Complainant

Respondent

Anonymised Parties

A Medical Secretary

A GP Medical Practice

Representatives

John Duggan Callan Tansey

Conor O'Dwyer O'Dwyer 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-00019936-001

21/06/2018

The Complainant commenced employment with the Respondent, a GP medical practice, on 3 June 2008, in the role of practice secretary.

Having worked exclusively at one of the two locations at which the practice operated, the Complainant’s employment terminated on 31 December 2017 following a restructure of the operation of practice, arising from the retirement of the senior GP.

The Complainant submitted her complaint, under Section 8 of the Unfair Dismissals Act, 1977, to the Workplace Relations Commission on 21 June 2018.

Background:

The Complainant submitted that she was employed as a receptionist at the Respondent’s GP surgery in Location A. The Complainant stated that she also provided secretarial services including filing, typing, competing medical reports, dealing with telephone queries etc. According to the Complainant, notwithstanding the fact that her contract states that she would be based in the Respondent’s surgery premises at Location B, she performed her administrative role in the surgery based at Location A.

According to the Complainant, she attended a Diploma in Practice Management course at the Irish College of General Practitioners in 2010. The Complainant stated that, following this course, she introduced an appointment and accounts system and completely computerised the administration side of the practice.

The Complainant stated that, during 2017, she noticed that there was a considerable amount of extra work was given to her. She further stated that she mentioned this to the Respondent and advised that it was causing her stress. According to the Complainant, the Respondent replied that there was no need for her to be stressed.

According to the Complainant’s evidence, she was called to a meeting by the Respondent, on the evening of 20 November 2017 and was informed that she was being given one months’ notice of dismissal on the basis of redundancy. The Complainant stated that, when she enquired as to whether the surgery at Location A was closing, she was informed that it was not. The Complainant further stated that she was informed that one of the other secretaries, who worked part-time at the surgery in Location B, now wished to work full time hours and that the other secretary, who also worked part-time at the Location B surgery would take over the Complainant’s duties at the surgery at Location A.

The Complainant submitted that, the other two secretaries had been job sharing at the Location B surgery.   According to the Complainant, she was informed her that “the girls want to work full-time”. The Complainant further stated that she was advised that discussions between the Respondent and the other secretaries had taken place while she was on sick leave during the months of September/October. According to the Complainant’s submission, she pointed out to the Respondent that, as one of the other secretaries would be taking over her duties, her position could not be considered to be redundant.

The Complainant submitted that she was informed that a formal letter would be sent to her confirming the situation and this was provided to her on 4 December 2017. According to the Complainant, the letter set out the alleged circumstances of the redundancy and that she was being provided with four weeks’ notice in this regard.

Complainant’s Submission:

The Complainant submitted that there could have been no reduction in the administrative workload of the practice as a whole, as there had been only a slight reduction in the number of patients serviced by the practice between 2016 and 2017.

According to the Complainant’s submission, the number of patients on the HSE General Medical Services (GMS) list for the two doctors in the practice, at 31 December 2016 was 193 for Dr A and 1,506 for Dr B. The Complainant submitted that the corresponding numbers, as at 31 December 2017 was 90 and 1554 respectively and as at 1 April 2018, were 53 and 1,566 respectively.

Additionally, the Complainant submitted that the only changes which took place in relation to opening hours was that the surgery at Location A is closed on Monday mornings from 9:30am to 12:00pm and on Friday evenings from 2:30pm to 4:00pm. The Complainant also submitted that the office, but not the surgery, is closed between 12 noon and 3:30pm for administration and lunch at Location A. According to the Complainant, there was a receptionist in attendance at the surgery at Location A in the early days of January 2018, however, she was uncertain as to whether any administrative functions were to be carried out at this location.

The Complainant submitted that there were no other dismissals or redundancies and that the practice has the benefit of a GP registrar (a trainee GP provided by the HSE) since June 2017.

Conclusion:

In conclusion, the Complainant submitted that she was unfairly dismissed for the following reasons:

1.       There was no genuine redundancy in respect of her position.

2.       She was unfairly selected for redundancy.

3.       She was not consulted prior to the decision to dismiss her while other staff members were consulted.

4.       The Respondent failed to use a selection process.

5.       No criteria, other than “last in first out” were considered by the Respondent and the Complainant contends that criteria such as training, qualifications or the relative competence of the other employees doing the same work should have been considered.

6.       The selection criteria of (last in first out) was not agreed between the Complainant and the Respondent, as a procedure for selection for redundancy.

7.       The real reason for the Complainant’s dismissal was because she had complained of bullying and harassment by the practice nurses.

Background to the Respondent:

It was submitted on behalf of the Respondent that, from around 1984 to December 2017, the practice consisted of two medical surgeries at Location A and Location B. According to the submission on behalf of the Respondent, in December 2017 the practice employed a total of three staff, consisting of Ms C who joined the practice in 1984, Ms D, who joined in 1998 and the Complainant who commenced employment on 3 June 2008.

It was submitted that the General Medical Services (GMS) Scheme, which provides income for General Practitioners (GPs), such as the Respondent, was significantly cut following the financial crisis experienced in Ireland. It was further submitted that, as a result of this, the income of the Respondent’s practice was effectively halved, while the expenses/costs associated with running the two medical surgeries remained the same.

According to submission made on behalf of the Respondent, he engaged his bank in order to obtain an overdraft to keep both medical surgeries running. The Respondent submitted that he experienced extremely difficult financial circumstances throughout 2015, 2016 and 2017. It was further submitted that the expenses associated with the running of the practice were too great, as were his financial commitments to the banks.

The Respondent submitted that he was summoned to many meetings with his bankers and was directed to dispose of investment properties in order to reduce the indebtedness associated with his overdraft facility, which was directly related to keeping both medical surgeries operating in their then current format.

According to the Respondent, it was with great difficulty that he made the necessary decision, in 2017, to retire early from the GMS system. It was submitted that this decision was communicated informally to all staff. According to the Respondent, retiring from the GMS system enabled him to liquidate his pension and therefore reduces indebtedness to his bank and regularise his financial affairs, which alleviated a great deal of stress from his life.

It was submitted that the second doctor in the practice, (Dr B), who was the Respondent’s son and had worked with him in the practice for a number of years, was to succeed him in both medical surgeries after the Respondent’s retirement from the practice.

According to submission on behalf of the Respondent, when Dr B had an opportunity to review the finances of both medical surgeries, it became painfully obvious to him that it was no longer financially possible to subsidise the existence of the surgery at Location A. It was further submitted that, after taking financial advice and pursuing all possible options, Dr B concluded that the only option available to him was to consolidate the performance of the administrative functions in the Location A surgery.

It was submitted by the Respondent that, a regrettable consequence of the financially necessary reorganisation of the practice, was that the position held by the Complainant, for her entire employment with the Respondent would cease to exist. According to the Respondent, post the retirement of the Respondent and the subsequent reorganisation of the practice, there were two staff members located in the Location B medical surgery providing administrative support to one GP, Dr B. It was further submitted that the staff members work one week on/1 week of, as they had been doing for a considerable number of years.

The Respondent submitted that no administrative functions have been carried out at the Location A medical surgery since 31 December 2017. It is further submitted that, when patients now enter the Location A medical surgery, they are met with signs on the door, in various languages, advising them to take a seat and wait to be seen by the doctor in due course.

Background to the complaint:

It was submitted on behalf of the Respondent that he met with the Complainant on 20 November 2017, following a day’s work in the Location A medical surgery. It was submitted that the Respondent informed the Complainant, informally, of the development regarding his retirement from the practice, the succession of Dr B to the surgery in Location A and the necessary reorganisation of the administrative functions such that no such work would be carried out in Location A after 31 December 2017.

According to the submission, when the Complainant was advised of these developments, she became very upset and put several questions to the Respondent, who himself became very distressed with the manner in which the meeting progressed. According to the Respondent, he had never found himself in a situation where he had to advise a staff member that their position was no longer going to exist and he found the entire matter enormously stressful, embarrassing and painful. The Respondent submitted that he had used his personal finances to subsidise the running of the medical surgery at Location A for a number of years, as a matter of pride and honour to the community and staff.

The Respondent further submitted that, at the conclusion of the meeting on 20 November 2017, he advised the Complainant that she would receive formal written notification of the development regarding the position she held ceasing to exist. It was further submitted that, on 4 December 2017, the Respondent hand-delivered a letter to the Complainant.

According to the Respondent, that letter advised the Complainant of the development, regarding her position, that had been discussed with her and concluded by requesting that she reply to the letter if she wished. It was further submitted by the Respondent, that, while the letter did not state that it was proposed to pay the Complainant two months’ pay by way of expressing a payment, she was advised that she would receive this additional payment.

It was submitted on behalf of the Respondent that he and Dr B received a long text message from the Complainant on 6 December 2017 stating that she did not wish to reply to the letter of 4 December 2017. It was further submitted that the Complainant finished work in the Location A medical practice on 21 December 2017. According to the Respondent, the Complainant sent a text message on 29 December 2017 advising that the matter had been referred to her solicitor.

According to the Respondent’s submission, not having heard anything further from the Complainant, Dr B wrote to the Complainant on 18 January 2018, further setting out the position and advising that her redundancy and ex-gratia payments were available for collection at the Location B surgery.

It was submitted that, solicitors on behalf of the Complainant wrote to Dr B, by way of letter dated 22 January 2018, briefly stating that the Complainant would be pursuing a claim for unfair dismissal. It was further stated that a solicitor’s letter, dated 29 January 2018, issued on behalf of Dr B to the Complainant’s solicitors setting out detailed particulars of the events to date.

According to the Respondent’s submission, this letter also took issue with the behaviour of the Complainant, who, on 19 January 2018, entered into the medical surgery at Location A in disguise, abruptly approached the reception counter and, without consent, took photographs of the person sitting behind the counter.

The Respondent submitted that, while no reply was received to the letter of 29 January 2018, the Complainant initiated a personal injury action against the Respondent, which having considered all of the information pertinent to same, the Respondent claimed it appeared to be fraudulent.

Respondent’s response to the Complainant’s complaint:

According to the Respondent, the Complainant’s complaint contains a number of factually incorrect matters which are denied in the strongest possible terms.

In response to the Complainant’s allegation that she introduced an appointment/accounts system and completely computerised the administration side of the practice, the Respondent stated that the computer system had been in place in the practice at Location B for some time and was introduced to the practice at Location A.

In response to the Complainant’s allegation that she was given a considerable amount of extra work during 2017, the Respondent submitted that, while the Complainant appears to be suggesting that she was overloaded with work, she acknowledges that she received reassurances from the Respondent there was no need for concern.

In response to the version of the conversation between the Complainant and the Respondent at their meeting on 20 November 2017, as set out in the Complainant’s WRC complaint form, the Respondent denied, in the strongest terms possible, that the conversation, as alleged, ever took place. It was further submitted that the Complainant had fabricated this in order to generate some form of claim against the Respondent.

In addition, it was submitted that reference made by the Complainant and/or her representatives, on the face of the complaint form, to commercially sensitive information regarding the patient numbers in the practice, was a matter of enormous concern to the Respondent and to Dr B. It was further submitted that the Respondent and Dr B are satisfied that the reference to figures dating from April 2018, which was post the Complainant’s departure, could not have been correctly obtained by her and/or representatives. According to the Respondent, this is quite clearly a flagrant breach of the relevant data protection legislation and is currently being investigated by the appropriate authorities. According to the Respondent, this act, of itself, is indicative of the vindictive nature of the Complainant coupled with the fraudulent personal injury action she is pursuing.

The Respondent made reference to the fact that the Complainant acknowledges in her complaint form that no administrative functions continue to be carried out in the Location A medical surgery.

The Respondent also replied, as follows, to the seven points, submitted by the Complainant in her original complaint, in support of her claim of unfair dismissal:

1.       The Complainant was located exclusively at the Location A premises throughout her employment with the Respondent and carried out administrative functions in that premises. No administrative functions have been carried out in Location A since 31 December 2017. Therefore, the position held by the Complainant no longer exists.

2.       The Complainant’s position ceased to exist and that was the reason she was selected for redundancy.

3.       The Complainant was invited to reply to the letter dated 4 December 2017 and she declined to do so. It is denied in the strongest possible terms that other members of staff were consulted, as alleged by the Complainant.

4.       In circumstances where the position held by the Complainant in Location A ceased to exist, there was no requirement for a selection process. If, in the event that the three members of staff of the Respondent were considered, all three have indistinguishable training, qualifications and competence. The Complainant was the shortest serving member of staff by a considerable distance.

5.       In circumstances where the position held by the Complainant in Location A ceased to exist, there was no requirement for selection criteria. If, in the event that three members of staff of the Responded were considered, all three have indistinguishable training, qualifications and competence. The Respondent had no formal selection criteria in place and the default position, in this instance, was “last in first out”.

6.       A similar response to 5 above was also submitted in relation to this point.

7.       The allegation of bullying and harassment made by the Complainant is denied in the strongest possible terms by the Respondent and is entirely unsubstantiated.

The Respondent submitted that, should there be a finding in favour of the Complainant, they do not yet know what losses the Complainant alleges she sustained. However, the Respondent admitted that the Complainant had not been dismissed, rather her position had been made redundant and therefore a nil award was appropriate.

In conclusion the Respondent submitted that the Complainant had failed to make out her claim and, therefore, it must fail.

Having carefully considered all of the evidence adduced and the respective submissions of the parties, it is clear that while the Complainant contends that there was no genuine redundancy, the Respondent submitted that the termination of the Complainant’s employment constituted a dismissal by reason of redundancy.

Section 7 (2) of the Redundancy Payments Act, 1967, defines “dismissal by reason of redundancy” as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] 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 purposes 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 employed, 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.

It is clear from the evidence presented at the Hearing that the Respondent, who was the senior doctor in the practice, took the decision to retire in late 2017. The evidence further indicates that this decision was made after prolonged consideration/reflection, which in turn was triggered by significant financial challenges which emerged for the Respondent, as a result of the requirements being placed on him and his practice by his bankers.

Arising from these considerations/deliberations and, in particular, the Respondent’s decision to retire, it was decided that the other doctor (Dr B), who was the Respondent’s son and who had been working with him in the practice for a number of years, would take over the running of the practice.

It is clear from the evidence adduced, that Dr B only became aware of the seriousness of the financial situation at the practice, when he took on overall responsibility, from a business perspective, from the Respondent, on the latter’s retirement. The evidence presented indicates that for a number of years, prior to his decision to retire, the Respondent had been personally subsidising the running of the practice and, in particular, the medical surgery at Location A.

The evidence presented clearly shows that, in order to secure the ongoing viability of the practice, a significant number of changes, in relation to the manner in which the practice would be managed going forward, were implemented. These changes included the running of the practice, primarily, as a single doctor practice going forward, albeit continuing to operate out of two locations. In order to achieve this, it was decided that (a) there would be no administrative function carried out at Location A and (b) there would no longer be a receptionist employed at Location A.

As the Complainant’s role at Location A consisted entirely of carrying out administrative functions in conjunction with reception duties, it is clear that her role would no longer exist in the reconfigured practice. Based on Subsection (2) of the Act, as quoted above, the circumstances would, therefore, in my view, represent a genuine redundancy situation.

Consequently, based on the above conclusion, I next proceeded to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.

Section 6 (1) of the Unfair Dismissal Act, 1977, states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal”.

Section 6 (4) (c) of the Unfair Dismissals Act 1977 further clarifies the situation in relation to redundancy by stating, inter alia, that:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this act, not to be an unfair dismissal if it results wholly or mainly from ….. the redundancy of the employee…”

Section 6 (7) of the Act states as follows:

“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, the Tribunal or the Circuit 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….”

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. Arising from this, the burden of proof rests with the Respondent to establish, in the first place, that the dismissal was wholly connected to redundancy and, having done so, to justified the selection process whereby the employee in question was selected for redundancy.

As already stated above, I am satisfied that this case represents a genuine redundancy situation. Consequently, it was then necessary to consider if the process, by which the Complainant was selected for redundancy, was fair, reasonable and objective in its application.

A significant body of case law exists with regard to the reasonableness of an employer in relation to the fair and objective selection of employees for redundancy. In Boucher v Irish Productivity Centre [1994 ELR 205] the Tribunal articulated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

In the within case, the restructuring being proposed by the Respondent would see the transfer of all administration/receptionist duties from Location A to Location B, thereby reducing the number of staff, who were previously employed to carry out this work, from three to two.

The Complainant was the only person carrying out administration/receptionist duties at Location A, i.e. the location from which the work was to be transferred. The Respondent employed two other secretaries/receptionists, on a part-time basis, in what was effectively a job sharing arrangement. Both of these employees worked exclusively at Location B, which was the location to which all administration/receptionist duties would be transferred.

The evidence indicates that the selection criteria used by the Respondent, in identifying the Complainant as the person to be made redundant, was that of “last in, first out”. The evidence further shows that both of the other employees had longer service than the Complainant and, therefore, in a “last in, first out” scenario, I find it both reasonable and appropriate that they should continue in employment and the Complainant, who had the shortest service of the three, should be chosen for redundancy.

In her submission, the Complainant suggested that other criteria, such as training, qualifications or competence of the three employees, engaged in administrative/receptionist work, could have been taken into consideration. In response to this, the Respondent contended that there was no distinguishable difference between the three employees in relation to these criteria. Having considered the evidence adduced by the parties, I find none which would suggest that the Respondent’s position in this regard was unreasonable or in accurate.

In addition, the Respondent contended that, as the only full-time employee carrying out the administration/receptionist duties, she should have been given preference over her part-time   colleagues for the purpose of selection for redundancy. I do not accept this submission, as I am of the view that it would not be acceptable to discriminate against the other employees in favour of the Complainant on the basis of the part-time nature of their employment.

When assessing the fairness or otherwise of the Respondent’s decision to make the Complainant redundant,   I am of the view that it is both necessary and appropriate to consider the situation and the circumstances in which the Respondent found himself in relation to the running of the practice and, in particular, the decisions which he felt were necessary in order to rectify matters. Having carefully considered all the evidence adduced, I am satisfied that, given the gravity of the financial situation that had developed by late 2017, it was necessary for the Respondent to take prompt and significant steps in order to ensure the viability of the practice.

Given that the practice operated out of two locations, it appears to me that the decision to nominate Location B as the main location and to consolidate all of the administration functions there was reasonable and appropriate in the circumstances. I am satisfied that, in a context where the practice employed three secretaries/receptionists, it does not appear unreasonable that the position of one of these employees might be eliminated.

Having carefully listened to the evidence and the submissions of both parties and, in the absence of any credible alternatives being put forward by the Complainant, it is difficult to see what other options were available to the Respondent that would have averted the redundancy situation.

I have also carefully considered the situation in relation to consultation and, in particular, the Complainant’s contention that appropriate consultation did not take place. Firstly, I note that, in the period during which the Respondent made the decision to retire and to reorganise the practice as a result, the Complainant was on sick leave and therefore not available for consultation purposes.

Secondly, given the nature/structure of the Respondent’s business, the gravity of the situation in which he found himself towards the end of 2017, the need to take prompt action to address same and the apparent lack of alternatives available in the circumstances, it is difficult to envisage how further consultation would have changed the situation significantly. This view is somewhat confirmed by the Complainant’s decision not to reply, when invited to do so, to the letter of 4 December 2017 advising of the redundancy decision or to the subsequent request from Dr B, on 8 December 2017, to talk about the situation.

I have also noted the Complainant’s contention that she was chosen for redundancy because she made complaints of bullying against the practice nurses. Having given detailed consideration to this matter I am satisfied, on the basis of the evidence adduced, that the Complainant’s claims of bullying against colleagues was not an influencing factor in any of the decisions made by the Respondent in relation to the restructure of the practice and/or the Complainant’s selection for redundancy.

Taking all of the above into consideration, I find that a genuine redundancy situation existed and that the Respondent’s selection of the Complainant for redundancy was reasonable and objective in all of the circumstances that pertained. On that basis, I am satisfied that the termination of the Complainant’s employment resulted wholly from redundancy.

Consequently, I find that the Complainant’s claim for unfair dismissal is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal arose as a result of redundancy and, therefore, in line with Section 6 (4) (c) of the Unfair Dismissals Act 1977, I further find that her claim of unfair dismissal fails.

Unfair Dismissal

Redundancy