Dr Alwitry’s unlawful sacking has been an ongoing feature in the local press and has been the subject of much debate in the States Assembly.
Dr Alwitry’s case has received substantial support from several politicians, and as a result, a vote of no confidence has been lodged which is due to come before the States Assembly on 31st January, 2017.
Dr Alwitry grew up in Jersey and in 2012 he accepted a position as a consultant ophthalmologist at Jersey's General Hospital. In December 2012, a week before Dr Alwitry was due to take up his post, the States Employment Board (SEB) purported to terminate his contract.
At a recent hearing before the States of Jersey Complaints Board (which deals with complaints about a decision or administration process by a department of the States), Dr Alwitry, in his own words said:
“No notice, no warning, no right to appeal, no fair trial and I still do not know exactly why they did this to me. I was left jobless with 4 small children to support. My dreams of coming home were stolen away and to this date I still do not know why…”.
Dr Alwitry immediately after his sacking sought answers. The SEB failed to engage meaningfully and sought to instruct reviews to be carried which included an investigation by the then Solicitor General. Such reviews have been the subject of heavy criticism from the Complaints Board and dismissed as not reliable or soundly-based.
Dr Alwitry was praised by the Complaints Board who also resoundingly found against the SEB on almost every aspect of the SEB’s conduct of the case. There is no mistake in the Complaints Board’s mind that the treatment of Dr Alwitry was “appallingly shabby” which resulted in the unjust and unfair decision to sack him.
Remarkably, the SEB appear to maintain that earlier investigations appear to have more weight than the findings of the experienced independent panel of the Complaints Board. This has been firmly rejected by the Complaints Board who have condemned the SEB’s response to their findings as “deeply unsatisfactory”.
Dr Alwitry’s case is important for many reasons including, of course, that the Complaints Board considered various failures in the procedure adopted by the SEB when reaching its decision to sack Dr Alwitry.
Further and of particular note is the SEB’s failure to comply with its own terms that would allow employees to know of the allegations they may be accused of and to a fair hearing and also a right of appeal against a decision to terminate their employment.
Also, the SEB failed to comply with its own terms in respect of job planning (where a hospital and consultant agrees a workable timetable) and terms which protect employees from detriment if they raise patient safety concerns or blow the whistle on unsafe practices.
The failures in Dr Alwitry’s case are wholly apparent and the Complaints Board have also gone to lengths to document them in great detail. It is wholly concerning therefore that the SEB have not accepted the shortcomings. Whether or not the vote of no confidence succeeds, unless the SEB accept their failings and are prepared to compensate Dr Alwitry he will be left with no choice but to bring matters before the Royal Court.
Dr Alwitry has previously brought proceedings in the Royal Court against the SEB and won. Dr Alwitry requested his personal data which the SEB initially looked to comply with. However, and following the former Solicitor General’s investigation, Dr Alwitry was advised that his material was being withheld on the basis inter alia that it might lead to litigation or a complaint to the General Medical Council.
Dr Alwitry brought the matter before the Royal Court, which gave raise to novel areas of law not previously considered by the Jersey Courts, and the Royal Court ordered the disclosure of Dr Alwitry’s personal data to him, which included transcripts of witness interviews conducted by the former Solicitor General.
Dr Alwitry’s case already provides many useful lessons for employees and employers; in particular, how their respective contractual, professional and ethical responsibilities and duties should be managed, including dealing properly with whistleblowing and/or complaints internally and to regulators. There may be yet more lessons and clarification should Dr Alwitry now bring his breach of contract claim before the Royal Court.
Advocate Steven Chiddicks acted for Dr Alwitry shortly after his dismissal and has assisted within the investigations, the data access proceedings and the complaint before the Complaints Board.