Muhimbili National Hospital
Dar es Salaam. The case of Muhimbili National
Hospital (MNH) workers who were sacked for giving patients high
quantities of prescribed drugs contrary to disease conditions could only
be a tip of the iceberg on how dishonest members of staff divert
medicines from major public hospitals.
The story of Andrew Komba and
Nelson Ileta, who were sacked in 2016 for dispensing medicines
prescribed by a ‘ghost’ doctor using fake National Health Insurance Fund
(NHIF), is a wake-up call for MNH to audit claims from both public and
private hospitals routinely. The Labour Division of the High Court has
quashed decision of the Commission for Mediation and Arbitration that
had ordered reinstatement of the two men without loss of remuneration.
The
national hospital last year petitioned the Labour Court to revise the
CMA order issued in May 2018 that cleared the workers of professional
misconduct.
Madam Justice Imani Aboud said in her recent decision
that the termination of the two staff was fair despite some procedural
flaws in sending them home.
“Let me say that, in this matter the
court would have wished that the respondents could go without any
compensation because there is a valid reason for their termination; that
they committed a grave misconduct. “However, my hands are tied up
because the law spells out that when the termination of employment is
found to be unfair, being it substantively or procedurally it remains to
be unfair termination,” said the judge.
They will now receive a salary of not less than twelve months.
Rot uncovered
Komba
and Ileta were employed by MNH in 2013 and 2013 as senior
pharmaceutical technician and pharmacist respectively on a permanent and
pensionable contracts.
Sometime in October 2015 the hospital was
forced to launch an investigation after discovering huge quantity of
medicines prescribed by a doctor not in the list of practicing doctors
was being dispensed at the hospital.
The two employees were accused
of giving patients medicines at questionable high quantities contrary to
disease condition and dispensing medicines that were usually not
co-dispensing.
They were also accused of issuing medicines through invalid NHIF forms.
Following
a disciplinary hearing, the workers were found guilty of all
misconducts and terminated from employment in February 2016.
Court faults CMA
Aggrieved
by the termination, the sacked workers took the dispute to CMA which
finally ordered their reinstatement to their position without loss of
remuneration.
Stunned by the decision, MNH went to the Labour
Division of the High Court to challenge the findings of the CMA
arbitrator that the two were unfairly dismissed and the reasons for
termination were not strong enough to warrant termination.
At the
hearing of the appeal, lawyer who represented the sacked workers
Tumwesige Lushakuzi told the court that MNH neither tendered nor
produced at CMA a list of practicing doctors to resolve the accusations
that the two dispensed medicines to a ghost doctor. He argued that it
was MNH’s duty to produce evidence that Dr Alex was a non-practicing
doctor.
It was his further submission that the allegations that the
two knew about the prescriptions but used them for personal gains were
never proved at the CMA.
But MNH through its lawyer Eneza Msuya
maintained that the duties of a pharmacist and pharmacy technician were
not just to dispense every medicine which is prescribed by the doctors.
“If
that was the case, then there would be no need of having pharmacist and
technicians who have the pre-requisite academic qualifications only to
dispense whatever is written by the doctor,” he submitted. The lawyer
said the two had a duty to verify what has been prescribed before
dispensing the medicine to a patient.
He said the NHIF forms that
were submitted to CMA bearing the name of Dr Alex could not be
entertained by any ethical pharmacist.
“They (forms) contained many
errors. The forms were having high quantity of dosage, medicines which
were not co dispensed and had similar handwriting and types of
medicines.
“Any pharmacy professional that is diligent and works in
accordance with professional ethics and code of conduct would never have
processed them,” the lawyer submitted.
Report of the MNH
disciplinary committee for both workers revealed that all the fake NHIF
forms were handled by the sacked workers who dispensed medicines at
questionable high quantity of dosage and not according to disease
conditions.
CMA decision nullified
Delivering his judgment, madam justice Aboud said MNH proved the grave professional misconduct against its workers.
“With
no hesitation, I find that the applicant had valid reason to terminate
the respondents’ employment. The respondents as pharmacists had a duty
to dispense the proper medicines to the patients without being bound by
fraudulently prescriptions of the ghost doctor.
“Had it been that the
arbitrator (CMA arbitrator) had considered properly the evidence on
record he would not have made the decision that there was no valid
reason to terminate the respondents’ employment,” said the judge.
The
judge, however, found that MNH violated some termination procedures
including the summoning of the respondents to attend the disciplinary
hearing and issuing of the outcome of the disciplinary meeting.
It is the requirement of law that the employee should be notified of the hearing within 48 hours.
“I
have no hesitation to say that in the present application as much as
the applicant (MNH) had a good case against the respondents because had
valid reasons to terminate them, unfortunately he did not observe some
legal procedures.
“The respondents termination was fair substantively
but unfair procedurally. The respondents are only entitled to
compensation for being unfairly terminated procedurally,” said the
judge.
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