Court rules surgeon should not have missed out on job

THE Labour Court has upheld a decision by the Rights Commissioner that a surgeon who held a temporary contract working in a Kerry Hospital for four years should not have missed out on a full-time post when was advertised.

The court upheld the commissioners ruling that Asem Hamdy should be awarded €30,000 and should be reinstated “on a contract of indefinite duration in his employment with the HSE”.

Mr Hamdy had held the post of temporary consultant surgeon at Kerry General Hospital under nine successive contracts from December 1, 2001 to September 30, 2006.

The last of those contracts ceased on September 30, 2006, after a permanent post was filled as and from October 1, 2006. Mr Hamdy had competed unsuccessfully for the post.

His case was that from July 1, 2005, he should have been offered a contract of indefinite duration but instead the HSE offered him a further fixed-term contract. Mr Hamdy said that pursuant to a section of the Protection of Employees Act, 2003 his contract became one of indefinite duration by operation of law.

However, even though the HSE accepted that the claimant was employed for longer than four years, it argued that there were objective grounds justifying the extension of his employment on a fixed-term basis.

It also argued that seeking to use the public competition to fill the permanent post with the best available candidate was an objective ground for extending the fixed-term contract.

Therefore it appealed the Rights Commissioner’s decision to the Labour Court.

The court said it was satisfied that Mr Hamdy became entitled to a contract of indefinite duration by operation of law and that he held such a contract at the date of his dismissal.

“The Rights Commissioner directed that he be reinstated in the post on a contract of indefinite duration,” it said. “In the court’s view that is the appropriate form of redress. However in respect to arrears of remuneration arising from that decision there should be an offset of the amount earned by the complainant in other employment since his dismissal. The decision of the Rights Commissioner in respect of the complainant’s entitlement to a contract of indefinite duration is affirmed and that aspect of the appeal is disallowed.”