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.
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.