Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

CA-00006416-001

11/08/2016

The complainant commenced   employment as a Medical Practice Nurse on 7^th   February 2000. She initially worked a   four and a half day week, and in 2008 began working a one day week plus cover   for annual leave and then in 2015 one day per week. In all of her contracts of employment it is   specifically stated “in the event of the employer retiring the employment   ceases”.   In a letter dated 20^th   December 2015, the respondent advised that he was contemplating retiring at   the end of March 2016. In February the   complainant was advised verbally by the respondent that he was retiring on 1^st   April 2016. On 5^th April   2016 the complainant emailed the Practice Manager seeking her statutory   redundancy payment. She was advised   that she was not entitled to claim redundancy as she had secured reemployment   with immediate effect.  There was correspondence between the   complainant’s representative INMO and the respondent’s representative IMO but   no agreement was reached. It is   submitted that Section 7 (2) (a) of the Redundancy Payments Act 1967 allows   for the definition of redundancy and the termination of the complainant’s   employment by the respondent was due to him ceasing to carry on the business   for which the complainant was employed.   Further, as the GMS contract is not transferable the complainant is entitled   to statutory redundancy. Case law was   cited in support – Ryan v O’Flaherty UD354/2003,   O’Donnell v Feerick UD 77/2004 and McNamee v Gavin RP 2631/2011.

Detailed written and oral submissions were made,   summarised as follows:

The respondent was a single handed GP operating the   practice for 30 years with a mix of public and private patients. He looked at options around bringing a   partner into the practice but had been unsuccessful. He tendered his resignation on 1^st   April 2016. The respondent did   continue to look after patients in a locum capacity pending the filling of   the vacancy. He provided the details   of staff to the HSE and understood that the complainant and her colleague   were taken on by the new GP on the same terms and conditions. It is argued that there is no redundancy   liability arising in relation to his resignation from the GMS contract. It is contested that a redundancy existed   within the meaning of the Redundancy Payments Act 1967 as amended. While the respondent did cease practice the   complainant was immediately re-engaged and subsequently employed by the new   GP on the same terms and conditions as she had been engaged. Under Section 9 (3) of the Act there was no   dismissal.   It is argued that a transfer   of undertakings occurred in line with the Transfer of Undertakings   (Protection of Employees) Regulations.  

There is case law supporting the complainant’s assertion   that GMS contracts are not transferable and therefore Transfer of   Undertakings does not apply. Notably,   in Decision RP2631/2011 where the Employment Appeals Tribunal found :                                                                                                     “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…no   liabilities under the former contract carried over to the new contract”.

In the circumstances, I find that the complainant is   entitled to a statutory redundancy payment based on her insurable employment   with the respondent.