ADJ-00005315

Complainant

Respondent

Parties

A Medical Practice Secretary

A General Practitioner

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-00007297-001

30/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00007297-002

30/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00007297-003

30/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00007297-004

30/09/2016

The complaints under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 were withdrawn at the hearing.     The complainant was employed by the respondent as a Medical Practice Secretary from 22^nd April 2002 to 1^st April 2016. The respondent retired on 1^st April 2016 and the complainant was then temporarily taken on by an agency. She found it very difficult to get information in relation to her employment status. Eventually another doctor took over the practice but the complainant did not retain the same terms and conditions of employment and her years service was not retained or transferred to the new employment situation.   She sought redundancy payment from the respondent but this was not given. The respondent refused to sign the RP50 or RP77 forms. The complainant submitted that as the GMS contract is not transferable the complainant is entitled to statutory redundancy. As the complainant was dismissed and received her P45 from the respondent it is argued that she is entitled to a payment of six weeks pay in lieu of notice.

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. It is argued that as there was no termination the payment of notice does not arise. Further, the respondent advised his staff by letter dated 20^th December 2015 of his intention to retire on 1^st April 2016.

CA-00007297-001

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 made such a finding. The Terms and Conditions of Agreement with Registered Medical Practitioners (GMS contract) does not contain a specific reference to the non application of Transfer of Undertakings, however the position of the HSE is that such transfer does not apply. I also note that while the incoming GP indicated that he would observe the same terms and conditions and specifically “respect their service”, the complainant’s contract does not reflect the service aspect, which is particularly noteworthy in terms of her future entitlements.         In all the circumstances, I find that the complainant is entitled to a statutory redundancy payment based on her insurable employment with the respondent.