Dr David Ross (Represented by Mac Sweeney & Company) v Ms Edel O Brien (Represented by Jack Duncan & Company Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 06 December 2022
• Judgment citation (vLex): [2022] 12 JIEC 0601
• Docket Number: FULL RECOMMENDATION ADJ-00033638 CA-00044496-001 DETERMINATION NO. RPD2213 REDUNDANCY PAYMENTS ACTS, 1967 TO 2014
• Court: Labour Court (Ireland)

PARTIES:

Dr David Ross (Represented by Mac Sweeney & Company)

and

Ms Edel O Brien (Represented by Jack Duncan & Co Solicitors)

FULL RECOMMENDATION

RPA/22/15

ADJ-00033638 CA-00044496-001

DETERMINATION NO. RPD2213

REDUNDANCY PAYMENTS ACTS, 1967 TO 2014

Full Court

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Marie

Worker Member: Mr Hall

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No ADJ-00033638.

BACKGROUND:

2 2. The Respondent appealed the decision of the Adjudication Officer on 23 June 2022 under the Redundancy Payments Acts, 1967 to 2014. A Labour Court hearing took place on 20 October 2022. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal by Dr David Ross (Respondent)) against Adjudication Officer's Decision ADJ-00033638 in a complaint by Edel O Brien (Complainant) under the Redundancy Payments Act 1967(the Act). The Adjudication Officer held that the claim by the Complainant for redundancy under the Act was well founded and awarded statutory redundancy.

Background to the Appeal:

4 The Complainant worked for the Respondent as a practice nurse from 6 ^th March 2009. In and around October 2021 the Respondent indicated to the Complainant that he was giving notice to the HSE of his intention to resign. The Respondent ceased the practise on the 31 ^st January 2021 and the GMS list went back to the HSE. The Complainant is seeking redundancy payment. The Respondent's position is that no redundancy arises as she was transferred to either the HSE or the Agency that is currently employing her albeit on a temporary basis.

Summary of Complainant's case:

5 Mr Duncan representative for the Complainant submitted that she was informed by the Respondent that he was retiring his GMS contract and that by emails of the 6th and 7 ^th of January 2021 he advised her that her employment would transfer to the HSE / temporary operator and that she would maintain her existing terms and conditions of employment. The Complainant then made contact with the HSE on the 12 ^th January 2021 and was advised by the HSE that what was occurring was not a transfer of undertakings and that her employment rights and terms and conditions would not transfer.

6 In and around that date the HSE wrote confirming that in order to maintain the service the HSE would be recruiting a locum GP through an agency and that she would be offered a three-month temporary contract through an agency. The Complainant wrote to the Respondent on the 28 ^th January 2021 advising that because there was no transfer of undertaking, she was entitled to statutory redundancy and requesting that same be actioned. This was followed up by a letter from her representative on the 17 ^th February 2021 again requesting that statutory redundancy as due be paid.

7 The Respondent's representative responded by letter of 24 ^th February 2021 advising that it was their position that no redundancy occurred and that as a matter of law the Complainant's employment had transferred.

8 Mr Duncan submitted that the Complainant's contract was at all times with Dr Ross and when his contract with the HSE terminated on the 31 ^st January 2021 her contract with him also terminated. In effect she was dismissed as her position with the Respondent no longer existed which clearly meets the criteria for redundancy. The Respondent has accepted that the defence under section 9(3) of the Act is not available to him and nor is he seeking to avail of that defence. The Respondent submits that he is not restricted to the defence set out in the legislation and that their position is that a transfer of undertakings occurred therefore the issue of redundancy does not arise. For a transfer of undertakings to occur an ‘economic entity’ has to have transferred and that did not occur in this case. It is of significance that the Respondent cannot identify who the Complainant is alleged to have been transferred to.

Summary of Respondent's case:

9 Mr Mac Sweeney representative for the Respondent submitted that the Respondent operated the Kilconnell Health Centre from July 2007 until the 31 ^st January 2021 having taken over the practise from a Dr Twohig. The Complainant was employed as a practice nurse working three mornings per week. To the best of the Respondents knowledge the Complainant continues to work from the same location on the same terms and conditions of employment.

10 The Respondent operated as a sole trader running the medical centre. He was awarded a General Medical Scheme...