Complainant

Respondent

Parties

Jose  Siqueira

Pro-Riso Dental Clinic Limited  / Pro-Dental

Complainant

Respondent

Representatives

Self-Represented

Marius Marosan ,  Representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060673-001

21/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060673-002

21/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060673-003

21/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00060673-007

21/12/2023

The Complaint concerns a Dental Assistant/Technician who alleged that he had been Unfairly Dismissed from his employment at a Dental practice. In addition, he lodged Statutory Sick Pay, Minimum Notice and Terms of Information supplementary complaints.

The Employment began on the 1st February 2021 and ended on the 24th June 2023.

The rate of pay was stated by the Complainant to have been €600 for an alleged 47-hour week.

The Complainant gave an oral testimony and supporting documents, copy e mail correspondence and Bank records.

1:1 Unfair Dismissal CA:00060673-001

Then Complainant had worked without issue until the 22 June 2023. On that day it became clear to him that he was no longer being employed. An E mail / Whats Ap exchange with the Practice Secretary on that day was cited in evidence. He had been on Sick Leave since the 22nd June 2023.

There were absolutely no procedures, warnings or any Decision Appeals offered.

The Complainant had requested a Notice Period of Some two months previous but this had been refused. A brief conversation with the Principal Owner, Dr N, a week previously, had offered a Notice Period to the 24th June 2023.

In cross examination exchanges with the Respondent Representative, Mr Marosan,  the Complainant resolutely denied that he had ,prior to the 24th June , already arranged with former professional colleagues from the practice ,to join their newly established Dental Practice which would be in direct competition with the existing employer.

1:2  Minimum Notice CA:00060673-002

The Complainant alleged that he had not received his required Statutory Notice – he had been employed since the 1st February 2022 – in excess of two years – and was due Two weeks Statuary Minimum notice as per the Minimum Notice Act,1973

1:3      Terms and Conditions of Employment CA:00060673-003

The Complainant alleged that he had never received a proper Contract of Employment or Statement of Terms & Conditions during his Employment. He rejected as an employer “stratagem” an alleged contract given to him in March 2023. It full of inaccuracies and he refused to sign it.

1:4     Sick Leave Act,2022 CA CA:00060673-007

The Complainant was on Sick leave from the 22/09/2021 to the 29/09/2021 ( Hospital procedures) and the 14th/01/2022 to the 28/01/2022.( Covid) . These days were taken from his Holiday Entitlements. He was due Statutory Sick pay for these days.

The Respondent was represented by Mr Marosan. A detailed Oral and Written testimony was provided.

2:1 Unfair Dismissal  CA:00060673-001

In essence the Respondent case was that the Complainant left, “abandoned” was a phrase used, the employment to join former colleagues in a new Dental practice. He joined this practice on the 25th June 2023. He had already in conversation with the Clinic A, Principal, Dr N ,in the previous weeks , indicate that he was going to resign although he had not specified that he would be joining his former colleagues.

This move to the new Practice effectively colours all the Complaints. There was no Dismissal by Dr N. It was a voluntary exist albeit coloured by a sick leave period and various other unfounded allegations regarding Contracts, Sick pay etc. Obviously in this context relationships between the Parties were at a low ebb.

2:2  Minimum Notice CA:00060673-002

As the Complainant had resigned there was no entitlement to anything other than one weeks notice which was paid.

2:3      Terms and Conditions of Employment CA:00060673-003

It was accepted that there were failings on the Respondent case here. The contact and E mail; dated the 22nd of March 2023 were perfectly satisfactory and the refusal of the Complainant to sign same should be weighed against him.

2:4     Sick Leave Act,2022 CA CA:00060673-007

All obligations in relation to Sick pay were discharged in favour of the Complainant for the period stated. In addition there was a major query in relation to the proper Cognisable periods involved.

.

3:1        Opening observations

This entire series of complaints can be traced back to a ,it appeared, quite acrimonious, break up of a Dental practice , Clinic A ,by a number of professional Dentists. Three of the Professional staff left to set up their own practice , Clinic B, in competition with the Original practice. The Complainant was the chief Technician/Practice Assistant with the Original Practice. He immediately ,after the ending of his employment at Clinic A began working at Clinic B. While written submission were provided much rested on the Oral evidence from the Parties. While all were under Oath/Affirmation much variability in recollections was evident.

3:2        Legal Issues : Unfair Dismissal CA:00060673-01:

For an Unfair Dismissal action to succeed there are a number of requirements -the first one being that a Dismissal actually took place as opposed to a Resignation.

 Section 1:  Definitions  - “dismissal” (a)

“dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

In this case this aspect was very unclear. On the 22nd June 2023 the Practice secretary rang/Whats  App ed  the Complainant at 11.04 hrs.  It was clear from this Whats Ap call that the Complaint was not coming to work. He asked the Secretary for the Accountant Mr D “to arrange about his salaries and vacations”  to be received.  The Complainant never retuned to work  at  Clinic A.

The following Monday he commenced at Clinic B.

It was the view of the Adjudicator, having read the written papers submitted and heard , in particular, the Oral evidence that it would be beyond reasonable probability that the Principal of Clinic A would dismiss a key staff member in a situation where the very future of the practice was now in jeopardy following the exit of the three professional Dentists. In addition, the Complainant has already indicated verbally some weeks previously that he wished to leave and asked could he give some three months prior notice.

From the evidence it was clear that the employment and personal relationship  with Principal A – Dr N ,had run its course. To the Adjudicator, it appeared a reasonable assumption, based on the often disputed evidence, that the Complainant had decided to leave and join his former colleagues. The suggestion that the job offer to go to Clinic B had “come out of the blue” the Adjudicator found hard to sustain.

Neither Party was completely without blame in this scenario ( the letter of reference from the Respondent Principal dated the 14th June 2023 some two weeks prior to the ending of the employment was quite unusual)  but on balance the Adjudication view has to be that no Unfair Dismissal , as accepted in Legal precedents, took place.

3:3  Minimum Notice CA:00060673-002

There was considerable confusion in written evidence regarding the actual end date for the employment. The Revenue Date was the 2nd of July 2023 and there was much verbal exchange as to an actual end date.

The Adjudication view has to be that a full weeks pay was given in week ending in the 25th June. Pay Slips provided. No additional notice is due as the Complainant ,it appeared, voluntarily left Clinic A to go to Clinic B.

3:4     Terms and Conditions of Employment CA:00060673-003

From the evidence ,both oral and Written, It was clear that the Complainant and not received any proper Contract  of Employment during his time of employment (up to a purported contract date the 22nd March 2023.) with the Respondent.

The Contract offered on the 22nd of March 2023 was disputed by the Complainant as being inaccurate. He refused to sign it.

On balance a period of some 25 months passed without a Contract . This is a Breach of a Statutory Right and a compensation award is warranted.

Accordingly under Section 7 of the Terms of Employment (Information) Act, 1994 a Compensation award of One Weeks pay –(approximately as stated on the Complaint form- €600 )is awarded to the Complainant.

3:5      Sick Leave Act, 2022 CA CA:00060673-007

There is a Time Limits issue to this Complaint.

Section 41 (7) of the Workplace Relations Act,2015

 Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

(h) in the case of a dispute relating to the entitlement of an employee under the Sick Leave Act 2022, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute.

The Complainant alleged breaches of the Act regarding  periods of Sick Leave from 22/09/2021 to the 29/09/2021 ( Hospital procedures) and the 14th/01/2022 to the 28/01/2022.( Covid)

The complaint was lodged at the WRC on the 21st December 2023 which is in excess of six months and by extension 12 months from the dates of the alleged breaches of the Act.

Accordingly, this Complaint cannot be considered at it is legally Out of Time

Unfair Dismissal, Terms and Conditions of Employment Information, Statutory Sick leave.