Eye surgeon's behaviour "was ringing alarm bells" before sacking

Wednesday 03 October 2018

Sacking an eye surgeon just one week before he started work was a “reasonable” response after he sent aggressive emails to colleagues, the Royal Court heard on the final day of a major case considering whether the dismissal was fair.

The comments came from Solicitor General Mark Temple QC, who yesterday argued on behalf of the States Employment Board (SEB) that the behaviour of Dr Amar Alwitry had set "alarm bells" ringing among hospital staff.

Dr Alwitry, who is from Jersey but moved to the UK to advance his career, had been offered a post as a consultant in ophthalmology, but was told his contract had been terminated before he was due to start on 1 December 2012 - not long after he had queried hospital practices.

His dismissal prompted a number of investigations and counter-investigations, with the States Employment Board (SEB) claiming it had done nothing wrong, and the States Complaints Board (SCB) - an independent body tasked with investigating grievances with the States - continually criticising the actions of the SEB. 

When these came to nothing, Dr Alwitry launched a major challenge in the Royal Court, stating that he had only been fired for raising patient safety concerns and demanding compensation and an apology in return.

The case, which has stretched over two weeks, saw former SEB Chair and ex-Chief Minister Ian Gorst become the first serving Minister to be called into the witness box. He denied any hand in the surgeon’s dismissal.

Yesterday, it reached its conclusion, with Solicitor General Mark Temple issuing a final argument to Royal Court Commissioner Julian Clyde-Smith that Dr Alwitry’s sacking was “reasonable.” 

He said that Dr Alwitry’s patient safety concerns had already been addressed at the time of his sacking, describing his whistleblowing claim as a “construct” that had been abused to build a case against the SEB.

What really prompted his sacking, the Solicitor General argued, was his allegedly aggressive, demanding and “wholly inappropriate” correspondence over start dates sent to hospital colleagues, which he said “didn’t bode well” for his future relationship with the team.

Pictured: The Solicitor General, Mark Temple, said that Dr Alwitry's correspondence with other staff had been "wholly inappropriate."

Referring to an email in which the surgeon spoke of "digging out" old correspondence with a medical director, the Solicitor General suggested that Dr Alwitry had tried to coerce the director into agreeing to his views. This, he said, was "poisonous" and the "antithesis of a partnership approach to job planning." 

"On an objective basis, they [the SEB] were entitled to summarily dismiss Mr Alwitry," he concluded.

He then described the surgeon as someone who couldn't be trusted and wanted to have his own way, without taking into account the views and interests of his colleagues. "This was not good for a clinical environment where one relies on team work," he told the Commissioner, who sat with Jurats Anthony Olsen and Geoffrey Grime.

He said the decision to dismiss the surgeon had not been an overreaction but rather an appropriate reaction about "someone who was ringing alarm bells in terms of his behaviour." 

Advocate Stephen Chiddicks, who was defending Dr Alwitry, said that the SEB couldn't use an alleged breakdown in relations as grounds for dismissal.

Pictured: Advocate Stephen Chiddicks, defending Dr Amar Alwitry, said that the hospital team deliberately dismissed him.

"There must be something behind that allegation. The burden is on the employer to prove there has been irreparable breakdown... It can't be that whenever there is  disagreement between an employer and an employee there is irreparable damage... Employers can't dismiss on the guise of substantial reasons if the real reason is conduct,” he said.

He added that as senior employees with their own specialisms, consultants are entitled to negotiate starting date and job planning.

Advocate Chiddicks concluded that the hospital team had taken issue with Dr Alwitry's conduct but knew it was not severe enough to warrant a dismissal or disciplinary proceedings. He said that they "deliberately dismissed him because not doing so would allow him to get his foot in the door."

The Court has now retired to consider its judgment, advising that it could be some time before it is published.