UDD191

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

The Complainant’s Employment

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 she was constructively dismissed by her former employer the Respondent on 27 July 2017 when her secondment ended and she formally transferred to the employment of the HSE. She told the Court in evidence that even if she hadn’t had a position to go to at that time she would not and could not have returned to work for the Respondent as she no longer had any trust in the organisation.

The Respondent submits that the within appeal is not well-founded as no dismissal within the meaning of the Act occurred. It submits that the Complainant never furnished a letter to it resigning her employment, never availed herself of the Grievance Procedure and ultimately her employment transferred seamlessly from the Respondent to the HSE at the end of her period of secondment. It also submits that in the event that the Court were to find otherwise, the Complainant accrued no financial loss as she was continuously in remunerated employment.

Discussion and Decision

This is a constructive dismissal claim. The onus is on the Complainant to establish each element of her claim. First and foremost, she must demonstrate that a dismissal within the meaning of the Act occurred in her case. The term ‘constructive dismissal’ is not found in the text of the Act. The relevant portion of the definition of dismissal is as follows:

• “the termination by the employee 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”

The Court is fortified in its finding that the Complainant’s decision to voluntarily transfer her employment from the Respondent to the HSE does not constitute a (constructive) dismissal within the meaning of the Act by the Complainant’s clear admission that she did not furnish the Respondent with a resignation letter and did not otherwise seek to communicate to the Respondent that her reason for accepting a formal transfer to the HSW was motivated by the conduct of the Respondent’s board and or management team towards her.

In all the circumstances, therefore, the Court determines that the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
15 January 2019______________________
MNDeputy Chairman



NOTE

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