ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020660
A Human Resource Practitioner
A Marketing Company
Nikki O Sullivan, BL instructed by Frank Buttimer & Company
Rachel O Flynn, BL instructed by Lillian O'Sullivan & Co.
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 Hearings: 11 September, 12 and 13 November 2019, 10 January 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with 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.
This case concerns a claim for Unfair Dismissal on grounds of gross misconduct on 29 November 2018. The claim was rebutted by the Respondent.
The hearing took place across four days and both parties were legally represented: the complainant by Nikki O Sullivan, BL instructed by, Frank Buttimers Office and the respondent by Rachel O Flynn BL instructed by Lillian O Sullivan Solicitors.
The Respondent presented 5 witnesses and the complainant was the sole witness in her case. Both parties made extensive oral and written submissions and relied on case law.
The complainant expressed a preference for all 3 remedies as redress.
Summary of Respondent’s Case:
Counsel for the Respondent provided an outline of the case. The complainant had commenced work as an Organisation and Development Training lead on a full-time basis on 28 October 2014. She had left for a period of 4 months but resumed in July 2016.
The Respondent denied that the complainant had been unfairly dismissed and submitted that she had been dismissed in accordance with section 6(4)(b) of the Act on conduct.
The Respondent operates a practice where the company pays 2/3 salary during protective leave and the recipient sanctions a redirection of her maternity benefit to the company by completion of a form. This form is populated by administrative details of the leave dates and bank account details.
Employee A had a recorded Maternity Leave from August 2017 to April 2018.
On 13 February 2018, the complainant approached Ms HRM, Head of People Operations and expressed concern regarding maternity benefit payments for Employee A. The complainant told Ms A that she had made an error and had mistakenly entered her personal banking details onto the employee’s form. She had received these DSP (Department of Social Protection) payments. The Complainant reimbursed the money.
The Respondent suspended the complainant on full pay pending an investigation “into the irregularity in the manner whereby payment of another employees maternity benefit was paid to her bank account “
An Investigation took place on 23 February,9 March 2019. A draft Investigative report issued on 26 April 2019. The complainant made replying submissions and following a period where the complainant was unwell, the respondent allowed time for her recovery and issued the Final Investigation Report to the complainant on 31 July 2019. The Company determined that further action was needed.
The Respondent commenced the Disciplinary procedure and two senior Managers, Mr Z and Mr Z two were appointed to meet with the complainant on 14 august 2019. She attended alone. Having considered the conclusions of the Investigative report, and hearing from the complainant, the respondent terminated the complainant’s employment on grounds of gross misconduct without notice on 16 August 2018.
The complainant forwarded her grounds of appeal on 20 August 2019 and the Appeal hearing by Ms AB and Mr AB was scheduled for September 3, 2019. The complainant attended alone.
The Respondent wrote to the complainant by letter of 29 November and did not uphold her appeal. They indicated that they took the view that the decision to terminate the complainant’s employment for gross misconduct was both warranted and appropriate as the company could no longer have trust and confidence in her. They did not accuse the complainant of fraud or theft.
The Respondent came to hear to defend this decision. They relied on Section 6(4) (b) on conduct and added that natural justice and fair procedures had prevailed from the first expression of concern at the company. The complainant was offered representation and had a partial presence of representation during the investigation alone. The respondent accommodated the complainant in recovering from illness during the process.
The respondent had engaged in a very thorough consideration of the facts raised and stood over the decision taken to dismiss the complainant and were opposed to all her expressed remedies.
Evidence of Ms HRM, Head of Human Resources
Ms HRM had been in her role for 14 years in this fast-growing company bilocated between Ireland and the United States.
Her Team consisted of:
The Complainant, most senior and experienced
Ms M, a junior colleague
The office was open plan and both the complainant and Ms M sat at accompanying desks.
Ms HRM outlined the Company Maternity Leave arrangements. The company paid the employee 66% of salary after two years’ service. The value of the maternity benefit was then aligned to the company bank account.
1. Employee fills out the details of leave on a company form.
2. The company fills in the bank details, signs and stamps the form.
The completed form is scanned and ultimately placed in a folder.
On the cusp of her return from a business trip to the states, Ms HRM had been contacted by Ms M to raise an awareness of some irregularity in relation to the receipt of maternity benefit. On her return to work the next day on 13 February 2018, Ms HRM was informed by Finance that an anticipated €3,760 in maternity benefit for employee A had “gone somewhere else “Finance was dissatisfied.
The issue became a top priority for Ms HRM as she contended that it was her responsibility to understand.
Later that morning. she had a scheduled catch up with the complainant, as she had concerns regarding her recent presentation at work. Just before the meeting was due to start, she observed slightly raised voices between the complainant and Ms M.
The Complainant presented as animated holding an old colourful notebook and told her that she had made a terrible mistake. Employee as Maternity Benefit Payment had entered her personal bank account. She had just realised this as she opened her notebook in conversation with a colleague. Ms HRM was crystal clear in her recall that the complainant told her that she had filled in this form.
Ms HRM thought it odd that she then linked this occurrence to an unresolved issue of an outstanding referral fee. she had been disappointed not to receive this payment in October 2017. She explained that the personal bank account was a saver for her sons’ education. Ms HRM told her that she had not judged her and advised her to go home and check her bank balance. The complainant became very animated and her voice became louder. The complainant left the office and raised her voice saying “I’m suspended pending investigation “
Later that day, the complainant returned to the business and handed a bank draft for €3760 to the Chief Financial Officer. She did not address Ms HRM on the matter.
Ms HRM made the CEO aware and an investigation was planned. The Complainant was suspended by Ms HRM on full pay the next day by phone. The Complainant was assigned a Coach to assist her welfare.
Ms HRM met with the Investigators Mr X and Mr Y and a formal investigation followed from which Ms HRM stood back.
Ms HRM submitted that prior to her trip to the US Ms M had raised issues regarding the complainant. She had highlighted concerns that she was not coping at work. Ms HRM had formulated a plan to address this.
The circumstances of the maternity benefit form played on her mind and she recalled that she had been in the building when employee A had filled in the form and recalled that she had been sitting next to the complainant. She recalled thinking that it would have been more appropriate to have hosted this in a room.
Ms HRM recounted that she was the single point of contact for the Investigation and the construct for the correspondence. The investigation was paused in March as the complainant was unwell. Ms HRM presented as a witness to the investigation but had no role in any decision.
The complainant was permitted representation and brought a colleague to the first meeting.
During cross examination, Ms HRM confirmed that the complainant had brought the money to the attention of the company at their meeting of 13 February. This followed Ms Ms stated concern that she was being blamed.
The Respondent issued notebooks to the HR staff
The form had not been retained. Only 2 pages had been salvaged from DSP by Employee A.
Ms HRM contended that there were witnesses to the form filling in the form of both HR Practitioners and the employee. She had responded to Finance concerns on the lack of reconciliation of the maternity benefit.
Ms HRM confirmed that she had told the complainant to go home and check the bank balance on 13 February as she told her that she did not have access to the account on line.
The complainant had not presented with difficulties during her 3-year tenure at work.
MS HRM confirmed that evidence for the investigation had not passed her desk, she had managed the medical certificates over three weeks and notifications for meetings. The Investigation was prompted by CEO decision as a “high level over view “. She acted as a conduit.
In answering whether the company reliance on the complainant’s representative present at the first meeting as their note taker for the second meeting, Ms HRM responded that this decision was taken to protect the complainant as much as possible. The Complainant had not requested to bring another representative.
Ms HRM had been a witness to the Investigation.
At the end of the investigation, Ms HRM was approached by the Investigators who believed that that there was “more to be heard “She had not been participant in directing the case towards the disciplinary process, nor was she involved in the determination of gross misconduct.
Ms HRM added to her evidence and reflected that post conclusion of the investigation; several conversations took place with the Investigators on the next steps of the process. Gross Misconduct as described in the handbook was not a term known to them and clarification was needed. She gave this clarification to Mr Y as conduct of a most serious nature post conclusion of the investigation.
Evidence of Mr X, Investigator
Mr X had a 10.5-year role in Facilities, compliance, security, health and safety. He knew the complainant.
He was appointed Investigator along with Mr Y by Ms HRM. Mr Y was to lead, and the scope of the investigation was to cover October 2017 to February 2018. They heard from 8 witnesses and the complainant presented on two occasions, 23 February and 9 March.
He confirmed that he and Mr Y had full autonomy in how they ran their investigation and relied on Human Resources solely for logistical back up and communication of feedback. The Investigation was not directed at an allegation of theft “we did not have a sense that there was theft “
The Investigation determined several inconsistencies in the complainant’s evidence, a review of the complainants lap top activity did not match with her statements, which impacted her credibility. In addition, requested bank statements for the account which received the social welfare payment were not forthcoming. The Investigation concluded that the complainant had made an error. Both versions of how the realisation of the complainant’s error unfolded were inconsistent and misleading.
The issue for the investigators was the complainants conduct and the conclusions of the July spoke for themselves. The complainant had provided some commentary to the draft report.
During cross examination,
Mr X explained the procedural pathway of the investigation of open questioning. They established that the Maternity Benefit Form was not incorporated in a set protocol or designated form filler.
He confirmed that questions had arisen on payment on 9 February and reaffirmed that the company was not checking for theft or fraud. The Employee secured an extract of the form herself from the DSP.
Mr X responded to Counsels question on why a hand writing expert was not commissioned at the complainant’s request, by stating that it would not have brought them further.
He did not have an awareness of the complainant’s personal illness until she raised it. He had not seen the medical certificates. Ms HRM had instructed a pause to the investigation verbally until medical advice cleared a resumption.
Mr X confirmed that the report had not made recommendations but the conclusions on conduct were self-explanatory. A report was issued to Ms HRM but both Mr Y and he felt that the “matter couldn’t be left as it was “
In redirect, counsel for the respondent, Mr X confirmed that the request for bank statements came on the second meeting with the complainant in the quest for to resolve the inconsistencies.
He confirmed that he was aware of the context in which the complainant had been invited to the investigation and the possible consequences she faced. However, he had not specifically informed her that she had breached her contract or company policy.
Mr X confirmed that the investigation had not incorporated a complete audit of maternity leaves for that period. The complainant had not put forward any witnesses to the investigation, nor had she raised any issue on the scope of the investigation. The Investigators had not met with any of the Bank staff.
Recall of Mr X, Day 4
Counsel for the Respondent asked for Mr Xs’ comments on the absence of a reference to gross misconduct in the conclusions of the investigation.
Mr X confirmed that he and Mr Y had conversations with Ms HRM and there was no ambiguity “It needed further action. We took an assumption that gross misconduct occurred without saying so “
Mr X told counsel for the complainant that these were informal discussions through an adhoc conversation after conclusions were written. He reaffirmed that the Investigation report did not have express recommendations.
Evidence of Mr Z, Decision Maker.
Mr Z is Head of Global services and together with Mr Z two, Vice President of Sales conducted the disciplinary Hearing on behalf of the respondent.
He was provided with an Information pack which he read 5 times. He understood the brief of decision maker and he met with Mr Z two several times to plan how best to proceed on the nominated date of 14 August 2018.
He found that the complainant was surprised that her job was in jeopardy. He understood that the complainant had a role in filling out the maternity benefit form, but there was no inference of theft or fraud. The disciplinary hearing was directed at the conduct of a Senior Human Resource Professional. The Disciplinary team did not discuss the matter internally.
Factual inconsistencies on the circumstances of just when the complainant became aware of the deposit of the maternity benefit into her personal account via a conversation on VAT or through a VISA process. The complainants lack of recall was not attributed to a date of origin and her answers made truth indiscernible.
He placed a considerable emphasis on the complainant’s inconsistent statements on accessing of the bank account on line. He had considered the complainants medical report, there was no reference to the complainant not being fit to attend the hearing.
Mr Z concluded the Disciplinary meeting and paused for reflection. He concluded that the complainants error amounted to gross misconduct based on the multiple varying accounts given by the complainant. The complainant could not stand over the events. This was untenable in her role.
He contended that dismissal was the only option given the complainants position of trust at the company. He had taken account of her long service, the single episode, the extensive investigation.
He handed over the reflections to the Careers Dept and was satisfied that the drafted letter of dismissal reflected these reflections.
This was not a decision taken lightly and while he felt empathy towards the complainant, the evidence outweighed this empathy.
He confirmed that Ms. HRM partnered with the Disciplinary Managers to agree the reflections but not the findings.
During cross examination, Mr Z confirmed that the Careers dept had issued instructions on reading the documents, staff handbook and to be impartial. He was not aware that the psychiatrist letter was in the pack. The report was read at hearing but handed back. It had no bearing on the process at hand.
The Disciplinary Heading lasted 1.5 hrs and involved an analysis of the complainants conduct on 13 February. She was unable to shed any new light. The ambiguity around the bank statements remained unresolved and the complainant did not give Mr Z any opportunity to adjudicate in a different way.
Mr Z discounted the company’s dissatisfaction at the complainant taking legal advice in a tight situation and qualified what was at issue was the multitude of varying accounts of events.
The reflections which informed the letter of dismissal were unwritten. Minutes had been constructed of the 14 august meeting.
Mr Z confirmed that alternative sanctions to dismissal were weighed up, but the complainants direct involvement amounted to gross misconduct.
Counsel emphasised that the Investigation had not concluded whether the complainant or Ms M had filled the form.
Mr Z affirmed that Ms M had stamped, signed and dated the form and the engagement with employee A was with the complainant. He placed weight on that conclusion.
He submitted that the agreed minutes of the disciplinary hearing complete with the complainant’s amendments were furnished on October 8, 2018.
In response to redirection by Counsel for the Respondent, he confirmed that the complainant had made an admission to some extent of her own misconduct. The loss of trust made the continued employment untenable. He concluded that the mis use of company information by a Human Resource Leader varied from best practice.
Mr AB, Appeals Manager
Mr AB worked as a Software development Manager for 3.5 years. Together with Ms AB two, hi senior he conducted the complainants appeal. He had regard for the handbook, investigation report, minutes of meetings, disciplinary conclusion and the appeal letter. He was not certain if the minutes had come before or after the appeal. The Appeal Meeting was set for September 3, 2018. The complainant attended alone and without representation.
Ms HRM was involved only at the very end. Both Appeals Managers had full autonomy to affirm or overturn the decision to dismiss. Legal advice was received through a 45-minute telephone call with the company solicitor.
Mr AB confirmed that the entire matter was reopened, and the complainant was invited to submit any information she chose. Mr AB submitted that the complainant’s version of events did not stand up.
The Complainant had not asked for her job back. In relation to the complainants request for the appointment of a hand writing expert, Mr AB confirmed that the Investigation had confirmed that that the complainant had been either directly or indirectly involved in conveying her personal bank details. This was disputed by the complainant.
He considered the variation in account of events, recollections, the complainant’s role in the organisation and the details on the form. There were no medical grounds advanced. The complainant was fit to attend the appeal.
There were insufficient grounds to vary the decision and the decision to dismiss was upheld as fair.
In closing, Counsel for the respondent submitted that substantial grounds existed for the dismissal and the decision to dismiss the complainant was not unfair. The decision was wholly linked to conduct and raised the defence contained in section 6(4) (b) of the Act.
The complainant was never accused of theft, nor was it ever considered. The monies at issue in the case were repaid on the same day as the complainant disclosed her awareness of their presence in her account.
An Independent Investigation commissioned by the respondent had concluded that the complainants conduct had raised serious and grave concerns regarding the “journey “of the anticipated maternity benefit and the company was entitled to weigh the evidence they received.
The complainant was found to have directly/indirectly to have provided her bank account details which resulted in the monies by passing the company account for the complainant’s personal bank account. As a result, she was less than candid in her explanation of what happened.
The complainant was offered representation and by her own admission accepts that the 13 February was not her best day.
The respondent had recalled Mr ~X for the purposes of exploration of the emergence of gross misconduct on conclusion of the investigation. Ms HRM had corroborated his account.
The company had no animosity or malice towards the complainant and the respondent understood that the dismissal had a higher impact on her, while being unfortunate for all.
However, the complainant was fairly dismissed within the procedural framework.
The company had considered lesser sanctions, but none fitted the circumstances. Counsel contended that the complainant had made a significant contribution to the dismissal. The complainant had not presented medical evidence and the company had extended 200 manual hours in the process.
Counsel disputed the application of Reilly, as the complainant had received monies to her account and the treatment complained of was different in Reilly.
The decision to dismiss the complainant was within the range of reasonable responses open to the respondent.
Summary of Complainant’s Case:
Counsel for the Respondent provided an outline of the case for the complainant. She submitted that the complainant had been unfairly dismissed on the grounds of gross misconduct from a job in Human Resources, which she loved. The dismissal on 28 November 2018 constituted a dismissal for theft through the back door. This was contrary to the earlier position of the respondent, that no assertions were made that the complainant had sought to defraud or steal from the company.
The Complainant had a pre-existing mental health condition which had been confirmed with Occupational Health. The Respondent had not taken any account of this during the disciplinary process or on appeal. In fact, the complainant had not received the Disciplinary Hearing report until she appealed her dismissal.
Counsel submitted that the Investigation undertaken by the respondent was flawed. The complainant had neither signed or stamped the maternity benefit form at the centre of the case. By resorting to dismissal, the respondent had relied on the nuclear open and had pre-judged the complainant. The result was disproportionate in the face of lesser sanctions being available.
Evidence of Loss and Mitigation followed.
Evidence of the Complainant.
The complainant outlined the genesis of the issue of the company discovery that an employee’s maternity benefit had not been received to the company bank account. It was not an administrative area she had handled recently.
On 9 February 2018, a Finance Office had expressed some concern at the deficit in an anticipated maternity benefit payment. The complainant suggested that it might be a good idea for her to contact the DSP office to follow up. She undertook this the same day and was limited in information open to her, as she was not the named beneficiary.
She was able to identify who had signed the form, which Bank received payment and the last four digits on that account. The DSP requested an email from her as it was unclear if the account was incorrect what rectification would be possible.
The DSP later confirmed that payments had gone from their system but as payment had been made to a valid account on the form supplied, it was a matter for the company. The complainant communicated this through a slack message to the Finance Officer.
“the money is being paid into an X bank account, she couldn’t divulge the number of it. We can send her an email straightaway asking for the money to paid into ours going forward but can’t do anything about the money already gone as they don’t have it anymore they have paid it out … weird “
The Finance Officer checked the staff pay roll profile for the named bank and joked. The employee’s details were to be sent and the complainant received the company bank accounts and forwarded them to DSP.
The following Tuesday, February 13, was a psychological crisis from the complainant’s perspective and her recollection remains unclear. She told the Investigators that she had issues with memory. She was filling in a visa form for a staff member and she consulted her notebook for the company PAYE number. She saw 4 digits of a bank account and the penny dropped. the Bic and Iban on the DSP form must have come from her notebook.
The complainant said that she tried to figure it out and wondered if she had passed her note book to Ms M? as it had been her name on the form. She assumed that Ms M had completed the form.
She approached Ms M saying “you are going to kill me “I think ~I may have given you my notebook. Ms Ms reaction was different to what she expected it to be and she told the complainant that she had filled out that form herself.
The complainant addressed Ms HRM and told her that it was a clear mistake. The complainant said that she began to spiral when asked if she had spent the money? she recalled being told to go home for which she sought clarification and recalled being told to “pack up her stuff “
She went to see a friend who is a retired employment lawyer and printed off a bank statement. She refunded the monies to the Finance Director in full later that day. Ms HRM asked her for her notebook and she acceded to this request.
In referring to the investigation, the complainant confirmed that every time she was given an opportunity to comment on any of the documents or witness statements, she availed of this throughout the process.
She submitted that she saw the request for a broader bank statement as irrelevant. she had alerted the company to the full balance.
She denied that her handwriting was on the maternity benefit form and asked that inquiries be made on that validation. she remained dissatisfied that this request had gone unheeded. The complainant submitted that she was fit to participate in the investigation.
She had been asked to demonstrate this fitness due to her previous reference to the preceding “jumbling and confusion “she had not felt well coming up to February 2018. The complainant undertook to give a report on her mental health status.
The complainant submitted that she had made a major effort to explain how matters had evolved for the Investigators. She received the first draft around April and thought she was being investigated for mis approbation of funds.
The complainant gave evidence of loss and mitigation. She had made 28 attempts to find work.
During cross examination, the complainant confirmed that she thought the old notebook had been locked in a drawer for which she had a key. The company operates a clean desk policy.
The complainant confirmed that she had delegated the administration of maternity benefit forms to Ms M. The Complainant didn’t know how many forms she had completed herself as two years had passed since she had filled one in. The Dept may have had 4-5 eligible applicants for paid maternity leave in the past 6 to 12 months.
There was no manual or set of instructions on form completion and she contended that she had exhausted discussion on the form as it was self-explanatory.
Counsel for the Respondent put to the complainant that she told Ms M that she had received monies from social welfare. The complainant disputed this and clarified that she was confused to have received monies around October 2017 regarding a Lone parent payment.
The complainant confirmed that she had not recognised the account numbers when first received on 9 February 2018. She had not retained notes of her encounter with Ms M on 13 February and disputed Ms HRMs retained notes that she told her that she had entered her own account details on the form rather than those of the company.
The complainant went on to confirm that she did not have a clear memory during her first presentation to the investigation and during the last interview she thought the employee herself may have filled it in.
Counsel tested the complainant on who filled the form. Ms HRM had told her that she the complainant had filled it out bit she didn’t have that recollection. she had handed over the notebook when requested.
She had only suggested a 4th person may have been involved on appeal if logically none of the three assumed signatories had filled it out. By then, she believed that the company had turned against her and she was actively looking for ways to explain. She had submitted a declaration that the writing was not hers.
The complainant did not accept that her dismissal was reasonable. she disputed that she had mis led the company on how the bank account could be accessed. she told Ms HRM that a 3 week notice of withdrawal existed, but she was allowed rapid access to it and the Account is now obsolete.
The Complainant confirmed that she was relieved that one of the conclusions of the investigation indicated that no mis approbation of funds had occurred. She had not been specifically informed that this was on the table and could not identify where it had been mentioned but thought it may have been the first draft.
It was the first time the complainant had been on the other side of an investigation. She certainly believed that her having deliberately retained the money needed to be disproved. She referred to this as a “fuelled perception “from February 13.
She retained a sensitivity that the witness statements pointed to her doing this on purpose.
Counsel challenged the plausibility of this contention, and not one document pointed to theft or mis approbation in the 200 hours process, but the complainant disputed this. she held a strong view that she was being charged with mis approbation.
The complainant confirmed that she took legal advice on the day of the disclosure and before her Appeal.
The complainant accepted that parts of her story amounted to her being jumbled and confused. she offered medical evidence of this to the respondent but felt this was disregarded. However, she disputed that the events were serious enough for her to lose her job.
The complainant clarified that the bank account was never used during her work. she did not have her wages paid in to it at any time. There were no receipts given on completion of the maternity benefit form.
She presented her own case in the main as she felt ashamed and believed she carried the competence to navigate the process. she had not been requested to furnish a statement during the process.
The complainant re-affirmed details of an over payment on a personal DSP payment that was ongoing during this process and remained unresolved.
She wished to return to work for the security it gave
The complainant confirmed that she had not attended for memory testing but was so worried about her memory she wondered whether she was experiencing an early Alzheimer’s?
Counsel for the respondent submitted that the complainant was fit to attend the investigation on 23 February and 9 March. Medical issues were declared in April, following the furnishing of medical certificates in March 2018. Company Occupational Health agreed that the complainant should continue with the investigation in April 2018, following which she received a draft for comment. The complainant emphasised that she had “crashed “in the form of a mental health crisis.
The complainant had not been absent from work between October 2017 - December 2017 and there had not been a certificate of illness prior to the investigation. The complainant had not submitted evidence of her mental health crisis at hearing.
The respondent had not led with a suggestion of impropriety and had presided over fair procedures embedded in natural justice. The complainant had a colleague in attendance for her first presentation at investigation but there were no further requests for representation after this. This colleague was the only person available to take notes subsequently as Ms HRM had recused herself by then and Ms M was not a possible contender either. The complainant disputed this.
The complainant reaffirmed the delay in providing her with the disciplinary hearing minutes.
Counsel for the complainant redirected. The complainant confirmed that the account which received the maternity benefit was a dormant account from which a statement was posted by the bank.
She submitted that Theft had not been mentioned by the company between 13 and 21 February 2018. She had experienced a breakdown and felt very sick and forgetful. She was badly affected by the shock of events of 13 February.
She anticipated a much lesser sanction.
Counsel for the complainant drew from the Authorities of Governor and Company of the Bank of Ireland and James Reilly at the High Court  IEHC 241
And argued that the circumstances of this case had not amounted to gross misconduct. The complainant had not intentionally broken a rule but rather “there had been slippage in the process “
By relying on EAT case of Hanlon V Smurfit Kappa Ireland ltd U 1378/2014, the Tribunal in that case found that the sanction of dismissal was disproportionate, Counsel argued that the sanction in the instant case was disproportionate.
In Frizelle and New Ross Credit Union at the High Court 1997, Counsel asked that the facts of the instant case be considered through this prism.
Findings and Conclusions:
This is a claim for Unfair Dismissal contested by the respondent. I have listened very carefully to the parties and have considered both oral and written submissions by them.
I found a very strong human dimension to this case and I have considered the evidence adduced by both parties very carefully and respectfully. It was apparent from the outset that the Dismissal had weighed heavily on both parties.
The decision I will make in this case is based on the provisions of the Unfair Dismissals Act 1977.
Section 6 of which is of relevance:
6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The respondent has advanced defence contained in Section 6(4) (b) on conduct
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
In this case, the burden of proof rests with the respondent to prove substantial grounds for dismissal. In addition, I may have regard to the following provisions of section 6(7) of the Act.
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court considers it appropriate to do so —
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.
I think it helpful to call on the 1984 EAT case of Looney and Co Ltd v Looney U 843/1984, relevant today at WRC on the parameters of my role in this case.
“ 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 employers position would have acted 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 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 decide and to set this up as a standard against which the employers’ actions and decisions are to be judged “
The Company at the centre of this case has 185 employees and was described as fast growing. The complainant, by her own admission loved her job in this busy environment and had plans to progress there.
The Maternity Benefit Scheme:
The staff handbook describes this valuable and supportive payment during maternity leave. All parties agreed on its operation at the respondent business. There was considerable uncertainty around a protocol for operating this scheme. The complainant described that time had passed since she had undertaken the form completion and understood that the responsibility for administration of the form now rested with Ms M and the anticipated beneficiary of the scheme. The Respondent understood that the form was filled in the Human Resources Dept and accepted that Finance had also inputted in its completion.
I found the system around safe operation of maternity benefit form completion to be overly casual and random. Given that the reconciliation of payment now seems to be automatically passed to the company via IBAN and no longer requires the input of the beneficiary of paid maternity leave, I would have expected a revision in the staff handbook. I would have also expected to see much earlier safety checks and validation on a safe passage of this money from DSP to the company.
I did not have the benefit of a company template of the 16-page form used in this case as Employee A had just managed to retrieve 2 pages from DSP.
I have, however identified an early fault line in the governance around maternity benefit administration at the respondent business. I found it to be disjointed.
Suspension of the Complainant
Events moved very rapidly from February 9 to February 13, 2018 in this case. It is clear to me that corporate awareness of a deficit in reception of Employee As maternity benefit predated Christmas 2017.
The matter became somewhat frenzied on February 9 as fragments of a desk top analysis unfolded. The complainant played a part in this.
However, I have established that while a fact gathering exercise had commenced at Finance, the jig saw only became somewhat assembled on the morning of Feb 13 on Ms HRMs reported disclosure that the complainant declared that the maternity benefit had been received to her account. Considerable dispute followed between the parties on the nature of that disclosure.
The Complainant submitted that she was traumatised by her discovery of the role her account played in the missing maternity benefit and “crashed “causing a memory disturbance. she did not exhibit her consultant Report at hearing.
The Respondent demonstrated a more streamlined account of the catalogue of events which preceded the complainants 11 am meeting with Ms HRM. I note the notes retained from this meeting.
From Day 1 of this case, I was struck by the omnipotent role played by Ms HRM. It seemed that she had attended every key event in the case, inclusive of a recall of the employee A form completion. I note that this recollection was not advanced at investigation.
Ms HRM contended that she was a conduit to the Investigation and I spent a considerable amount of time seeking to probe Ms HRMs role, given that she was the Head of Department, the Complaints line Manager, Witness to the Investigation, Initiator of the Suspension on Full pay and Convenor of Meetings. She was also the person who formulated the charge against the complainant. I note from the company investigation that the CFO advised Ms HRM to stand back from Investigation on 13 February, yet she moved to call the complainant and informed her of her suspension on 14 February by phone.
I was troubled by this phone suspension which was not accompanied by any written correspondence. The paragraph dedicated to suspension in the staff handbook may have benefitted the complainant in understanding what she was facing on 14 February 2018. I appreciate that the complainant did not challenge this omission during the internal process and she accepted her suspension.
I accept from Ms HRMs evidence that the complainant was placed on a holding suspension to permit an investigation , however in deference to Reilly “It is potentially capable of constituting a significant blemish on the employees employment record with consequences for her future career “ Best practice would indicate that this communication ought to have been in written form to place a fair foundation and clarity in the process .
I found this to be a very carefully constructed process, where the complainant was appraised of the scope of the Inquiry and permitted to state her case. She was given an opportunity to respond to witness statements. She acknowledged this repeatedly and availed of all opportunities for comments.
The complainant’s argument was that she believed that she was pre-judged. In listening to Mr X, I found a focus on fact finding and an open mind to hear from witnesses. I could see that he was very troubled by the inconsistencies detected in the complainant’s dual presentations.
For my part, I was struck by the blatant plea for a corroborative bank statement from the complainant which was refused. This for me demonstrated a proven invitation for the complainant to be heard.
It was not clear to me who identified the witnesses. I noted that the complainant did not put witnesses forward.
I did not have the benefit of medical reports outside a GP Report dated July 27, 2018 which confirmed that the complainant was fit to resume investigation and return to work.
I was not satisfied that a witness to the investigation should have co-ordinated this Investigation as this proved a difficulty for me as I tried to identify how the conclusions of the Investigative Team had formulated the charge of gross misconduct. It is a flaw in an otherwise well-run investigation.
I appreciate that the complainant was on notice of potential dismissal from the invitation to Investigation, this was repeated on invitation to Disciplinary Hearing. However, the transition from the carefully worded Investigation conclusions to announcing the disciplinary hearing needed extra scrutiny in this case. I accept that the Investigators were autonomous in their decision making and they had honestly reflected a need to advance the procedure consistent with their given brief to investigate.
I had some difficulty in understanding just where the charge of “gross misconduct “was born, as the complainant had not been told this explicitly at the end of the Investigation. I now accept the additional clarifications offered by Mr X and Ms HRM.
I accept that the complainant did not advance a difficulty with this procedural framework during the investigation. I appreciate that she raised the length of time given to the process and sought an earlier conclusion. I did not find that she was disadvantaged by this delay as she appears to have been ill and a voluntary participant in several Medical reviews. She had requested that a Hand writing expert be commissioned, and I note that the Investigators placed some weighting on oral evidence in this regard.
Decision to Dismiss
The decision to dismiss an employee must surely be one of the most difficult actions for any decision maker. The effects of this may often last a lifetime on the recipient. It is a life changing decision. I appreciate that a two-person team presided over this 1.5 hr process here and I heard from Mr Z in this regard with the benefit of agreed minutes.
I struggled with the complainant’s decision to attend alone for such an important day in her employment. I appreciate that the complainant unlike a lot of employees carried specialist knowledge in the field of employee relations. However, she confirmed that she was troubled by memory lapses and emotional distress in the run up to and after February 2018. I am satisfied that the complainant was offered representation and I noted that some discretion on the identity of that person was permitted in the company procedures. It is regrettable that she chose to address a two-person forum alone. I did consider Counsels submissions that her chosen representative at leg 1 of the investigation was subsumed by the two-person team at Disciplinary. I found this to be far short of best practice in a company of 185 employees. However, I must accept that the complainant did not raise this at the time.
I am mindful of Mr Zs evidence where he noted that the complainant was surprised that her continued tenure with the company was at risk during the Disciplinary Hearing. I accept from her evidence that she always expected a sanction not just the nuclear option of dismissal. she had been relieved that theft or fraud had not been levied against her at the time but in hindsight contended that she was accused of theft by the back door. I look at this very carefully given the strength of conviction which accompanied this contention by the complainant’s representatives.
I listened very carefully to Mr Zs evaluation of what he had heard from the complainant at disciplinary. I noted that he had given some thought to the gravity of the complaint and the effect dismissal might have on the complainant. I was drawn to his engagement on a proportionality assessment in the case. He listed his areas of consideration on the complainants conduct and the weightings applied.
The findings at disciplinary addressed the conclusions at investigation and did not expand on their scope Kilsaran Concrete v Vitalie V et  ELR 237 applied. They identified a short fall in the complainants conduct to the third leg on conduct and were not satisfied with her responses tendered. Once again, a disappointment was registered at the failure to submit a bank statement to cover the period of inquiry.
I am satisfied that the respondent inquiries followed a discovery of a missing maternity benefit in December 2017. I have already expressed concern that the rules of administration of the maternity benefit scheme were not drafted clearly or at all.
I am mindful that operational responsibility for this lies between human resources and finance departments from where the request for an investigation of the complainants frenzied disclosure came. I note that the investigation did not make a corporate recommendation for improvements in governance of the scheme.
I found that the role played by Ms HRM to be somewhat overzealous and confusing towards the complainant. However, I must accept while proximate throughout, she was not instrumental in any decision outside of the suspension and I have dealt with the omissions above.
I found the Appeal well disposed to considering any new evidence the complainant wished to advance. In this I found a careful consideration of the complainants’ points of appeal.
I have been asked to decide on whether to dismiss the complainant amounted to a fair dismissal and as the burden of proof rests with the respondent, I have explored the defence of conduct relied on.
I did not establish a bias against the complainant. Instead, I saw a concerted effort to obtain a document considered essential to the employer enquiry, a seamless bank statement which captured the account activity in the cognisable period of the maternity leave in question. It was a fair question and arguably a lifeline and the complainant’s perpetual refusal to submit the document created a chasm in the employer/employee relationship which accompanied by other stated reservations on inconsistent accounts regrettably descended to dismissal.
I began to wonder whether the decision to dismiss the complainant was fair based on an absence of a reasonable explanation for the reception of monies earmarked as maternity benefit to the complainants personal account. After all the money was immediately reconciled and no allegation of theft or fraud advanced. I appreciate that the complainant had a genuine belief that she was faced with those charges.
My attention was drawn to Ms Ms deposition to the investigation, where it appeared that she inadvertently acted as a character witness for the complainant by submitting that the complainant should be judged as having made an error and not a dishonest act.
I found that the respondent was actively seeking a firm confirmation of and reasons for an error throughout this process.
I am mindful of a pre-1993 case of the Circuit Court on appeal from the EAT in Hestor V Dunnes Stores ltd  ELR 12
This case centred on a discovery of a packet of ham falling to the floor when chips and burger buns had already been paid for by a store employee. The employer in the case moved to dismissal for removal of goods without permission. The EAT found that the dismissal was unfair. This was reversed on appeal where Clarke J at the Circuit Court held that the Respondent had not acted unfairly nor without justification, since the appellant had been unable to offer a satisfactory explanation for her conduct which had given rise to deep suspicion and required a satisfactory answer.
An employment relationship is based on mutual trust and respect and this needs to be a live component of active employment. The respondent evidence in this case pointed to an evaporation of this. The complainant submitted that she deserved another chance, but I found this to be a latter-day submission, not teased out in the extensive internal proceedings.
I found the facts of the instant case more at home in the above case than caselaw advanced by either of the parties on this occasion, except for Reilly.
I am clear that there were flaws in the suspension and investigation as advanced by the complainant’s representatives. The omnipotence of the head of Human Resources was an additional concern up to the point where she signed the letter of dismissal. However, these were not of the magnitude to render the dismissal unfair. The respondent witnesses clarified and reaffirmed the autonomy of their roles up to an including the appeals officer and my reservations on this omnipotence were abated somewhat.
However, I believe that the respondent ought to reflect in time on the practices highlighted here.
I have found that the respondent has satisfied the substantial grounds test to accompany this dismissal. They have claimed and can rely on the defence of conduct. They did not secure a satisfactory response to their inquiries on the complainants stated error.
I accept that the dismissal was within the range of reasonable responses open to this employer faced with the conduct of the complainant.
The dismissal while regrettable was fair and not disproportionate.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found that the respondent can rely on the defence in section 6(4) (b) of the Act. The complainant was not unfairly dismissed.
Dated: 29th May 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Unfair Dismissal, Conduct.