The Complainant sought to appeal the decision of the AO under the Unfair Dismissals Act 1977. The Complainant was employed as Deputy Chief Executive Officer. Between 2001 and 2014, she headed up various different departments within the Respondent organisation. 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 to avail herself of the opportunity.

The initial 12-month secondment was subsequently extended and continued for almost three years in total. The Complainant was then informed 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 and therefore she would be required to return to the Respondent organisation as of that date.

Subsequently, 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 Complainant submits that she was constructively dismissed by her former employer when her secondment ended and she formally transferred to the HSE. She said that even if she did not have 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 said there was no dismissal within the meaning of the Act. It maintained the Complainant failed to furnish a letter of resignation and did not issue a grievance. It maintained the Complainant accrued no financial loss as she was continuously in remunerated employment.

The Court noted that in a constructive dismissal claim the onus was on the Complainant to establish each element of the claim. On examining the relevant facts of the matter and evidence produced by the parties concerned, the Court found that the Complainant unequivocally and voluntarily agreed to the proposed transfer. At no stage was the Complainant’s continuity of employment interrupted; there was no cessation of her employment other than in a technical sense.

The court described her transfer from the Respondent to the HSE as ‘seamless’ and pointed out that that the terms and conditions on which she was employed (including salary and benefits) did not change as of the 28th of July 2017.

The Court was satisfied that the Complainant’s decision to voluntarily transfer her employment from the Respondent to the HSE did not constitute a (constructive) dismissal within the meaning of the Act. This was owed to 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 HSE was motivated by the conduct of the Respondent’s board. Having considered the circumstances the court determined that the appeal had failed.
https://www.workplacerelations.ie/en/Cases/2019/January/UDD191.html