ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001653

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 20/04/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

The claimant was employed as a Practise Nurse with the respondent from the 1^st.August 2007 to the 31^st.July 2015.

The claimant submitted the termination of her employment was by reason of redundancy and that she was entitled to statutory redundancy under the Redundancy Payments Acts 1967-2007.

The union set out the background to the GMS service and submitted that a GP and the HSE enter into a contract to provide general practise , medical and surgical services free of charge to medical card holders.

The claimant commenced employment as a Practise Nurse with Dr.P at a Health Centre, (details supplied) in Sept. 2006.A new GP – the respondent – known as Dr.H was awarded the contract by the HSE in August 2007 – he became the claimant’s employer and furnished her with a contract of employment which was submitted in evidence. The respondent left Ireland in 2013 and travelled to Australia where he remained until 2015 – the claimant continued in his employment during this period – a number of locum GPs were employed by the respondent to provide cover during his absence.In April 2015, the respondent returned to Ireland and advised the claimant that he was going to terminate his contract with the HSE and a locum would work the notice period required under his contract.The claimant and her colleagues made contact with the respondent in June 2015 – they were very concerned about their employment status .The respondent phoned the claimant in July 2015 and advised her that she had no entitlement to redundancy.The claimant’s contract was terminated on the 31^st.July 2015 and she was out of work until the 17^th.August 2015.The claimant had tried to establish if a transfer of undertaking had been effected or if she had been made redundant.Another GP , agreed to provide the service for the practise until a permanent GP was appointed.He contacted the HSE about the claimant and was advised that GMS contracts are statutory contracts which cannot be transferred and therefore were not covered by TUPE Regulations.The claimant was advised directly by the HSE that they had no contractual relationship with her.The claimant made numerous efforts to contact the respondent about redundancy but to no avail.

The claimant submitted that the termination of her contract was by reason of redundancy as her employer had ceased to carry on the practise in the place where she was employed.The respondent’s contract was specific to him and could not be transferred to another party.The claimant contended that any subsequent position she held as a practise nurse was not a continuation of her employment with the respondent.It was submitted that this position was supported by EAT decision UD354/2003 where it was determined that a GMS contract could not be transferred.UD77/2004 and RP 2631/2011 were also invoked in support of this position.

Respondent’s Submission and Presentation:

The respondent did not attend and was not represented at the hearing.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Decision:

On the basis of the uncontested evidence of the claimant and the authorities relied upon and invoked at the hearing , I find the complaint to be well founded.I require the respondent to pay the claimant her statutory redundancy in accordance with the Act within 4 weeks from the date of this decision.

Dated: 9^th August 2016