Complainant

Respondent

Anonymised Parties

An Employee

A Medical Consultant

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-00014053-001

20/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017529-001

13/02/2018

The Complainant commenced work with the Respondent, who is a medical consultant, in July 2007, in the role of practice nurse.

The Complainant's claim is that she was made redundant on 4 November 2016 and she is now seeking her redundancy payment.

In addition, the Complainant is making a claim under the Terms of Employment (Information) Act, 1994.

CA-00014053-001 - Redundancy

According to the Complainant's evidence, she was advised by the Respondent on 3 November 2016 that he was closing down his private practice from 17 November 2016. It was further stated that the Respondent advised the Complainant that he would check with his accountant regarding her redundancy.

In her evidence, the Complainant stated that, on 10 November 2016, she was informed by a colleague that the Respondent had finished work and had gone on sick leave. The Complainant stated that, as she was not able to contact the Respondent, she finished up work on that day. According to the Complainant, she was not paid for her final week at work nor did she receive payment in lieu of notice period.

The Complaint stated that in early February 2017, she requested her P45 and her redundancy from the Respondent. According to the Complainant, the Respondent replied by text advising that he had forwarded her message to his accountant and he also requested her address, so he could pass it to the accountant. The Complainant stated that she received her P45 by post but did not receive any redundancy payment.

According to the Complainant, she sent a further text to the Respondent in March 2017 in relation to her redundancy. She stated that she received a reply from the Respondent by text saying that he had forwarded her message to his accountant and apologised for the delay. The Complainant stated that the Respondent also indicated that he would be returning to work soon and enquired if she would be interested in working for him again. According to the Complainant she replied indicating that she may be interested.

The Complainant stated that she heard nothing further from the Respondent until early June 2017 when she received a text advising that he had returned to work and indicating that, if she was still interested in working for him, work would commence at the end of July/beginning of August. The Complainant stated that, once again, she confirmed her interest in the position. However, the Complaint stated that when she met the Respondent at a social event in early July 2017, he did not mention anything about his earlier offer of work.

The Complainant stated that in mid-August 2017, she sent a text to the Respondent, once again, requesting her redundancy. According to the Complainant, she received a reply similar to those already received indicating that he had passed the details onto his accountant. The Respondent also apologised for the delay in dealing with the matter. The Complainant stated that the Respondent made no reference to the previous offer of work. Consequently, the Complainant stated that, as it was by then nine months since she had been made redundant, she requested contact details for the Respondent's accountant so that she could contact him directly. According to the Complainant, the Respondent provided her with the contact details for his accountant.

The Complainant stated that on 2 August 2017 she emailed the Respondent's accountant requesting her redundancy payment. According to the Complainant, she missed a call from the accountant later that evening but he did not leave any message. On 21 August 2017, the Complainant received a text from the Respondent offering work which would commence the following week. The Complainant stated that, on several occasions over the following two days, she tried, unsuccessfully, to contact the Respondent's accountant by telephone.

According to the Complainant, she sent a text to the Respondent on 25 August 2017, declining his offer of work. The Complainant stated that she did so because she felt the offer was disingenuous and only arose when she enquired about her redundancy. The Complainant further indicated that she felt, by that time, a working relationship was no longer tenable. Consequently, the Complainant sent an RP77 form to the Respondent. However, she indicated that she received no further communication from the Respondent.

According to the Complainant's legal representative, she was working a two-day week for the Respondent for a period of 8.5 years when, in March 2016, her working week was reduced to one day per week. The Representative stated further that, due to the fact that the Complainant was made redundant within a period of one year from her working week being reduced, she is entitled to claim her redundancy payment based on a full working week, which is a two-day week.

Consequently, based on service of 9.37 years and a gross salary of €300 per week, the Complainant is now claiming a sum of €5,922.00 as her statutory redundancy entitlement.

CA-00017529-001 - Terms and Conditions of Employment

The Complainant is making a claim that she was never, at any time while working for the Respondent, furnished with Terms and Conditions of Employment covering her role and, consequently, is now seeking relief under the Terms of Employment (Information) Act, 1994.

In his oral evidence to the Hearing, the Respondent stated that he did not make the Complainant redundant. According to the Respondent's evidence, he was diagnosed as critically ill by the Occupational Health physician and was immediately placed on sick leave. According to the Respondent, a colleague took over his clinic. He also stated that he left it to the Complainant and her colleague to decide how the practice will be run in his absence.

The Respondent stated that he never told the Complainant that she should go and give no notice in this regard. He stated that he hoped to be back at work reasonably quickly, but, that time, matters were not within his control.

According to the Respondent, he was unaware that the Complainant was looking for redundancy. He stated that he only became aware of the Complainant’s requested in this regard when he returned to work, on a part-time basis in July 2017. He stated that he was always in contact with the Complainant and, as soon as he returned to work, he offered her a job, which she declined.

In conclusion, the Respondent denied the claim being made and stated that he did not give notice to the Complainant or her colleague that the practice was closing. The Respondent stated that it was a temporary situation that was outside his control but it was always his intention to return as quickly as possible, at which point there would be work for the Complainant.

CA-00014053-001 - Redundancy

Section 7 of the Redundancy Payments Act 1967, sets out the general right to redundancy payment, as follows:

Section 7 (1) - an employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short time for the minimum period, shall, subject to this Act, be entitled to the payment of monies which shall be known (and are in this Act referred to) as redundancy payment provided –

a)      He has been employed for the requisite period, and

b)      he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Act, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

At Section 7 (2), the Act sets out the requirements pertaining to "dismissal by reason of redundancy", as follows:

For the purposes of subsection (1), an employee who was dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to –

a)      The fact that his employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so implied, or

b)      the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

From the evidence presented in this case, I am satisfied that the Complainant was advised by the Respondent that he was closing down his private practice. The evidence further suggests that the practice actually closed and the Respondent left work approximately one week earlier than had been indicated to the Complainant.

It can be further gleaned from the evidence presented, that the Complainant engaged with the Respondent, both by text and letter, seeking her P45 and her redundancy payment. Consequently, I am satisfied that the Respondent was clearly on notice that the Complainant was seeking redundancy.

I also note the Complainant received her P45 in February 2017 and that this document confirmed the date of cessation of work as 4 November 2016. It is further noted that, in March 2017, in response to one of the Complainant's queries in relation to her redundancy, the Respondent indicated that he would be returning to work shortly thereafter. The evidence suggests that, in June 2017, the Respondent sent a text to the Complainant, indicating that he had returned to work and that, if she was interested, he would have work for her at the end of July.

However, it appears that it was not until she received a text from the Respondent on 21 August 2017, that the Complainant was provided with, what could be considered, a serious offer of employment. In her submissions, the Complainant suggested that the references to possible employment appeared to coincide with requests from her to him and/or his accountant in relation to her redundancy.

The evidence suggests that the Complainant communicated with the Respondent by text, on 25 August 2017, and declined the offer of employment which was received some days earlier. According to her evidence, the Complainant made this decision based on her views, as set out in the previous paragraph, and concluded that it was not possible to restore the working relationship. Given all that had transpired over the previous nine months, I find that it was not an unreasonable response for the Complainant to make, in the circumstances.

Consequently, having carefully considered all of the evidence, I am satisfied that the Complainant was dismissed by reason of redundancy. While I have a certain sympathy for the Respondent, in relation to the circumstances in which his practice had to close, this cannot detract from the fact that the Complainant was made redundant in line with the Redundancy Payments Act, 1967.

Therefore, I find that the Complainant is entitled to a redundancy payment.

CA-00017529-001 - Terms and Conditions of Employment

Having carefully considered the evidence presented, I am satisfied that the Complainant was not provided with a statement of the particulars of her employment with the Respondent, at any stage during her employment.

Consequently, I find that the Complainant's complaint in this regard is well-founded and that the Respondent is in breach of Section 3 (1) of the Terms of Employment (Information) Act, 1994.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my findings in relation to the Complainant's complaints as follows:

CA-00014053-001 - Redundancy

I find that the Complainant was dismissed by reason of redundancy and, as a result, is entitled to a redundancy payment, calculated in the manner as set out in Schedule 3 of the Redundancy Payments Acts, with regard to her reckonable service and normal weekly remuneration, which, as calculated by the Complainant, amounts to €5,922.00.

CA-00017529-001 - Terms and Conditions of Employment

I find that the Respondent is in breach of Section 3 (1) of the Act and, as a result, awards the Complainant compensation in the amount of €450, which I considered to be just and equitable having regard to all the circumstances.

Redundancy

Terms and Conditions of Employment