This article addresses the legality or otherwise of embarking on maternity leave by those appointed house officers according to the Public Service Rules (PSR) in Nigeria, and the Medical and Dental Practitioners Act.
It must be noted and stated that only a person appointed as a house officer can bring an action to assert a right infringed as a house officer. This right only arises after the appointment as house officer and not before.
The import of this is that it is in the prerogatives of a medical institution seeking to appoint female house officers to, in the process of taking disposal action, pick and choose amongst applicants and appoint only those that are not pregnant yet; if the medical institution is in the habit of disallowing maternity entitlements of its workforce. However, this process of selection is subject to a personal, and fundamental rights, suit as it pertains to an action in violation of section 42 and other sections of the Constitution of the Federal Republic of Nigeria.
The outcome of the process of eliminating pregnant house officers from the success list in objecting institution is also dependent on the possibility of a bonding of the not-pregnant female house officers so that they do not get pregnant in the program, or at least tarry till the tail end of the program. This is important because once she becomes gravid, she would join the retinue of pregnant house officers that is the subject matter of this article.
Now, why would the management of some medical institutions frown at pregnant house officers. It is all about money, convenience and time. It is all about subjecting humanity to money and convenience, and denial of corporate responsibility to human existence.
A pregnant house officer who delivers during her housemanship period will require a maternity leave a month before delivery and three months after delivery. This gives a total of four months of salary without work done for the institution by the parturient house officer.
Housemanship is a twelve month program for the acquisition of the mandatory Certificate of Experience as contained in section 11 of the Medical and Dental Practitioners Act. It is a compulsory program that also brings the house officer under the provisions of the Public Service Rules within that period.
The question is whether a house officer, who only has twelve months to stay in the institution, is entitled to an annual leave and a maternity leave. It must be noted and stated that the relevant mandatory period to rotate in the program is what is important; and not the period spent to complete this mandatory rotation.
Therefore, where there is an intervening circumstance like ill health, annual leave, strike action, accident or maternity, the program continues to completion from the time of return to duty. However, any intervening circumstance that is lawful or permitted by the authorities, does not operate so as to deny the house officer his salary within the period of the program. That is why the medical institution pays the house officer the twelfth month salary when in reality the twelfth month is the annual leave month.
Let us now look at the relevant laws.
Section 020202 of the Public Service Rules states:
Direct appointment to the Federal Public Service may be in any of the following categories:
(a) as trainees or pupils,
(b) on probation in a pensionable post; .
(c) on non-pensionable contract to a non-pensionable post, or against a pensionable post for a specified period.
(d) on temporary basis other than (c).
A house officer belongs to either (c) or (d) above.
Section 11 of Medical and Dental Practitioners Act states:
Certificate of experience
(1) A person who, after obtaining an approved medical or dental qualification, satisfies the conditions specified in subsection (2) of this section shall be entitled to receive free of charge a certificate of experience in the prescribed form.
(2) The conditions which a person must satisfy under subsection (1) of this section are ---
(a) he must have been employed for the prescribed period at a recognized institution in Nigeria with a view to obtaining a certificate of experience and have resided throughout that period either in the institution or near to it in accordance with requirements in that behalf specified in the terms of his employment;
Section 100211 of the Public Service Rules:
"Proportionate Leave" (Pro-rata) is a vacation granted to a new or retiring officer in proportion to the number of days he/she has put into the service. Any period of service under 30 days is not reckonable. The calculation of proportionate leave shall be done in accordance with the table below:
TABLE I: Calculation of Proportionate Leave as in the Current PSR
12 Months. 30.
II Months. 28.
10 Months. 25.
9 Months. 23.
8 Months. 20.
7 Months. 18.
6 Months. 15.
5 Months. 12
4 Months. 10
3Months. 7
2 Months. 5
I Months. 3
The relevant sections of the Public Service Rules state:
100217- Maternity Leave is the authorised absence from duty of a serving female officer granted by a superior officer on account of pregnancy covering the prenatal and postnatal periods.
100218 -A female staff that is pregnant is entitled to 16 weeks maternity leave at a stretch beginning not less than 4 weeks from the expected date of delivery with full pay. A medical certificate showing the expected date of confinement must be presented not less than two months before that date. The annual leave for that year will, however, be regarded as part of the maternity leave. Where this annual leave has already been enjoyed before the grant of maternity leave that part of the maternity leave equivalent to the annual leave will be without pay.
100219 - Any female officer who is nursing a child shall be granted two hours off-duty every day. This facility shall be granted up to a maximum period of six months from the date she resumes duty from maternity leave.
From the foregoing expositions, the salient points that can be gleaned from the lawfully provided maternity leave, are as follows:
1. Female house officers, and indeed all house officers, are entitled to full annual leave, albeit pro rata if their employment stride two different years.
2. Female house officers who are pregnant and are up to a month to delivery are entitled to their full maternity leave with full pay
3. Female house officers who have taken their annual leaves before maternity leaves are only entitled to three months of maternity leaves with full pay.
4. Female house officers who are entitled to maternity leaves are entitled to fifteen months of employment in the institution with full pay, as against their colleagues who are only entitled to twelve months with full pay.
5. Resident doctors are entitled to annual leave in their year of employment once they are employed before the month of December. This annual leave shall be pro rata.
6. Denial of any of the above entitlements can validly ground a fundamental rights action for remedy in court, and fundamental rights suits are never statute barred in Nigeria.
7. This article will go a long way to guide the employers and employees in our hospitals.
®Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACS, DSC).
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