Complainant

Respondent

Anonymised Parties

A Dental Nurse

An Orthodontic Practice

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051666-001

12/07/2022

The Complainant commenced employment with the Respondent on the 28th of May 2022.  

The Complainant resigned her employment by letter dated 4th of August 2022.

On 12th of July 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that that she did not receive a statement of terms of employment and set out, in detail, the difficulties this caused her in the course of her employment.

The Complainant submits that she did not receive a statement of terms of employment  in the course of her employment.

The complainant submits that she commenced employment with the on the 25th of May 2022, under her employer Ms. A, and acting practice manager / person in charge during Ms. As absence, Mr. D.   The complainant submits that she applied for the job title of Dental Nurse advertised by Irish Dental Jobs, but never received any written Terms and Conditions from her employer as required under section 3 of the Terms of Employment (Information) Act, 1994.

The complainant submits that she was advised on the 30th of June 2022, by Mr. D that Ms. A was *unfortunately sick today and won’t be in.” via a see WhatsApp message Thursday 30th June 2022 at 8:26am.   Th3e complainant submits that Ms. A did not return to work leaving the complainant to deal with cancelling appointments and dealing with customers and complaints.

The complainant also submits that Ms. A had also failed to inform her that she “has given an undertaking to the High Court not to engage in dentistry while the council investigates the concerns raised”. The complainant submits that she requested a contract multiple times detailing the terms and conditions of employment from M. A, and from the acting practice manager / person in charge, Mr. D.

The complainant submits that she did not receive a statement in writing containing the particulars set out under section 3 of the Terms of Employment (Information) Act, 1994, but was assured one would be provided “in a couple of days or a week,”.

The complainant submits that during her employment with the respondent the scope of her work tasks and responsibilities changed significantly beyond those of a Dental Nurse / Orthodontic Nurse. The complainant submits that this change was not outlined in writing as per section 5 of the Terms of Employment (Information) Act, 1994.

The complainant submits that she was advised by Practice manager Mr. D that all other previous employees had received letters of employment.

The complainant submits that from 30th of June onwards she was abused and left with the responsibilities of the practice, cancelling patients, asked to write cheques (which she refused to sign), change service providers etc, all of which she was untrained for.  The complainant submits that her tasks changed from Dental nursing to tasks similar to a practice administrator and that she was left on her own, dealing with angry patients and families furious about no appointments and no orthodontist, all of which was beyond the original scope of her work and training.

The complainant submits that she accepted the job of a dental nurse / orthodontic nurse only.

She further submits that she had no contract outlining responsibilities as a Dental Nurse and as a result felt uncomfortable but obligated to complete these additional strenuous tasks.

The complainant submits that post Ms. A ’s leave of absence, she requested a contract from acting practice manager / person in charge, Mr. D and was assured that she would get a contract.   The complainant resigned her employment by letter dated 4th of August 2022.

The Respondent accepts that the Complainant did not receive a written statement of terms of employment and conceded the complaint but submits that this was due to circumstances outside of their control as Ms. A became ill and was hospitalised with mental health issues.

The respondent submits that the complainant resigned her employment by letter dated 4th of  August 2022.  The respondent added that the complainant was also mistakenly paid in September 2022 on a standing order (amount was 1785 Euros) that was not cancelled and that she never returned the overpayment despite being notified by registered post of such.

Section 3(1) of the Act (as amended) provides that,

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

The complainant at the hearing gave evidence in respect of her commencement of employment as a Dental nurse/Orthodontic Nurse on 28 May 2022.  She stated that she did not receive a statement of her terms and conditions.   The complainant went on to state that she was advised on 30th of June 2022 that her employer Ms. A would not be attending work that day due to illness.  The complainant stated that Ms. A an Orthodontist did not return to work and that the complainant was left to deal with angry customers who had to have appointments cancelled as well as service providers with outstanding bills.  The complainant stated that she did not sign up for this and that this was not the job of a dental/Orthodontic Nurse.  The complainant stated that Ms. A did not return to the practice and that the complainant resigned her employment on 4th of August 2022.

Witness for the respondent Ms. A attended the hearing form a hospital where she had been hospitalised due to mental health issues.  Ms. A advised the hearing that she had suffered a  breakdown during the time period encompassed by the complaint stating that she had not attended work and had not been able to return to work for this reason.  The complainant did not dispute this evidence.

The Respondent, Ms. A advised the hearing that she was aware of her obligation to provide a contract within two months and stated that she had prepared a contract for the complainant but had been taken ill before she had a chance to provide it to the complainant and have it signed by the complainant.  The respondent stated that the contract was ready to go but unfortunately, she became incapacitated.  The respondent state that she had it sitting on her countertop at home but hadn’t had a chance to provide to to the complainant.  The complainant advised the hearing that prior to Ms. A becoming incapacitated the complainant had asked her for a contract of employment.

  The complainant stated that Ms. A had replied that she had not forgotten the contract and that it was sitting on her kitchen table.  The complainant stated that she should in any event have received a statement of her terms within 5 days of commencement of her employment and that this had not been provided.  Ms. A at the hearing argued that the complainant had been provided with a letter of offer by email prior to commencing employment which Ms. A submits met the obligation to provide a statement within 5 days.  This email stated the job title, start date, rate of pay and hours of work.  The complainant disputes this arguing that this letter of offer was just an email clarifying the job title.  

Both parties agreed that the respondent Ms. A had left the business suddenly and without notice which Ms. A states was due to the fact that she had a breakdown.   The complainant advised the hearing that Mr. D, practice manager had continued to keep the business going in Ms. As absence.   Ms. A added that the complainant had been paid and overpaid for all of the work she had done and stated that the issue of the erroneous overpayment had been raised with the complainant, but the complainant had not responded and had not returned the overpayment. 

Ms. A accepted that the Complainant did not receive a statement of terms in accordance with the  provisions of section 3 stating that there were mitigating circumstances adding that she had suffered a breakdown before she had a chance to provide the complainant with her contract.  As consequence of the same, and although there were mitigating circumstances which may have prevented Ms. A from providing the contract to the complainant from the date of 30th of June 2022, I am satisfied that the contract could have been provided in the 4-week period prior to this date.    Accordingly, I am satisfied that the complaint is well-founded, and the Complainant’s application succeeds.

I find that the complaint is well-founded.   Having regard to the totality of the evidence adduced in respect of this matter I award the Complainant the sum of €1,500 in compensation for the breach.