Ryan v O’Flaherty

JurisdictionIreland
CourtEmployment Appeal Tribunal (Ireland)
Judgment Date12 Nov 2003
Judgment citation (vLex)[2003] 11 JIEC 1202

Employment Appeals Tribunal

EAT: Ryan v O'Flaherty

Representation:

Claimant(s):

Mr Richard Ryan, Derryrush, Rosmuc, Connemara, Co Galway

Respondent(s):

Ms. Catherine Egan, SC, instructed by Joe Jordan & Co, Solicitors, Main Street, Ballinasloe, Co. Galway

Abstract:

Employment - Termination of employment - Transfer of undertaking - General medical practice - Claimant made redundant by general practitioner and re-employed by another general practitioner - Whether transfer of undertaking - Whether claimant unfairly dismissed - Unfair Dismissals Acts 1977 to 2001.

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD354/2003

CLAIM(S) OF:

Norah Ryan, Derryrush, Rosmuc, Connemara, Co Galway

against

Matt O'Flaherty, Kinvara Health Centre, Kinvara, Co. Galway

under

UNFAIR DISMISSALS ACTS 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Mr. T. Halpin

Members:

Mr. P. O'Grady

Mr. P. Clarke

heard this claim at Galway on 28th July 2003

Facts the claimant, who worked for the respondent general practitioner as a secretary, before she was made redundant by the respondent and then worked for a number of other general practitioners who had taken over the respondent's GMS contract with the Health Board, contended that a transfer of undertaking had taken place between a former employer, namely the respondent and a chain of employers, namely the other doctors who had taken over the GMS contract with the Health Board. She sought to have the redundancy notice withdrawn and her employment contract reinstated and transferred to the other doctors. The respondent denied that the claimant was an employee and that he had voluntarily withdrawn his services after the incident in question.

Held in determining that the provisions of the Regulations governing the Transfer of Undertakings did not apply in the instant case that the claimant had not been unfairly dismissed. The respondent general practitioner had a GMS contract of adhesion with the Health Board which could not be assigned nor transferred to another person. The claimant was an employee of the respondent but not the GMS contract.

The determination of the Tribunal was as follows: -
Respondent's case.
1

It was the case for the respondent that he is a general medical practitioner who operated from a health centre from c. 1998 in accordance with General Medical services arrangements. He engaged the services of a private secretary who remained in his employ up to c. August 2000. He then engaged the claimant initially for five weeks c. from August 2000 to replace the private secretary, and at the beginning of October 2000 offered her a contract of employment. The respondent gave the claimant a job description, which set out her entitlements and that following her seeking clarification on aspects of it, was accepted by her. The claimant continued in his employment up to March 2002, at which stage the respondent verbally informed her that he was relocating to another area. Formal written notice of termination of employment was given to the claimant on 24th April 2002, which ran up to the expiry of the respondent's own contract with a Health Board on 24th May 2002. He was anxious to assist the claimant and was aware that following discussions with a member of management in the Health Board, the claimant was informed that a locum would be assigned to the area. The claimant continued in employment with three successive general medical practitioners who replaced the respondent, and she worked for each of them in succession from 25th May–28th June 2002; 29th June–2nd November 2002 and from 4th November 2002 to present respectively.

2

In his sworn evidence, the respondent confirmed that he did not know who would take over as General Practitioner on his departure. The respondent confirmed that he offered employment to the claimant at his new work location but that she declined this offer. He paid approximately Eur600+ to her as a good-will gesture but contended that the remedy being sought by the claimant before the Tribunal, i.e. where it was asked to retrospectively implement a continued contract of employment, was inappropriate. It was argued that a transfer of undertaking could not apply in this instance, as the respondent was a sub-contractor engaged by a Health Board to provide medical services on its behalf. The respondent did not know who would take over as General Medical Practitioner on his departure and he had no involvement in the advertisement for, recruitment of, or the appointment of his successor.

Claimant's case.
3

It was the case for the claimant that her initial contract of employment with the respondent transferred thereafter to each successive medical practitioner, from 25th May–28th June 2002; 29th June–2nd November 2002 and from 4th November 2002 to the present. The claimant contended that these successive contracts of employment continued on from, and repeated, the terms of the contract entered into by her with the named respondent. The claimant's P60 was unavailable, and it was accepted that she had received a P45 from two of the other medical practitioners who succeeded the respondent.

4

In sworn evidence, the claimant said that she was happy with her employment with the respondent, and that she was disappointed when he informed her of his departure. She said that for commuting reasons she declined the respondent's offer of employment at his new location. She said that she raised the issue of a transfer of undertaking with the respondent, and that she also wrote to a member of the management of the Health Board seeking clarification in relation to her position.

5

In cross-examination, the claimant agreed that she had accepted a contract of employment, subject to amendments; that her gross salary was Eur1675.00 per month and that her current salary was Eur22,000 per annum, i.e. Eur1634.00 per month after deductions. She confirmed that following the respondent's departure she continued in employment with each of the three successive medical practitioners and that she had not suffered a loss of employment. She denied that she was seeking a guarantee of employment, but said that her main concern was her contract of employment.

6

In reply to questions posed by the Tribunal, the claimant said that her primary objective was to have the respondent issue a letter to her, which she would then raise with the replacement medical practitioner/s. She agreed that her intention in bringing the claim before the Tribunal was to seek a withdrawal of the notification of redundancy and to replace it with a transfer of undertaking.

Determination.
7

The evidence given in this case has been set out in sufficient detail above. It is the Claimant's case that a transfer of undertaking has taken place between a former employer, namely the Respondent and a chain of employers resting and settling with her present employer.

8

In brief, the Claimant was the secretary to a busy doctor's practice. The Respondent ceased to practice in that area and the Claimant's employment was terminated. The Claimant in her T1A Form, the form initiating her appeal before this Tribunal, stated that the respondent:

“had a contract with the Western Health Board to provide the General Medical Service to approximately 600 patients. The Health Board provided him with the building Rosmuc Health Centre and some equipment to do so. He was also paid grants to assist in the payment of staff and other expenses at the Health Centre.

In May 2002 he terminated this contract and went to Kinvara where he accepted a new contract to provide the General Medical Service there. The Health Board then appointed a new contractor at the Health Centre from 25th May to 28th June and then Dr…..from 29th June to 2nd November and finally Dr....from 4th November. Each time the new doctor commenced at the Health Centre they were providing the same service to the same patients as (the respondent). They also used equipment which was passed on to them and the premises. In addition private patients who were seen by Dr....(the respondent) also continued to attend the Health Centre.

I believe that this is a Transfer of Undertaking and as such Dr…..(the respondent) should not have made me redundant. I went to great lengths to try to explain this to Dr…..(the respondent) and his solicitor but they refused to withdraw the redundancy and would not enter into discussions about the transfer of undertaking regulations. I have looked into these regulations and some of the cases that have been brought before. I am confident that the service provided at the Health Centre by the General Practitioner falls within these regulations and my employment should have been protected

I am asking the tribunal to recognise this and to have the redundancy notice withdrawn and my Contract of Employment reinstated and transferred to Dr…., then to Dr….and finally to Dr…..who has taken the contract with the Health Board on a permanent basis.”

9

The Respondent in his T2 Form, that is the form used to reply to the Claimant's grounds of appeal, states that the claimant was:

“employed by me as my secretary when I was based at the Health Centre in Rosmuc.

At the time….(of the claimant's commencement of employment) she was informed that her employment was with me and not with the Western Health Board

I operated in Rosmuc as a sub-contractor and when my contract was terminated, I gave…..(the claimant) notice of redundancy from her position with me, as I no longer required her to work for me in Rosmuc.

All contracts for sub-contractor positions are awarded solely by the Western Health Board.

(The claimant)…was offered a position as secretary for me at my current practice — Kinvara, which she declined.

Further evidence to substantiate this claim will be adduced at the time of hearing”.

10

The contract of employment, and the terms and conditions thereunder, in the instant...

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