ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000155-A

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

An Accountant

versus

A Financial Services Provider

Date of Adjudication Hearing: 25th May 2016 and 13th June 2016

Workplace Relations Commission Adjudication Officer: Orlaith Mannion

Decision:

File reference: CA-00001088 / AdJ-00000155

Keywords: Unfair Dismissals Acts, Insubordination, Competence, Conduct, Substantial reasons

Dispute

1.1. Pursuant to the Unfair Dismissals Acts 1977-2007 and the Workplace Relations Act 2015 (as amended), following the referral to me by the Director General of this complaint of Unfair Dismissal contrary to Section 8 of the Unfair Dismissals Act 1977, I inquired into the complaint and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaint.  I proceeded to hearing on 25^th May and 13^th June. Submissions and supporting documentation from both Parties were received before, during and after the hearing and all oral evidence, submissions and documentation have been taken into consideration.

Summary of the employer’s case

2.1 The respondent is a corporate services provider and manages structured finance transactions on behalf of its clients. The respondent has a number of offices across Europe. At the time of the complainant’s dismissal there were 17 employees in the Dublin office, with six of these comprising the Accounting team including the complainant.

2.2 The complainant commenced employment with the respondent on 6th August 2008. The respondent submits that during the course of 2013, 2014 and 2015 difficulties arose with the complainant. Informal coaching sessions were initially held with the complainant to support him. In line with company procedure he was sent his appraisal form on 26th November 2014. He was requested to insert his year-end comment for discussion prior to his annual appraisal meeting. He refused to provide his comments. His appraisal meeting was held on 4th December 2014 where the complainant was advised that the respondent would be commencing a Performance Improvement Process (PIP). The complainant was resistant to this.

2.3 On 12th January 2015 his line manager asked him client-specific questions and asked for an update on the completion of certain tasks. He refused to answer the questions and the respondent submits that he was uncooperative and aggressive during the discussion. The complainant refused to participate in a PIP meeting on 2nd March 2014. He ultimately walked out of this meeting. The respondent submits it felt obliged to instigate a disciplinary process in respect of allegations of repeated instances of insubordination by the complainant. The disciplinary meeting was conducted by a Director of the company and the minutes of this meeting as well as the meeting with his line manager and her manager were recorded by a Stenographer. A copy of these transcripts was given to the complainant. This process resulted in a final written warning being imposed on 27th April 2015. The complainant was given the right of appeal. During the appeal process the Managing Director (who heard the appeal) saw how difficult the complainant was. He invited him to engage in workplace mediation but the complainant refused. The MD saw the adverse effect the complainant’s conduct was having on the morale and operations of a small office. Therefore the Managing Director made the decision not merely uphold the final written warning but to actually dismiss the complainant due to a breakdown in the trust and confidence between the parties. The Managing Director gave direct evidence that he thought the employment relationship had irretrievably broken down. The complainant was paid in lieu of his notice and his last day of employment was 26th May 2015.

2.4 The respondent submits that the complainant’s dismissal was justified on the basis of the complaint’s conduct under Section 6(4)(b) of the Unfair Dismissal Acts 1977-2007 or in the alternative on the ground of section 6(6) of the Acts there were substantial grounds justifying the dismissal.

2.5 Regarding legal submissions, Laffoy J in Cronin v Eircom Ltd [2006] IEHC 380 held:

‘I do consider that as a matter of principle a contractual term of mutual trust and confidence was recognised by the House of Lords in the Malkik and Mahmood case should be implied into each contract of employment in this jurisdiction by operation of law’.

2.6 In A Worker v A Company [2004]15 ELR 258 the claimant made spurious complaints of sexual harassment and victimisation against two supervisors.The employer carried out an investigation and the allegations were not upheld. Disciplinary proceedings were commenced against the claimant (employee) for making spurious allegations and the complainant was ultimately dismissed on the basis that the necessary trust and confidence between the employer and employee had broken down. The Employment Appeals Tribunal accepted that dismissal was justified having regard to the breakdown in trust and confidence and the respondent’s duty of care to a large number of employees. Similar to this case, the claimant refused to file a grievance or to provide evidence to support his allegations.

2.7 In Bunyan v United Dominions Trust [1982] ILRM 404 the Employment Appeals Tribunal endorses the view that ‘the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’.

2.8 Mary Redmond states in Paragraph 13.16 Dismissal Law in Ireland:

‘Procedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’.[1]

2.9 The respondent submits that the complainant was fairly dismissed due to the complete breakdown of trust and confidence between the parties. The respondent submits it made substantial and repeated efforts to address the complainant’s issues but he refused to cooperate and engage with the respondent. While inundating the employer with emails he refused to formalise these into a grievance as per Company procedures. The respondent maintains that the complainant was insubordinate and neither capable nor competent of doing beyond the rudimentary aspects of his role

Summary of the employee’s case

3.1 The employee submits that he was unfairly dismissed by his employer. He maintains that the Personal Improvement Plan was only set up for him. He stated it was rigged so that he would fail it. He did not submit a formal grievance as he submits that it would not be investigated fairly.

3.2 He points out that the initial investigation into what he submits were trumped-up disciplinary charge gave him a final written warning. He appealed this but instead the Managing Director dismissed him with immediate effect. The complainant submits that he did not agree to mediation as he maintains the mediator would not be independent.

3.3 The complainant seeks reinstatement.

Conclusions of the Adjudication Officer

4.1 Section 6(1) of the Unfair Dismissal Acts provides that the dismissal of an employee shall be deemed, for the purposes of these Acts, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The burden of proof falls on the employer to show that the dismissal was fair. Example of this would include where the employee was incapable or incompetent to perform work for which he was employed by the employer to do or misconduct [see Section 6(4)] or other substantial reasons [see Section 6(6)].

4.2 The employer submits that the employee’s behaviour had deteriorated to gross misconduct. As well as that he was not capable or competent to complete tasks assigned to him. The Human Resources Manager gave direct evidence that 80% of her time at work was taken up with dealing with the employee towards the end of his employment there. The employer provided documentary evidence to show that the employee was resistant to taking direction as well as numerous examples of missed (internal) deadlines and sloppy work. He refused to carry out reasonable tasks for his supervisor. She gave direct evidence that he was significantly behind his peers in terms of quality of work. He refused to participate in the appraisal process. The Managing Director gave oral evidence of how the working relationship with his Managers in the Irish office had broken down. The MD stated the employee oscillated from ‘stonewalling’ to sending long-winded emails full of vague accusations. He stated that this was having a negative effect this was having on the wellbeing of other people working there. As their organisation is a client-facing one, this was bound to impact on their ability to serve their customers. I accept the respondent’s evidence in relation to the reasons given for the employee’s dismissal.

4.3 Now I will turn to whether it was reasonable of the employer to decide to dismiss in these circumstances. Section 6(7), states in determining if a dismissal is an unfair dismissal, I must have regard to —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with fair procedures – as outlined in in section 14 (1) of this Act or with the provisions of the code of practice regarding Disciplinary and Grievance procedures in S.I No. 146 of 2000.[2]

4.4 Regulation 4.6 of S.I. No 146 of 2000 states

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In this case, prior to disciplinary procedures the employer set up a personal improvement plan with the complainant. The complainant did not cooperate with this. The complainant argued that he was the only one in the Irish office who had to comply with this PIP. The Managing Director gave cogent evidence that PIPs were conducted in their other offices and he wanted it rolled out in the Irish Office. The complainant’s performance did need to improve; that is why he was directed to participate in the PIP process. It was only when he took an obstructive approach that disciplinary action was initiated. The employee was notified in writing on 23th March 2015 and he was offered an opportunity to respond. He was offered an opportunity for a colleague to attend the disciplinary hearing with him. In this letter, he was warned that the disciplinary hearing ‘could result in disciplinary action up to and including termination of employment’. A Director of the company, to whom he did not report, conducted the initial investigation. A Stenographer was present and he was given a copy of her report. The appeal was heard by somebody more senior to the Director who conducted the initial investigation. The MD travelled from London to conduct the appeal hearing. Again a stenographer was present. So far, so good.

4.5 However, there is one potential procedural flaw in how the employer conducted its disciplinary procedure. The initial investigator decided to give a final written warning. He gave direct evidence that he was aware the impact a dismissal would have on the employee’s career so opted to give him one last chance. Normally employees are given a warning before dismissal. However, the Managing Director gave evidence that he approached the appeal with an open mind but was horrified by the complainant’s behaviour and the impact it was having on the Irish team. He offered the employee mediation as he saw that had positive results in the past. This offer was refused. He upheld the findings of the initial investigation. In light of all that had occurred the MD decided to apply the ultimate sanction – dismissal. Every case is fact-specific. My role is not to be overly interventionist i.e. it is not to state whether an employee should have been dismissed or whether a warning should suffice. Once I have satisfied myself that the reasons the employer give for the dismissal of an employee are the genuine reasons for doing so, I am required to decide whether the employer’s conduct in relation to the dismissal was reasonable and in line with fair procedures. In all the circumstances of this case, I am satisfied that the conduct of the employer was reasonable and done in accordance with natural justice.

Decision

5.1 I have concluded my investigation of the complaints of the accountant and hereby make the following decision in accordance with Section 8 of the Acts and 41(5) of the Workplace Relations Acts - I find that dismissal of the employee was NOT unfair.

Orlaith Mannion

Adjudication Officer

Dated:   26^th August 2016

[1] (2007, Bloomsbury) p.250

[2] S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 found at https://www.workplacerelations.ie/en/Good_Workplace_Relations/codes_practice/COP3/