ADJ-00030134 ( Conjoined with ADJ 30137and ADJ 30128)

Complainant

Respondent

Parties

Ciara  McCarthy

Wishmill Ltd ( amended on consent at hearing )

Representatives

Austin Byrne

Claire Bruton , BL , instructed by  Nugent Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00040415-005

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00040415-009

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00040415-011

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00040415-013

14/10/2020

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

CA-00040808-001

14/10/2020

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

CA-00040808-002

14/10/2020

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

CA-00040808-003

14/10/2020

On 14 October 2020, the Complainant, a Practice Manager / Dental Nurse lodged 7  complaints against her former employer. These encompassed complaints in relation to her statement of terms of employment, notified changes in those terms, a claim for Constructive Dismissal and several complaints under the Transfer of Undertaking Regulations. The latter complaints are directed to the Respondent in ADJ 30137 .

The Complainant concluded her employment on July 6, 2020. She worked full time and received a gross weekly pay of €575.

This case is conjoined with ADJ 30137 and ADJ 30128  and the cases were heard in sequence.  ADJ 30128 and ADJ 30134 are the same claims,  save the claims  directed at the Respondent in ADJ 30137 and my decision will reflect that.

The circumstances of the case evolved from a sale of a dentistry business in January 2020. Both Transferor and Transferee were present at hearing.

The Complainant was initially a Lay Litigant and was represented by Austin Byrne at hearing. The Respondent has disputed the claims and was represented by Claire Bruton BL instructed by Nugent Solicitors. Both parties submitted written submissions in preparation for hearing.

The case came for hearing on December 1, 2021, following an earlier cancellation in May 2021 set to accommodate the alignment of all three complaints.

The Respondent raised a Preliminary Argument on Time Limits:

Counsel submitted that the Complainant had erred in submitting her complaints under TUPE Regulations  on 14 October 2020, outside the 6-month window from the date of transfer of business  in accordance with Section 41(6) of the Workplace Relations Act, 2015.

The Complainant Representative disputed this and confirmed that the complaint was in time, as supported by the WRC advisory service.

I asked the Complainant side if they wished to make application for an extension of time in accordance with Section 41(8) of the Act. Some delay ensued and the Respondent sought a direction that I dismiss the claim if the Complainant side continued to refrain from making application to extend time.

The Complainant Representative made application for an extension of time in accordance with Section 41(8) of the Act.  He submitted that the complainant was an ordinary citizen, without an expanded understanding of the law. She wished to make her case before the WRC, and he argued that it had taken the complainant some time to research and identify the wrongdoing she experienced at the employment. He requested that some leniencies be applied and an extension on reasonable cause be granted.

This submission was opposed by the Respondent Counsel when she argued that ignorance of the law should not be accepted as a defence for the delay. The Complainant had been notified of the transfer of business on 27 January 2020. This change was affected on February 1, 2020 and afforded the complainant sufficient time to submit a claim before 14 October 2020.

The Complainants Representative submitted that the Complainant had been deliberately excluded from her role of Dental Practice Manager, which she had held from March 1, 2008. She had been a reluctant participant in the transfer of business from the Respondent in ADJ 30174 and the Respondent in the instant case.  She was not invited to participate in the TUPE rituals that should have accompanied the transfer. She was aggrieved at the way this transfer had occurred.  On her complaint form, the Complainant detailed the transfer date as March 1, 2020. However, all parties accepted at hearing that the transfer occurred on 31 January 2020, some 8 weeks earlier.

 He submitted that the change of ownership at the business from February 2020 was soon accompanied with intense consultation and change. The Complainant was plied with requests for additional duties, and she began to feel coerced. She did not agree to take on additional roles.

The Complainant remains aggrieved by her treatment at the business.

Evidence of the Complainant

The Complainant outlined that she had not been invited to participate in the 30-day consultation period prior to the change in ownership of the business on 31 January 2020. She was humiliated by the way her employment changed over.

She soon discovered that the new Owner, Mr A was intent on changing her work methods and work role. This was despite his assurances that nothing would change.  The new Excel system was much more detailed. She was requested to take calls and log them. She said the system was the issue and it made her working life impossible. The customers were to be pursued and canvassed for treatment.

The Complainant gave evidence on the type and depth of revised jobs she was approached about. Job descriptions/ contracts were discussed, but not finalised.

She found it all very stressful. She also had to take responsibility for PPE at the practice during those early days of the pandemic.

She recalled being asked to undertake a training course and she had accepted this initially and then the course was overtaken by Covid, and she turned it down as she believed that she was “doing everything “at the practice.

The Complainant said she felt” bombarded and overwhelmed” and was approached regarding taking on a Business Manager role and sign her acceptance of the change. These were things she had never done before e.g., orthodontics.

She was aware that a Bonus was on offer. She told the hearing that she requested more staff hours, and she was refused. She needed help but was not heard.

In answering Counsel on when she decided to resign? The complainant confirmed that it was the end of June, beginning of July, on family advice. She submitted a sick note prior to resignation.

I wish to tender my resignation as practice manager as of today Monday 6, July 2020. I am now giving a notice period of one week from today which entails my employment will cease on Friday, 10th July 2020. I would very much appreciate if you would forward to me at the soonest opportunity a statement of my total annual leave accrued to dates that I can compare same to my own records. I have not made this decision lightly and hope that all statutory obligations can be completed in good time. (July 6 email at 09.55 hrs)

She applied for new work after she resigned and commenced in the job of Dental Nurse on 23 July 2020. she had not applied for other jobs.

The Complainant considered that Mr A backtracked on receipt of her resignation as he knew what “he did was wrong “. She didn’t believe her resignation came as a surprise.

The Complainant confirmed that she had not communicated her objection to the proposed roles in writing. She said that she would have taken them on with help.

Her main objection was against being cast as a Business Manager.

When asked why she did not reply to Mr as communication post resignation? The Complainant said that she didn’t want to work with him anymore. She was clear that both Mr A and Mr B, her former employer were fully aware of her unease. The Complainant clarified that she was seeking compensation for not been awarded a redundancy and clarified that she had not applied for redundancy during her tenure.

CA-000408001  Terms of Employment

 The Complainant had not received a statement in writing of her terms of employment.

This is a mirror claim to ADJ 40415-001 and is a duplicate claim .

CA-00040808-002 Terms of Employment

The Complainant was not notified in writing of a change in her terms and conditions of employment

This is a mirror claim to ADJ 40415-002 and is a duplicate claim .

CA-00040415-003 Constructive Dismissal 

The Complainant submitted that she had to leave her job due to the conduct of her employer at work on 6 July 2020. Evidence, and cross examination as summarised.

This is a mirror claim to ADJ 40415-003  and is a duplicate claim .

CA-00040415-005 TUPE Regulations

The Complainant submitted that the Transferor did not ensure that her terms and conditions transferred under TUPE.

This is a mirror claim to ADJ 40415-005 in ADJ 30128  and is a duplicate claim .

CA-00040415 -009 TUPE Regulations

The previous employer did not inform employee representatives of certain details of the transfer under TUPE

This is a mirror claim to ADJ 40415-009 in ADJ 30128  and is a duplicate claim .

CA-00040415-011 TUPE Regulations

The previous employer did not consult me in relation to the transfer under TUPE.

This is a mirror claim to ADJ 40415-011in ADJ 30128  and is a duplicate claim .

CA-00040415-013 TUPE Regulations

The previous employer did not advise me in relation to the transfer of undertakings.

This is a mirror claim to ADJ 40415-013 in ADJ 30128  and is a duplicate claim .

In conclusion, the Complainants Representative expressed a complete dissatisfaction in how Mr A addressed the Complainants work post transfer. He said had been co-erced to consider and take on a new workload and there was no prospect of a return to normalisation. This prompted her resignation.

The email of July 6 was an ill ill-timed attempt to back track on the poor treatment experienced by the Complainant.

Counsel for the Respondent accepted the dates pro-offered by the Complainant in terms of her commencement date. The Respondent accepted that she was the Dental Practice Manager when the Practice was acquired by the Respondent in January 2020.

The Respondent had sought her assistance in expanding services at the Practice and training was made available. The Respondent denied “being out to get her “and confirmed that the Respondent had bought a Dental Practice, but he himself was not a dentist.

The Complainant was not faced with any fundamental change in her terms and conditions. The Respondent denied that she was compelled to adopt additional roles.

The Complainant had not activated the grievance procedure open to her and the Respondent was shocked when she submitted her resignation. He offered to meet with her to resolve matters.

Evidence of the Respondent:

Mr A confirmed that the transfer of business was an 11th hour sealed deal. He said that the Surgery was small, and the aim was to develop a “new profile “for continued viability.

He said that the Complainant had attended training with change in mind. He was considering diversification in Treatment Co-0ordinator / Business Manager roles which overlapped.  He recalled that the complainant had not taken issue with the proposed changes, nor had she communicated that she was overwhelmed.

The proposed new job description had key strands of Practice Management. He had wanted the complainant to take on a Co Ordinator role in the revised practice as he was not a Dentist. He was scoping out the potential for change across three roles and asked the complainant to consider these.

He had no recall of the complainant requesting additional allocation of hours to the service or additional employees.

The Orthodontic work ran 5-6 days per week with average of 10-12 customers per day.

Mr A expressed his shock at the Complainants resignation on July 6, 2020. He said that he was unaware of the reasons for her resignation and the last thing he wanted was to lose her from the business.

He attempted to reach out to engage with the complainant when he sent the following email on July 6 at 12.56 hrs

I acknowledge receipt of your email. I have tried contacting you by phone to discuss. Perhaps you could give me a call back to discuss   so as to try understanding the reason behind your resignation? Subject to discussing your decision with you, I can only guess as to why you perhaps wanted to resign your position here after so many years.

If your decision was due to me asking you to take on the establishment of our new orthodontic treatments for the practice, then this I believe is something we can resolve. If there is something you are not prepared to undertake at this time, then that is not a problem as far as I am concerned. In other words, if you would rather remain in your existing role, i.e., the role you have performed effectively to date then we can continue with that if you would prefer. I wouldn’t want to think that by me asking you to take on this new role that this was the reason for your resignation. The role you currently hold is appreciated and valued. Please, therefore if you could get back to me to discuss this or whatever reason/s behind your resignation decision

He did not receive a response from the Complainant.

He confirmed that the Complainants terms and conditions of employment were unchanged throughout his tenure at the business. He had asked her to consider change. He recalled a 1/3 downturn in business during the early onset of covid, where wage subsidy was applied. Normal wages were restored from June 6, 2020

CA-00040808-001 Terms of Employment (Duplicated in ADJ 30128 )

 The Respondent argued that this was out of time. The claim was lodged on 14 October 2020. The Complainant had received a signed statement of terms of employment in March 2018.

CA-00040808-002 Terms of Employment  (Duplicated in ADJ 30128 )

The Respondent argued that this was out of time. The claim was lodged on 14 October 2020.

CA-00040408--003 Constructive Dismissal  (Duplicated in ADJ 30128 )

The Respondent rejected the claim. Evidence and Cross examination detailed within.

CA-00040415-005 TUPE Regulations (Duplicated in ADJ 30128 )

The Transferor did not ensure that her terms and conditions transferred to her new employer under TUPE. The Respondent is not the Transferor.

CA-00040415-009 TUPE Regulations ( Duplicated in ADJ 30128)

The Respondent argued that this was out of time. The claim was lodged on 14 October 2020.

The previous employer did not inform employee representatives of certain details of the transfer under TUPE

The Respondent Is not the Transferor

CA-00040415-011 TUPE Regulations ( duplicated in ADJ 30128 )

The previous employer did not consult me in relation to the transfer under TUPE.

The Respondent is not the Transferor

CA-00040415-013 TUPE Regulations ( duplicated in ADJ 30128)

The previous employer did not advise me in relation to the transfer of undertakings.

The Respondent is not the Transferor 

In conclusion, Counsel for the Respondent confirmed that the Complainant had been aware of forthcoming change at the business from January 27, 2020. She did not experience any alteration in her terms and conditions.

The Respondent was not on notice of the Complainants stated issues prior to her resignation. The Complainant had not relied on the Grievance procedure outlined in the contract prior to her resignation. The Business was not in a position in class the complainant as redundant when she had transferred under TUPE (Symantec)

She did not respond when Mr A offered her a way back to work in the email of June 6.

I have given careful consideration to these 7 claims against the named Respondent in the conjoined case. The claims directed at the Respondent as Transferor are incorrectly directed .

I did seek to case manage the co-existence of  duplicate claims  in  ADJ 30128 and ADJ 30134 but it was the Complainants wish to seek a decision on all claims lodged on 14 October , 2020 .

In reaching my decision, I have considered the written submissions, followed by the oral evidence adduced by the witnesses. I have also had regard for the oral representations offered.

Before I address the Preliminary and substantive arguments enroute to my decision. I must spend a moment in reflection on the situational back drop to this case.

The Complainant approached this case following 12 years of continuous employment with Mr B, the Respondent in ADJ 30137. In an omission of significant proportions, neither the Transferor (the Respondent in that case) or the Transferee (the Respondent in this case) observed the necessary protocols governing a Transfer of Undertakings. The purpose of those ceremonies is to give assurances around continuity of employment for the employees faced with a transfer of their employment.

I accept the Complainants point that the notification of sale was random and not accompanied by the employee respect envisaged by Council Directive No 2001/23/EC of 12 March 2001, the Acquired Rights Directive adopted by way of statutory Instrument into Irish Law on 11 April 2003 in the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

In Suzen v Zehnacker Gebaudereinigung Gmbh Krankenhausservice C-13/95, 1997, The aim of the Directive is to ensure continuity of employment relationship within an economic entity …. the decisive criterion for establishing the existence of a transfer within the meaning of the Directive is whether the entity in question retains its identity as indicated inter alia by the fact that its operation is continued or resumed ….

 In accordance with TUPE Regulations, transfer of employee to transferee is automatic irrespective of the wishes of either party. Article 1, Para 3 of the Directive. The transfer of the employment relationship occurs ipso iure, by operation of law. The Directive does not provide for the right of employees to object to the transfer.

In Katisikas v Konssstantinidis C-132, 138, 139/91 involved a case where Mr Katsikas was employed as a cook owned by Mr Konsstanantinidis, who went on to sell the restaurant. Mr Katisikas refused to work for the new owner and was dismissed.

The ECJ held that the purpose of the directive was not to obligate an employee to transfer. The employee is free to work for whom she chooses but the Directive does not operate to safeguard and preserve employment with the Transferor.

There is no provision for raising an objection to transfer in the Irish Regulations. In Katisikas, the ECJ held that it is for the Member States to determine what the fate of the contract of employment with the transferor should be.

The overarching point in this case is that the Complainant did not register an objection to the transfer of employment dated as 31 January 2020 and not March 1, 2020, as cited on the complaint form. Therefore, the facts of the case are distinguished from the Katisikas case. The Complainant accepted the transfer of the business and made the transition to the new Owner, the Respondent, Mr A. I realise that she understood that she had no choice. However, I will return to this argument in the context of the Complainants claims.

Preliminary Issue:  Time Limits

Section 41(6) of the Workplace Relations Act, 2015

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant has submitted that she should be permitted to advance her claims in accordance with Section 41(8) by means of an extension on reasonable cause. Her Representative initially disputed the necessity for them to address this.

The Complainant has approached this case clearly carrying a high level of dissatisfaction on how the Respondent changed her working life. I say this as the complainant exhibited a high level of emotion and I had to navigate carefully and respectfully through this in my inquiry into the facts of the case. 

At the outset, the complainant sought to rely on advice that her claim was in time, and she was not required to seek an extension of time. It was following the Respondent request for a direction to dismiss the claim that the complainant sought that extension.

The Respondent requested that the claims under Terms of Employment Act and EC (Protection of Employees on Transfer of Undertakings) Regulations 2003, SI  131/2003, be dismissed as out of time.

The Law on reasonable cause is found in case law such as Cementation Skanska v Carroll at the Labour Court WTC 0338 in 2003

Section 41(8) of the 2015 Act, however, permits an extension of up to six months if the failure to present the complaint within the original six months period “was due to reasonable cause”.

The power to extend the time limit was fully considered by the Labour Court in Cementation Skanska v Carroll DWT 38/2003. It was the court's view that: 

“In considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Complainant has requested that I consider that it took time for her to associate the occurrences in her employment as “wrongs “she said that she had been ill and very aggrieved at her stated disregard   by her former employer and omnipresent pursuance for change by her new employer. This hindered her in acting sooner and within the statutory time limits. The Complainant has accepted that her employment ended with the Respondent on 6 July 2020.

The Complainant did not submit medical evidence in support of her claim that illness may have delayed submission of the claim.

She has also submitted that she did not have knowledge of the law to ground her complaint in time.

The Complainant contended that the external advice she received had re-assured her that her claims were in time.

 I must make my decision in accordance with the parameters of Section 41(6) of the Act and explore whether I can extend time in accordance with section 41(8) of the Act.

I fully accept and welcome the Complainant as a Lay Litigant with latter day representation by Mr Byrne, but while she has explained the delay. She has not provided a justifiable excuse for the delay.

The Complainants primary argument is that she was ignorant of her legal position.

In Minister for Finance v CPSU /PSEU/ [2007] 18 ELR 36, Justice Laffoy addressed   the Respondent submissions set out below. 

“Ignorance of one’s legal position, as distinct from the ignorance of the underlying facts which might constitute the alleged wrongful act, cannot as a matter of law constitute justification for an extension of time stipulated in S 19(5) of Employment Equality Act 1977.”

When she held that

It is established jurisprudence in this jurisdiction that lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates that as a matter of law a claim will have a successful outcome, does not prevent a statutory limitation period from starting to run

Time runs within the provisions of Section 41(6) of the Act, and I have not established reasonable cause emanating from the complainants’ arguments for me to grant an extension of time in these claims. The employment ended on 6 July 2020 and the delay was excessively pronounced prior to lodging the claim on 14 October 2020 in respect of TUPE and Terms of Employment. The claim for Constructive Dismissal is in time and will be considered as such.

The Preliminary argument is awarded in favour of the Respondent in the case.

I will now proceed to the substantive complaint.

Substantive Case :

CA-00040808-001 Terms of Employment 

This claim is out of time and is statute barred. I find the claim not well founded

CA-00040808-002 Terms of Employment

This claim is out of time and is statute barred. I find the claim not well founded

CA-00040808-003 Constructive Dismissal

In the instant case, the Complainant has submitted that she was  left with no choice,  outside resignation by July 6, 2020. She has submitted that her resignation amounted to a constructive dismissal as provided for in Section 1 of the Unfair Dismissals Act 1977

Section 1(b) the termination by the employee of her contract of employment with her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving notice of the termination to the employer

I have reflected on the Complainants evidence which I found truthful but laced with emotion. She exhibited a very strong sense of betrayal by her former employer which did not disappear on transfer to the Respondent employment.

At risk of repetition, I have identified a pronounced vacuum in communication surrounding the moment of transfer. This goes to the very root of this case and while I appreciate that I cannot adjudicate on the TUPE matters in this case, I can conclude that the Complainant was left in an enviable position on her transfer of employment on January 31, 2020. She was kept in the dark and while she tried to relaunch in her role of practice manager, I accept that she felt impeded by the agenda for change that seemed to be wall to wall present for her.

I have also reflected on the Respondent evidence of a commercial transaction of sale at the 11th hour. He took immediate steps to build a consensus for viability in a Dentist Practice in which he was not a Dentist. He was seeking to map a viable commercial entity through operational change in Orthodontics and Cosmetic procedures. He was clear that he had to operate a business model and sought to explore a change in the Complainants role to lead that change.

He did not pick up on the complainant’s distress in relation   to the energy applied to seek change. He did not hear her when she said she asked for extra staff to float the change. In that, I prefer the complainant’s evidence that she did request an extra resource. That fits with her evidence given in terms that she was prepared to change if supported in that change.

In Fitzgerald v Pat the Baker [199] ELR 227, the EAT considered whether the facts surrounding a dismissal following a demotion could constitute a constructive dismissal?

As there was no term in the contract between the parties appointing the claimant to his position for a trial period, the respondent was not entitled to demote the claimant. Therefore, by demoting the claimant, the respondent had repudiated the contract and the claimant was deemed entitled to leave his employment

The demotion was found to be unreasonable.

Counsel for the Respondent relied on the two-tier test outlined in Western Excavation (ECC) ltd v Sharp where Lord Denning outlined the Contract Test in a claim for Constructive Dismissal.

The second test is the Reasonableness Test whether the employer makes the work climate so difficult as the employee cannot fairly be expected to put up with it any longer. It followed in Berber v Dunnes Stores, [2009] IESC 10, that that behaviour by the Employer “must be unreasonable without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to establish whether the employee cannot be expected to put up with it”.

The facts of this case emerged from a Transfer of Undertakings on January 31, 2020. I have established that the Complainant experienced an enhanced sense of alienation from her job from that moment forward.

She did not believe in the new regime, and she felt “let down “by the old regime. I have found that she got lost in that process and stayed lost for the last 5 months of her employment, which corresponded with the evolution of the national pandemic and all the challenges that threw up for us all. 

Regulation 5 of the TUPE Regulations has a relevance in the consideration of this case.

5. Dismissals and termination of employment

(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical, or organisational reasons which entail changes in the workforce.

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts. 

Section 5(1) prohibits dismissal simply by the operation of the transfer. That is the spirit of continuity of employment, which runs through the Directive.

Section 5 (2) permits a dismissal foe economic, technical, or organisational reason which entail changes in the workforce

Section 5(3) is the circumstance on which the Complainant has relied

She has told the hearing that the transfer involved substantial change by the Respondent in her working conditions to her detriment, which in turn compelled her resignation.

This has been steadfastly denied by the Respondent whose case rested on that measured change was proposed but not implemented.

For my part, I was struck by the Complainants obvious alignment to the Respondent in ADJ 30137, Mr B. She had not connected with Mr B during the 5 months of her employment and ultimately, she informed Counsel for the Respondent that she just didn’t want to go on working for Mr B, the Respondent in this case.

This placed the Complainant in a sort of Catch 22 situation , which she believed was  capable of being resolved through a redundancy , but she did not ask anyone for a redundancy or a severance arrangement during her tenure .I accept that she was unaware of the parameters of the High Court case of Symantec ltd v Leddy and Lyons [2010]1 ILRM 12 relied on by the Respondent in closing which determines that a redundancy situation does not automatically  follow an objection to transfer under TUPE .

However, my attention is drawn to the tool kit which remained open to the Complainant during her 5-month tenure with the Respondent, that of the grievance procedure. The complainant was steadfast that both Mr A and Mr B were aware of her escalating dissatisfaction and pressure. Yet, she qualified this by confirmation that she had not formally articulated the distress or written a grievance to Mr B. instead, she relied on the unspoken word and her view that” they knew”

For my part, I found that Mr B came onto the employment scene with redesign and repurpose in mind. He sought the Complainants co-operation in this, and she reserved her position. I accept that she approached Mr A, who was no longer in charge, but she did not tackle her employer within that crucial 5-month period.

During this time, her working terms and conditions were unaltered outside the augmentation of TWSS to June 1. I accept the footfall had also reduced at the practice during this period.

I have established that substantial change in working conditions was in contemplation by the Respondent by the time the Complainant resigned by email on July 6, 2020. The plans were germinating and were being discussed, but crucially had not been decided on or contracted upon to a level where I could interpret the circumstances which are outlined in Regulation 5(3) as “to the detriment “of the complainant.

I fully accept that the Complainant felt alienated and professionally lost at the practice but that substantial change had not occurred to her detriment from which I could safely find a Constructive Dismissal.

I have found that the employment relationship with Mr B had a very poor foundation through lack of timely engagement and the employment relationship froze somewhat as a result.

However, it was open to the Complainant to action a grievance in accordance with both the Practice Mission statement and grievance procedure and her omission to take that step has caused her case to fall.

I have found that the Complainant resigned her position as she did not want to work with Mr B any longer. This was a voluntary action, and it did not amount to a constructive dismissal. She did not engage when he sought to reach out and engage in discussion later on July 6 and the inter party correspondence on annual leave  which followed over a number of weeks did not carry any reference to a   discord between the parties.

I think it fair for me to observe that the complainant has highlighted a very real  life conundrum in the face of an employee disregard for a TUPE transfer of employment within 5 months of transfer. The Law has not provided me with an answer to assist her in that regard. The sole tool to influence progress here was an unutilised grievance procedure.

I am encouraged that the Complainant managed to relaunch within her chosen profession of Dental Nurse  within   4 weeks of her resignation.

The Complainant was not unfairly dismissed.

CA-00040415-005 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137 and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415 -009 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137  and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415-011 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137 and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415-013 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137  and is not properly before the Respondent in this case.

The claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 3 and Section 5 of that Act.

CA-00040808-001 Terms of Employment

This claim is out of time and is statute barred. I find the claim not well founded

CA-00040808-002 Terms of Employment

This claim is out of time and is statute barred. I find the claim not well founded

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00040808 -003 Constructive Dismissal

I have found that the Complainant resigned on a voluntary basis and was not constructively dismissed.

Regulation 10 of the Transfer of Undertaking Regulations, S/I 131/2003   requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

CA-00040415-005 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137 and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415 -009 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137  and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415-011 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137 and is not properly before the Respondent in this case.

The claim is not well founded.

CA-00040415-013 TUPE Regulations

This claim is directed as the Respondent in ADJ 30137and is not properly before the Respondent in this case.

The claim is not well founded.

Terms of Employment, Constructive Dismissal and TUPE Regulations