ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015484
A dental nurse
A dental practice
The Practice Manager
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 31/10/2018
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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 respondent sought to transfer responsibility for the employment relationship with the complainant to another party and, having failed in this attempt, dismissed the complainant
Summary of Complainant’s Case:
The complainant commenced employment with the Dr A on 19th June 2012 and worked with him until 31 December 2015 when she was made redundant and immediately re-employed by the respondent on 1 Jan 2016. She was unaware of transfer of undertaking legislation at that time. On 13th Dec 2017 an email was sent to three associate dentists of the respondent advising that they would have to hire their own nurses. On 21 Dec 2017 Ms B, the Practice Manager, set up a meeting with the complainant and advised her that her job was safe in the new year but she did not know who the complainant’s employer would be. She also stated that the contract which the complainant had signed was fixed term for two years and would now be terminated. The complainant’s contract was not for a fixed term. On 29th Dec 2017 the complainant received an email saying that her position was no longer available. Subsequently she learned that one of the associate dentists had left the practice but that the other dental nurses, both temporary and full time had been engaged by the practice.
The complainant corresponded with the respondent and was told that she would be re-hired when work became available. She received an email in May 2018 saying that a new contract would be offered shortly but it never was. Throughout the period of correspondence, the respondent never suggested that fair criteria had been applied in determining who was to be let go. They abdicated their contractual responsibilities to the complainant to associate dentists to determine who might have a job in the new year. There was no suggestion of last in first out, or reference to qualifications or experience or any other objective criteria and without any means of appeal.
The complainant worked in a new job from 13th February 2018 until 26th July 2018 on €193 per week and started in her current employment on 30th August 2018 on €1768 per month. Her pay with the respondent was €550 per week.
Summary of Respondent’s Case:
The complainant was originally employed by Dr A. Due to restructuring within the practice at the end of 2015 the respondent company was created and Dr A paid redundancy to all employees. New employment contracts came into effect on 1 January 2016 under the respondent company. In November 2017 the dental nurses were given notice that their contracts would terminate at the end of 2017 and that from January 2018 the associate dentists would be employment their own nurses. The respondent did not have control over which dental nurse the dentists employed. The associate dentists were given the names of the nurses whose contracts were terminating. One dentist left the practice and the respondent understands that the complainant was subsequently employed by her. When that dentist left the complainant was informed that when another self-employed associate dentist joined the practice the respondent would pass on the complainant’s details to him or her.
Findings and Conclusions:
It is accepted by the respondent that the complainant was dismissed at the end of December 2017. The contention that this was on the expiry of a fixed term contract is not supported by the evidence. The complainant’s contract makes no reference to fixed term and is therefore a contract of indefinite duration and the respondent was not at liberty to terminate it in the manner in which he did. The respondent company clearly wanted to divest itself of the responsibility of employing nursing staff for the practice and, to this end, sought to transfer the nursing part of the practice to the associate dentists. Therefore, this might be considered to have been a transfer of undertakings in which case the complainant would have the protection of The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. Under these regulations all the rights and obligations of an employer under a contract of employment other than pension rights existing on the date of transfer, are transferred to the new employer on the transfer of the business or part thereof. The new employer must continue to observe the terms and conditions of the collective agreement until it expires or is replaced. An employee may not be dismissed solely by reason of the transfer and this includes a prohibition on making the employee redundant. It is clear from the evidence that the respondent did not transfer the contract of employment in the case of the complainant but rather left it up to the associate dentists to determine who, if any, they would employ. In the event, one of the associate dentists left and therefore there could not have been any transfer of undertaking to that associate dentist, and therefore responsibility for the complainant’s contract of employment could not have transferred away from the respondent.
Section 6.6 of the Unfair Dismissals Act, 1977 states;
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
The burden of proof is therefore on the respondent to demonstrate that the dismissal was fair and in my view the respondent has failed to meet this requirement and therefore the complaint of unfair dismissal is upheld.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the complainant has been unfairly dismissed and I order the respondent to pay the complainant the sum of €11,000.
Dated: 18th January 2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Unfair dismissal and transfer of contract of employment