UD1296/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                           CASE NO.

Ingrid Kuhn    -claimant

                                                                                                            UD1296/2012

against

Don & Fiona Ryan T/A Wexford Orthodontics        -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Horan

                     Mr J. Flannery

heard this claim at Wexford on 27th May 2014 and 15^th September 2014

Representation:

Claimant:        Mr. James Kavanagh B.L. instructed by Frizelle O'Leary & Co, Solicitors,

Slaney Place, Enniscorthy, Co. Wexford

Respondent:    In person

Summary of evidence:

The respondent has two orthodontic practices, one in Gorey and one in Wexford. The claimant commenced her employment as a dental nurse in the Wexford practice in August 2005. The claimant believes her position was unfairly selected for redundancy.

The respondent stated in evidence that he was professionally advised at all stages of the selection process by an employer adviser from the Irish Dental Association. In April 2012 he reviewed staffing levels which established the need for cuts in the Wexford practice due to the fact that patient numbers and fees had reduced by 30%. The respondent reduced his own hours to three days per week and other staff members were reduced to two days per week. Staff were addressed on this issue on various dates throughout April 2012. He also put forward another proposal at the end of April 2012 suggesting selectively reducing days for some people. This proposal would have saved the practice €14,500 per annum. The respondent was advised that he needed the consent of all staff to this proposal and also that he should consider applying the proposal across the board rather than selecting certain staff members for reduced hours. Upon receiving this advice he considered seeking a 10% reduction from all staff. He discussed this idea with the Practice Manager but she was unwilling to accept this cut. The Practice Manager told him she found the practice to be overstaffed in terms of the level of business. In light of this conversation the respondent abandoned the proposal of a 10% cut across the board and did not put it to the rest of the staff.

Ultimately the respondent identified that one nursing position in the Wexford practice was to be selected for redundancy. A staffing levels document for both practices was opened to the Tribunal. The respondent spoke with staff in May 2012 and advised them that the practice would have to implement redundancy and that a nursing role within the Wexford practice would be affected. The reason for this was due to the reduction in surgical requirements in the Wexford practice as the respondent’s own hours in the practice were reduced. He enquired if anyone wished to apply for voluntary redundancy. Employee D was concerned that her position would be the one selected as she had the least service but the respondent told her that service was only a small part of the overall selection matrix.

The respondent’s adviser had assisted him in compiling the selection matrix. The respondent’s adviser also advised him to consider if an alternative role was available such as a role on reception or if the position could be re-allocated to the Gorey branch. The respondent analysed the role of each staff member. At that time there were two full-time nurses and two part-time nursing positions and all 4 of these positions was considered as part of the selection process. As part of the scoring of the matrix the respondent considered the flexibility of staff in relation to other roles within the practice. Employee D could fulfil a nursing role in either Gorey or Wexford but she did not have a suitable temperament for reception/office work. The claimant was the same as she was not suitable for office/reception work. However, the claimant would only nurse in the Wexford practice as she did not want to work in Gorey. In the matrix the respondent recorded that the claimant did not want to go to Gorey as expressed during her performance review in 2010. The other two dental nurses could fulfil any role in either of the practices. Other factors taken into account included quality of work, patient focus, conduct, punctuality, versatility and flexibility. The respondent outlined to staff the factors taken into account in the finalised matrix in May 2012.

Following from this the claimant was informed on 13 June 2012 that her position had been selected for redundancy. The respondent told her he would provide her with a copy of the matrix relating to her score which was the lowest of the four.

During cross-examination he accepted that the claimant was the second longest serving employee and that there was no issue with her work performance throughout her employment. The claimant was very good and organised at performing her role but he did not think that she would be good at dealing with difficult patients by telephone. The same was the case with Employee D.

In relation to the conduct and punctuality scoring the claimant had received a score of 7 from a possible 10. The score of 7 reflected that she fully met the required standards. One of the other nurses had a qualification in both dental nursing and radiography but the other nurses had neither of these qualifications. The claimant scored a “3” rating for her ability to operate as part of a team. The respondent stated that the claimant had appeared unhappy in her post for a period of time and she approached him several times about issues but her claims were found to be unfounded. In addition employee R had told the respondent that the atmosphere in the coffee room was very difficult to the point that Employee R avoided the coffee room. The respondent did not recall ever formally putting the interpersonal issues to the claimant.

An issue was opened to the Tribunal regarding a request from the claimant for six days leave when her allocation had already been taken in 2010. The respondent provided her with two extra days due to her hard work. Ultimately he agreed that the claimant would have to work back four days but the claimant stated on 14 July 2010 that she was unwilling to do this. For the sake of harmony he did not argue with her. The claimant also raised an issue that she had to take her annual leave entitlement when the respondent was not working and she felt it was unfair as this did not affect all staff. This was resolved when it was agreed that the claimant could take this time as unpaid leave.

In reply to questions from the Tribunal, the respondent confirmed that the claimant was not advised that flexibility regarding work in Gorey would form part of the selection process nor did he put the suggestion about Gorey and flexibility to the claimant.

The claimant worked as a Dental Nurse for the respondent from 2005 until her dismissal in 2012. She also assisted in administration work/reception duties when the respondent was out of the practice until 2006. In 2007 the Gorey practice opened; the claimant covered holidays and any other days as the need arose. Towards the end of her employment she worked very little in Gorey as there was no requirement but the claimant never declined to work there.

The claimant raised a number of issues regarding her annual leave and her requirement to take it when the respondent was taking his leave. At no point did the respondent put any complaints or interpersonal difficulties to the claimant. The first time the claimant became aware of any issues was when the respondent gave her the matrix.

The claimant gave evidence of her loss and her attempts to mitigate her loss.

Determination

The respondent appears to have approached the issue of redundancy in a conscientious way. The Tribunal is satisfied that a redundancy situation existed and that the role to be made redundant was fairly identified i.e. a Dental Nurse.

The respondent prepared a matrix to assist in the process of selection and the Tribunal is satisfied that the matrix itself fairly reflected the skill base that the practice needed to preserve and, further, that all employees were given the opportunity to have input into the form that matrix was to take.

However, on the basis of the evidence as presented to the Tribunal, it is the view of the Tribunal that, in applying the matrix in the case of the claimant, the respondent was influenced and swayed by factors which should not have been considered in the deliberations.

Specifically, the claimant was given low scorings which reflected unsubstantiated and unproven suggestions that she was not a team player and, further, presupposed that she could not and would not work in the Gorey sub-practice. The Tribunal found there to be no real support for the latter contention and this is significant.

In cross-examination on the first day of the hearing, the respondent accepted that availability for the Gorey practice was the most important issue for him and that he believed that the claimant would not work there. He accepted, however, that he never explained to the claimant that this was a criteria for selection and a particularly important one. The respondent stated that he believed the claimant had shown “reluctance in the past” but accepted that perhaps “he should have asked her” if she was available for Gorey when needed.

In this context, the respondent made fundamental assumptions as regards the claimant in circumstances where it was unfair to make such assumptions. In the circumstances, the process of selection was not fair.

The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €7,500 in compensation. However, full credit is to be given to the respondent for the sum already received by the claimant by way of Redundancy Payment.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)