UD397/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Lesley Anne Byrne

- claimant                                                                                                       UD397/2013

Against

St. Pauls Garda Medical Aid Society

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly B.L.

Members:     Mr. N. Ormond

                   Mr F. Keoghan

heard this claim at Dublin on 4 April 2014 and 14 and 15 October 2014

Representation:

Claimant(s) : Ms. Mary Duffy-King, SIPTU, MISC Unit, Liberty Hall, Dublin 1

                     Mr Hugh Hegarty, SIPTU, MISC Unit, Liberty Hall, Dublin 1                                 

Respondent(s) : Rosemary Mallon B.L. instructed by Hughes Murphy Solicitors,

                         13 Wellington Quay, Dublin 2

Summary of Evidence

The respondent organisation provides health insurance for its members. Membership is made up of members of An Garda Siochana and includes student Gardaí and former retired members of the force. Employees were also members including the claimant who was employed as a claims assessor. In the summer of 2011 the claimant was out on sick leave and the office manager when looking through her desk drawers found four cheques which were not processed dating back a number of years. In January 2012 the office of the Revenue Commissioners notified the respondent of an investigation into the tax affairs of the claimant. On the instruction of JF the office manager gathered together all of the claimant’s insurance claims. She noted that on the form GMA was entirely tipp-exed over and she brought this to the attention of JF. It was also noted that on her claim form a handwritten note appeared stating “please send bills to home address”.

Following on from this the respondent established an investigation committee as the claimant had breached policy and procedures. A number of circulars which stated no alterations or writing should appear on claim forms were opened to the Tribunal. Compounding the issue with the four cheques the respondent had moved to new office premises in 2008 and the claimant should have been aware of the cheques as she would have moved them during the relocation process.

A respondent witness MC an elected member of the management committee and retired Garda superintendent gave evidence to the Tribunal. He was appointed with two others to investigate the allegations raised against the claimant. The report of the investigation was opened to the Tribunal. A letter dated the 29 February 2012 to the claimant was opened to the Tribunal which set out the allegations. JF had provided terms of reference to the investigation committee. As part of the investigation process the committee met on the 23 April 2012 to review the case. On the 14 May they met the revenue investigator to examine the original documents which had tipp-ex. On examination of the original documentation he and the committee members were satisfied that GMA was tipp-exed over. They met with the office manager and reviewed her statement. An email from the revenue investigator to JF confirming the above meeting took place was also opened to the Tribunal.

A letter dated the 22 August 2012 to the claimant signed by the investigation chairman was opened to the Tribunal. The letter included an invitation to the claimant to attend a meeting on the 10 September. The committee received a letter form the claimant dated the 29 August 2012 which attempted to explain the issues raised and as she was on maternity leave and due to family commitments could not attend the meeting. A second letter followed dated the 27 September from the claimant stating she was on sick leave. The committee did not receive any medical certificate indicating the claimant was unfit to attend an investigation meeting. The respondent accepted that the claimant had furnished her employer with medical certificates but the committee were not copied with the certificates. The correspondence from the claimant which stated that she was “unable to provide any further details in relation to these claims” the committee viewed as very final. As the claimant had not sought an adjournment the committee saw no merit in delaying the investigation any further.

The investigation committee concluded that the claimant’s conduct amounted to breaches of discipline and that she should be subjected to a disciplinary process. The writing on documents did not warrant the imposition of a serious sanction however, the non-processing of the four cheques and in particular the alteration of documents by using tipp-ex is gross misconduct and as such a very serious matter which could warrant the imposition of sanction up to and including dismissal.

The witness regretted very much that the claimant did not meet with the committee. He considered that the actions of the claimant led to a break down in trust and confidence.

The claimant’s maternity leave ended on the 3 September 2012

At the resumed hearing on the 14 October 2014 the original documents which contained the tipp-ex was opened to the Tribunal. MC verified that the documents were those he viewed at the meeting with the revenue investigation officer. The witness accepted that there were no witnesses to the claimant using tipp-ex on the documentation but on the balance of probability and based on the statement of the office manager he concluded the tipp-ex was used by the claimant.

Office manager (NMcC) was the claimant’s line manager. As part of her role she approved claims of employees of the respondent organisation including the claims of the claimant. In August 2011 when the claimant was on sick leave she found four folders of approximately fifty claims in the claimant’s unlocked drawer. On the top of each folder she found cheques which she noted had gone out of date. She established that the cheques were not processed or receipted. She reported this to JF. In January 2012 she was asked to provide medical claims and receipts of the claimant from 2004 to 2009. While copying them she came across the tipp-ex and reported this to JF. The witness was certain that when she approved the claims there was no tipp-ex as she would have raised this with the claimant at the time and would not have processed a claim containing tipp-ex. The witness recalled how two years previously in 2010 the claimant had sought to view her claims which were archived. She had allowed the claimant access to the documentation. She was surprised to see that the claimant had written on documentation as she was fully aware of the circulars on this issue. She described as unusual the claimant’s request to send bill to her home address. At the time she questioned the claimant about this and was informed that due to the nature of the procedure she did not wish NMcC to view her claim. The witness accepted that explanation at the time.

A disciplinary committee was set up and PF a retired Garda Inspector was appointed. He was furnished with the investigation committee’s report, conclusions and recommendations. All of the correspondence and statements were reviewed and the decision to dismiss the claimant was reached.

The claimant had not met the committee and the decision to dismiss was based on the findings of the investigation committee. The claimant was notified of her dismissal by letter dated the 13 December 2012. The witness did not believe it was his or the disciplinary committees role to offer the claimant an appeal process.

The claimant commenced employment with the respondent organisation in January 1998 with general office duties and responsibility for processing members claims. Prior to her dismissal she had no disciplinary issues on her record. She first learned of the allegations in a letter dated the 29 February 2012 from JF. She was on unpaid sick leave at the time. Her maternity leave commenced on the 5 March 2012. As she was not attending work at the time she had no opportunity to access documents to establish why the cheques were not processed fully. She accepted that she overlooked the processing of the cheques and as she was good at her job believes there may have been outstanding queries in relation to the claims involved. With regard to writing on documents she was of the view that writing on the claim form was not an issue and commented that other employees had included notes on claim forms. In relation to the tipp-ex on two documents she could not recall asking the office manager for her claims. She denied altering the documents or ever using tip-ex to alter a document. She stated that she had nothing to gain from alter documents. At the time of the investigation she had just had her second child in April and was on medication for depression. She was unable to cope and felt she had done nothing wrong. The claimant accepted that she had not addressed or offered an explanation to the altering of documentation with tipp-ex allegation in any of her written correspondence with the respondent or the investigation and disciplinary committees. She described the allegation of failing to process the four cheques as an administrative error. The claimant did not accept she breached circulars by writing on a claim form which she completed in the hospital when having a procedure carried out. The claimant accepted that she did not seek an adjournment of the investigation or disciplinary meetings.

Determination

The Tribunal have carefully considered the evidence adduced over the three day hearing together with the documentation submitted.

The claimant was dismissed from her employment by letter dated the 13^th December, 2012 following a finding that her behaviour “destroyed the trust and confidence which an employer must have in its employees in order to retain them in employment. On that basis we have determined that your behaviour represented gross misconduct and warrants termination...”

The Tribunal is satisfied that a full and independent enquiry was carried out in relation to the four allegations and that the respondent gave the claimant every opportunity to state her case and//or to deny the allegations. Even when giving her evidence the claimant did not deny that she had left cheques in her desk drawer. She did not deny writing “please send bills to home address”.

In relation to the allegation that she wrote on a claim form, a circular was opened to the Tribunal wherein it is very clear that forms such as the claimant’s claim form should not have been written on. The Tribunal is satisfied, despite the claimant’s evidence that she “didn’t think anything of it” and “that it’s done all the time”, that she did have knowledge of the circular and did knowingly write on the form. However, that allegation in isolation would not amount to gross misconduct.

In evidence she did deny using tipp ex on the claim forms however the Tribunal would have expected to see correspondence to this effect from the claimant when the issue was being investigated and/ or in any of the correspondence furnished by the claimant during the investigation process. All the claimant said was “I have nothing to add”. That statement coupled with the evidence that only the claimant could have had something to gain from altering the document lead the Tribunal to conclude that she did alter the document. Whether she did gain anything by doing so, is not relevant.

The claimant’s inaction in relation to the cheques had a negative financial effect on the respondent. To leave cheques in a drawer for a period of four years is totally unacceptable and did lead to a breach of trust between the claimant and the respondent. The Tribunal find that the investigation and disciplinary process, whilst not perfect, were sufficient and the claimant was afforded every opportunity to state her case however, for her own personal reasons chose not to.

The Tribunal conclude that the respondent’s finding that the claimant’s actions had “destroyed the trust and confidence “ they had in her well foundedand find that her dismissal was warranted and was fair in all in the circumstances of this case. The claimant’s claim pursuant to the Unfair Dismissals Acts 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)