ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004081

Parties: 

Complaint:

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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.

Background:

The Complainant was initially employed as Assistant Store Manager with the Respondent effective from 9^th April 1997. The Complainant was promoted to Store Manager in 2011 but she reverted back to Assistant Store Manager voluntarily in December 2015..The Complainant was demoted to Sales Assistant in April 2016 following an internal disciplinary process.

The Complainant referred a complaint under the Unfair Dismissals Act, 1997 – 2015 to the WRC on 22^nd July 2016 alleging that she had been unfairly dismissed by the Respondent on 1^st April 2016 when she was demoted from Assistant Store Manager to Store Assistant.

Preliminary Issue – Did a “dismissal “occur?

Section 1(1) of the Act – Definitions – defines what “dismissal” is as follows –

“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, (b) the termination by his employer of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose( being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) the cesser of the purpose”.

IBEC on behalf of the Respondent in a preliminary objection dated 22^nd July 2016 contends that the Adjudication Officer does not have jurisdiction to hear the complaint as no termination of employment has occurred in circumstances where the Complainant has not resigned, has not been dismissed from the employment and is not a Fixed-Term Employee and that a demotion is legally distinct from a dismissal as set out under the Unfair Dismissal Act, 1977 – 2015. The Respondent stated that that the cases quoted by the Complainant and her legal representatives in support of their position that a demotion falls within the definition of dismissal are not representative of the facts in the current complaint. Post the Hearing the Respondent referenced a decision of the Employment Appeals Tribunal in Case Ref No UD 1613/2013. (The Complainant was afforded an opportunity to respond to this which they did on 9^th June 2017)

The Complainant and her legal representatives argued that a termination of her employment has occurred. The Complainant referenced the High Court Decision in Fanning v University College Cork, which was upheld by the Supreme Court and which they stated that the issue in that complaint arose “somewhat peripherally” in this case. They also cited a number of UK Authorities, namely Hogg v Dover College – Smith v Trafford Housing Trust and Hazel v Manchester College in support of the argument that a demotion was a dismissal.

Findings:

I have reviewed all the case law referenced by both Parties at the Hearing and post the Hearing.

Fanning v University College Cork.

This case concerned a Professor who had been subject to a Disciplinary Process and the issue was whether the action of the University would be ultra vires the provisions of the 1951 NUI Statute 86 and the 1997 Universities Act which now allowed for the establishment of the constituent colleges as Universities in their own right and granted them power to determine many issues which until then had been within the exclusive power of the NUI. One such power was that of appointing and dismissing staff. Following the enactment of the Act of 1997 UCC adopted Statute E which sets out the terms and procedures to be followed by Universities in such circumstances of suspension, demotion or dismissal. This Statute E states as follows – “The University may suspend, demote or dismiss any employee”. Nowhere in the Judgement of the High Court in this case did they find that a demotion of an employee was a dismissal.

Hogg v Dover College – Employment Appeal Tribunal – 1988

This case concerned a full-time teacher who was also Head of Department. Following an illness where he had been absent for a period of 2 years his Employer deemed him not capable of assuming Head of Department Role going forward. He had also resumed employment following the illness, on a reduced basis. This did not result from a disciplinary sanction of demotion and the Employee in that case was claiming breach of contract and not a dismissal. However I note that the Appeal Tribunal deemed this to be a dismissal.

Adrian Smith v Trafford Housing Trust.

This case involved a Disciplinary Sanction when the employee in this case was demoted from Manager to a non-managerial role with a subsequent reduction in salary and he has continued to work in this junior position. The High Court of Justice in this Decision of 2012 held that in this case the employee was seeking damages for breach of contract and he did not commence proceedings for unfair dismissal and he did not claim to have been dismissed.

Hazel and Anr v The Manchester College – Court of Appeal – 2014.

This case concerned a Transfer of Undertaking in August 2009. In January 2010 the Respondent in this case sought to change the terms and conditions of the Transferees to bring them into line with the employees already employed. The decision was to find there was a breach of the TUPE Regulations.

Grainne Ryan v Dominate Limited t/a Dominio’s Pizza Crumlin UD 1613/2013.

This case concerned an employee who was demoted from Shift Manger to Crew Member in October 2012. Her salary was not altered by the demotion. She appealed the decision to demote but the decision was upheld. The employee never returned to work. The EAT found that there was no dismissal in this case as the employee had left of her own accord.

Respondent’s Disciplinary Policy – Revised 2014

I note that this policy provided to the Complainant, states as follows”…..Other Disciplinary Action, such as demotion, transfer, withdrawal of employee discount, suspension without pay…..”

DECISION

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.

On the basis of the evidence and my findings above and on the basis of the definition of “dismissal” as contained at Section 1(1) of the Unfair Dismissals Acts, 1977 – 2015 I declare I do not have jurisdiction to hear this complaint as I find that the Complainant was not dismissed as set out at Section 1(1) (a), (b) or (c) of the Act.

Dated:   07 July 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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