ADJUDICATION OFFICER DECISION.
A bank official
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 is a bank official and was employed by the Respondent from 01/07/2000 until 10/05/2018.
This complaint was received by the Workplace Relations Commission on 06/07/2018.
Summary of Respondent’s Case:
The Complainant was employed as a Customer Services Advisor with the Respondent since 17th July 2000. At the time of the incident in question she was based in a Branch.
The Complainant’s role at the time of her dismissal was deemed to be a “Control Function” under the Central Bank of Ireland Reform Act 2010. Employees who hold “Control Functions” must abide by the Fitness and Probity Standards set out by the Central Bank.
These standards require employees who hold such roles to be
· Competent and Capable
· Honest, Ethical and to Act with Integrity
· Financially Sound
The Fitness and Probity Standards also outline that where a regulated financial services provider becomes aware that there may be concerns surrounding an employee’s 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.
SUMMARY OF CASE
On 9th September 2016, an elderly customer attended the branch and requested that a savings account be set up that would pay him interest on a monthly basis. Despite this specific request, the Complainant set up a different account in error, one which did not meet the customer’s needs. Having set up the account, she sent the paperwork, which included a Deposit Guarantee Scheme (DGS) form dated 9th September 2016 and which is required for opening an account, to the Respondent’s Admin Centre. A copy of the form was also scanned to the Bank’s imaging system from the Branch on 9th September 2016.
Having realised her error and without making either the customer or her line manager aware of it, the Complainant sought to remedy the matter and sent a change request, to the Respondent’s Admin Centre which was received on 27th September 2016. This resulted in the customer’s file being reviewed and found that the Deposit Guarantee Scheme (DGS) form, dated 9th September 2016 had a signature that appeared to be copied from another document associated with the same transaction that date in the file. It was also noted that while the DGS form itself was a copy, there was original handwritten details added to the copied form.
The Complainant was made aware that the DGS form appeared to have a copied signature and was also informed that the change in account could not be effected as the cooling off period had expired. This information was also sent to the branch on the daily errors report.
The apparent discrepancy was also highlighted to the Complainant’s line manager on the same day and he was advised to report the matter. The line manager subsequently contacted the Respondent’s Human Resources Department and an investigation into the Complainant’s role in the matter commenced on 29th September 2016, given that she was deemed to be the owner of the transaction.
The investigation, which concluded on 23rd January 2017 found that
· The Complainant admitted to having sold the incorrect product to the customer and one which was unsuitable for his needs and that she failed to highlight her error to management.
The Respondent is satisfied that the decision to dismiss the Complainant was based on conduct by her which represented a breach of both the code of ethics as well as the Respondent’s new account opening procedure for branches as outlined above. Her actions also had the potential to cause a breakdown of customer trust as well and expose the Respondent to considerable legal and reputational risk.
While the Complainant challenges the severity of the sanction, the Respondent’s position is that it cannot tolerate or accept such conduct from an employee given the regulatory environment in which it operates and the journey the entire banking sector is on in terms of rebuilding trust in the industry.
COMPLAINANT’S CONTRACT OF EMPLOYMENT
In order to understand the significance of the Complainant’s role within the Respondent Bank and the agreed and necessary parameters of such employment, it is necessary to have detailed regard to the terms and conditions that governed the Complainant’s employment.
The Complainant’s employment with the Respondent is expressly stated to be subject to the terms and conditions contained in her contract of employment. In addition to making specific references therein to the Respondent’s disciplinary and grievance procedures, in this document the Respondent emphasises its commitment to the continuous learning and professional development of its staff during the course of his employment.
The contract differs in a number of key respects from what might be regarded as a typical contract of employment in that it demands of the employee a significantly higher than normal level of probity and conduct reflecting the significance of the role in question and the level of trust necessitated of the incumbent.
Unlike most contracts of employment, the contract, for example, makes specific reference to the Complainant’s personal financial affairs and requires that they are kept in order. It also stipulates that no outside interests should conflict in any way with the employee’s duties and obligations as a customer service provider with the Respondent.
Tellingly, under the heading “Behaviour and Appearance”, the employee is reminded that:
“A high standard of personal behaviour and conduct is expected of all employees at work. In carrying out your duties and dealing with both internal and external parties, you are placed in a privileged position of trust. You owe a duty of care to these parties to the Company and to fellow employees and colleagues to conduct your affairs in an ethical manner”.
Later, under the heading “Duty of Care” the contract provides:
“The Company expects that high standards of performance will be maintained in all dealings with members of the public, other staff and representatives of other organisations. You are obliged to comply with both internal policy and regulatory requirements in relation to dealing with customers and potential customers”.
Appended to the said contract, the Respondent provided the Complainant with its Compliance Policy and Principles, which not only highlight the bank’s commitment to compliance with all legal and regulatory requirements, and the highest standards of integrity in all its business dealings, but formally emphasises for its staff the adoption of the principles of acting with honesty, due skill, care and diligence in all its business dealings.
Also appended to the said contract, the Respondent provides the Complainant with a copy of its disciplinary procedures, which, in addition to expressing a commitment to fairness and justice and all necessary procedural safeguards, makes it clear that serious instances of misconduct may result in dismissal and stipulates that gross misconduct includes such offences as “dishonesty” and “commissions of an act which is detrimental to the Company or brings the Company into disrepute”.
CODE OF ETHICS
The Respondent’s code of ethics provides a series of fundamental core principles and values of the bank designed to ensure and maintain trust and confidence in staff by both the Respondent, its customers and third parties. The Code explains that the principles listed therein are “essential to building and maintaining trust with our customers and more generally it contributes to public confidence in Ireland’s banking system and refers to the importance of “upholding the highest level of professional and responsible behaviour”.
The Code highlights the imperative of meeting the Respondent’s legal and regulatory requirements and its separate commitment to corporate social responsibility. Referring to these high standards, the Code stresses “[t]his is not just a ‘nice to have’ –it is a commitment that underpins how we work together”.
The Code which the Respondent provides “must be observed by all of our people”, specifically identifies the following five ethical standards:
· Integrity and honesty
Employees are warned that if they fail to follow the Code, or if they fail to report something that has broken the principles of the Code, they may face disciplinary action, including dismissal.
Under the heading “Being of Good Character” the Code specifically provides that “you are required to
· Be honest and open in all your dealings
The Code then spells out specific examples of “matters which would be regarded by the Respondent as practices conclusive of lack of appropriate good character” and specifically includes in this regard:
· Falsification of documents
Under the heading “Error – Prevention and Reporting the Code provide
“You must not ignore, conceal, or attempt to conceal errors, whether personally committed or committed by other individuals. You are expected to report all errors that you become aware of to your line manager”.
Under the heading “Professionalism” the Code refers to fitness and probity and specifically provides that :
“If you hold a role that is classified as a “Controlled Function” as defined by the Central Bank Reform Act 2010 (Sections 20 and 22) Regulations 2011, it will be necessary for you to meet the requirements as set out in the Fitness and Probity Standards issued by the Central Bank.
These requirements obligate the company to regularly complete due diligence to assess employees’ fitness and probity”.
Under the heading “Compliance – Individual Accountability” employees are informed that, as employees of a financial institution and professional bankers, they must act with the utmost of food faith (uberimae fides) and that “[i]f you have any doubt about the appropriate ethical behaviour that should be adopted in a given circumstance, refer the matter to your Line Manager”.
Staff are required under the Code to keep to the letter, intention and spirit of the Code, to act honestly and openly in all their interactions and to confirm annually that they have read, understood and complied with the relevant policies and the Code itself.
Appended to the Code, employees are provided with summaries of the requirements separately contained in the Consumer Protection Code and the Group’s Key Principles for Conduct Risk Management.
NEW ACCOUNT OPENING PROCEDURES FOR BRANCHES – DGS
The Respondent’s new account opening procedure for branches highlights the requirement for all customers opening deposit and current accounts to sign a Deposit Guarantee Form. This procedure was issued to all branches in November 2015.
The procedure states that the first part of the form must be signed by the customer and retained with the account opening documentation. The procedure also adds that the signed form must be scanned to Application Storage and the hard copy sent to the Admin Centre that evening.
MITIGATION OF LOSSES
If, which is denied, the Complainant was unfairly dismissed for the purposes of the Unfair Dismissals Act 1977, the Respondent makes the following submissions:
It is submitted that the Complainant is required to show adequate mitigation of losses, pursuant to Sections 7(2)(b) and 7 (2)(c). In assessing the Complainant’s duty to mitigate losses, it is submitted that the Court must have regard, inter alia, to the extent (if any) to which any financial loss was attributable to an act or omission by the Complainant. Further, it is submitted that the Court must then have regard to the measures (if any) adopted by the Complainant, or, her failure to adopt measures to mitigate her losses.
The duty commences from the date of any alleged dismissal and is a continuous duty until the hearing of the claim. In the absence of any evidence to the contrary, it is submitted that the Complainant has failed to mitigate any alleged losses. The EAT considered the question of mitigation in Sheehan v Continental Administration Co Ltd. It stated that
“A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work [….] The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.
With prejudice to the foregoing, it is submitted that the Complainant substantially contributed to any financial loss.
An application of the relevant to the facts set out herein shows that the Complainant’s claim is misconceived and without merit.
It is submitted that at all material times the Respondent acted both fairly and reasonably in its dealing with the Complainant and that its decision to impose a sanction of dismissal was, in all the circumstances, reasonable and proportionate.
Summary of Complainant’s Case:
At all points throughout the hearing process the Complainant maintained that she had not falsified a customer’s signature.
The Complainant sent an email to the Respondent’s appeal manager entitled “Final AppealResponse”, this document (17 pages) contains the points that the Complainant wishes to make in relation to her dismissal:
1. Failure of the Respondent to issue the final report in connection with the bullying and harassment complaint against her branch manager (Mr GC). Report was dated 21/02/2018 and the Complainant did not receive a copy until 05/03/2018.
2. During the course of the fact-finding investigation the Complainant alleges that she was subjected to inappropriate and unwelcome behaviour by her manager.
3. On 28/09/2016 the Complainant was requested to meet the branch manager in his office due to his concerns in relation to an error report that he thought the paperwork in question had been doctored and the Complainant was responsible for her work.
4. On 29/09/2016 the Complainant was requested to attend the branch manager’s office and spoken to in an inappropriate manner. The Complainant contends that she was denied her right to a witness or union representative and was given no support. It is further contended that the Complainant was advised that this was a serious allegation and that she could lose her job.
5. The manager was aware of the Complainant’s health problems and made no allowances for this in relation to the timing of meetings.
The Complainant emailed an area manager (Mr JOL) ON 29/09/2016 and raised some concerns in relation to the branch manager being appointed as one of the investigators, it being the Complainant’s opinion that he had already made up his mind in relation to the signature on the document. She also raised the issue of being asked to attend meetings unrepresented by her union official or a colleague. Another point raised in this email was that the Complainant was not advised about the availability of the Employee Assistance Programme (EAP) and in not doing so the Complainant feels that the Respondent has failed in its duty of care to the Complainant.
Once the initial investigation was commenced additional allegations were introduced, these were as follows:
· The paperwork submitted to the bank centre had been altered.
· The paperwork submitted to the bank centre was a copy and not an original document.
· The product sold to the customer was not suitable for his needs.
The Complainant has also raised the point of being refused the right to interview the main witness, the customer in question. It is the Complainants opinion that this is a fundamental flaw in the entirety of the investigation.
The Complainant also points to the fact that she works in an open office and it is possible that something may have happened to the documentation while she was on a break.
Findings and Conclusions:
The Respondent in this case made a substantial written submission whereas the Complainant’s representative relied on questioning the veracity of this submission and also from questioning the Respondent’s witnesses.
At all points throughout the hearing process the Complainant maintained that she had not falsified a customer’s signature.
As the Adjudication Officer in the hearing of this complaint my duties can best be summarised as the Employment Appeals Tribunal summarised in the case of Looney & Co Ltd v Looney UD 843 / 1984:
‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’
My job in this instant case is to look at the actions of the Respondent and decide if they have acted as a reasonable employer would have acted in similar circumstances. I will also look at the process followed by the Respondent, was it appropriate and fair and did the Respondent follow their own procedures.
I find that the Respondent has followed their own procedures and that the incident was fully investigated. The Complainant has raised points in relation to the way in which she was treated by her branch manager, this complaint was fully investigated and a comprehensive report compiled by an independent investigator was presented, this report clearly shows that the matter was taken seriously by the Respondent and its findings fully exonerate the branch manager, the Complainant was not the victim of bullying at the hands of the branch manager.
To achieve a level of understanding of the magnitude of the alleged offence I believe it is necessary to read the outcome of the disciplinary process i.e. the letter of dismissal, the final section of this letter under Decision reads as follows:
“The consequences of altering a customer transaction document in this manner are extremely serious. We are mindful of the fact that the DGS form which is at the centre of this matter has a statutory basis. The revised Deposit Guarantee Scheme Regulations require that all customers opening Deposit and Current Accounts must sign such a form. The Bank took the step of issuing specific procedures (New Account Opening Procedures for Branches – DGS) to all Branch staff in advance of the introduction of the revised Deposit Guarantee Scheme Regulations in order to emphasise the importance of complying with these Regulations and to set out how compliance can be achieved.
We are also obliged to have regard to the fact that you carry out a controlled function for the Bank and are therefore required to adhere to the standards of fitness and probity expected by the Bank’s Regulator. The Fitness and Probity Standards require persons holding controlled functions to be honest, ethical and to act with integrity. Your ability to comply with the Fitness and Probity Standards is fundamentally undermined by your actions.
While it is acknowledged that your actions in altering the DGS form did not result in any financial gain for you or any financial loss to the Bank or the customer in question, we do not consider this to be an influencing factor in the overall decision. Your apparent failure to follow the Bank’s procedures by having the DGS form signed and your subsequent action of copying the customer’s signature onto the form from another source is what is relevant to our deliberations.
The alteration of a transaction document is an extremely serious matter which could potentially expose the Bank to reputational damage and undermine its relationship with its customers, which it works extremely hard to maintain and protect. Additionally, it fundamentally undermines the trust and confidence the Bank can have in any staff member who engages in this conduct. Given the nature and gravity of your actions, we have no alternative but to find that your actions amount to gross misconduct.
It is with regret that we inform you that the Bank has lost trust and confidence in you as a consequence of the above findings. The Bank cannot tolerate a situation where an employee of your seniority and experience has been directly involved in gross misconduct relating to the altering of a customer transaction document. We confirm that you will be dismissed with immediate effect from the date of this letter by reason of gross misconduct and the loss of trust and confidence in you as an employee of the Bank.
We have considered alternatives to dismissal and whether any lesser sanction would be appropriate in the circumstances. In particular, we have given due consideration to your length of service and employment history with the Bank. However, given the gravity of your conduct and the fact that you occupy a controlled function and a position of trust in the Bank in terms of your dealings with customers, we believe the appropriate sanction is the termination of your employment.
You are entitled to appeal this decision by submitting your grounds of appeal in writing, within 10 days of the date of this letter to the Head of Policy Performance and Employee Relations. If you chose to appeal this decision, the dismissal will be stayed pending the outcome of the appeal.
Please note, should it be the case that you become medically fit to return to work pending the outcome of an appeal, you must submit a medical certificate confirming same to your line manager. You will then be placed on suspension with pay pending the outcome of an appeal. You should not report to work during this time”.
The decision to dismiss was appealed by the Complainant and appeal hearings were held on 7th June 2017 and 31st January 2018. Following the hearing there was a delay and the reason for this delay was explained in his letter by the Appeals Officer. The outcome of the appeal is dated 9th May 2018.
The appeal officer examined and considered the following:
1. The Complainants appeal document and additional appeal submission.
2. All documentation pertaining to the investigation and disciplinary process.
3. All documentation requested by the Complainant.
4. Report of investigation into complaints made by the Complainant against her branch manager.
The appeals officer has gone through all the issues and addresses each issue in a very comprehensive manner in his appeal outcome letter, he is to be complimented for the quality of his work.
The decision to dismiss the Complainant was upheld at appeal.
In coming to a decision, I have no alternative but to accept that the decision to dismiss was a decision made by a reasonable employer who fully investigated the facts and on the balance of probability took the decision to dismiss the Complainant.
The complaint as submitted by the Complainant is not well founded and therefore fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
As outlined above.
Workplace Relations Commission Adjudication Officer: