ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000082

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 25/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Act 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant had 18 years service with the company. He was dismissed for gross misconduct without any disciplinary hearing taking place. He was not provided with all relevant documentation during the investigation. The complainant provided explanations in relation to the matters raised by the employer. The person who conducted the investigation was the same person who dismissed the complainant. The complainant was required to attend an appeal hearing without having been furnished with all the relevant documentation which the respondent sought to rely on in making his decision. The appeal hearing itself was merely a rubber-stamping exercise.

Respondent’s Submission and Presentation:

Major discrepancies were discovered in the paperwork in the branch office where the complainant was employed as Senior Administrative Officer. There were also apparent cash misappropriations and as a result the Depot Manager was dismissed and some months later the complainant was suspended pending the finalisation of the investigation.

The complainant was invited to an investigatory meeting and was advised that he would be asked to explain sample irregularities previously furnished to him. Following this meeting and after due deliberation it was considered that the complainant’s answers were not satisfactory regarding the irregularities. His employment was terminated as it was decided that he was involved, both directly and indirectly, in facilitating certain transactions which amounted to gross misconduct. The complainant appealed this decision and following a hearing the decision to dismiss was upheld.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Whether the respondent in deciding to dismiss the complainant acted fairly and reasonably in accordance with the provisions of the Unfair Dismissals Act 1977.

Whether the complainant was due payment in lieu of notice and whether the respondent in failing to pay same has acted contrary to the provisions of the Payment of Wages Act 1991.

Legislation involved and requirements of legislation:

Section 6(1) of the Unfair Dismissals Act 1977 states:

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.

Section 6(4)(b) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following:

(b) the conduct of the employee

Section 6(7) of the Act states:

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, as the case may be, considers it appropriate to do so –

1. the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal….

Section 5 (6) of the Payment of Wages Act 1991 states:

Where –

1. the total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

2. none of the wages that are properly payable to an employee by an employer on any occasion (after making any deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error in computation, the amount of deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Decision:

The complainant was employed as an Office / Sales Administrator in the office of a branch depot of the respondent having commenced employment in September 1997 and being subsequently promoted to that position. His monthly gross pay was €3,471.66 per month (€2,773.32 net).

In December 2014 the respondent’s Head Office investigated discrepancies and inaccuracies in paperwork and apparent cash misappropriations in the branch office. The depot manager was dismissed. On April 21 2015 the complainant was suspended with pay pending the completion of the investigation. On 28 April 2015 the respondent wrote to the complainant enclosing a file which it was stated contained a sample of the discrepancies involved in the investigation and inviting him to attend a meeting to “reply to the allegations contained in the file.” On 1 May 2015 there was a further letter giving details as to the arrangements for the meeting and stating “you are hereby advised that as a result of this investigation disciplinary sanctions, including termination of your employment, may apply.”

The investigation meeting took place on 18 May 2015. The complainant had been advised of his right of representation and opted to bring his sister-in-law. The meeting was conducted by the respondent’s Financial Controller who, in opening the meeting, stated he had been requested to carry out an investigation and that he was not at the meeting to make judgements but to assess the facts. The various transactions which formed the basis for the meeting were gone through in detail. It was clarified that these amounted to about 25% of the total involved in the investigation. The complainant said that any cash received was recorded in a cash book which he himself had been responsible for setting up. He then gave the cash to the depot manager as there was no safe at the time and there had been break-ins at the office. The manager used some of the cash for expenses and told the respondent that this had been cleared by Head Office. The complainant did not himself issue credit notes but would request them from H.O. on the authority of the Manager. In the same way some transactions were cancelled on the instructions of the Manager. The transactions covered a number of years and the complainant said that he could not recall the details in a number of instances. He also pointed out that he had engaged fully in the investigation which had begun in December.

On 26 May 2015 The Financial Controller wrote to the respondent stating that the investigation was complete. The letter added:

“On the balance of probability, it can only be deduced that you were involved, both directly and indirectly, through your acquiescence, in facilitating certain transactions which amounted to gross misconduct.”

The letter listed the types of misconduct and other issues taken into consideration and then stated:

“As previously noted, it can only be deduced that gross misconduct applied in your case and the bond of trust, which is paramount in any employer / employee relationship, has been irrevocably broken.

Accordingly, your employment is terminated with immediate effect.”

The letter finished by advising the complainant of the details regarding his right of appeal.

The complainant lodged an appeal by way of letter dated 29 May 2015 and followed that with another letter on 2 June 2015 requesting “sight of all paperwork whatsoever in relation to this matter.” He also queried if anyone else had been interviewed in the course of the investigation. After being given a date for the appeal hearing the complainant wrote again on 12 June 2015 confirming his attendance and again requesting copies of all paperwork that formed part of the investigation. These were not supplied.

The appeal hearing took place on 17 June 2015 and was conducted by the respondent’s Managing Director and the complainant was again accompanied by his sister-in-law. In his opening remarks the MD stated that all relevant documentation had been given to the respondent. During the course of the hearing the MD said that the respondent had been given sufficient paperwork. In response to a question as to why no disciplinary hearing had been held the MD replied that it wasn’t necessary. Near the end of the meeting (which lasted 20 minutes) the MD asked the complainant “have you anything new to add or to confess for this meeting?”

On 23 June 2015 the MD wrote to the complainant advising him that the decision to dismiss had been upheld.

There is no doubt that a situation in relation to paperwork and cash handling issues existed in the branch office concerned which led to the investigation by Head Office personnel. It is not disputed that the complainant assisted this investigation and that it initially resulted in the dismissal of the Depot Manager. The investigation continued and, given the number and range of discrepancies uncovered, the respondent was entitled to seek explanations from the complainant who held a senior position in the office and were entitled to suspend him on full pay as part of that process. It is at this point that that process became problematical. All of the paperwork that the respondent was relying on as the basis of their investigation should have been supplied in advance to the complainant. Alternatively the respondent could have clarified that the sample paperwork provided would be the only documentation relevant to the investigation. As it was, only 25% of the paperwork was put before the complainant for response.

As to the investigatory meeting itself, even though the letter advising the complainant of same had mentioned possible disciplinary sanctions, in opening the meeting the minutes show that the Financial Controller specifically stated that he was not there to judge but to assess facts. That is precisely the role he should have confined himself to carrying out. I note that the respondent’s procedures in relation to dismissal are laid out in Part 2 of their Terms and Conditions of Employment. It does not appear to specify a separate Disciplinary hearing. It details that a full investigation will take place. At the next stage it states that “you will be informed of the reasons for the proposed dismissal and you will have the right to state your case.” As noted above, the reasons for the dismissal are actually laid out in the letter of dismissal and therefore the complainant was not given the opportunity to state his case. Moreover, the decision to dismiss was made by the person who carried out the investigation which in itself is another flaw in the procedure. Finally the appeal hearing should be conducted by a person not previously involved in the matter who comes with an open mind regarding the issues under appeal. Reviewing the minutes of that appeal hearing and, in particular, the question asked of the complainant as to whether he had anything new to confess, I do not believe that the appeal process was conducted in a fair and reasonable manner.

In the light of the above I find that the complainant was unfairly dismissed. I am taking into account the fact that the complainant was in a position of seniority and trust in his employment and could have brought the concerns that he had with regard to the handling of cash to the attention of Head Office. I therefore make the following decisions:

Complaint No. CA-00000063-001:

I deem compensation to be the appropriate remedy. The complainant submitted documentary evidence regarding his so far unsuccessful attempts at seeking employment. I award the complainant €40,000.00 under the Unfair Dismissal Act 1977.

Complaint No. CA-00000063-002:

As the dismissal has been found to be unfair it therefore follows that the complainant was entitled to payment in lieu of notice. I therefore find that the complaint under the Payment of Wages Act is well founded and order the respondent to pay the complainant the sum of €6,409.00 in this regard.

Dated:   8^th August 2016