EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Frances Kielthy -claimant UD271/2013
Sheridan Insurances Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr N. Dowling
heard this claim at Wexford on 11th July 2014 and 7th October 2014
Mr Eric Furlong, Coughlan Kelly, Solicitors, New Ross, Co.
Ms. Rosemary Mallon B.L. instructed by Mr. Kevin Barry, O'Shea Barry, Solicitors,
4 Wellington Road, Dublin 4
Dismissal as a fact was not in dispute between the parties.
The claimant held the position of commercial account executive with the respondent company whose business is insurance brokerage. The claimant commenced her employment with the company in November 2009.
Summary of evidence:
The Commercial Director of the respondent company gave evidence that as a commercial insurance account executive the claimant reported to him. The claimant had 17 years’ previous experience in the industry before joining the respondent’s company and she is a certified insurance practitioner. The claimant held a senior position and was responsible for premiums totalling hundreds of thousands of euros. The Commercial Director outlined to the Tribunal that a premium is receipted once it is received and there is a legislative requirement for a S.30 receipt to issue to the client.
The claimant’s brother undertook gardening work at the Commercial Director’s home on a regular basis and he also held a non-commercial insurance policy through the brokerage services of the respondent. Employee L was responsible for his account. The premium for his policy fell due for renewal in December 2011. A reminder letter was issued to him in December 2011 that the premium remained outstanding and a further and final reminder letter issued to him on 17 January 2012.
The claimant’s brother sent a text message to the Commercial Director in February indicating that he had paid the premium to the claimant. However, when the Commercial Director checked the computer system he discovered that the premium was still outstanding and he told the claimant’s brother that he should take the matter up with the claimant. The claimant’s brother later told the Commercial Director that he had resolved the matter with the claimant.
However, on 3 April 2012 the insurance company that the claimant’s brother had the policy of insurance with issued him with a letter stating that they were aware the broker had not yet received payment for the policy and that unless the premium due was paid in full by 13 April 2012 the policy would be cancelled from that date.
A further text message issued to the claimant’s brother from the respondent’s computer system on 24 May 2012 stating that the outstanding premium must be paid before 30 May 2012 or his policy would cancel at midnight on that date. A record from the respondent’s computer system was opened to the Tribunal and showed a note on the system entered by Employee L on 29 May 2012 to the effect that the claimant had informed her that payment would be received on the Thursday of that week.
The claimant’s brother again contacted the Commercial Director and stated that he had paid the premium to the claimant in December 2011. As a result of this the Commercial Director met with the claimant informally on 30 May 2012 and raised the issue of the outstanding premium with her. The claimant told him that she had been chasing her brother for payment of the outstanding premium. It was the evidence of the Commercial Director that when he put it to the claimant that her brother maintained that he had paid her she told him that this was untrue and that she had warned her brother that the policy could be cancelled as a result of the non-payment of the premium.
Given the situation the Commercial Director arranged a meeting between himself, the claimant and her brother for the 1 June 2012 and he informed the claimant of this meeting by telephone. Before this meeting commenced the claimant spoke with the Commercial Director and told him that she had lied on 30 May 2012 as she had needed to buy some time. The claimant admitted that her brother had paid the sum for the premium to her but she maintained this was in January and not in December. The claimant had mislaid the money in her car or in the kitchen of her house and had forgotten about it. She told the Commercial Director that she would not ever have thought of stealing it and she handed him an envelope of money containing the amount of the premium. He informed the claimant that it was a serious matter.
Following this meeting the Commercial Director contacted the claimant’s brother and told him that the matter was resolved and would now be dealt with internally. He contacted his own brother who is the Chief Executive Officer of the respondent company and informed him of what had happened.
The Chief Executive Officer of the respondent company gave evidence that he is also the compliance officer for the company and he became aware of the matter at hand from his brother, the Commercial Director. A number of documents were opened to the Tribunal in the course of this witness’s evidence including the Consumer Protection Code 2012 of the Central Bank in relation to the general principles of a regulated entity and the importance of a S.30 receipt by virtue of which the consumer is deemed to have paid the premium. The respondent company’s specific procedures manual 2012 was also opened to the Tribunal specifically in relation to the sections covering the issuing of a S.30 receipt and the responsibilities of staff in relation to all transactions concerning the handling of clients’ monies. The respondent’s procedures are adopted to ensure compliance with Central Bank requirements. Each staff member signs a document stating that they are compliant with the Central Bank requirements.
Following the telephone call from the Commercial Director on 1 June 2012 about this matter, the Chief Executive Officer met with the claimant informally and asked her what had happened, how and why the money was outstanding for so long. The claimant was unable to explain. The Chief Executive Officer told the Tribunal that he was attempting to find out if there was anything behind the claimant’s actions that could mitigate matters. However, she said nothing that gave him comfort and he informed the claimant that she was suspended with pay pending an internal investigation. A subsequent letter to the claimant confirmed that the investigation was in relation to allegations that she had breached financial regulator procedures and internal procedures on cash handling. The claimant was invited to attend an investigation meeting on 13 June 2012 but when she arrived at this meeting she was unrepresented. The meeting was postponed to a later date to allow the claimant an opportunity to engage representation.
The company received a letter from a solicitor on behalf of the claimant dated 18 June 2012 stating that the claimant would not be attending any proposed investigatory meeting in circumstances where the matter had been fully investigated by the Commercial Director and that the claimant had already fully outlined the circumstances relating to the matter in hand. Employee L was not included in the investigation as the matter that was being investigated was the mishandling of customer money. The extension of the insurance cover by Employee L was not a breach of procedure.
The Chief Executive Officer gave evidence that the investigation meeting was to allow the claimant an opportunity as he felt that there must be something to mitigate her actions as he believed it was out of character for her. No decision on the matter had been taken and he responded to this effect to the claimant’s solicitor. Further correspondence ensued throughout June and ultimately a meeting was scheduled for 3 July 2012. The claimant again attended without representation but the Chief Executive Officer was reassured by the fact that she had sought legal advice.
Following from the investigation meeting the claimant was asked to attend a disciplinary meeting on 30 July 2012. The Chief Executive Officer stated that nothing further was advanced at this meeting and indeed the facts at issue were mostly agreed.
The Chief Executive Officer consulted with the Commercial Director and another staff member who dealt with compliance after this meeting. He then made the reluctant decision to dismiss the claimant from her employment. Nothing new was forthcoming from the claimant at the meetings and as the respondent’s business is dependent on trust due to the handling of clients’ monies he felt he had no option but to dismiss the claimant. He was also conscious of the serious repercussions had the claimant’s brother been involved in a road traffic collision. If there had been something to mitigate the claimant’s actions or show that it was a unique event he would not have ended the claimant’s employment. The claimant had the right of appeal to an external auditor but did not avail of this.
In reply to questions from the Tribunal the Chief Executive Officer stated when the other aged debt was checked there were no further findings of this nature against the claimant.
It was the claimant’s evidence that her brother contacted her on 17 January 2012 and told her that he would call to her house to pay the premium due. The claimant printed the invoice and Employee L printed the insurance certificate and disc. When her brother paid her in cash it was in an envelope with the invoice and she placed it in a kitchen cupboard. The claimant was not always based in the office and at times relations and friends would call to her house with cash as payment for insurance premiums.
On a number of occasions Employee L enquired from the claimant as to when the payment for the premium for the claimant’s brother could be expected. The claimant would then remember that she had the envelope somewhere in the house and that she should bring it in the following day but she did not give the matter due attention. The claimant recalled that Employee L contacted her in February 2012 regarding the outstanding premium in the aged debt ledger. The claimant told Employee L that she would pursue the matter with her brother but she did not tell Employee L that the money was at home in her house. On six or eight occasions she looked for the money but could not find it. The claimant stated that with hindsight she should have paid it herself as she easily could have done so.
When her brother told her that he had received a cancellation letter on the policy she told him that she would look into the matter but she did not tell him that she had lost the money as she was afraid he would think her stupid or that she had spent it. In hindsight, she felt maybe she should have told him what had happened and reassured him that she would take care of the matter.
As time passed the claimant was afraid that if she admitted she had lost the money or paid it herself then she would be in serious trouble for misplacing client money. The claimant did not know why she had not taken action to rectify the matter as she could have paid it herself but she knew that she was “in trouble” anyway. The claimant later said in evidence that had she paid the sum in April 2012, there probably would not have repercussions at that stage but she did not prioritise paying it at that time.
When called to the meeting with the Commercial Director on 30 May 2012 she panicked and told him she would talk to her brother about the matter when what she should have done was admitted what had happened at that stage. The claimant intended to get home and search everywhere in her house for the envelope containing the money. She wanted to find the envelope as it contained the invoice as well and it seemed logical to her at that time to find the invoice as well. The claimant finally found the envelope with the money in a bundle of documents that she had emptied out of a cupboard and put elsewhere.
The claimant gave evidence of loss and details of new employment she has taken up since her dismissal.
In circumstances where the facts of the reason for the dismissal have been proved the Tribunal need only address the following questions in order for it to determine whether the dismissal of the claimant was fair or unfair:-
(1) Was the sanction of dismissal warranted or proportionate in the circumstances?
(2) Were the procedures used in effecting the dismissal of the claimant fair?
Regarding (1) above the Tribunal finds that the dismissal was warranted and proportionate because if the respondent had not lost trust in the claimant it clearly and justifiably had lost confidence in her not because of the fact that she had lost a client’s premium but because of how she handled the matter thereafter.
Regarding (2) the Tribunal finds that the procedures were very fair and any extra layers added to the procedure were done in an effort to give the claimant every opportunity to explain her handling of the matter in order that the respondent might find some mitigating factor and be saved having to dismiss the claimant.
The Tribunal further finds that it was the claimant’s own actions that contributed to her dismissal.
Accordingly, the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal