UDD189

This is an appeal brought by Jaqueline Doyle (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-0004081, dated 7 July 2017) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided only a preliminary issue that goes to jurisdiction i.e. whether or not the Complainant had in fact been dismissed by her employer, Boots (Ireland) Limited (‘the Respondent’). The Adjudication Officer found that no dismissal within the meaning of the Act had occurred. This Court sat to consider the Complainant’s appeal in Dublin on 30 January 2018, and with the consent of the parties, proceeded to hear submissions on the jurisdictional issue only, with a view to scheduling a further hearing to deal with the substantive claim should the jurisdictional point be determined in favour of the Complainant.

The Facts

The primary facts relevant to the jurisdictional point before the Court are not in issue between the parties. They can, therefore, be set out concisely as follows. The Complainant commenced employment with the Respondent in April 1997. She is currently in the Respondent’s employment. She has held a number of different positons at different stages of her career with the Respondent. In the period immediately prior to the events that gave rise to the within proceedings, the Complainant’s title was Assistant Store Manager. In 2016, the Complainant was the subject of disciplinary proceedings which culminated in a decision by the Respondent dated 6 April 2016 to demote her from the position of Assistant Store Manager to Customer Assistant with a consequent reduction in her annual salary from €43,943.46 to €25,057.50. The Complainant unsuccessfully pursued an internal appeal against that disciplinary sanction (albeit the Respondent agreed to implement the reduction in her salary on a phased basis).

The Complainant submitted an on-line complaint form to the Workplace Relations Commission in which she particularised her claim, in part, as follows: ‘As a result of the unfair dismissal from her post as Assistant Manager the Claimant has been demoted to a store worker’. The complaint form was received by the Workplace Relations Commission on 18 July 2016.

Submissions

Detailed written submissions were received from both parties and considered by the Court. In his written submission, counsel for the Complainant makes reference to a number of UK authorities which urges the Court to accept as being persuasive of the proposition that the effect of the disciplinary sanction of demotion handed down to the Complainant on 6 April 2016 was a dismissal for the purposes of the Act.

Counsel’s written submission refers in this context to the following cases:Hogg v Dover College[1990] ICR 39;Hazel v Manchester College[2014] EWCA Civ 72; andSmith v Trafford Housing Trust[2012] EWHC 3221. In his verbal submission to the Court, counsel placed particular emphasis on the latter judgment of Briggs J of the (UK) High Court and, in fact, opened a number of paragraphs from that judgment including paragraphs, 91, 93, 94 and 106 on the basis of which he invited this Court to conclude that the severity of the demotion visited on the Complainant on 6 April 2016 should be construed as having had the effect of substituting a new contract of employment for the Complainant’s pre-existing contract such that the demotion amounted to a dismissal.

The Court has considered the entirety of the written judgment inSmith.However, it notes, in particular, paragraphs 6 and 9 of the judgment, in the light of which, this Court determines thatSmithhas no precedential significance, persuasive or otherwise, in respect of the within appeal: there is a passing similarity as between the underlying facts of both cases but there is no overlap whatsoever between the claims advanced by Mr Smith and those being advanced on behalf of the Complainant herein.

In paragraph 6 of the judgment the Court identifies the claim before it as being one of breach of contract but not one of dismissal:

• “6. Mr Smith did not accept that he had been guilty of gross, or any, misconduct in posting those two comments on his Facebook wall page. Although he has continued to work in the more junior non-managerial role assigned to him, he claims that it was a breach of contract for the Trust to demote him and substantially to reduce his pay, when he was not guilty of any misconduct. By these proceedings, commenced in the Manchester County Court, he seeks damages for breach of contract. He did not commence proceedings for unfair dismissal in the Employment Tribunal, and does not claim to have been dismissed at all.”

• “9. Nor is this a case in which the primary facts are significantly in issue. There are three main issues, or groups of issues. The first, being an issue as to the interpretation and application of the employment contract between the parties, is centred upon questions as to the application of the Trust's code of conduct and equal opportunities policy to Mr Smith's use of his Facebook account. The second is whether, if applicable, the code of conduct or equal opportunities policy were contravened by his making the two postings which I have described. The third is as to the measure of damages if, by demoting Mr Smith, the Trust acted in breach of contract.”

Dismissal for the purposes of the Act

‘Dismissal’ is defined in section 1 of the Act to mean:

• • (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 the employee of his contract of employment with his employer, whether 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.

  These three events constitute an exhaustive list.

That an employee has been dismissed is a jurisdictional requirement under the Unfair Dismissals Acts.Before the Court can examine the fairness or unfairness of dismissal, it must be satisfied that the Complainant employee has been ‘dismissed’ in accordance with the Act. Where dismissal is in dispute, it falls on the Complainant to establish the fact of dismissal.

Having had regard to the written and verbal submissions advanced before it by counsel for the Complainant, the Court determines that the Complainant has not discharged the burden of establishing that she was dismissed in April 2016 within the meaning of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
5 February, 2018.______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.