UDD2513

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00029669 (CA-00039542-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 2 August 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12 March 2025. The following is the Decision of the Court.

DECISION:

This is an appeal by Siobhan Kelly (‘the Complainant’) of a decision of an Adjudication Officer under the Unfair Dismissals Act 1977 (‘the Act’).  The Adjudication Officer held that her complaint of unfair dismissal against her former employer Computer Placement (“the Respondent”) was not well founded.

1. Background

The Respondent is a provider of recruitment, staffing and outsourcing services. The Complainant was employed as a Principal Consultant. Her employment was terminated by reason of gross misconduct on 21 May 2020. The Complainant submits that she was unfairly dismissed.

2. Summary of the Respondent’s Position

There were substantial grounds to justify the termination of the Complainant’s employment by reason of gross misconduct.

On 26 February 2020 the Respondent HR Director received a report with estimated costs for temporary employees and reception cover. When she queried the content of the report, it emerged that the Complainant had hired an individual, her aunt, to provide reception cover from October to December 2018 and later rehired her in February 2019 without the Respondent’s knowledge to assist with the roll out of a Staff Discount card scheme, as part of the companies Sports and Social Committee activities.

Further enquires revealed that the Complainant had logged hours on behalf individual who had worked from home for 385.5 hours over a 52-week period.  The Complainant failed to provide adequate evidence of any outputs or proof of work undertaken by her aunt.

On 25 March 2020, the Complainant was suspended with pay pending an investigation. She attended a disciplinary hearing to address an allegation that she had a utilised part-time resource to complete tasks under her direction and control, which was potentially unauthorised and amounted to a spend of €5,397. The allegation was upheld and the Complainant’s employment was terminated by reason of gross misconduct on 21 May 2020.

The Complainant appealed that decision.  An appeal outcome report issued on 7 August 2020, which upheld the dismissal upheld the dismissal.

The Complainant’s behaviour fell far below its expected standards of trust and confidence. The explanations provided by the Complainant for her acts were not sufficient and were in and of themselves concerning for the Respondent. The Respondent was entitled to form the view that, based on the available evidence and the nature of her role, that, on the balance of probabilities, the Complainant had committed the acts alleged and that her actions therefore constituted gross misconduct.

Given the actions of the Complainant and the need for trust and confidence required of her having regard to the nature of her employment, the sanction of dismissal was fair and reasonable. The investigation, disciplinary hearing and appeal process conformed with the disciplinary procedure and afforded the Complainant fair procedures and natural justice.

The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.

Substantial grounds existed to justify the decision to dismiss the Complainant, which fell within the range of reasonable responses open to a reasonable employer. The decision to impose a sanction of dismissal was, in all the circumstances, reasonable and proportionate. The termination of employment of the Complainant was fair, reasonable and did not constitute a breach of the Act.

3. Summary of Complainant’s Case

The dismissal was unfair on several grounds.  The Complainant was blamed for matters that were the fault of the Respondent. The Complainant was accused of hiring a temporary employee and concealing that hire. The Complainant was made to pay for a lack of internal processes that were not fit for purpose as errors were made in the allocation of employee cost centres.  An inappropriate focus was placed on the fact that the temporary employee was a relative of the Complainant, a common practice in the company. The allegation put to the complainant was of a “potential wrongdoing”, which does not warrant disciplinary action.

The investigation process was flawed. No terms of reference were supplied in advance of the disciplinary hearing. The investigator blamed the Complainant for not providing documentary evidence of the work conducted by the temporary worker. He relied on the Complainant to obtain information from the worker and failed to check what records existed for other temporary workers. The Respondent blamed the Complainant for the issuing by IT of a computer for use by the temporary employee. The investigation deviated from proper practice and recommended disciplinary action.

The investigation and disciplinary managers were unaware of how employee contracts were issued. There was a general failure by the Respondent to look for any alternative to blaming the Complainant for perceived failures instead of identifying systemic failings in the company and an absence of proper systems. A predetermination of guilt pervaded the process and influenced the decision to dismiss.

The termination applied from the time of the dismissal. The 11-week appeal process was an extended exercise in trying to make up for omissions earlier in the process. The appeal person conducted a further investigation to fill the holes in the original investigation. The investigation, disciplinary and appeal processes were not independent. The HR director played a hidden role in the process.

4. Witness Evidence

The Court heard sworn evidence from four witnesses on behalf of the Respondent, Sharon Vize, HR Director, Paul Walsh, who conducted a fact find investigation, Seana Leech the Decision maker, and Garret Roche, who heard the appeal. The Complainant, Siobhan Kelly, also gave evidence.

5. Evidence of Sharon Vize, HR Director

The Complainant was an excellent employee. She was very involved in extracurricular activities and played a key role in initiatives such as the Great Place to Work. In September 2019, the Complainant told the HR Director that she wanted to step away from Sports and Social club duties to focus on her core role. She was quite emotional during the conversation. She never mentioned a temporary employee at that time.

The Complainant’s role included arranging cover for the reception desk. The process for recruiting internal temporary staff involves completing an access request form to notify IT of the type of access required. Reception staff require access to emails and staff directory. Worker records their working hours on web time, which is approved by a budget approver and fed into the payroll system. All roles have a clear job description.

On 26 February 2020, Ms Vize received a report indicating that reception cover costs were running at €40,000 and would rise to €60,000 by year end. She was not aware of any of the people listed in the report, so raised the matter with the Complainant. It transpired that several individuals were incorrectly allocated to the wrong cost centre. One individual on the list - the Complainant’s aunt - was engaged in work on a discount card for the Sports and Social club and had done so since February 2019. As Ms Vize never authorised anyone to conduct such work, she told the Complainant to shut the temporary worker down.

When Ms Vize requested to see work outputs produced by the worker, the Complainant provided a white folder with a list of company names. There was no evidence that the individual had engaged in any work. There was no access request, contract of employment or contact details for her on the system. She did not have an e-mail address or access to the systems or Microsoft Word. The individual worked from home with an old laptop, at a time when there was no working from home policy and most staff had desktop computers. There are never more than six or seven temporary workers in the company at one time. All other temporary employees were known to the organisation and worked physically on site. The information did not add up.

A month later, the Complainant was suspended from work pending a fact find investigation, given the unsatisfactory responses received. The fact find investigation was passed to Paul Walsh, as the Complainant requested the HR Director to recuse herself. He sent her a copy of his investigation report and she made some cosmetic changes to that document but did not interfere with the findings or seek to influence Mr Walsh in any way.

The Complainant was dismissed for gross misconduct as timesheets were generated and salary payments made for a role that was not authorised. The Complainant had provided no evidence to support assertions about any work undertaken, which was a serious matter and a clear breach of trust.

The HR Director rejected an assertion that the Complainant was the victim of systemic failures in recruiting staff. She said that everyone was aware of the process. From a good governance perspective, you do not sign off hours of work for relations. Under cross examination, she accepted that contracts of employment generate automatically on the system. She said the Complainant should have inputted data into the system to generate a contract from employment.

6. Evidence of Paul Walsh – Investigator

Mr Walsh was employed as Head of Enterprise Solutions and conducted the fact find investigation. 

The purpose of the investigation was to investigate the utilisation of a part-time resource, under the Complainant’s control and direction, which amounted to a potential unauthorised spend of €5,397.

The Complainant assured him that evidence of the worker’s outputs existed from voice notes and WhatsApp messages, but none was provided. The Complainant had informally requested a laptop for use by the worker outside of normal channels. It was not normal practice for employees to work from home or to input and approve hours on the system. He found it incredulous that someone was employed for 52 weeks without sight of any work. Company laptops are backed up which would have allowed access to information. He tried to contact the temporary worker by phone and left messages. He asked the Complainant to locate the worker’s contract of employment, but none was provided. He could not prove the person existed.

His findings were that the Complainant did not request or receive authorisation for the temporary worker. The Complainant completed, approved and submitted timesheets on behalf of the worker. She could not provide any correspondence outlining instructions of work to be done or the outputs of such work. He noted a general lack of control around the onboarding of temporary internal employees and recommended a broader review of that matter.

Mr Walsh found that the Complainant had failed to supervise the worker and ensure that work of sufficient quality was done which may indicate a misappropriation of funds.

Under cross examination, Mr Walsh refuted that he strayed outside the remit of the investigation by recommending a disciplinary sanction. He said that was an error of language as it was clear that any disciplinary sanction was a matter for the decision maker. Mr Walsh refuted that the HR Director influenced his report findings. She was his point of contact during the investigation process and had marked up some edits on the report but had not changed the findings.

He did not think it necessary to speak with the other temporary employees, as part of his investigation.  He did not check the Complainant’s phone as he was unsure what the records could show, given that the Complainant and temporary employee were related.

7. Evidence of Seana Leech – the Decision Maker

Ms Leech is employed as the Chief Financial Officer and conducted the disciplinary hearing.

The purpose of the disciplinary hearing was to discuss the allegation that the Complainant had used a part time resource to complete tasks under her direction and control which was potentially unauthorised and amounted to a spend of €5397. It was not to conduct a hearing into the ‘misappropriation’ of funds.

There were two disciplinary meetings, and the Complainant confirmed that she was happy to proceed without a representative present.

The Complainant's responses about the sourcing of a laptop and work lost by the temporary worker were not credible. It was difficult to get clarity from her about the laptop and any work outputs. There was a clear IT access process, and it was unclear why the temporary worker was not given an official laptop. The Complainant obtained a defunct laptop from IT and attempted to have it repaired independently. She then purchased a laptop for the worker’s birthday, which was later stolen and all work outputs lost. Thereafter, the worker used a borrowed laptop. None of the laptops used were official laptops. The Complainant said that work from the third laptop was saved on a USB stick, which was not mentioned in the investigation report. Employees cannot use USB sticks to download or upload data onto laptops, as that function is disabled.

The Complainant previously had worked on the launch of a Discount Card on the Intranet Hub. The document submitted with work alleged by the temporary worker did not indicate any new outputs. The Complainant could not clarify what work was completed by the worker and what elements had previously been produced.  Given the extent of work alleged, she would have expected to see another launch.

The Complainant said that she contacted the temporary worker via WhatsApp and voicemail messages, but no details were ever provided. It was very difficult to get answers from her.  She felt that the Complainant’s replies were not credible.

Ms Leech tried unsuccessfully to contact the temporary worker, as she had expected her to participate in the process.

Ms Leech was aware of a conversation in September 2019 when the Complainant told the HR Director that she did not wish to continue with Sports and Social club duties. If the worker were working on the Discount card at that time, there would have been a conversation about her role during that conversation.

Ms Leech concluded that the proper on boarding process was not followed. There are check and balances in place, as hundreds of people are onboarded and off boarded each week in the company. It was unreasonable and beyond careless to submit and approve timesheets for a 52-week period with no reasonable output of work.

Ms Leech took account of the Complainant’s senior position and considered sanctions other than dismissal. The decision to dismiss was based on several factors; there was no authorisation for the role; no work outputs; timesheets were approved for a long period; no one was aware of this worker; it was very difficult to get answers, and no credible answers were given to the series of events; the Complainant was in a significant position of trust. Ms leech said that she saw no way back from such a significant breach of trust.

Ms Leech was satisfied that the hearing was fair and followed procedures. She tried to give the Complainant every opportunity to address matters raised. There was considerable deflection from the Complainant when answering questions.

Under cross examination, Ms Leech said that she did not investigate other temporary reception cover. She was aware that obsolete computers were normally given to charities but not to employees.

8. Evidence of Garret Roche - the appeal hearer

Mr Roche is employed as Group MD for CPL Talent Solutions and conducted the appeal hearing.

The Complainant set out six grounds of appeal. He had a lengthy meeting with her to go through the issues and explain his approach to the appeal. Mr Roche felt it important that the Complainant have every opportunity to defend herself.  He did not conduct a desk top appeal. He interviewed all those involved in the process, and five additional witnesses in HR and Finance to establish if they knew the temporary worker. The complainant agreed to this approach. He interviewed all witnesses mentioned by the Complainant. None of them knew the worker.

Mr Roche asked the Complainant to contact her aunt about participating in the process. He did not contact her directly, as he understood the Investigator and Decision maker both had difficulty contacting her. The aunt did not want to be involved in the process, but was willing to make a written statement, which was unacceptable as that statement could not be verified. He had expected her to engage in the process as there was so many questions arising.

Mr Roche issued his outcome report on 7 August 2020, which upheld the dismissal.  Trust was a key factor in his considerations. The Complainant was in a senior management role and highly trusted. The Complainant controlled both inputs and outputs, which just doesn’t happen. No-one worked from home before Covid. Employee used desktops and USB sticks were not used. As an employment agency everyone gets a contract of employment. He never came across a situation like this in his 28-year career.

Under cross-examination Mr Roche rejected the assertion that the worker was known to several people on site. There was no sight of her on site, other than her initial work on reception. All other temps were known and fully visible to senior management.  There was no authorisation to work from home. The only people to confirm any knowledge of her were two named individuals who had seen her name on a spreadsheet.

Mr Roche rejected the Complainant’s assertion that he conducted a new investigation or manipulated facts to find her guilty of a new allegation. He did not investigate a “misappropriation of funds”. He said that he saw no need to record the Investigator’s finding that the Complainant was not culpable for the unauthorised employment of the worker in isolation in his report, as that was not the focus of the disciplinary investigation.

Mr Roche said that he reviewed the contents of the white folder, which were scant. He verified that the system automatically generated contracts of employment. He found no contract of employment in place. There was no access request form.  Relatives do not report to relatives. It is a matter of trust.  If the worker was real, the Complainant would not have signed off her timesheets. The Complainant’s explanation about securing a laptop for the worker was bizarre.

9. Evidence of Siobhan Kelly – the Complainant

The Complainant engaged her aunt to work on the discount card. She had made thousands of similar decisions to fix problems, and did not see it as a breach of trust. She presumed that the HR Director had full oversight of all temporary employees. If there was an issue it should have been raised before February 2020.

The Complainant allowed the employee to work from home, as she was struggling with the commute. She did not need to sign off for that as there was no company policy to allow someone to work from home. She agreed with the worker that she would work seven hours per week between Monday and Thursday. As the Complainant inputted and authorised the worker’s hours when providing reception cover, she saw no need to change that practice once she started working from home.

The Complainant gave the investigator multiple names and explanations that were never checked. The allegation was changed when the initial allegation did not stand up. The investigator recommendation a disciplinary sanction beyond the scope of his terms of his reference. The HR Director had a controlling interest in the process. The decision to dismiss was made without taking on board the Complainant’s explanations. The Complainant set out six grounds of appeal. The appeal hearer took everybody else’s word as gospel.

Under cross examination, the Complainant refuted saying there was a systems failure. Her point was that she was fired when something went wrong, instead of conducting a review of the system.

The Complainant accepted that on 11 March 2020 she agreed to address all questions raised. At that point, her aunt had agreed to participate but later changed her mind. It was not the Complainant’s role to follow up with the worker. The Respondent never contacted the worker directly.

The Complainant could not explain why a contract did not issue, or why she had not followed up on that matter before her suspension on 23 March 2020. The Complainant did not think it inappropriate to give the worker an obsolete laptop from IT. In her view, there were no GDPR issues, as there was no personal data on the laptop. She never informed the Respondent about the stolen laptop but later offered to get a Garda report.

When asked why not produce emails or any other evidence of the worker’s output despite being given many opportunities to do so, the Complainant said she could not access her emails when suspended and most of her interactions with the worker were by phone. She never gave written instructions. She accepts that she never produced any WhatsApp messages. She asked the Respondent to check her phone records would show that she was in contact with the worker.

The Complainant accepted that she first mentioned the use of a USB key at the disciplinary hearing. She never gave the USB stick to the Respondent, as no-one asked for it. She acknowledged that she did not challenge the decision makers finding about the USB key as part of her appeal.

The Complainant did not mention the temporary worker to the HR Director in September 2019 conversation when she raised concerns about her workload, as she was upset at that time.

The Complainant said that in hindsight her biggest mistake was not actioning an e-mail request for a laptop. The worker did not need a fancy computer to work on the discount card and did not need systems access.

10. The Relevant Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

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.

(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:

the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

the conduct of the employee,

the redundancy of the employee, and

the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

11. Discussion and Deliberation

The Complainant was dismissed by the Respondent on 21 May 2020 for submitting and approving timesheets for a temporary worker – who was a family member - over a period of 52 weeks in a role that was not authorised and where no reasonable output of work was evident.

The role of the Labour Court in this appeal is not to consider what it would have done in the same set of circumstances, but rather to assess whether the response of the employer lay within a range of reasonable responses, which might reasonably be expected of a reasonable employer.

The Complainant submits that the Respondent placed undue emphasis on her family relationship with the temporary worker, who she contends was one of a series of people conducting an approved role that was known to management. While both parties accept that the family member worked for a period providing temporary reception cover, her continued employment in the organisation thereafter is contested, with the Respondent submitting that the temporary role was not authorised, and no one knew of the worker’s existence.

In reply to questions from the Court, the Complainant accepted that there were number of unusual aspects to the recruitment of the worker to carry out project work in terms of providing her with an obsolete laptop outside of normal channels, allowing her to work from home when that was not a normal practice in the company, and inputting and approving her timesheets for payroll purposes. The Complainant said that she did not conceal any of those activities. Her evidence was that she was good at fixing problems, and she was accustomed to having autonomy to make such decisions, so did not think it hugely important to inform HR about the situation.

The Court finds that the Complainant’s assertion that the temporary worker was known by members of management within the organisation was not supported by facts. The Respondent established during the investigation, disciplinary and appeal processes that there were no contact details for the worker on the system, no job specification for the role, no access request form completed, no e-mail address issued, and no on-boarding process was followed. No contract of employment was found. No evidence was submitted to support the Complainant’s contention that the employment of a temporary worker to conduct work on a Discount Card was ever authorised. The Court notes that, in that regard, the investigator found that there was a general lack of control around the onboarding process for internal temporary appointments and that the Complainant was not responsible in isolation for that matter.

The common thread throughout the testimony of the Respondent witnesses was that the Complainant did not give satisfactory or credible answers to the questions raised around how it arose that a temporary worker was engaged in project work from home for a 52-week period without producing any tangible outputs. It concluded that there was no evidence of reasonable outputs by the worker.

Ms Leech said that she asked the Complainant numerous questions in different ways but found it difficult to get a straightforward answer from her. She found the explanations provided about the use of three unofficial laptops outside normal channels, the lack of work outputs in the white folder and the use of a USB stick was simply not credible.

The Court found much of the evidence from the Complainant at the hearing was vague and unclear. She was evasive when answering certain questions and unforthcoming in her replies, all of which accords with testimony from the Respondent witnesses who found that the Complainant’s responses and explanations were not reasonable, credible or sufficient.

It is hard to understand why the Complainant did not flag what she was doing with her line manager. At best, the Complainant’s action displayed a clear lack of judgment in relation to the ad-hoc engagement of a temporary worker without authorization. The Complainant failed to provide an adequate explanation regarding how a temporary worker came to be employed outside normal channels for a 52-week period, without producing any tangible outputs.

The Court heard that the Complainant was held in a significant position of trust by senior management. Her inability to proffer a credible explanation for the allegations that were put to her ultimately resulted in a finding that the relationship of trust and confidence between the parties was broken.

In dismissal cases, an employer is not required to prove allegations beyond all reasonable doubts. Based on the evidence presented, the Court finds that in circumstances where the Complainant failed to provide an adequate or reasonable explanation for her actions that it was reasonable for the Respondent to conclude, on the balance of probabilities, that she had engaged in activities amounting to gross misconduct when she submitted and approved timesheets for a worker, over a 12-month period, in a position that was not authorised, and failed to produce any reasonable evidence of work outputs from that worker.

Were the procedures followed by the Respondent fair?

In any disciplinary hearing an employee has the right to a fair and impartial determination of the issues concerned, which takes into account any representations made and any other relevant evidence.

The Complainant took issue with several aspects of the investigation process.  The Complainant asserts that the Respondent failed to conduct a wider examination into how other temporary workers were recruited or to check what records existed for those workers. In the Court’s view, it was not unreasonable for the Respondent to confine the disciplinary investigation into the apparent anomalies around the Complainant’s engagement of her aunt in an unapproved position.

The Complainant contends that the Respondent should not have relied on her to obtain information from her aunt. In circumstances where no contact details were logged for the worker on the system the Court finds that it was reasonable for the Respondent to request that the Complainant contact her aunt to request her participation in the investigation. Ultimately, the aunt declined to be interviewed.

The Court notes that the reference in the investigation report to a possible misappropriation of funds was clarified in evidence and such an allegation did not form part of the disciplinary investigation.

There were some shortcomings with the investigation process. Although the HR Director stepped away from the investigation process when asked to do so, she remained involved from a distance and should not have provided any inputs to the final investigation report, whether cosmetic or otherwise. The recommendation of a disciplinary sanction cited in the report also went beyond the scope of the investigation mandate.

On the facts as presented, the Court does not find that procedural flaws arose that were so significant as to render the dismissal to be unfair. The Court is satisfied that the Complainant was fully aware of the allegations made against her in advance of the disciplinary hearing and was afforded ample opportunity to respond to those allegations.  The Complainant availed of her right to appeal the decision to terminate her employment. The Court is satisfied that both the Disciplinary processes was robust and the appeals process, though lengthy, was comprehensive.

The Court, having regard to all the circumstance and having considered the totality of the evidence adduced, is satisfied that the disciplinary and appeals processes followed by the employer were in accordance with its own procedures and substantially fair.  The decision to dismiss was an impartial one and that due consideration was given to relevant facts and an alternative sanction dismissal.

Was the sanction proportionate?

The Court must assess whether in all the circumstances the sanction of dismissal was proportionate and appropriate.

The Complainant worked for the Respondent since 2004. The Court heard that the Complainant was an excellent employee who was well respected and held in high esteem by senior management.

The decision maker’s evidence was that she considered other sanctions and her decision to dismiss was based on a number of factors; there was no authorisation for the role; no work outputs; timesheets were approved for a long period; no one was aware of the worker; no credible answers were given to the series of events, and it was very difficult to get answers.  The Court heard that the Complainant’s actions suggested that the appointment was deliberately kept under the radar casting doubt about whether any work was conducted remotely, as contended by the Complainant. Furthermore, the Complainant was held in a significant position of trust and her failure to provide credible explanations for the employment of a family member to undertake project work undermined the trust and confidence that the Respondent held in her as an employee. In such circumstances, the Court finds that it was reasonable for the Respondent to conclude that the bond of trust between employer and employee was broken.

Having regard to all the circumstances of this case, the Court accepts the Respondent’s submission that the sanction of dismissal imposed on the Complainant was not disproportionate and fell within the band of reasonable responses open to a reasonable employer in the circumstances.

Having regard to the submissions made and testimonies proffered, the Court is satisfied that the Respondent had substantial grounds to justify its decision to terminate the Complainant’s employment for serious misconduct, and that the decision to dismiss was not disproportionate.  The Court is also satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice.

Decision

For the reasons set out above, the Court finds that the appeal fails, and that the complaint of unfair dismissal is not well founded.

The Adjudication Officer’s decision is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
24th April 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.