EPD241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036773 (CA-00048079-002)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 30 May 2023. A Labour Court hearing took place on 23 August 2023, 20 December 2023 and 24 May 2024.   The following is the Court's Decision:

DECISION:

Background to the Appeal

This is an appeal on behalf of The Square Dental Services Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00036773/CA-00048079-002, dated 12 May 2023) under the Employment Permits Act 2006 (‘the Act’). The Adjudication Officer found that Dr Min Ling (‘the Complainant’) had been penalised contrary to the Act and awarded her compensation of €14,378.00. The Respondent’s Notice of Appeal was received in the Court on 31 May 2023. The Court heard the appeal in Dublin on 23 August 2023, 20 December 2023 and 24 May 2024. The Complainant gave sworn evidence at the hearing as did the following witnesses for the Respondent: Dr Himabindu Meda, Ms Samantha Higgins, Ms Sruthi Pitta and Mr Jagannadha Muttumula.

The Factual Matrix

The Complainant is a Canadian national and a qualified dentist. She was offered employment by the Respondent in August 2021 and the parties agreed an annual salary of €55,000.00 for a thirty-nine-hour week. However, when the Respondent applied to the Department of Enterprise, Trade and Employment for a critical skills work permit on the Complainant’s behalf, it was informed by the Department that the minimum salary payable to a person employed pursuant to such a work permit was €64,000.00 for a thirty-nine-hour week. The terms of the parties’ agreement was amended to reflect this requirement.

The Complainant commenced her employment with the Respondent on 18 October 2021 and was paid on the basis of the revised salary save €500.00 was erroneously and illegally deducted from her salary in October and November to cover the cost of the work permit application. The amount of €1,000.00 was repaid to the Complainant by the Respondent following the first day of hearing of the within appeal.

On 31 October 2021, Dr Meda emailed the Complainant and requested her, inter alia, to work “extra hours” the following month “to make up to 64k gross”. The Complainant replied that day saying that her employment permit was granted on the basis of her working a thirty-nine-hour week in return for a base salary of €64,000.00. On 2 November 2021, Mr Jagannadha Muttumula, a director of the Respondent company, purported to issue the Complainant with a further revised contract – based on a template sourced from the Irish Dental Association (‘the IDA’) - which stated the Complainant’s salary to be €55,000.00 per annum. Mr Muttumula demanded that the Complainant sign and return this revised contract to him immediately. The Complainant queried certain provisions of the contract in writing, including the salary amount specified in it. She received five weeks’ notice of termination on the following day, 3 November 2021. Her employment terminated on 10 December 2021. The Complainant obtained alternative work as a dentist in late February 2022.

Evidence

The Complainant

The Complainant’s evidence is that no discussions had taken place with her, on either a formal or informal basis, in relation to alleged poor clinical performance. She opined that the Respondent’s decision to retain her on five weeks’ notice after the decision to terminate her employment had been communicated to her on 3 November 2021 is inconsistent with the explanation for her dismissal now being advanced on behalf of the Respondent. The Complainant told the Court that she was unexpectedly asked to sign a revised contract, with a lower salary, on 2 November 2021. When she queried this and refused to sign it, she was given notice of dismissal the following day.

Under cross-examination, the Complainant said that she had not had any discussions with management at the practice about her interactions with colleagues. She recalled having two conversations about terms and conditions. The first was with Mr Muttumula about pay. According to the Complainant, Mr Muttumula proposed to compensate the Complainant for some of her hours worked in excess of her thirty-nine-hour contractual week with gift cards. This resulted in a heated discussion, she said, which she followed up by email refusing to accept the proposal. A few days later, the Complainant recalls having a conversation with Dr Meda during which the latter requested that the Complainant sign a new contract.

In response to questions from the Court the Complainant confirmed the following:

• There was no reference to either a grievance or a disciplinary procedure in the contract she signed at the commencement of her employment;
• She was never presented with a copy of an employee handbook;
• She was never the subject of a performance improvement plan;
• No complainant had been made by the Respondent about her clinical practice to a regulator;
• The email of 3 November 2021 advising her of her dismissal was totally unexpected;
• She was not advised of her right to appeal the decision; and
• She accepted the dismissal and focused her attention on finding alternative employment.

Dr Himabindu Meda

The witness is the Lead Dentist and a Director of the Respondent’s practice. She told the Court that when recruiting the Complainant, she was seeking an associate who would be both a competent dentist and a good fit with other colleagues in the practice. The witness gave details of an incident that occurred some three days after the Complainant commenced employment. According to the witness, the Complainant experienced some difficulty completing the patient’s treatment and the witness was called to assist her. The witness sought to address the issues that has arisen on that occasion with the Complainant at a subsequent practice meeting. The witness told the Court that she also spoke to the Complainant on a couple of occasions about running over time with appointments. She confirmed, however, that she did not have any other performance-related discussions with the Complainant for the remainder of her employment.

The witness was asked why the revised IDA contract was presented to the Complainant in November 2021. Her evidence in reply was that the purpose of requesting the Complainant to sign that contract was to ensure the Complainant took clinical responsibility for her work. When asked why the decision was taken to dismiss the Complainant on 3 November 2021, the witness said that the Complainant was dismissed because she wasn’t ready to take clinical responsibility, wasn’t a team player and had failed to explain their treatment plans to a number of patients. According to the witness, the practice had received complaints from approximately 50% of the patients treated by the Complainant but, nevertheless, none of the complaints had been put to the Complainant. The complaints, she said, resulted in financial loss for the practice as many of the patients concerned did not go forward with their treatment plans.

Ms Samantha Higgins

The witness is Head Nurse in the Respondent’s practice in Tallaght. She told the Court that she has fourteen years’ experience working as a dental nurse, four of which she has spent working for the Respondent. Her evidence was that she felt intimidated when assigned to work with the Complainant whom she found to be “very snappy” . She told the Court that on one occasion, for example, the Complainant asked questions of her in the presence of a patient which she was unable to answer. The witness said she did not, at any stage, make a formal complaint about the Complainant although she requested not to be assigned to work with her in the future as she didn’t feel comfortable working with her. Under cross-examination, she said that she worked with the Complainant for only one week during which the Complainant may have performed up to forty-five procedures.

Ms Sruthi Pitta

The witness is the Respondent’s Practice Manager. She told the Court that she experienced many difficulties dealing with patients that had been treated by the Complainant. Her evidence was that “every patient” of the Complainant queried the treatment they had received and questioned why they were being called back for further treatment. When this happened, the witness said she had to go to speak with the Complainant and then pass on the information to the patient concerned in the reception area, in the earshot of other patients who were awaiting treatment. According to the witness, a further problem arose from the Complainant’s alleged failure to explain the cost of treatment to the patients; this made it very difficult to collect fees from them and, in fact, she said, many patients didn’t pay their bills in full. The witness also said that the Complainant was remiss in completing her records of treatment.

The witness told the Court that she had been present at a meeting between Dr Meda and the Complainant at the end of October 2021 when issues in relation to the Complainant’s communication with patients and nurses and also treatment plans for the Complainant’s patients were discussed. The witness characterised the meeting as an “information and coaching session”. According to the witness, Mr Meda enquired of the Complainant whether she needed additional assistance in fulfilling her work. The witness’s evidence was that the Complainant was unable to answer many of the questions put to her and did not respond when a copy of the minutes of the meeting were later sent to her. It was put to the witness in cross-examination that the Complainant had in fact sent a response by email to the minutes which included her comments and queries.

In response to questions from the Court, the witness said that about 85% to 90% of the Respondent’s patients are medical card patients. She also accepted that she had put the patients on notice, in advance of their treatment, what items were and were not covered by the medical card scheme. However, the witness asserted that “A patient wouldn’t know they had had more than two fillings.” The witness then said that she had received complaints from private patients also who had been treated by the Complainant as the Complainant allegedly had not properly recorded the full extent of the treatment they had received. The witness speculated that the Respondent had accrued losses of €3,500.00 to €4,000.00 as a result of the Complainant’s omissions. The Complainant accepted, nevertheless, that there was no supporting documentation in regard to this before the Court.

Mr Jagannadha Muttumula

The witness is a director of the Respondent company and is married to the Lead Dentist, Dr Meda. He is not clinically qualified and his role in the business is to provide administrative support to the Lead Dentist. The witness explained the context for the Complainant’s recruitment. He said that the Respondent had hoped to recruit a dentist that they could entrust to run its practice in Saggart, County Dublin but that it was necessary to give whoever they recruited a trial period in Tallaght to appraise their work and evaluate their engagement with staff and patients. According to the witness, the Complainant’s poor performance led the Respondent to conclude that she was not a good fit. For that reason, he said, he contacted the Respondent’s solicitors in October 2021 who advised that it was safe to terminate her employment. It was the witness’s evidence that the Complainant had never raised any issue about the terms of her employment permit.

Under cross-examination, the Complainant put it to the witness that she had raised the terms of her employment permit with him in emails to him dated 30 August 2021 and 31 October 2021. Those emails were opened to the Court. In the latter email, the Complainant wrote, inter alia:

“Like I have stated in my previous email, employment permit is for €64k on 39-hours working week schedules. If I have to work extra days, it is not complying with the regulations set out during the application of my critical skills employment permit. I am currently working 39 hours weeks, with half a day on Tuesday and full day on Wednesday off. So if you are asking me to work those days, I would be working way above my stated work week schedule, and to not have enough rests between my work days.”

The Law

Section 26 of the Act provides:

“26. Prohibition on penalisation

(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), “penalisation” in this section includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with,

(b) giving evidence in any proceedings under the Act of 2003 or this Act, or

(c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(3A) Subsection (3) does not apply where the complaint is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(4) Schedule 2 has effect in relation to an alleged contravention of subsection (3) and matters consequential thereon and includes amendments of other enactments.

(5) If a penalisation of an employee, in contravention of subsection (3), 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 penalisation both under Schedule 2 and under those Acts.

Discussion and Decision

The Court found the evidence of each of the witnesses called by the Respondent to be lacking in credibility, contradictory and unconvincing. No records were produced to substantiate the allegations made about the Complainant’s performance, purported clinical practice shortcomings or debts accrued to the practice allegedly as a result of her failure to explain their treatment plans to her patients. The clear evidence is that no disciplinary process or performance improvement plan was initiated with the Complainant. The Respondent’s contention, therefore, that the foregoing matters formed the exclusive basis of its decision to terminate the Complainant’s contract of employment has not been stood up and has to be treated with scepticism. The most likely explanation, in the Court’s view, underlying the decision to dismiss the Complainant, and one that is supported by the timeline of events, is that the Respondent attempted to get the Complainant to work increased hours in return for the salary of €64,000.00 specified in her employment permit. When the Complainant invoked the terms of her employment permit and refused to sign a new contract committing her to such extra hours – which contract Mr Muttumula falsely claimed was “mandatory” – she was dismissed. It appears, in fact, that the so-called “mandatory” contract presented by Mr Muttumula to the Complainant was based on a standard template contract that is available on the IDA’s website. However, the version presented to the Complainant had been heavily edited in favour of the Respondent.

For the foregoing reasons, the Court finds that the Complainant was penalised within the meaning of the Act. The Court measures the compensation that is just and equitable in all the circumstances at €30,000.00 and directs the Respondent to pay this amount to the Complainant within 42 days of the date of this decision. The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
SOC	______________________
6 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinéad O'Connor, Court Secretary.