ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014020
Richie Browne Unite the Union
Breffni O’Neill HR Consultant,
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 28/08/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as a Senior Customer Adviser from 1st July 2007 to 21st February 2018. He was paid €2,439.00 per month. He has claimed that he as unfairly dismissed and has sought compensation.
Summary of Respondent’s Case:
At the time of the dismissal the Complainant was deemed to be in a ‘Control Function’ role under the Central Bank Fitness & Probity requirements. Employees who hold such roles must abide by the Fitness & Probity Standards set out by the Central Bank. These standards require employees to be Competent and Capable; Honest, Ethical and to Act with integrity; Financially sound. Where a regulated financial service provider becomes aware that there may be concerns over the fitness and probity of a person performing a Control Function role, the Central Bank of Ireland expects that it will be investigated and appropriate action taken without delay.
On 27th September 2017 the Complainant advised his manager that he may have advised a customer to sign her former husband’s name on the back of a bank draft, made payable to the customer and her former husband, to facilitate the lodging of the bank draft into the customer’s account. This disclosure was made by the Complainant on foot of a call received from another branch relating to the bank draft lodged on 25th September 2017. The Bank’s Cheque Handling and Cashing Policy requires that a draft payable to two persons must either be lodged to the joint account of those two persons or if it is to be lodged to the sole account of one of them, the other party must endorse their name on the back of the draft to facilitate the lodgement. The customer who signed her husband’s name on the back of the cheque called in to the bank and confirmed that the Complainant had advised her to do so. The matter was escalated to a disciplinary investigation on 3rd October 2017. During the investigation the Complainant admitted that he instructed the customer to sign her husband’s name on the back of the cheque to allow it to be lodged to her named account only. The Complainant stated that he was unaware that the other person was her former husband. He also confirmed that he was fully aware of the company policy on Cheque Handling and Cashing Policy. The investigation process operated in line with the Bank’s Disciplinary Procedure and he was afforded his rights under natural justice and associated legislation. The disciplinary hearing took place on 7th November 2017. The outcome was that he had breached the Bank policies of Cheque Handling and Cashing Policy, Fraud Prevention Policy, Code of Ethics. His action amounted to advising a customer to commit a fraudulent act of forging a signature and as such it was deemed gross misconduct and a sanction of dismissal with immediate effect being applied. This decision was appealed on 2nd February 2018.The decision to dismiss was upheld and communicated to the Complainant on 20th February 2018.
The decision to dismiss was reasonable and not unfair. His conduct breached three of the Bank’s policies. The Bank operates a zero-tolerance approach to conduct and activities that are deliberate in their actions. The Complainant advised a customer to commit a fraudulent act and breach three policies and in doing so caused a financial loss to the named party on the bank draft.
In the context of both the regulatory environment that they operate in and also the journey that the entire banking sector is on relating to rebuilding trust in the industry such deliberate actions and conduct cannot be tolerated.
The dismissal was not unfair and this complaint is rejected.
Summary of Complainant’s Case:
On 27th September 2017 the Complainant disclosed to his manager that on 25th September 2017 he may have advised a customer to sign her ex-husband’s name on the back of the cheque in order to facilitate lodging the cheque to her account. This matter was then investigated in accordance with its own internal procedures. The investigation found that he had a case to answer. A disciplinary hearing took place on 7th December 2017. On 2nd January 2018 he was advised that the decision was made to dismiss with immediate effect. He appealed the outcome on 2nd February 2018. On 20th February the Bank upheld the decision to dismiss.
The following are the reasons why this dismissal was unfair.
He had a clean and unblemished record for 10 years and 6 months.
He has acknowledged that his actions were a serious breach of the Banks policies of Cash Handling and Cashing policy, Fraud Prevention policy, Code of Ethics. He realised the error in judgement and admitted his wrong doing and guilt. He never tried to justify his actions or seek to hide them from his employer.
He has apologised for his mistake. There was no malice or intent in his actions and he did not gain personally from this transaction.
He has never advised a customer in this way before.
He was allowed to remain in his role for two months following this event. There were no repeat occurrences or any further breaches of policies or codes.
The Respondent stated that the reason to dismiss was because of the breach of the bond of trust but they allowed him to work for two months after the allegations came to light. The Bank did not seek to suspend him, move or transfer him. The Respondent did not show a consistency of approach and are in fact contradictory in their actions.
The sanction imposed is too severe and disproportionate to the offence and a lesser sanction should have been applied. They could have considered suspension without pay, special probationary period, demotion and retraining.
Mitigation of loss
He has been out of work since. He has applied to the Airport Authority, Revenue, Post Office, IKEA and also through family and friends. It has been very difficult explaining why he left the Bank.
He is seeking compensation.
Findings and Conclusions:
I note that the Complainant stated that he ‘may’ have advised a customer to sign her ex-husband’s name on the back of the cheque.
I find that this was not a clear admission that he ‘did’ the alleged wrongdoing.
I note that he was unable to explain why he did this.
I find that he did not gain personally from this transaction.
I find that he advised his manager following a call from another branch therefore he did not initiate admission.
I find that he accepted that he knew the policies and procedures concerning this transaction.
I note that he has accepted that he breached the Bank’s policies of Cash Handling and Cashing policy, Fraud Prevention policy and Code of Ethics.
I note that he has acknowledged his wrong doing and apologised for it.
I find that his actions compromised the Bank’s reputation.
I find that his actions constitute serious misconduct warranting serious disciplinary action.
However, I find that his actions did not constitute gross misconduct.
I find that the dismissal was substantively unfair but the Complainant has contributed substantially to his dismissal.
I find that the Respondent carried out the investigation and disciplinary investigation in accordance with the company’s procedures. This was acknowledged by the Complainant’s representative.
I note that the Complainant acknowledged his wrongdoing immediately and apologised for it.
I find that he was not motivated by personal gain.
I find that he was allowed to continue working in the same section, in a position of trust for a period of two months after the incident came to light.
I note that the Respondent did not suspend him with pay pending the investigation and disciplinary investigation.
I note that the Respondent considered alternatives to dismissal but did not choose any of them.
I find that the punishment did not fit the crime.
I find that if the Respondent could trust him for two months after this incident came to light then they could have extended this and apply any number of lesser sanctions, as suggested by the Complainant.
I find that he made reasonable attempts to find alternative work but has been hampered by the dismissal.
I find that the dismissal was rendered procedurally unfair.
I note that he has sought compensation.
I find that the dismissal was both substantively and procedurally unfair but that he has contributed substantially to his dismissal. This has to be taken into consideration when deciding the quantum of the award.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that the dismissal was both substantively and procedurally unfair.
I have decided that the Complainant has contributed substantially to his dismissal and this must be reflected in the quantum of the award.
I have decided that the Respondent should pay the Complainant €10,000 in compensation for the unfair dismissal. This is to be paid within six weeks of the date below.
Dated: 26th October 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Unfair Dismissal, sanction disproportionate