EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1652/2013
CLAIM(S) OF:
Michael Kearns (claimant)
Against
Provident Personal Credit Limited (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr W. Power
Mr P. Trehy
heard this claim at Dublin on 5th February 2015 and 9th June 2015 and 10th June 2015
Representation:
_______________
Claimant(s): Mr. Dan Walsh instructed by Mr Sean Ormonde, Sean Ormonde & Co,
Solicitors, Suite 9, The Atrium, Maritana Gate, Canada Street, Waterford
Respondent(s) : Ms. Mary Paula Guinness instructed by Ms. Joanne Hyde, Eversheds, Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the evidence heard over the course of three days of hearing, together with the submissions made by legal representatives and the voluminous documentation provided and opened in support of the parties’ respective positions.
The respondent company (PPCU) is a registered money lender operating in this jurisdiction in compliance with the Consumer Credit Acts and under the regulatory eye of the Central Bank.
The structure of the company allows for self-employed agents to operate at local level providing high interest loans and collecting weekly re-payments pursuant to the agreed terms of the loans provided.
At the next level are the Development Managers who are employed by the respondent company and are responsible for over-seeing the agents in the field. Development Managers are answerable to Area Managers. The respondent witnesses went to great lengths to explain to the Tribunal that, competency, integrity and probity are all essential characteristics at management level.
The claimant commenced his employment with the respondent company in 2009. The claimant’s employment was not without incident and in March 2013 the claimant was moved sideways to Wicklow following a disciplinary process which had left him with a written warning on his file.
In his evidence, the claimant said he was happy with this move as he was retaining his position as Area Manager, overseeing the work of four Development Managers who in turn oversaw the performance of up to 50 of the self-employed agents in the field.
The company witnesses gave evidence to the effect that agents would from time to time require “float” cheques to facilitate loan requests sought by their customers. In general, money could be recycled and used for “new” loans but where an agent had insufficient funds at a particular time of the week and where authorisation had been given, an agent could request a “float” cheque up to the sum of €3,000.00. Clearly the respondent’s driving motivation was to facilitate loans as soon as might be practicable after a request had been made.
Much time was given over to the Agency set up by one LM who came under the management of the claimant from March 2013 in the Wicklow area. LM was not invited to give evidence by either party and the Tribunal must assess the nature of this agency and this agent based on the evidence adduced by everyone except the man himself. In short, it seems LM was one of the most successful agents engaged by the respondent and his work amounted to almost 40% of the area’s productivity. The claimant described this agency as being “almost out of control” and the claimant had very real and serious concerns at the extent of the agency and the vulnerability of such enormous sums of monies being overseen by one man. Quite apart from these concerns there does also appear to have been some management issues as the claimant stated a number of times that LM was simply unmanageable. LM didn’t answer his phone, didn’t come into the office and, in general, showed little regard for his Development Manager, MM, and his Area Manager, the claimant herein.
In or around 12th April 2013 the claimant moved this matter up the line and sought the assistance of the Divisional Risk Manager, PP, to oversee this agency run by LM. This request was absolutely appropriate.
Subsequently, on or about the 29th May 2013 a meeting was held between the claimant and LM and in the presence of MM (LM’s Development Manager) and it is quite clear to this Tribunal that there was an airing of differences at this meeting and that whilst the meeting might have seemed to have ended on an amicable enough note, LM was in fact very annoyed at what he perceived as “being ganged up on”.
LM raised a formal complaint with a Mr A. McK the Area Operations Manager (and the claimant’s supervisor). A formal investigation into the incident was initiated and it was intended that this investigation would be ramped up to a disciplinary process in the form of a meeting to take place on the 5th July 2013. The meeting did not take place because of a series of unusual events which occurred at the end of June 2013 and which ultimately gave rise to the claimant’s dismissal.
It is common case that the end of June is a significant date in the annual operations of the respondent company. There is a half-yearly stock take at the end of June and bonuses and shareholder dividends are to some extent determined at this point in the calendar year. The claimant indicated that as it was the first indicator of his performance in the Wicklow area he was anxious that all hands should be on deck. It is also an accepted fact that the claimant’s area was well below target and as a matter of urgency he needed to try and bump up the figures.
It is noted that in his direct evidence the claimant made the case that he knew that LM’s agency was in a position to generate a not inconsiderable amount in loans which would have put a bit of a dent in the loan deficit. The claimant further went on to say that he knew that LM was not minded to issue these loans, and because of the preceding disciplinary/investigative process, the claimant was not allowed to communicate with LM with a view to directing him to complete required loans before the end of June 30th cut-off point.
The claimant said in evidence that there was some level of panic in the Rathnew offices and that A McK was particularly anxious that the area was so far behind target. The claimant says that Mr McK directed the claimant to do whatever he could to improve the figures. The Tribunal notes that Mr McK vehemently denied the suggestion that MM and the claimant get out and push loads on people in a last ditch effort to improve figures.
The evidence was conflictive insofar as the fact that LM’s books at the end of week 25 had not balanced out and LM’s wilful refusal to make an effort in week 26 (apparently in a belligerent or petty way) were interchangeably used as reasons for what happened next.
The one thing that the claimant has maintained consistently is that he acted under the direction of the line manager (Mr McK).
In any event, the claimant obtained €27,000.00 of monies by way of nine cheques worth €3,300.00 withdrawn from the company account which was variously described by respondent witnesses to have been an unusual transaction. The money was returned the very next day.
In his account of what happened the claimant says he withdrew the monies on the understanding that Mr McK had sanctioned the move as the claimant was, in effect, expected to step into LM’s shoes and distribute loans to individuals forming part of LM’s Agency who had requested loans where LM was opting to go on a go-slow in loan distribution.
The claimant went on to explain that he had a change of heart and, on the advice of his worried wife, he decided not to interfere with LM’s agency, he decided not to obey the direction of his supervisor and he decided to simply return the monies.
The unusual movement of money was picked up on by the respondent almost immediately and the claimant was invited to attend a meeting regarding this issue. Rightly or wrongly this issue was rolled up with the complaint which had been raised by LM. There followed a protracted period of time during which the claimant was unavailable for any meeting by reason of ill-health.
An investigation meeting was held on the 20th August 2013 at which meeting the claimant said very little about the €27,000.00 issue other than to say that he acted on the instruction of his line manager. In other words the fulsome and indeed rational information and explanation given to this Tribunal over the course of this hearing was not given to the employer in the aftermath of the incident nor was it ever given other than before this forum.
Whilst there was ongoing correspondence between the parties up to the 6th September the claimant did little to protect himself and simply created an aura of suspicion where one need not necessarily have applied. The respondent interviewed Mr McK who simply denied he had instructed the claimant to take out such a large amount of money. The claimant never challenged this denial. Such a challenge may well have led to Mr McK to accepting some responsibility for the claimant’s actions.
The Tribunal noted that the complaint initiated by LM was found to be unsubstantiated and the letter of dismissal (dated the 6th September 2013) finds the claimant’s actions to have amounted to a theft and to have been unauthorised.
Having listened to all the evidence, the Tribunal finds that the claimant’s explanation for what happened on the 28th and 29th June, as disclosed in his evidence-in-chief, is plausible insofar as no other explanation has been put to the Tribunal which makes any sense whatsoever.
That said, in the course of the investigative process, the claimant kept an obdurate silence on what his reasons were. Other than to say he was following a direction, the claimant failed and refused to explain and flesh out what had happened. The claimant refused to engage with the process in a sensible way and in fact left his employer with no option other than to assume the worst and dismiss the claimant for gross misconduct.
The Tribunal accepts that the employer acted reasonably insofar as the employer gave the claimant every opportunity to engage with a process of investigation. The claimant became caught up with his own animosity towards LM which had very little to do with the explanation for the issue of the €27,000.00. The claimant cannot expect this Tribunal to find the dismissal to have been unfair when the claimant, through his own actions, was fully responsible for the employer reaching this decision.
Accordingly, the claim under the Unfair Dismissals Act 1997-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)