Junior doctors prescribe maternity leave fix
Tyrone Reid, Senior Staff Reporter
After years of behind-the-scenes protests by junior doctors against a perceived injustice, the attorney general is to rule on whether the State is in breach of the laws governing maternity leave by withholding the benefit from some medical personnel.
A well-placed source close to the legal tussle between the Government and the Jamaica Medical Doctors' Association explained that the State, in particular the South East Regional Health Authority (SERHA), has been denying senior house officers (SHO) maternity leave on the basis that they have not been employed for the period prescribed by law.
The SERHA is responsible for all public-health facilities in Kingston, St Andrew, St Catherine and St Thomas.
The year that junior doctors must spend as SHO and the compulsory year-long internship they serve prior to that appointment are not considered periods of actual employment by the SERHA.
In order to be employed to the public sector as a doctor, medical school graduates must do a year-long internship and then a year as a SHO before moving to the medical officer post that has eight levels.
"On that basis, doctors are not entitled to maternity leave until after three years (186 weeks) of employment, contrary to the 52 weeks stated in law. This is ludicrous and victimisation as this happens with no other profession in Jamaica," one junior doctor told The Sunday Gleaner.
The junior doctors strongly believe this is a sick practice that needs to be remedied with dispatch.
According to a junior doctor, who asked not to be named, several missives have been sent to the labour and health ministries to no avail as the maternity-leave malady persists.
"Money has been paid over for maternity leave and then taken back because of this. We want them to desist from this illegal practice and return the money taken," the junior doctor emphasised.
The young medic added that the junior doctors "are willing to do whatever it takes to stop this victimisation as it contributes to the poor working conditions - emotional, physical and financial that they are forced to endure".
Last Wednesday, our news team was unsuccessful in efforts to get a response on the matter from Dr Jean Dixon, permanent secretary in the Ministry of Health.
However, Lyttleton 'Tanny' Shirley, chairman of the SERHA, told The Sunday Gleaner that the matter is now in the chambers of the government's lead attorney.
"It is now with the attorney general's office for review. The Medical Association of Jamaica made representation and it was forwarded to the AG's office. We are actually waiting on a comment from the AG's office," said Shirley.
The SERHA chairman explained that the opinion from the AG's chambers will determine the government's posture going forward.
Retroactive payment unsure
Asked whether the State would make retroactive payments to the doctors if the attorney general rules in their favour, Shirley said he could not comment on that, but pointed out that for such an action to be taken, it would have to be specified in the AG's ruling.
Meanwhile, The Sunday Gleaner obtained a copy of a legal opinion penned by the health ministry's senior legal adviser in October 2009 regarding the "eligibility for maternity leave under the senior house officer programme".
The senior legal adviser, Netricia Miller, who is now on maternity leave, argued that "the issue as to who is a worker/employee in the Jamaican context is one that will continue to be debatable and as such as indicated by case law each situation must be examined on its own merit".
She continued: "The particular words found in the contract between the parties are not conclusive, the law is only concerned with the nature or substance of the relationship that the contract has created with the individual or company."
In the final analysis, Miller concluded that while "there is evidence as to behavioural control (e.g. hours of work) and financial control (the payment of salaries/emoluments) there is no intent of the organisation to create an employment relationship".
Miller also noted that the proposal for the senior house officer programme provides for a medical internship period as a prerequisite for employment with the Ministry of Health.
She explained further that the SHO proposal makes provision for emolument/salary, hours of work, vacation leave and other entitlements.
Miller then argued that those provisions contributed to the "blurring of the relationship intended by the proposal and the present dilemma as to whether or not an individual is a worker as defined under the Maternity Act and entitled to maternity leave".
The Maternity Act 1979 defines a worker as "an individual of the female sex who has entered into, or works under, a contract with an employer, whether the contract is express or implied, and (if it is express) whether it is oral or in writing and whether it is a contract of service or of apprenticeship, and includes any such individual employed in the service of the Government (including service in the Jamaica Defence Force and the Jamaica Constabulary Force)".