EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
– Claimant UD1532/2013
Mayo North East Leader Partnership Company Teoranta T/A Mayo North East
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Castlebar on 21st April 2015
and 17th June 2015
and 26th August 2015
Claimant(s) : Ms Martina Weir, SIPTU, Member Information & Support Centre, Liberty Hall,
Eden Quay, Dublin 1
Respondent(s) :Mr. Ronnie Lawless, IBEC, West Regional Office, Ross House, Victoria Place,
The determination of the Tribunal was as follows:-
The company has responsibility for the managing and administering of development programmes on behalf of various government departments and the EU for the collective benefit of the people and communities of North and East Mayo. The claimant was appointed Chief Executive Officer in July 2009. The Department of the Environment, Community and Local Government informed the Chair of the board that a complaint was made alleging breaches of procurement rules. An internal investigation was conducted which pointed to the CEO who was subsequently dismissed.
The Tribunal heard in opening statements that the department took fifty eight files to review from the respondent company covering dates between the 11 September 2011 to March 2012. The claimant was never provided with details of the complaint received by the department. She received a redacted copy of the draft report prepared by the department.
The Tribunal heard evidence from the chair of the board (SK). In September 2011, the witness learned that the Department had received a complaint. Inspectors from the department took fifteen files as part of an investigation. A large number of errors were identified on the files. An interim report was received in March 2012 and which time the department suspended contracts with the respondent company. SK attended a meeting with senior management of the department in July 2012. It was her first opportunity to respond to the complaint. The senior inspector investigating the complaint produced two redacted emails from the CEO to a promoter seeking quotes to add to a closed file. This was a breach of the tendering and procurement rules. SK never asked to dismiss the claimant however she was told that it was clear from the errors on files that training must be provided.
SK met with the claimant and the projects concerned were identified. The claimant was concerned and apologised but later informed SK that she had done nothing wrong. She obtained a redacted copy of the complaint in August 2012. The claimant commenced a period of planned leave around that time and was due to return on the 3 September. A letter dated the 18 September 2012 to the claimant setting out the respondents concerns was opened to the Tribunal. The claimant was suspended effective from 2 October 2012 pending an investigation by an independent officer. Terms of reference on how the investigation would proceed were drawn up. The department’s investigation and final report was received in November 2012 while the internal investigation was ongoing. The board received the report from the internal investigation in February 2013 and having considered the report took the next decision to dismiss the claimant. The claimant was dismissed by letter dated the 1 March 2013 and offered the right of appeal.
The witness denied informing the claimant that the “department had sought a grand gesture” i.e her resignation. SK denied that the board members appointed as appeals officers were not unbiased and rejected the suggestion that the appeals officers should have come from outside the board.
BA the independent investigating officer gave extensive evidence of his experience in industrial relations.
He was contacted and requested to investigate a number of issues that had arisen within the respondent company. He was given a list of twelve concerns the company had. He met the claimant on three occasions and put this list to her. The claimant gave very detailed responses and told him, she felt, the Department was putting the respondent under a lot of pressure. The claimant’s union representative raised the issue on a number of occasions of the terms of reference of the investigation.
Having completed his investigation BA produced an investigation report dated February 2013. He found that there was an overlap between a number of concerns listed by the respondent, namely concerns one to three and concern eight which he felt related to the same matter. He upheld all concerns except concerns six, nine and ten which he felt related to a small number of incidents that went to the heart of the relationship between the claimant and the respondent’s Board. He felt the claimant’s actions threatened the survival of the respondent and seriously damaged the respondent’s relationship with the Department.
In conclusion he found the claimant’s conduct “falls to be considered under gross misconduct in the context of the disciplinary procedure.”
When asked BA stated he had conducted a fair investigation.
A Principal Officer from the Department of the Environment, Community and Local Government who managed the funding for the LEADER programs gave evidence.
An 89 page complaint regarding the respondent was submitted to the Minister. This complaint was forwarded to the witness through her superior whom she discussed the best way to deal with the matter. An investigation into the running of the respondent was instigated by the Inspectorate. As this investigation progressed other important issues were brought to light. A draft report and a final conclusion issued which found breaches of tendering procurement rules. Programs were not in compliance with EU regulations and the funding issued had to be recouped from the respondent leaving it with high debt.
When asked, the witness said she could not disclose who had lodged the original complaint as it was confidential. When put to her if the Department was “looking for a grand gesture”, she replied that she not been present at the meeting it had alleged to have been said. Although she had discussed the matter with the Inspector who attended this meeting and was informed it had not happened. She told the Tribunal that it was up to the respondent if they wished to ask the CEO of their company to resign.
A former colleague and member of Longford County Council gave evidence on behalf of the claimant. The claimant had worked as Assistant CEO and CEO for a total of 12 years in a similar business to the respondent in Longford. He found her to be an honest, reliable and trustworthy worker who worked well with her colleagues. He never had any concerns regarding her work or that of the staff under her supervision.
The claimant gave evidence of her previous employment of 14 years as Assistant CEO and CEO of the Longford LEADER project. In July 2009 she was appointed as CEO of the respondent’s company following an open interview process. She received a yearly remuneration of €98,000. However she later agreed to a 10% reduction of her yearly salary.
The respondent managed 9 programs that were funded by the Department of the Environment, Community and Local Government. The claimant reported to the Chairman and Board of the respondent company. She worked well with the Board and her staff and there were no issues raised concerning her or her staff’s work.
In March 2011 the claimant commenced maternity leave. Following an extensive complaint regarding the respondent received by the Department, SK requested the claimant return to work in September 2011. The respondent was not given a copy of the complaint or informed who had submitted it despite constant requests. An investigation commenced into the complaint in late September 2011. One aspect of the lengthy complaint related to the claimant.
On the 8th November 2011 a directive was issued from the Department that all CEO’s were to check all files before any payments were made. The claimant told the Tribunal that prior to November 2011 this had not been her responsibility. She complied with the directive and began checking all files. The Department’s Inspectorate began removing files from the premises and scanning the computer systems.
In January 2012 the claimant received a call informing her that an Inspector wished to speak to her. Emails from her computer were discussed. She admitted that one email requesting a quotation was sent to husband’s employer. She explained that she had sought this quotation to complete a file. She apologised for her non-compliance to the procedures.
In March 2012 a draft report was issued by the Department. One section of the report related to the claimant. SK produced the report to the claimant but she, the claimant, was not permitted to take a copy away with her. Then respondent set up a sub committee to review the report and issue a response. The claimant did not have sight of this response even though one section of it related to her.
On the 3rd August 2012 SK asked the claimant to meet her at her home. SK told the claimant that she had attended a meeting in Dublin with the officers of the Department of the Environment, Community and Local Government who had uncovered a significant quantity of administration errors in the running of the respondent company. SK said the Department wanted a “grand gesture” and the respondent was in no doubt that they, ‘the Department’, wanted the CEO’s resignation. The claimant told the Tribunal that she was shocked; they wanted her as a scapegoat.
On the 18th September 2012 SK wrote to the claimant informing her that an Independent Consultant (BA) would carry out an investigation. BA was given twelve concerns the respondent had regarding the claimant. A meeting was scheduled for the 25th September 2012. However, the claimant cancelled the meeting as her union representative was unable to attend. The meeting was re-arranged for the 2nd October 2012. She was also informed that “Failure to attend will be deemed to be gross misconduct on your part and you may be subject to further disciplinary proceedings.” The claimant met BA and advised him of the difficult position she was in as she felt compelled to attend the meeting or face disciplinary action.
An email dated the 2nd October 2012 was sent to the claimant from SK informing her that the respondent had no alternative but to suspend her with pay pending the completion of the inquiry.
She attended three further meetings with BA and her union representative. At these meetings her union representative consistently requested the terms of reference of the inquiry. The claimant gave BA a list of employees to interview regarding the respondent’s concerns. BA never interviewed them.
Correspondence crossed between the claimant’s union representative and the respondent and their solicitor. (This correspondence was opened to the Tribunal). The claimant told the Tribunal that she was concerned as the investigation had no agreed guidelines in which to follow.
In early December 2012 she received a copy of the respondent’s terms of reference through her union representative. She was shocked on reading the opening statement which stated “The (respondent), having lost all trust in the ability of (the claimant), the CEO of the Company to carry out her duties,…….”. On the 11th December 2012 she met BA and pointed out this statement to him. (Minutes of this meeting were opened to the Tribunal).
On the 7th February 2013 BA’s investigation report was received by the claimant and her union. The claimant’s union representative in turn wrote to the respondent’s solicitor regarding inaccuracies and omissions from this report. A meeting to consider the report was scheduled by the respondent with claimant on the 18th February 2013. The meeting took place and a follow meeting was scheduled for three days later. However, the claimant’s representative wrote to reschedule this meeting due to unavailability. The claimant told the Tribunal that that she had been informed at the meeting of the 18th that, if required, the respondent had already decided who would hear an appeal if any sanction was taken against the claimant. The claimant said it appeared the respondent had already predetermined the outcome of the next meeting and her employment status.
On the 1st March 2013 the respondent wrote to the claimant informing her of her dismissal due to gross misconduct. She was given the right to appeal this decision and did. The claimant told the Tribunal that the two persons who heard this appeal were two members of the Board who had been present at committee meetings were issues relating to her and the issues the Department had with the respondent company. The decision to dismiss her was upheld.
The claimant gave evidence of loss.
Under cross-examination she agreed that there had been an error of judgement on her part but did not consider dismissal to be a proportionate sanction.
Having carefully considered the evidence in this case, the Tribunal finds that the claimant’s dismissal fair. With regard to the procedural fairness, the claimant argued that the process was flawed. However, the Tribunal finds that the respondent completed a full and fair investigation and disciplinary process. While, the Tribunal accepts that the claimant was suspended at a meeting where she was not afforded representation, this was a meeting at the investigation stage. At this juncture, the lack of access to representation did not amount to a breach of fair procedure in the overall context of the procedures which were adopted by the respondent.
The issue of the substantive unfairness, or otherwise, of the dismissal is a matter which has to be determined by the Tribunal. The law requires the Tribunal to determine whether, or not, the respondent’s decision to dismiss was reasonable having regard to the nature and extent of the inquiry which was carried out by the respondent, and the conclusion which was reached by the respondent following this inquiry. In light of the facts gathered and the admissions on the part of the claimant herself, the respondent’s conclusion that the claimant’s actions amounted to gross misconduct was not unreasonable. Given the seriousness of the misconduct from the respondent’s point of view, the decision to dismiss could not be labelled as unreasonable.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal