EMPLOYMENT APPEALS TRIBUNAL
Health Service Executive T/A Hse
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr J. Goulding
Mr J. Jordan
heard this appeal at Dublin on 22nd April 2016
Appellant(s) : In person
Respondent(s) : Arthur Cox Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
The decision of the Tribunal was as follows:
The Tribunal has carefully considered the evidence adduced at the hearing. The appellant is bringing a claim under the Redundancy Payments Acts against the HSE on foot of the termination of a period of employment, which said termination occurred on 5th February 2015. The appellant is a Medical Doctor working in emergency medicine.
The appellant came to Ireland in and around 2007 and by the end of 2008 was employed in the accident and emergency department at hospital C.
The appellant was recruited to the position by a recruitment agency known as G.M. which body works closely with the HSE for the purpose of filling both short term (e.g holiday leave) and long term positions. Initially the appellant was engaged on the basis of fixed term contracts created by G.M. and which it is accepted created an employment relationship between the appellant and G.M.
Having completed nearly three years at C hospital on this basis, the appellant believes that the HSE is obliged to acknowledge its status as his employer for the next period. In such circumstances the appellant’s claim for redundancy would be correctly brought against the HSE.
The Tribunal therefore has to decide as a preliminary issue whether or not the appellant is entitled to have the HSE described as his employer for a period of time between 2012 and 2015. For redundancy claims the Tribunal notes a two year period must apply. A Mr. MC on behalf of the recruitment agency gave evidence of how the agency normally operated when recruiting for roles within the HSE. He was quite clear in his evidence that the HSE had in recent times been unable to engage staff and has had to avail of agency relief on the basis of not entering into contractual employment relationships. The Tribunal accepts that as a matter of fact the appellant knew that he was not engaged as an employee of any entity other than G.M.
The appellant’s contention that the facts of his being answerable to in house management, of his being rostered for work so far in advance, and of his long working week in the C hospital all pointed to a relationship of employment and not of something less significant. The Tribunal accepts that these factors can often be decisive in establishing the existence of an employment relationship and the fact that the appellant continued to be paid through the agency known as G.M. is not of itself a more persuasive fact from any other fact presented to the Tribunal.
However, the Tribunal cannot overlook the parties’ own understanding of the nature of the three way relationship between appellant, agency and the end user.
It is worth noting that the appellant set himself up as a limited company for the purpose of getting paid. The appellant was not forced to do this, he made the decision. Therefore setting himself up in a sole trader type capacity.
On balance, the Tribunal finds that there was no, nor was there ever intended to be, contractual employment relationship between the appellant and the HSE.
If a redundancy case has arisen in the appellant’s engagement (and this contention is by no means clear) his employer was not at any time the HSE and redundancy that may be due and owing to the appellant cannot be the liability of the HSE and would therefore lie elsewhere.
Sealed with the Seal of the
Employment Appeals Tribunal