ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001058

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

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-00001447-001	14/12/2015

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 8(1B) 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 contends that she was constructively unfairly dismissed in circumstances where the respondent employer moved to take disciplinary action against her in a flawed process where the same personnel who levelled the allegation against her then proceeded to conduct the disciplinary process. The complainant was employed from 3rd June 2002 to 8th July 2015. Her initial appointment was as an account executive and she was promoted to Commercial Team Leader in September 2014. On 14th May 2015 she was suspended with immediate effect without reasonable explanation. She was informed by one of the Firm Principals to pack her stuff that some financial irregularities were being investigated. The ‘financial irregularities’ turned out to be write offs which, it is argued had always been carried out by the complainant without any previous complaints against her. It is argued that if the respondent had a problem with the issue of write offs, then surely this warranted a written policy for clarity. There appeared to be no such written policy. It is argued that the process followed then was completely at odds with the rules of natural justice. The same Firm Principal who had levelled the allegations proceeded to conduct the investigation and disciplinary process. It should be noted that just prior to the allegations, the complainant had a meeting with the other Firm Principal who had asked her for her views, and to whom she replied regarding some negative aspects to the working situation. The complainant suffered enormous stress and subsequent medication as a result of this unwarranted suspension, which, it is argued was a punitive measure which damaged the complainant’s good name and reputation. When it became clear that the Firm Principal who instigated the suspension, investigation, investigation and disciplinary proceedings would only rely on a sole report regarding the extent of the write offs, the complainant had no choice but to resign her employment. It is argued that the situation in which the respondent behaved so unreasonably left the complainant with no other option.

Respondent’s Submission and Presentation:

The complainant was Team Leader of the four staff in the Commercial Team issuing renewals. Her role required a high level of trust and confidence and among other tasks, she was to ensure that all members of the team maintained their work up to date and any changes in policies, issued by Insurance companies were notified and explained to all staff. She was an experienced Commercial Account Executive and was responsible for handling premium totalling hundreds of thousands of euros of clients funds. In April 2015, the respondent reviewed the daily cash sheets and identified a number of write offs. One was what was considered a high amount (€49) which was a write off from premium and not commission, and should not have been written off. A review of the complainant’s write offs indicated an escalation in frequency and amount. After considering the matter with a HR Consultant, it was decided to suspend the complainant on full pay pending investigation. An investigation indicated that the complainant wrote off fees/commission when she was not entitled to do so and that this behaviour had escalated. The information was obtained by a review of paperwork and did not require interview of witnesses or formal meetings. The facts that emerged justified the respondent initiating a disciplinary process which was commenced by letter dated 20^th May 2015. That letter fairly and transparently attached the report and put three allegations to the complainant. It committed to adhering to SI 146/2000 and provided a copy to the complainant confirming the entitlement to be represented at the hearing and gave fair warning that the disciplinary sanction could include dismissal. It is submitted that the respondent behaved responsibly throughout, by agreeing to postpone meetings when the complainant could not attend, by affording the complainant full rights of representation, including a solicitor and barrister. The complainant refused to engage in the process and instead through her solicitor maintained the provision of write offs was a well established practice and that she was at no time informed that the provision of write offs was in breach of employment terms. It is mystifying as to why the complainant refused to attend the hearing and present her points for consideration. That is all she was asked to do and she declined to avail of this opportunity. It is argued that the complainant’s reasons for abandoning the process were without merit. It is important to note that this is a case where the complainant is alleging she was refused fair procedures and it was reasonable for her to resign. The onus is a high onus on the complainant and it is submitted that she has very substantially failed to meet that threshold.

Decision:

The complainant had been employed as an Account Executive and promoted to Commercial Team Leader, and her long service was by all accounts exemplary. The difficulties arose in or around April/ May 2015 when the respondent considered the write offs by the complainant to be too many and too frequent. I note the complainant’s evidence regarding the custom and practice in respect of write offs and their part in retaining and developing business. I accept that the respondent had a right to investigate what was considered an escalating situation. However, there appears to be no written policy. When engaging in a disciplinary process, the process involved must be seen to be absolutely transparent and fair. In this case, the Principal was the investigator, instigator of sanction of suspension and proposed overseer of the disciplinary hearing. In the circumstances, the complainant had no confidence in the procedure and resigned her employment. I uphold her complaint of unfair dismissal by way of constructive dismissal. I find the redress of compensation to be appropriate in circumstances where the employment relationship is irretrievably broken down and re-instatement or re-engagement are not appropriate alternatives. The complainant’s complaint is upheld and the respondent should pay to her the sum of €12,000.

Dated: 10^th August 2016