it formed a part of the agreements which followed in 2000, 2016 or 2023.

Carr said that, on the matter of the IDT, the fact that the allowance forms a part of consultants’ remuneration was never in dispute.

She said that the question to be resolved was whether it ought to be considered as a part of the senior doctors’ salary and made pensionable.

“The ruling of the IDT did not address this issue because it was never raised at that level,” she said.

The judge said having found that the consultants did not have a legitimate expectation that the allowance would be made pensionable the issues of estoppel and justification do not arise.

She refused the declarations sought and ruled that each party bear their own costs.

Patrick Foster, KC, and Ayana Thomas, instructed by Nunes, Scholefield DeLeon & Co argued for the consultants, while Stuart Stimpson and Jevaughnia Clarke, instructed by the director of state proceedings, argued for the Government.

“We do not agree with the court’s decision and we are now advising our client on the prospects of an appeal,” Foster told The Gleaner Monday night.

The dispute relates to the emergency duty allowance, which is over 50 per cent of consultants’ emoluments. In 1997, there was a promise by Government to roll it into salary and make it pensionable. This was never done over the years. A clear promise, but never executed,” he said, adding that the consultants had a legitimate expectation that it would be done.

“They never entered ‘new negotiations’ as said in the judgment. It was about when it would be implemented, not if,” he said.

kimone.francis@gleanerjm.com