Complainant

Respondent

Anonymised Parties

{A Medical Receptionist}

{A Medical Doctor}

Representatives

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-00049337-001

25/03/2022

The Complainant was employed as a part-time medical receptionist with the practice from 11th September 2017 until 5th March 2022.

In December 2021, the doctor was admitted to hospital for two weeks for Covid-19, and then went on holiday. The doctor did not return to the surgery until 14th February 2022. The Complainant works 37.5 hours per week. The doctor’s wife rang the Complainant to ask her to work 2.5 days a week from 10thJanuary 2022, and take holidays. The Complainant said no. The Complainant’s hours were cut to 2.5 days a week in January 2022, and she had to take holidays to bring her salary up to a reasonable level. This never happened before when the doctor was on leave, as usually the Complainant would continue to work full-time. The Complainant was not notified in advance. She offered to work three days a week. She told the doctors wife she would have to deal with about 500 emails when she returned to work on 10th January 2022.

The Complainant’s hours were cut to 2.5 days per week until the doctor returned on 14th February 2022. She then went back to her full-time hours. When the Complainant was in the clinic for a half week, her workload began to build up. She had over 100 emails to work through and countless telephone calls. She began to get very stressed and overworked. The Complainant was unable to go to work on 3rd March 2022 until 31st March 2022 as she was ill. The Complainant sent her sick-cert to the doctor by email on 4th March 2022, and he sent her a text on Saturday saying her position had been filled. He asked for the keys to be returned, which was done. The Complainant asked what did he mean by “I have filled the position”. The doctor said she left her position without arrangement or discussion. She then received an email on 25th March 2022 saying she forwarded a belated medical certificate, questioning her ability to do her work, suggesting that she had continuous illnesses. The doctor suggested she return to work on a phased basis on 2nd May 2022.

The Complainant said she was expected to manage her workload in half the time and her colleague was away, so she was covering her work too. She sent in a fitness for work cert for return 4th April 2022. The doctor questioned this and suggested she apply for a part-time position on 19th May 2022. The Complainant emailed the doctor on 4th April 2022 to say she was fit for work, but the doctor refused to allow her to return. On 11th April 2022, the Complainant found a part-time position in another practice two days per week. The Complainant says she has been treated unfairly as she has been an exemplary employee. The doctor did not conduct relevant due process and procedures while attempting to dismiss her. She received no notice. The Complainant was not able to take her full holidays last year as there was no cover. She has never had a tea break since commencing employment as the practice is so busy.

The Respondent denies the alleged unfair dismissal. The Respondent says the Complainant is an independent service provider who was recruited on a part-time basis initially as a medical receptionist, and paid per hour for 27 hours. The Respondent paid the hours set out although these were not required.  There was another part-time appointee to share the burden. The Complainant was provided with a letter of offer.

In 2018 the Complainant took two or three weeks off due to stress. The practice employed a part-time receptionist who was terminated when the Complainant returned to work. In 2018 the practice was relocating, and the Complainant was informed her future cannot be guaranteed. In 2019 the Clinic opened with the same conditions and support, but the practice specialised and took fewer patients (14 per day) which is significantly less patients per day than GP practices.

On 10th December 2021, the practice was closed and there were no patients scheduled until February. The doctor tested positive for Covid-19 on 11th December 2021, and on 16th December 2021 he was admitted to Cork University Hospital for two weeks. The Complainant demanded to be paid for 100 hours. The Respondent offered 2.5 days of work as the practice was closed which was a generous offer. On 2nd March 2022 the Complainant told the doctor she was very stressed and would not be back until after March. At the hearing the Complainant said she suffered from back ache, which was the first time the Respondent heard about this. The figures for payment which the Complainant says she received do not tally with gross figures paid by the Respondent.

The Respondent says the Complainant presented a letter from her GP certifying her unfit for at least 30 days due to stress. She indicated she was too stressed to return to work and would review her condition before informing of her intention to return to work.

The Respondent was shocked the Complainant acted so irresponsibly without any warning or discussion with the Respondent regarding her inability to cope. The Complainant was scheduled to work on 3rd March 2022 but did not arrive. Patients began to arrive without their clinical files drawn in preparation for the consultations, which caused difficulty. The doctor had to search for the files which were not prepared, and the patients were not emailed to reschedule. There was no receptionist for 4th March 2022 and the Clinic was forced to close until a replacement was available due to the Complainant’s sudden departure. The Respondent finally managed to find emergency part-time services. The Respondent sent the Complainant happy birthday wishes and told her not to worry that he had obtained a replacement by message on 5th March 2022.

The Respondent replied on 8th March 2022 to a request for a reference from the Complainant saying there will be no problem with a reference. He asked her to set out her intentions as there was no discussion regarding her intention to be absent from work. The Respondent is required to provide adequate and safe patient cover.

The Respondent advised the Complainant the stresses would not disappear, and it would be prudent to reduce work pressure by reducing working hours. The Respondent denies dismissing the Complainant and says she dismissed herself on grounds of stress and placed the practice in a seriously difficult position of having to find cover for her absence. The Respondent was forced to conclude the Complainant had no intention of returning to the Clinic, as she did not provide a return date. The Respondent requested a fitness for work certificate from the Complainant to cover the date of her likely return. Her GP sent a note stating “I see no reason why the Complainant should not return to work” on 4th April 2022. Out of concern for the Complainant’s well being, the Respondent offered a starting date on 19th May 2022 with shorter hours, but the Complainant did not return to work. The Complainant’s prolonged absences have created difficulty for the Respondent in providing a safe and suitable caring facility for patients. Only 14-15 patients are booked in per day so the Clinic is manageable, and he fails to understand why she would suffer stress. The Respondent says several patients speak highly of the Complainant but there also complaints regarding her attitude and unfriendly responses. One serious complaint had to be dealt with in a legal context.

I have heard and considered carefully the submissions and evidence of the parties. Both parties made written submissions following the hearing.

Given the nature of the Complainant’s illness which forms part of the complaint, I am anonymising the identity of the parties to the decision.

The Complainant was employed as a part-time temporary assistant medical receptionist for 27 hours per week from 2017 at 12 euro per hour. On 10th December 2021, the practice was closed with no patients scheduled until February 2022 as the doctor was on annual leave. The doctor then became ill from Covid-19. The Complainant was not paid for her usual hours during January 2022 as had occurred in other years. She was offered two and a half days work, and had to take holidays to make up the shortfall. She said it was impossible to live on. She provided evidence of patients seeking prescriptions and work carried out in January. She says she became very stressed as she was trying to do her work in half the time. She was not able to attend work on 3rd March 2022 and submitted a sick-certificate on 4th March 2022 for a month.

The Complainant did not inform the doctor she was unable to go to work on 3rd March 2022. When he arrived for work, the Complainant was not in. The clinic had not been cancelled, and medical files were not ready for patients. It is expected that an employee notifies their employer as soon as possible if they are ill, to make arrangements for cover.

The Complainant was fit to return to work on 4th April 2022 and provided a fitness for work certificate. It was not accepted by the doctor who offered a start date on 2nd May 2022, and an offer to reduce workload to two days per week. The Respondent disputes the dismissal. He says the Complainant dismissed herself as she abandoned her post without any notice and did not provide a date of return. This was the third time she submitted a stress certificate, and was constantly referring to her stress.  The Complainant says her status as an employee of the practice ceased with Revenue on 8th April 2022.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The Complainant was employed on a part-time contract of 27 hours per week. She provided evidence her hours frequently exceeded this. The Respondent reduced the Complainant’s hours to two and a half days in January 2022, without agreement in breach of her contract of employment until the practice reopened on 14th February 2022. On return from sick-leave, the Respondent did not allow the Complainant to return to her role on 4th April 2022, and suggested a return date of 2nd May 2022, and reduced hours. This caused the Complainant upset and financial loss.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, her employer has breached her contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Complainant received a letter of offer in 2017, but did not receive a written contract of employment containing a grievance procedure. It is accepted she brought concerns regarding her reduced hours and workload to the attention of the doctor.

Non-payment of contracted hours is a breach of contract and is ..“ a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance “ Western Excavating (ECC ) Ltd -v- Sharp [1978] IRLR 27.

I find that the Complainant was justified in considering that she was dismissed and her claim is well founded. In the circumstances compensation is the most appropriate form of redress for the Complainant. She has mitigated her financial losses by obtaining a role for two days a week from 11th April 2022. She has financial loss from 4th April 2022 until 9 April 2022 of € 894.75 gross. Pursuant to S7(1) (c (ii) of the Unfair Dismissals Act 1977 it is just and equitable to award 4 weeks wages to the Complainant of €3,579.00 compensation for unfair dismissal and I direct payment by the Respondent.

The claim is well founded, the Complainant was unfairly dismissed. Pursuant to S7(1) (c (ii) of the Unfair Dismissals Act 1977 the Complainant is awarded €3,579.00 compensation for unfair dismissal and I direct payment by the Respondent.