ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00005074

Parties:

Complainant   Anonymised Parties   Respondent

Dental Nurse                                          Dental Surgeon  

Representatives   Lanigan Clarke Solicitors

Complaint(s):

Act           Complaint/Dispute Reference No.             Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00006721-001 31/08/2016  

Date of Adjudication Hearing: 18/04/2017 Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following 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).

Summary of Complainant’s Case:

The claimant was employed by Employer A ( hereafter referred to as the transferor)as a Dental Nurse/Receptionist   from the 18th.Nov. 2014 to the 26th.August 2016 – Employer A died on the 16th.June 2016 .She asserted that she was told at the time of the death of employer A , her job was safe and that it was his wish that the staff were kept on in the practise. She was under the impression that her terms and conditions of employment would be carried forward to employer B (the transferee).She stated that this was a busy practise and there was no cause for concern. The claimant submitted that she was hand delivered a letter from employer B on the 30th.Aug.2016 , advising her that her contract was not being renewed.The claimant contacted the representative of Employer A and was advised that she was being made redundant with effect from the 25th.August 2016 and that employer B was not obliged to issue her with a contract. She submitted that the respondent was in breach of the Act for dismissing her on the grounds of the transfer of undertaking between employer A and employer B. The claimant stated that the business continued to operate as previously with the same patient list , the same facebook page , contact details and medical card holders.  

Summary of Respondent’s Case:

The respondent did not attend and was not represented at the hearing.  The respondent’s representative advised by way of letter to the Commission on the 18th.April , who advised that following the death of employer A , on the transfer of the business to employer B , it was indicated by employer B that he was not in a position to take on the 2 employees and therefore the claimant was made redundant by employer A’s widow on the 25th.August 2016.

Decision:

Section 41 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. I have reviewed the evidence presented at the hearing and noted the claimant’s assertion in her complaint form that she did not have the requisite service to qualify for statutory redundancy. On the basis of the uncontested evidence of the claimant , I find that the transfer of the business constituted a transfer of undertaking under the Regulations and that the transfer constituted grounds for dismissal and was in breach of Regulation 5 . Accordingly , I am upholding the complaint and require the respondent to pay the claimant €3,500 compensation within 42 days of the date of this decision.  

Dated:   20/12/17     Workplace Relations Commission Adjudication Officer: Emer O'Shea