TED193

This is Ms Deirdre Hogan’s (‘the Complainant’) appeal of an Adjudication Officer’s decision (ADJ-00009023, dated 13 April 2018) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 18 May 2018. A case management conference was held on 9 October 2018. The Court heard the within appeal in Dublin on 8 January 2019 (in conjunction with the Complainant’s appeal under the Unfair Dismissals Act 1977 (UD/18/85).

Factual Matrix

The Complainant commenced employment with the Respondent on 31 July 2001 as its Deputy Chief Executive Officer. Between 2001 and 2014, she headed up various different departments within the Respondent organisation: Head of Fitness to Practice and Registration (2001-06), Head of Strategic Planning (2007-08), Head of Corporate Services (2009-11), Head of Planning and Development (2011-14) and Director of Registry (2014). Her substantive grade at all times was that of Functional Officer. She also acted as Secretary to the Respondent’s board.

In June 2014, the Complainant successfully sought out a 12-month secondment opportunity with the Health Service Executive and was granted permission by the then CEO of the Respondent to avail herself of that opportunity. The Complainant, in a letter dated 27 June 2014 to the CEO, referred to the secondment as an opportunity “to gain experience in the broader healthcare field”. In the same letter, the Complainant indicated that her decision to take the secondment was also motivated by concerns that she had about “on-going difficulties at a collective level with the Senior Management Team”.

The Complainant’s initial 12-month secondment commenced on 18 August 2014. It was subsequently extended and continued for almost three years in total such that the Complainant was due to return to her substantive post with the Respondent in or around August 2017. By letter dated 17 May 2017, the Complainant was advised from the Respondent’s Human Resource Manager that the Respondent would not be in a position to extend her secondment arrangement beyond the scheduled expiry date of 17 August 2017 and that she would therefore be required to return to the Respondent organisation as of that date. Very shortly afterwards, the Respondent received a written request from the HSE seeking agreement to formally transfer the Complainant to its Community Healthcare Organisation, Dublin North City and County service. The Respondent subsequently sought and received approval from the Department of Health for the proposed transfer. The Complainant ceased to be an employee of the Respondent on 27 July 2017. She has been employed by the HSE with effect from 28 July 2017.

During 2015, the Respondent engaged with an independent external consultancy – Crowe Horwarth – to carry out an organisational review. The consultants’ recommendations were formally accepted by the Respondent’s board in November 2015. They included changes to the job titles of the members of the Senior Management Team (e.g. Director of Registry to be retitled Director of Registration) and the rotation of the Deputy Chief Executive role amongst the five members of the Senior Management Team. In March 2016, the Complainant was furnished with a full copy of the report prepared by Crowe Horwarth and invited to comment on it prior to its publication. The then-President of the Respondent, Ms Essene Cassidy, along with a number of other Board members met with the Complainant on 11 March 2016 to discuss the report.

Submissions

The Complainant submits that her job title was changed following the acceptance by the Respondent of the recommendations of the Crowe Horwarth review but that she was not furnished with an amended statement of terms and conditions that reflected this change as required by section 5(1) of the Act.

The Respondent submits that the Complainant’s substantive grade at all times was that of Functional Officer. Prior to commencing her secondment with the HSE, the Complainant was assigned to the post of Director of Registry. Consequent on the Organisation and Workforce Review Report that post was retitled ‘Director of Registration’. The Complainant was notified in writing by letter dated 15 June 2017 that should she return to the Respondent on the cessation of her secondment she would “be assigned to the post of Director of Registration at [her] existing grade of Functional Officer”.

The Law

Section 5 of the Act provides:

• 5. Notification of changes
  5.(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–
  (a) 1 month after the change takes effect, or
  (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

Discussion and Decision

The Complainant exhibited a copy of the permanent contract of employment she received from the HSE in July 2017. That contract states at paragraph 1:

• “You are employed as a Business Support Manager (salary red circled on a person to holder basis as Functional Officer non-EHB).”

Furthermore, the Complainant accepts that she received the Respondent’s letter dated 15 June 2017, referred to above. The Court is satisfied that by means of this letter the Respondent fully discharged its obligations under section 5 of the Act to the Complainant i.e. the letter unequivocally confirmed that – upon her return from secondment – her terms and conditions would continue to be those that apply to the Functional Officer Grade; her job title would be amended slightly to Director of Registration; and the post of Deputy CEO would be discontinued. In any event, the changes notified to the Complainant in the letter of 15 June 2017 never took effect because the Complainant did not return from the secondment.

Accordingly, the Court finds that the appeal fails and the decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Alan Haugh
21 January 2019______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.