ADJ-00016010

Complainant

Respondent

Anonymised Parties

Dental Nurse

Dental Clinic

Representatives

Ann Conan, Co. Wicklow Citizens Information Service

Owen Meany, B.L., instructed by Sherwin O'Riordan, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020735-001

24/07/2018

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

CA-00020735-002

24/07/2018

The complainant was employed as a Dental Nurse in a Clinic operated by the respondent. The complainant commenced employment in February 2014 and employment ceased on 13 May 2018. The complainant worked part-time at a rate of €15.00 per hour.   The issue which is the subject of the complaints is in relation to the decision of the respondent to terminate the employment of the complainant.

The complainant was a valued and trusted member of staff who performed her duties with great diligence.

The complainant’s working relationship changed when a new Practice Manager was appointed.

The complainant began to feel bullied and undervalued and her concerns in this respect were ignored.

The complainant wrote to the respondent requesting a meeting to discuss these concerns but at that meeting she was informed of her dismissal.

The complainant’s termination of employment was subsequently referred to as a redundancy but her job was advertised on line within a few days of her dismissal.

The practice was in financial difficulties and expert advice indicated the requirement for it to be restructured.

As part of that restructuring it was unfortunately necessary to make the complainant redundant.

The complainant did not possess the technical skills that were functions of the new role.

The new role was a full-time position which the complainant had always indicated was not suitable for her.

The complainant received a redundancy payment and a payment in lieu of notice.

The respondent’s correct title was clarified as set out above.

The respondent set up the practice in December 2013 and the complainant joined it as a Dental Nurse shortly thereafter. The complainant’s original contract was for 30 hours per week but this subsequently reduced to 15 hours per week. I note that it was accepted that at the start everybody on the staff did everything and I accept the complainant’s contention that she was always flexible in her approach to her work, worked extra hours when possible and would go above and beyond what was normal for a Dental Nurse to perform in regard to her duties.

According to the respondent’s evidence, she personally never drew a salary from the practice in the beginning but as time went by this situation was not sustainable and in fact the practice was loss-making. Expert advice was sought on the future of the operation and the recommendations of that review were implemented over the next 12 months. The practice had concentrated on traditional dentistry but the review indicated a move to aesthetic dentistry. Staffing was also looked at and in this context a Practice Manager was appointed. New technology was introduced in order to speed up financial reports and other processes. In January 2018 the staffing consisted of the following:

Owner (Qualified Dentist)

Practice Manager

Dental Hygienist (P/T)

Associate Dentist

3 Nurses (1 F/T, 2 P/T)

The respondent stated that as part of the staffing review and arising from the move away from traditional dentistry it was decided that the practice required only one full-time nurse. The respondent further stated that she was aware that the complainant did not want to work full-time hours.

For her part the complainant, in her submission, listed a number of issues that had arisen with the Practice Manager and believed that the type of attitude displayed by that person was instrumental in a number of staff leaving the employment. The complainant said that she had been asked by the Practice Manager on several occasions to change her hours but could not do so. She did work extra hours if possible. The complainant raised concerns with the Manager regarding the use of her photograph on Instagram (to publicise a procedure) but these were dismissed out of hand.

On 10 May 2018 the complainant wrote to the respondent setting out her concerns particularly with regard to the Practice Manager. This was followed by an exchange of text messages between the parties which resulted in an arrangement for a meeting on the following Sunday evening, 13 May. The complainant assumed that this meeting with the respondent was to discuss the matters raised in her letter and the respondent, in evidence, accepted that the complainant may well have had that understanding.

In the event, it is accepted that at the meeting the respondent informed the complainant about the financial position of the practice and consequent changes resulting in the fact that her services were no longer required and that her employment was being terminated with immediate effect. This was followed by a letter dated the following day from the respondent in which it stated that the complainant would be paid 2 weeks’ pay in lieu of notice together with redundancy and any outstanding holiday pay.   An advertisement appeared on-line within days for a receptionist / personal assistant and this position was stated to be full-time or part-time. A lump sum payment was lodged to the complainant’s account at the end of the month which the respondent stated equated to a redundancy payment and 2 weeks’ notice.

In evidence the respondent stated that she accepted that the situation could have been dealt with in a better manner, particularly with regard to consultation and agreed that the complainant’s letter precipitated her actions.

I note that on the day after the meeting the full-time nurse went on sick-leave and subsequently resigned from her position one month later.

Section 6(3) of the Unfair Dismissals Act, 1977, states:

Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more employees in similar employment with the same employer who have not been dismissed, and either –

(a)    the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b)    he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there are no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

The Employment Appeals Tribunal in considering this matter in Case No. UD206/2011 said;

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria to be adopted will come under close scrutiny if an employee claims that they were unfairly selected for redundancy.   The employer must follow the agreed procedure when making the redundancy. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.

In that case the EAT found that the claimant was unfairly selected for redundancy because:

The decision to make the claimant redundant was taken in advance of any meeting with the claimant

There was no serious or worthwhile consultation with the claimant prior to making her redundant

No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy

There was no worthwhile discussion in relation to the criteria used for selecting the claimant.

It is clear that the same comments could be made about the behaviour of the respondent in the case before me. The decision to make the complainant redundant had been taken prior to the meeting on 13 May 2018. The complainant was not advised of the purpose of that meeting and indeed the respondent accepts that she might well have assumed that the subject of the meeting was to discuss issues raised by the complainant in her letter of 10 May.   It was also acknowledged that that letter precipitated the meeting being held when it was. Furthermore, the respondent accepts that the consultation process could have been better. In fact there was no consultation process whatsoever. The respondent stated that she was aware from previous discussions that the complainant was not interested in full-time employment but accepted that it was not put to the complainant whether she would opt for a full-time position if the alternative was redundancy. It is clear that no alternatives to redundancy were considered by the respondent and that there was no discussion with regard to criteria used in relation to the decision.

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

I find that the respondent did not act in a fair and reasonable manner and that the complainant was unfairly selected for redundancy. The complainant, therefore, was unfairly dismissed under the provisions of the Unfair Dismissals Acts, 1977 – 2015.

I note that the complainant has been deemed unfit for work and in receipt of illness benefit from the Dept. of Employment Affairs and Social Protection since her dismissal.   She is therefore not in a position to seek employment. The complainant’s representative claimed that the precedent set by the EAT in Liz Allen v Independent Newspapers (Ireland) Limited should apply in relation to the consideration of compensation.   In that case the EAT found that the claimant’s illness was caused by the factors that led to her dismissal and thus to her financial loss. There is no evidence in this case to justify a similar finding.

Finally, in regard to the complaint under the Minimum Notice and Terms of Employment Act, 1973, I note that this was withdrawn by the complainant during the course of the hearing.

Complaint No. CA-00020735-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons stated above I find that the complainant was unfairly dismissed and I order the respondent to pay to the complainant the sum of €1,075.00 as compensation in this regard.

Complaint No. CA-00020735-002:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. This complainant was withdrawn at hearing by the complainant.