Doctor argues paying nurse redundancy would amount to ‘unjust enrichment’

A Co Galway doctor owes his former practice nurse a redundancy payment of over €9,000, the Workplace Relations Commission has ruled. 

 

Nurse Edel O’Brien took a complaint under the Redundancy Payments Act against Dr David Ross, for whom she worked on a part-time basis at the Kilconnell Health Centre in Co Galway, arguing her employment with him was terminated when he retired. 

 

She claimed she was owed a payment in respect of over a decade’s service - while Dr Ross’s solicitor maintained he had transferred her to a contract with a new employer along with his patient list. 

 

The doctor’s solicitor argued a redundancy payment would amount to “unjust enrichment”. 

 

At a remote hearing in April, Ms O’Brien’s solicitor Jack Duncan said his client worked at Dr Ross’s surgery for 13 hours a week from March 2009 to February 2021. 

 

“[Dr Ross] notified the complainant he was going to retire and did his best to see she would get sorted,” he said. “He hoped for another doctor to take over but it was evident that with a GP surgery in a small rural practice it was very difficult to get a replacement.” 

 

He said eventually the HSE used an agency, Unijobs, to fill the gap, and his client was left with “no option except to take an agency short-term contract”. 

 

Mr Duncan said his client had to sign a new contract every three months and had issues with sick pay, annual leave, being asked to work in a different clinic and having to pay for her own insurance. 

 

He argued Ms O’Brien had enjoyed no continuity of employment, and that both the HSE and Unijobs denied that the Transfer of Undertakings Regulations applied to his client’s employment at the clinic. 

 

That left her with “no option but to apply for redundancy,” he said. 

 

“Whatever happened between Dr Ross and the HSE – the building was HSE and he handed it back. We say when he did this he terminated his contract with us,” Mr Duncan added. 

 

“Self-evidently there hasn’t been a termination – that’s what the transfer of undertakings is there for,” said Shane MacSweeney, Dr Ross’s solicitor. 

 

He said a named second former employee of the clinic represented by Mr Duncan was “pursuing a similar claim”. 

 

He said legal precedent required the adjudicator to examine all the acts of the employer in the situation to determine whether there had been a transfer of undertakings. 

 

“That three-pronged test has been met on all fronts – all tangible assets transferred, all intangible assets transferred, all employees transferred. The consequence is that the employment transferred,” he said. 

 

“It would be inequitable and an unjust enrichment if she was to receive statutory redundancy in circumstances where she has not lost her employment,” he said, arguing that responsibility for the situation lay between the HSE and the employment agency. 

 

Adjudicating officer Gaye Cunningham rejected that argument in a decision published on Wednesday. 

 

She found Dr Ross had left Ms O’Brien “in a situation where she had to take short-term contracts through an agency and neither the agency nor the HSE has accepted that a transfer of undertakings has taken place”. 

 

Dr Ross had “ceased to carry on the business in the place where [Ms O’Brien] was employed”, she wrote – and ruled the redundancy claim well-founded. 

 

Ms Cunningham found the complainant was entitled to statutory redundancy in respect of approximately 11.9 years of service at a gross rate of pay of €374 per week – approximately €9,200. 

 

The Irish Times