ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033632
Parties:
| Complainant | Respondent |
Parties | Aileen Lyons | Dr. David Ross |
Representatives | Jack Duncan & Co Solicitor | MacSweeney & Company Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00044493-001 | 04/06/2021 |
Date of Adjudication Hearing: 01/07/2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was heard remotely pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public and that this decision would not be anonymised and there was no objection to same. Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Any submissions received were exchanged. Both the complainant and Dr Ross agreed to give evidence under oath.
Background:
The complainant submits that she is entitled to redundancy payment. At the hearing the respondent disputed her claim but in advance of a second date allocated for the complaint; the respondent conceded the claim. |
Summary of Complainant’s Case:
The complainant submitted she was employed as a medical secretary since 1st July 2008 working 35 hours per week with a gross pay of €485.10. The complainant was advised that the respondent was retiring from the General Medical Services (GMS) Scheme with effect from 1st February 2021. The complainant was informed by the respondent that arrangements were being put in place to maintain operation of the GP practice. The respondent advised the complainant that her employment would transfer to the HSE. The HSE advised the complainant that they would utilise a locum agency to provide a GP service. She was advised by the HSE that any arrangements around her employment with the respondent were between her and the respondent. The complainant’s employment with the respondent ceased on 31st January 2021.
The complainant was advised that it was a redundancy situation by the respondent and that she would receive redundancy, but Dr Ross later advised her this was not the case. The complainant has worked with the locum agency organisation on a series of temporary contracts with different terms and conditions than when she worked for the respondent. A colleague of the complainant also submitted a complaint which was heard previously and in that decision the Adjudication Officer found in favour of that complainant (Adj-00033638).
In a follow up submission, in advance of a proposed second day for the hearing, the complainant submitted that Adj-00005315 and ADJ-00007877 further supported the complainant’s case. |
Summary of Respondent’s Case:
The respondent on the first date of the hearing submitted that the complaint should not be upheld.
It was submitted that the respondent is a medical doctor who is now working in a private medical practice. The respondent had operated a medical centre from July 2007 until his retirement 31st January 2021 having taken over the practice from another medical doctor. The complainant was employed as a medical secretary and was excellent in her work and the respondent had a good working relationship with her. The complainant continues to work at the medical centre.
The respondent informed the worker and her colleague that he was retiring and that it was his understanding that a replacement GP would be appointed. The respondent had submitted that a transfer of undertakings (TUPE) had taken place. In advance of a second date for the hearing the respondent’s representative advised on 15 December 2022 that “On behalf of David Ross, we concede Ms. Lyons’ claim for a statutory redundancy payment and there is accordingly no necessity for the hearing to proceed on Monday next”. and that in those circumstances the hearing did not need to proceed. |
Findings and Conclusions:
The complainant submits that she has an entitlement to redundancy payment. At the first date of the hearing the respondent disputed the complaint. Parties were given details of case law that may have relevance to the case and were invited to make submissions on same in advance of a second date for the hearing scheduled for 19th December 2022. On 15 December 2022 the respondent conceded the claim and the scheduled second date for the hearing did not proceed. No withdrawal of the complaint was received from the complainant.
Taking into consideration all the submissions and that the respondent has conceded the complaint, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:
Date of Commencement: 1st July 2008 Date of Termination: 31st January 2021 Gross Weekly Pay: €485.10
This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Taking into consideration all the submissions and that the respondent has conceded the complaint, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:
Date of Commencement: 1st July 2008 Date of Termination: 31st January 2021 Gross Weekly Pay: €485.10
This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts. |
Dated: 16-02-2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Redundancy, respondent concede |