RP2631/2011

EMPLOYMENT APPEALS TRIBUNAL

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr P. Hurley

Members:        Mr P. Pierson       

                        Ms H. Murphy

heard this appeal in Tullamore on 22^nd March 2013

Representation:

Appellant:                  

Respondent:              

The decision of the Tribunal is as follows:

Appellant’s Case

The appellant is a nurse. She had worked as a relief public health nurse. The respondent was a GP and he employed her as a practice nurse starting on 3 September 2001. She worked for the respondent for 9 years and during that time they had a good working relationship.

The respondent retired at the end of October 2010. He told her of his intention 2 months in advance. A primary care manager from the HSE contacted the appellant and informed her that a locum GP would be appointed from November 2010 to January 2011. However due to the recruitment embargo the appellant would not be recruited directly as a practice nurse but she should register with the agency CPL and they employed her as interim practice nurse during the period of the locum’s employment.

When the new GP took up his position he contacted her and took her on as practice nurse. However the new GP told her it was a new contract and he did not recognize her service with the respondent. She did not know if the new GP had discussed employing her with the respondent. The appellant had to apply for the position with the new GP and felt that it was not a foregone conclusion that she would be appointed.

The appellant’s representative told the Tribunal that the Transfer of Undertakings regulations do not apply in this case and therefore she should be entitled to a redundancy payment.

Respondent’s Case

He started in 1973 in his position as GP. In September 2001 the appellant joined the practice. They had a good working relationship and he was happy with her work.

The respondent had intended to retire in September 2010 but to facilitate the appointment of his successor he stayed on for a further month. Before he wrote to the HSE he first informed the appellant of his intention to retire. He did not discuss the appellant’s future role with her.

The respondent sought advice from the IMO before he retired and was informed that if she continued to work with the incoming GP he would not be liable to pay her redundancy. When candidates for the GP position came to see the place he always recommended the appellant to them. When he ran the practice 65% of patients were on Medical Cards and all of these transferred to the incoming GP. The respondent ceased practising when he retired.

The respondent’s wife gave evidence. She had looked after the administration. The appellant asked her about redundancy. The respondent’s wife told the appellant that if she was entitled to redundancy she would get it. Later the respondent’s wife explained to the appellant that redundancy would not be forthcoming.

The respondent’s accountant gave evidence.  He advised the respondent to issue the appellant with a p.45. It is a revenue document.

Both parties made submissions to the Tribunal.

Determination:

The Tribunal carefully considered the evidence adduced and the submissions made in this case. It is common case that the appellant was employed as a practice nurse by the respondent, between September 2001 and October 2010. The respondent was in turn employed under a GMS contract from the HSE. The respondent’s contract was specific to him and thus could not be transferred to somebody else.

The appellant was employed by the respondent because he considered it necessary. Despite the costs of her employment being met from funds provided to the respondent by the HSE the appellant’s position was in ease of the respondent rather than of assistance to the HSE.

The respondent’s GMS contract terminated when he retired. When the HSE issued a new GMS contract covering the same area and patients, the new contract was unconnected with and had no similarity to the previous contract. No liabilities under the former contract carried over to the new contract. In these circumstances the Tribunal is satisfied that a transfer of undertaking did not occur in this case. The appellant’s subsequent position as an agency employee was not a continuation of her employment with the respondent.

The appellant’s position with the respondent ended on his retirement. This circumstance meets the definition of redundancy under Section 7 (2) (a) of the Redundancy Payments Act 1967,

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed,

The appeal under the Redundancy Payment Acts 1967 to 2007 succeeds and the appellant is awarded a redundancy lump sum based on the following information:

Date of Birth                           24 January 1955

Date Employment Began        03 September 2001

Date Employment Ended       31 October 2010

Gross Weekly Pay                   €384.00

This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)