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GP not deemed a HSE employee in transfer of training dispute

By Paul Mulholland - 19th Sep 2019

The Labour Court has overturned the decision of the Workplace Relations Commission (WRC) that an assistant programme director of a GP training scheme should be regarded as a HSE employee, the Medical Independent (MI) can report. 

Dublin-based GP Dr Siobhan O’Kelly took the case as a result of the transfer of training from the HSE to the ICGP, which has implications for the employment terms and conditions of programme directors. 

Dr O’Kelly was Assistant Programme Director with the HSE Dublin Northeast GP Training Scheme since October 2011. She was provided contracts for service in 2011 and 2012.

She initially referred her claim to the WRC on 1 August 2018, seeking written terms and conditions of her employment.

The adjudication officer found in Dr O’Kelly’s favour and awarded her €4,000 in compensation for the breach of the Employment (Information) Acts.

This decision was appealed by the HSE and the case was heard at the Labour Court this year.

Dr O’Kelly, who was unrepresented at the hearing, said the reason for the complaint was to have her contractual relationship with the HSE determined as an employee, on a contract of service.

“She said that without written terms of employment, she is in a more vulnerable position, in light of the ongoing negotiations,” according to the Labour Court transcript.

Mr Tom Mallon, “instructed by Philip Lee Solicitors” on behalf of the HSE, referred to section 3 of the Acts, which requires an employer to provide an employee with a statement in writing containing the information set out in that section.

He said that there was no formula or specific structure required on the provision of that information and argued that it could be contained in any “appropriate format”.

“On that basis, he contended that the documentation supplied to [Dr O’Kelly] in October 2011 and 2012, titled ‘contract for service — assistant programme director’ was in substantial compliance with the statutory requirement,” according to the transcript.

Having examined the contract for service documents, the court stated Dr O’Kelly’s contractual relationship with the HSE “substantially comply with the provisions of section 3 of the Acts”.

“The court finds that [the HSE] was not in breach of the Acts, the appeal succeeds, and the adjudication officer’s decision is overturned,” stated the final decision.

The court noted that Dr O’Kelly was anxious to receive written details of the changes that have taken place in her terms of engagement and seeks to have updated written details supplied, which the HSE agreed to immediately provide.

MI understands that while the majority of programme directors and assistant programme directors have employment contracts with the HSE, a minority do not.

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