EMPLOYMENT APPEALS TRIBUNAL
April Woods - claimant
UHY Farrelly Dawe White Limited - respondent
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr A. O'Mara
Mr D. Thomas
heard this claim at Dublin on 25th June 2015 and 24th September 2015
Claimant(s): Mr Padraig Lyons B.L instructed by Ms Aoife McGuiness, McDonough & Breen, Solicitors, Distillery House, Distillery Lane, Dundalk, Co Louth
Respondent(s) : Mr Aaron Shearer B.L.
The determination of the Tribunal was as follows:-
At the commencement of the hearing the claimant’s representative made an application to add a claim for minimum notice under the Minimum Notice and Terms of Employment Acts. The respondent did not object and the Tribunal agreed to add a claim for minimum notice to the claim.
The respondent company is an accountancy practice where the claimant was employed as a trainee accountant from June 2008. Company director (GE) was not involved in the recruiting of the claimant. On the 18th September 2013 he received a telephone call from a senior auditor (MM) expressing concerning about the claimant’s behaviour in the office of a client on the previous day. The complaint concerned the claimant’s alleged refusal to carry out work which she was instructed to do in the presence of the client. GE requested MM attend the office on 19th September 2013 to detail her complaint. GE also learned from another director that the client had complained about the claimant’s behaviour.
The claimant was called to a meeting on the same day and handed a letter suspending her with pay pending an investigation meeting arranged for the following day. A number of letters were exchanged between the parties which were opened to the Tribunal. The claimant sought written details of the allegations made against her and an explanation as to why she was suspended. In order to progress the investigation an independent director (RB), who had no day to day dealings with the claimant, was appointed to chair the investigation meeting. This meeting ultimately took place on the 4th October 2013. RB reported back to GE that the claimant had failed to engage in the investigation process. The directors met and jointly decided to dismiss the claimant on the grounds that she frustrated her contract of employment by failing to engage in the investigation process. GE explained that the allegations were not fully set out in writing as the process was only at the investigation stage and the respondent wanted to avoid any embarrassment for MM or the client involved. GE accepted that the dismissal letter did not include a right to appeal the dismissal.
RB gave evidence of meeting the claimant on the 4th October 2013 for the purpose of investigating what had happened on the 17th September at the premises of a client. The claimant attended but failed to participate at the meeting. RB was involved in the directors meeting at which the decision to dismiss the claimant was made.
MB gave evidence. He is responsible for the audit portion of the practice and audit sign off. He received a phone call from a client, EH, on 18th September 2013. She advised him of an incident that had occurred that day between two of the respondent’s employees. The claimant had allegedly refused to carry out an instruction by MM in that she failed to hand over documents for review during the course of an audit. EH reported that the claimant had been aggressive in her manner. Her employees felt uncomfortable having witnessed it and EH felt it was necessary to report it. MB did not ask EH to provide a written statement as it was an internal matter. He made a note of the phone call which he believed was read out to the claimant at the meeting on October 4th 2013. A copy of the note was not provided to the claimant. When MB advised GE of the phone call he learnt that MM had advised GE of the incident.
At a directors meeting the following day the incident was discussed. They were annoyed that the alleged conduct of the claimant and the client reporting the incident was painting the company in an unprofessional light. It was agreed that an investigation meeting be held with the claimant and, rightly or wrongly, to suspend her on full pay. The meeting was to put the matter to bed and at that juncture there was no intention to dismiss the claimant. The witness had no further involvement in the process with the claimant. He was part of the directors meeting when it was decided to dismiss the claimant due to her frustration of the investigation process.
The witness was cross-examined. He did not believe an informal process suited the situation. At a previous appraisal he had flagged to the claimant that she could be overbearing and so he had to follow the process. He agreed that the claimant had asked him to explain the allegations fully and he said it would be put as part of the interview.
GE disputed the claimant’s holiday pay claim. The claimant had taken 17 days’ annual leave. Employees were entitled to 20 days leave with an additional three days for Christmas and one for Good Friday. An extra day’s leave after five years’ service would not apply for the claimant until the year after the dismissal. The claimant was paid until 9th October 2013.
Summary of Claimant’s Case:
The claimant commenced as a trainee accountant in June 2008. The employment was uneventful until she was suspended on 19th September 2013. She was given a copy of the disciplinary procedure at that time. She was unhappy that she had not been provided with the updated disciplinary procedure prior to this.
She recalled three conversations with MM during the client audit. Firstly, the claimant raised an ethical issue in regard to preparing files for accounts prior to auditing them. On the second day MM asked the claimant, in front of the client’s employees, to copy her work to a USB stick so it could be reviewed. The claimant was very embarrassed by this request and the manner in which it was expressed. She had not completed her work as she did not have some numbers required. She asked that MM speak to her in private only. The following day MM asked how she was getting on and the claimant explained how embarrassed she had felt the previous day. MM said that was how audits worked and if the claimant had a problem she could ring GE. The claimant did not believe she had behaved aggressively towards MM. She felt embarrassed by the conversation.
On 19th September 2013 the claimant was at her desk when GE approached and asked her to follow him. He gave her a letter and asked her to read it. She saw that she was being invited to an investigation meeting. She asked GE what the allegations were but he said he did not know. She was very shocked. GE said she could go home. Back at her desk she realised she had been suspended. She left but came back and spoke to MB to find out about the allegations being made against her. MB said he did not know and could not get involved at that stage. She asked for and was given a copy of the disciplinary procedure. She indicated that she would not be attending the meeting the following day as she needed to seek advice and she confirmed this later by email. She denied that she was refusing to attend.
The claimant sought clarification of the allegations by letter of 23rd September 2013. The company’s response on 24th September 2013 did not explain further but stated that policy entitled the company to suspend her. She wrote again. She was concerned that there was a delay between receiving the company’s letters and when they were dated. The company then wrote on 30th September 2013 to invite her to a meeting on 4th October 2013. In terms of the reasons for the investigation the letter included reference to ‘insubordination pursuant to the disciplinary procedure, issues of co-operation and not following instruction, inappropriate professional conduct and proper consideration for your colleagues’. All of these are listed as gross misconduct therefore it was felt a suspension was warranted. At that stage the claimant then felt her employer was going to dismiss her. She attended the investigation meeting with RB and was happy at the time that he was impartial. However he only asked her what happened and did not show her any statements from anyone else and said he had not spoken with anyone else. He said he just wanted to hear what happened from her. He read out a note of the phone call between EH and MB. He said he had notes from MM but she did not see them. She did not request them as she thought she would receive them. The claimant thought the meeting ended positively; there was to be a further meeting and she would be getting documents.
She was confused by the next letter from RB which concluded by requesting the claimant to contact him by the following Monday to ‘confirm how we intend to conclude this matter’. The claimant replied that she wanted the complaints in writing prior to any further meeting or else the matter be referred to the LRC. The claimant then received her letter of termination of employment. There was no appeal offered and she was not paid in lieu of notice. The claimant gave evidence of her loss.
The Tribunal carefully considered the evidence of both parties in this case. It is the respondent’s case that the claimant was dismissed not for any alleged misconduct while attending an audit at a client’s office with her manager but rather for failure to co-operate with the ensuing investigation.
Having reviewed the documentation opened by the parties it seems that both became entrenched quite quickly leaving little possibility of a positive outcome. The claimant maintained a position that she did not know what the suspension was for and what the allegations against her were. During her evidence in chief and under cross examination it was clear to the Tribunal that she knew well an incident occurred in the client’s office on 18th September 2013 but did not attach the same significance to it as her employer did. The letter of 30th September 2013 from her employer clearly set out the reasons for the investigation as far as the Tribunal are concerned. Furthermore, she gave evidence that she told RB in their meeting she wished to resolve the matter however this was predicated on her being provided with ‘details of the allegations against her’. The correspondence opened to the Tribunal appears to show the claimant adopting a combative approach towards her employer.
The respondent in turn took a view that a client calling to complain about an employee was unacceptable in terms of reputational damage to the company. The claimant was suspended with pay immediately apparently to prevent any further embarrassment to the company and to avoid the claimant approaching the client in relation to the complaint. The initial suspension letter dated 19th September 2013 was basic in its terms and referred only to an incident which resulted in the suspension and the proposed investigation to follow. In reply to a letter from the claimant the respondent stated on 24th September 2013 that in accordance with company procedure they were entitled to suspend an employee with pay to investigate any allegation of misconduct. GE also pointed out that the process at that juncture was not disciplinary but investigatory. In further correspondence dated 30th September 2013 GE set out the reasons for the investigation and notes that the process remains investigatory at this stage and they require the claimant to attend an investigation meeting. The investigation meeting took place on 4th October 2013 following which the respondent wrote to the claimant effectively saying that they could not complete the investigation due to her lack of participation. Following an exchange of correspondence with the claimant a letter of dismissal issued on 9th October 2013 stating that she was dismissed for frustration of her contract as a result of her failure to engage with the investigation.
For the Tribunal, it is difficult to see how the respondent arrived at this sanction particularly where it was communicated to the claimant in late September that the process in relation to the alleged misconduct up to that stage was not disciplinary but rather investigatory. The Tribunal’s role is to assess whether the respondent acted fairly and reasonably in all of the circumstances. The respondent jumped from an investigation process with no intention to dismiss to actually dismissing the claimant for failure to engage in that investigation. The Tribunal were consistently referred to the disciplinary procedure by both parties during the hearing. On reviewing same there are any number of options open to the employer in terms of sanctions i.e. verbal warning, first written warning, second written warning, final written warning, dismissal or ‘other sanction’. None of these seem to have been considered. The Tribunal believe that the dismissal of the claimant on 9th October 2013 was disproportionate and therefore unfair.
However the Tribunal also believe that the claimant contributed significantly to her own dismissal by her actions during the course of the investigation. Having considered the evidence of the claimant in relation to alternative work the Tribunal awards the claimant a reduced award of €16,500 (sixteen thousand five hundred euro) under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal awards the claimant €1,500 (one thousand five hundred) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The Tribunal dismisses the claim under the Organisation of Working Time Act 1997.
Sealed with the Seal of the
Employment Appeals Tribunal