Complainant

Respondent

Parties

Maite  Gutierrez Fenoll

Interactive Brokers Ireland Ltd

Representatives

Mr Andy Walsh of KOD Lyons Solicitors

Ms Katherine McVeigh BL instructed by McInnes Dunne Murphy LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067401-001

15/11/2024

The issue in contention is the alleged Unfair Dismissal of the Complainant, a Client Services Associate by the Respondent, a Financial Services Company. The employment began on the 8th November 2021 and ended on the 1st October 2024.

The rate of pay was stated by the Complainant to have been an average annual salary of €57,000 for a 40-hour week. (This figure was contested by the Respondent -stating a figure of €54,500).

The Complainant was represented by Mr A Walsh Solicitor. A detailed written submission was provided which supported an extensive Oral Testimony. Full cross examination by Ms K McVeigh BL for the Respondents took place.

The Complainant had been dismissed on the 1st October 2024 following an internal process of Investigation that had begun in July 2024.  Investigation meetings were held in July and August 2024. Disciplinary meetings were held on the 22nd of August 2024 and the 18th September 2024.

In essence the Complainant’s case was that she was subjected to an arbitrary Investigation and Disciplinary process that denied her Natural Justice rights of Fair Procedures and the opportunity to offer full mitigation for all the actions she had been accused of.

She had been accused of serious breaches of the Working from Home Policy. She had moved to a new Department in late 2023 - Estates and the Manager there, Mr HG, based in Switzerland, had reassured her that the Department had a relaxed and flexible policy to the Company rules of Remote Working.

Them evidence produced by the Investigation team was unclear and open to serious misinterpretation. She had never wilfully abused the remote System.

As regards the accusation that she had wilfully attempted to manipulate the Attendance/swipe system this was false, and her explanations were perfectly valid. Issues such as Inadvertently “Tailgating” on colleagues going through the Doors were a well-known feature/flaw of the System.

The accusation that she had worked from Spain was false -while work was ongoing on her Dublin home IT System she had logged in via her Husband’s Spanish connection.  Her husband was based in Ireland but worked in an E commerce mode for a Spanish Company. He had a Spanish IT facility in Dublin, and this had picked up her connection attempts while her Irish connection was offline. This appeared to show that she was physically in Spain but was actually in Dublin.

She had a perfect HR record and had been complimented by her Managers for the Quality of her work.

In summary Mr Walsh argued that the dismissal for “Gross Misconduct” was completely without legal foundation and even the Complainant had erred inadvertently from the Remote Work policies (which she denied) Dismissal for Gross Misconduct was completely Disproportionate and Excessive.

The Respondent was represented by Ms K McVeigh BL supported by a number of Managers – principally a Senior Manager, Ms PD, a HR Manager, Ms BG. Mr HG – (Remotely from Switzerland) and an IT expert, Mr BB. A substantial written submission was also presented in evidence.

In essence, the Respondent submission was that following inconsistencies in the Complainant’s records on the Attendance System Ms BG, had carried out a full investigation. The Complainant had been fully advised and involved at all stages. The Investigation had recommended a referral to a Disciplinary Process with Ms PD.  Two lengthy Disciplinary meetings had taken place on the 23rd August and the 16th September. Ms PD had reviewed all the materials and decided that Gross Misconduct was the outcome. She had dismissed the Complainant. An Appeal was offered but not availed of.

The Respondent emphasised that all proper HR Procedures had been followed in keeping with Si 146 of 2000 – Legal Code of Practice on Grievance and Disciplinary Procedures. The Respondent had an extensive suite of HR Procedures which had been followed scrupulously at both Investigation and Disciplinary Stages. Ms BG gave evidence to this effect as regards the Investigation Stages and the setting up of the Disciplinary Stages.

Extensive evidence was presented of Company Circulars/Protocols setting out in detail the rules governing the Remote Working procedures. The Complainant had been advised in 2023 that she was taking a very loose approach to compliance with these rules.

Mr HG, the Complainant’s immediate Superior from Switzerland gave evidence that he had operated the Company rules as set out and had not afforded the Complainant any special privileges as regards the Remote work policy.

Mr BB, the Company IT Expert gave detailed technical evidence on the question of the suggestions that the Complainant could, have been physically in Dublin but using a Spanish IT connection which could have given a misleading impression that she was in Spain. He was of the opinion that on the balance of technical probabilities, IT electronic address, tracking records, protocols etc, this could not have happened. The Log Ins examined were, in his opinion, from a physical address in Spain and not from Ireland.

Extensive oral testimony was given by Ms PD, the Senior Manager, who had handled the investigation. The first meeting on the 23rd of August had lasted some 90 minutes and the second on the 16th September for 1 hour and 45 minutes. In her evidence Ms PD emphasised how seriously and extensively she had approached her task. She had considered all possible options but felt that Trust and Dishonesty were key issues for her in formulating her opinion. She had felt that the Complainant had regularly changed her explanations and was simply not presenting a credible version of events. The Complainant was in a High Trust position, and her lack of credibility was incompatible with this role.

Ms PD stated that Dismissal had been a difficult decision to make but the lack of credibility and what she felt was basic dishonesty on the Complaint’s part had decided the issue for her.

The Respondent detailed extensive case law & precedents in support- principally the Labour Court in Computer Placement Ltd v Kelly, UDD2513 & O’Neill v Eurofins PSS Irl Ltd - Adj 31337. On the point of Reasonableness Ms McVeigh referred to Praxis Care V Hoibson- UDD2172.

On the issue of the failure of the Complainant to lodge an Internal Appeal post the Dismissal Ms McVeigh for the Respondent cited a number of significant Legal precedents principally the Supreme Court in Abenglen Ltd v Dublin Corporation [1984]IR 381. The basic argument from these cases was that there was a total requirement on a Complainant to exhaust all internal procedures before seeking external redress from bodies such as the WRC.

As this Appeal had not happened the Respondent indicated that the case should be “ab initio” decided in their favour.

Mr Walsh for the Complainant extensively cross examined all the cited Respondent witnesses. He argued that the case was one where a predetermined outcome had been decided well in advance. Ms PD had simply “parroted” Ms BG’s investigation and had not given any weight to the very legitimate mitigations advanced by the Complainant. Ms PD strongly refuted this suggestion. As regards a non-appeal the Complainant had lodged a very early complaint with the WRC. It was she felt a better approach to an Independent Appeal rather than a Company process that was clearly hostile to her.

In conclusion the Respondent argued that all the evidence presented pointed to a finding of Gross Misconduct and the Dismissal was fair.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:2        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [71983] ICR 1 where the “Band of Reasonableness” principle was elaborated upon at length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.      the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.      whether the procedures adopted were fair and reasonable and

3.      the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

3:3         Consideration of evidence – both Written and Oral testimony.

This case was characterised by excellent HR/IR Procedures and there was little on that front that Mr Justice Flood, quoted above, could have found fault with.

As always Oral testimony was crucial.

The Complainant was Spanish, although living in Ireland for some considerable years. Her immediate reporting Manager was based in Switzerland. In his Oral evidence he indicated that he was always satisfied with the Complainant’s work but gave the impression that day to day oversight of the Complainant’s attendances etc were not really at the top of his agenda. The Complainant presented as a very capable worker but had taken a “relaxed” view of the Remote Working procedures. The evidence presented indicated that she had been advised if not formally cautioned in this regard in 2023.

The Investigation by Ms BG was hard to refute – the Time Clockings were direct evidence and the varying explanations to Ms BG and latterly to Ms PD did not add to her defence.  The Spain/Not Spain issue was very hard to accept from an outside Observers point of view (such as an Adjudicator) especially on the expert interpretation from the IT expert Mr BB.

The question then focused on the Disciplinary meetings with Ms PD.

As set out above an Adjudicator does not rerun Investigations but can comment on Natural Justice and in this case Proportionality. Ms PD was a serious Managerial witness. She had very considerable Managerial experience and came across as a person of consideration in her actions. The Hearings that she had with the Complainant had expended over two days and some 3 and a half hours.

There was nothing to indicate to the Adjudicator that she had made a hasty decision. She knew the business well and the integrity and honesty requirements expected of staff. Her closing statement had been that the Complainant had fallen down on the honesty requirement. Honesty was required in the position of trust that the Complainant occupied, and dismissal was the only, most regrettable option.

Legal precedent quoted above is that the Adjudication Officer does not substitute him /herself for an Employer and give a different decision.

All procedures were followed scrupulously in this case and Ms PD’s finding cannot be overturned by the WRC without a very good reason.

Accordingly, the process has to be seen as Procedurally Fair and in keeping with Natural Justice.

Two issues then arise - firstly was the penalty imposed – total dismissal – proportionate and secondly what weight has to be given to the Non-Appeal of the Complainant.

Mr Justice Flood, at Point 5 of his quotation, quoted above is worth repeating.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

The Oral Testimony from Ms PD was influential here. The actual issues with the Remote Working while serious were not absolutely critical. The Spanish issue and the clocking irregularities were much more serious.  It was the shifting stories approach of the Complainant characterised by Ms PD as Dishonesty that decided the issue in favour of Dismissal.

In her Oral testimony the Complainant did not really seem to appreciate the seriousness of her actions and the full implications of detailed Respondent HR procedures. Her shortcomings in not having proper Representation at Internal Hearings, although this was pointed out to her by the Respondents at all stages, did not help her case.

Regrettably, as stated already, for the Complainant the WRC does not “rerun” employer decisions once they are Procedurally/Natural Justice correct.

The failure to Appeal was also indicative of the Complainant’s approach of not really appreciating the seriousness of the situation.

3:4   Adjudication Summary

In summary the Adjudication view has to be that decision to dismiss has to be seen to be procedurally fair and is upheld.

The Complaint has to be seen to be unsuccessful.

Unfair Dismissal