Complainant

Respondent

Parties

Edel  O'Brien

Dr David Ross

Representatives

Jack Duncan Solicitor

Shane MacSweeney & Company Solicitors

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-00044496-001

04/06/2021

The Complainant seeks redundancy payment in circumstances where her employment with the Respondent ended on 31 January 2021.

The Complainant worked as a Practice Nurse from 6 March 2009.  The Respondent advised the Complainant that he was finishing up practice in or around January 2021 and he indicated that she and her colleague would receive a redundancy payment.  Subsequently he changed the situation to that of transfer of undertakings.  The Complainant received a number of short term contracts through an agency from 1 February 2021.  Her terms and conditions were significantly different in respect of sick pay, flexibility of location, insurance and annual leave.  Significantly no continuity of employment service was preserved.  The HSE and the agency denied that TUPE applied.  In the circumstances, the Complainant had no option but to apply for redundancy.  

The Complainant was employed by the Respondent from 6 March 2009 to 31 January 2021, when the Respondent ceased his practice and handed it back to the HSE. The Respondent disputes that the Complainant is entitled to a redundancy payment, in circumstances where she is still working there, the practice transferred to HSE and the matter is correctly a transfer of undertakings (TUPE) not redundancy.  It is argued that this is a matter of law, and that any assertion by HSE or agents on their behalf or personnel in the employment agency that continuity of service does not apply is incorrect.  It is argued that redundancy means dismissal and as there was no dismissal in this case the Act does not apply.

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 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 in the place where he was so employed have ceased or diminished or are expected to cease or diminish…

In this instant case, the Complainant’s employment with the Respondent ceased on 31 January 2021.  She was left in a situation where she had to take short term contracts through an agency and neither the agency nor the HSE has accepted that a transfer of undertakings has taken place.  In the circumstances where the Respondent has ceased to carry on the business in the place where the employee was employed, I find that a redundancy situation applies and I find the claim for a redundancy payment to be well founded.

Redundancy, TUPE