A doctor who sued a health clinic over an alleged employment contract breach has had his case dismissed.

Jeffrey MacLeod was seeking more than $200,000 in lost earnings and expenses from Bermuda Medical Specialties Group after the clinic asked that he defer his start date.

In a ruling last week, Puisne Judge Larry Mussenden said that the company had not broken the contract because it had never been “formed” to begin with.

At an earlier hearing, it was agreed that both sides had signed a contract in May 2019 in which Dr MacLeod was hired as a physician and chief operating officer with BMSG on a salary of $250,000 a year.

It was also agreed that Dr MacLeod had to fulfil certain conditions before starting work — including obtaining a licence to practise medicine in Bermuda, getting insurance against any malpractice liability and obtaining a work permit.

Dr MacLeod had satisfied these conditions by the beginning of September 2019. He went on holiday to Mexico and planned to start work with BMSG on September 23.

On September 6, BMSG chief executive Marico Thomas contacted the physician and asked him to delay his arrival in Bermuda by between three and six months.

In his ruling, Mr Justice Mussenden wrote: “Mr Thomas informed Dr MacLeod via several Skype calls of difficulties being experienced by BMSG, largely as a result of issues caused by the Bermuda Government.

“Then on 9 September, 2019, Mr Thomas informed him that as the Urgent Care Centre opening had been delayed as a result of Bermuda government issues, he did not have the financial resources to pay him. Thus, Mr Thomas informed him that he should not come to Bermuda.

“Mr Thomas explained to Dr MacLeod in an e-mail of 12 September, 2019 that he should not enter Bermuda with the expectation of being able to work for BMSG, and that the issues with the UCC remained unresolved and it could take three to six months to do so.

“Thus, Mr Thomas repeated his request that Dr MacLeod postpone the intended commencement of his employment and indicated that attempts were being made to amend the terms of his Bermuda work permit to account for the anticipated delay in the intended commencement of his employment.

In a subsequent e-mail, Dr MacLeod said that his trust in Mr Thomas was “completely destroyed”, that future employment with BMSG would require some “major bridge-building” and that any financial difficulties with BMSG should have been “shared beforehand”.

Mr Justice Mussenden wrote: “In any event, on 26 September, 2019, Dr MacLeod and his wife entered Bermuda as tourists and arranged to stay in holiday accommodation.”

According to Dr MacLeod, he was able to secure a post with another clinic in November 2019, but on a lower salary than BMSG had agreed to pay him.

In his defence, Mr Thomas claimed that Dr MacLeod’s appointment was contingent on the opening of the Urgent Care Centre on Reid Street.

He insisted that Dr MacLeod’s job offer was never withdrawn but that, because of delays, he was asked to defer moving to Bermuda for several months.

He also claimed that the offer was dependant on Dr MacLeod taking a drug test, which he failed to do.

He added that the doctor made no attempt to contact BMSG after arriving in Bermuda.

Concluding that a contract between the two parties was not “formed”, Mr Justice Mussenden wrote: “I find that the drugs test was of fundamental importance to the agreement.

“If, prior to commencing employment, Dr MacLeod failed to take the drugs test or took the drugs test but did not pass it, then the agreement would not come into being. Similarly, once employed, if he failed a drugs test, then the agreement would be terminated.

“On cross-examination, Dr MacLeod stated that once he had landed in Bermuda, he had no intention to work for BMSG and he stated that he did not respond to Mr Thomas’s Skype message of 26 September, 2019 where he asked to meet.

“In my view, the conduct of Mr Thomas was not consistent with the conduct of an employer who was not prepared to fulfil the employment contract. On the contrary, Mr Thomas was making efforts to perform the contract, albeit it on a delayed basis.”

Mr Justice Mussenden said that an observer would have some sympathy with Dr MacLeod after winding down his affairs in Europe in readiness for his move to Bermuda — only to find that his new employment had been delayed.

He added: “However, I am obliged to set sympathy aside and focus on the legal issues in the case.

“In my view, Mr Thomas’s primary obligation was the performance of the agreement once it started. The start date was not an express term of the agreement but was subject to discussion or negotiation. Thus, to that point, Mr Thomas was not in breach of the presumption.

“In summary, I have found first that there was no contract formed. Further, I have found that if a contract was indeed formed, then Mr Thomas did not renounce the contract. On that basis, I dismiss the application for loss of income, expenses, interest and other relief as prayed for in the statement of claim.”

Mr Justice Mussenden awarded costs to the defendant.

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