ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000594
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-00000842-001 | 13/11/2015 |
Date of Adjudication Hearing: 26/05/2016
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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:
Complainant’s Submission and Presentation:14/10/2013 Received a letter from my line manager, summoning me to a Disiplinary Investigation to do with "alleged misappropriation of cash" and "other procedural issues".24/10/2013 Attended disciplinary investigation hearing.06/11/2013 Received copy of minutes of meeting of 24/10/2013 for my agreement.11/11/2013 Wrote to Line Manager disagreeing with opening paragraph of minutes and asking if I was under investigation or assisting the Board of Directors with its investigation of a incident concerning another member of staff. I have not had a clear response.18/11/2013 Reply from Line Manager asking for my approval of the minutes but not addressing the issues raised by me.29/11/2013 Wrote to Line Manager asking that the issues raised by me might be addressed.03/12/2013 Reply from Line Manager ignoring my requests and seeking approval of the minutes.05/12/2013 Wrote to Line Manager explaining my difficulty in complying with his insistence that I approve the minutes. I also asked for help from Local Auuthority..this request was ignored...no response to date.13/12/2013 Reply from Line Manager stating that the minutes of the meeting were accurate and that the investigation team would proceed with or without my approval of the minutes. I felt it prudent to consider the minutes at that point in order to ensure any comments I might make would be considered.17/12/2013 Wrote to Line Manager, maintaining my position and including a copy of the minutes, to which I had made several changes.January 2014 Met with Line Manager to discuss the business of the Leisure Centre. Asked him if any progress had been made as several staff members were operating under severe stress. He assured me that the matter would be dealt with before he went on holidays at the end of the month.30/01/2013 Letter from Line Manager saying the matter would now proceed "to the next stage of the process" as "The investigation team is satisfied, and the records of the meeting confirm that the minutes are a true and accurate account of the meeting". None of the changes I had asked for had been implemented. I later discovered that this was the case with another staff member as well.January/February 2014 Spoke with Senior Manager who had taken over from my line manager, on two occasions regarding the stress levels evident and being reported to me by staff members, around the issue. He assured me it would be dealt with quickly.May 2014 At a meeting with new line manager about the operation of another swimming pool for the summer months, asked him about the investigation. He said it was "ongoing" even though he had informed the two duty managers previously that he had the findings of the investigation in his possession.23/06/2014 Letter from new line manager stating that he had received the findings and that he would consider them. He would then be in contact but not until August.18/08/2014 Letter from new line manager saying that he had considered the findings and inviting me to a meeting with him to put forward any mitigating circumstances or further evidence that I might like to have considered. A copy of the findings of the investigation team accompanied the letter. I had been found guilty of gross misconduct.03/09/2014 Attended meeting with new line manager..08/10/2014 Wrote to new Line Manager expressing my disappointment that the entire process had taken so long and that it was five weeks since our meeting without any contact from him.09/10/2014 Letter from new Line Manager stating that he believed me to be guilty of gross misconduct and outlining the reasons. He also stated that he would be recommending my dismissal and that I could appeal to the chairman of the Board of Directors.21/10/2014 Wrote to new line manager stating that I was compiling my response to his letter of Oct 9th and asking for copies of my contract of employment (in case he was referring to a different version than mine) and a copy of the minutes of my meeting with him on 03/09/2014 as I had not yet received them.21/10/2014 Letter from new line manager enclosing requested documents and notifying me of an extension to the date by which I must submit an appeal if I was intending to do so. I was not asked to approve the minutes of the September 9th meeting.23/10/2014 Wrote to new line manager stating that I wished to appeal the decision to recommend my dismissal and outlining the reasons.24/10/2014 letter from Line Manager confirming receipt of my letter of the previous day and informing me that he would forward it to the Chairman of the board of Directors.11/11/2014 Letter from Chairman of the Board of Directors advising me of the date of the appeal meeting.19/11/2014 Wrote to Chairman of the Board of Directors asking if it would be in order for me to be accompanied by a legal advisor as the normal options were not available to me. Chairman responded that there was no requirement for the company to allow me to be accompanied by a legal advisor but that he would allow it.11/12/2014 Attended appeal hearing with Chairman of the Board of Directors. It emerged during the hearing that I had not been supplied with important documents pertaining to the disciplinary action being recommended, namely minutes of meetings held with other members of staff during the investigation. Chairman of the Board of Directors also referred to a document that I had never seen previously, "Qualifications & particulars for post of RLC General Manager".23/12/2014 DELIVERED TO MY HOME ON CHRISTMAS EVE...received minutes of appeal hearing along with documents mentioned above. A further meeting was set for 16/01/2015.16/01/2015 There were several inaccuracies in the minutes of the previous meeting but it was agreed that they could be discussed at a later date if the need arose.01/04/2015 Letter from Chairman stating that I was not to be dismissed but that I would be suspended without pay for a period of three months to commence on 20/04/2015. I requested that this date be delayed for one week to allow me to take paid annual leave that I had booked in December. This request was refused.I resigned my position on 15/05/2015 in order to take up other employment so that I could continue to support my family and meet my financial responsibilities.On a number of occasions I requested my final salary payment, explaining that I was experiencing financial hardship. Payment was eventually made on 12/06/2015, a full month later.I believe that I was CONSTRUCTIVELY DISMISSED based on the following...My employer has breached a fundamental condition that goes to the root of the contract in so far as,(a) he has implemented a penalty that does not comply with the agreed disciplinary procedure...he also failed to follow the procedure. The stolen monies were recovered in full and the reputation of the business was protected.(b) there has been a breach of duty of trust...I have been submitted to questioning as if I were a criminal; the process and penalty were so unfair and damaging to my rights and entitlements that I had no option but to resign my position.The following points form the basis of my argument...1. In correspondence to me there was no indication of a possibility of penalty/sanction, even when I sought clarification.2. There was an inordinate delay with the disciplinary procedure in contravention of the principal of natural justice.3. No bi-annual performance review took place during my years of employment so no performance issues were raised.4. This was the first and only issue raised. The penalty is so onerous as to make my position untenable.5. I was provided no training concerning the Disciplinary & Grievance pocedures.6. I was provided no training in Corporate Governance.7. If internal procedures were lax they were not highlighted through internal audit.8. No disciplinary procedure was enacted against the duty managers for breach/lack of procedures even though they claim to have had knowledge of the theft of monies for approximately one year before reporting the incident. One duty manager suggested the use of the rental money to rectify the situation but when I mentioned this at appeal i was accused of attempting to shift blame away from myself and onto her...this is a lie.9. Industrial Relations Act 1990, SI146, Code of Practice: Grievance and Disciplinary Procedures provides that one is provided with the opportunity to "face your accuser" and be allowed the opportunity to confront or question witnesses. This did not occur. Furthermore, when witnesses requested that changes be made to minutes in order to better represent the happenings at meetings, all such requests were ignored. I was also denied access to important relevant documents.10. The Industrial Appeals Tribunal have long found that where an employee's employment is in jeopardy they are informed in writing as early as possible and be provided the opportunity for legal representation. This did not occur. The investigation was carried out in its entirety by employees of the Local Auuthority which owns the company in question and whose employees hold all positions on the Board of Directors. There has yet to be an impartial voice heard in this matter. I look forward to a change in this situation. > |
Claimants Submissions
The claimant asserted that there were fundamental flaws in the procedures adopted by the respondent in their processing of disciplinary action against him and submitted that he was left with no alternative but to resign when a disciplinary sanction was imposed on him – he submitted that he was left in a situation of no income for a 3 month period , that he had been advised by the Dept of Social Protection that he could not work for another company while still in the employment of the respondent and that in order to secure an income for his family he had to obtain alternative employment necessitating his resignation from the respondent company.At the time he obtained a 9 month fixed term contract .He stated that he did not discuss the resignation proposal with his solicitor who had represented him during the disciplinary process and contended that even if he could have borne the financial consequences of suspension without pay for 3 months , his position had become untenable as a result of the flawed and unfair procedure adopted by the respondent.He was currently working on a short term 3 day week contract.
The claimant set out a chronology of his experience of the investigative process – he asserted the process was biased against him from the start.He submitted that he was never advised that he was being investigated for gross misconduct and referred to correspondence from the respondent which he contended demonstrated that everyone knew he was being investigated for gross misconduct except himself.He submitted that he was denied an opportunity to challenge the accountant – the accountant had pursued the allegations against him following a meeting with a member of his staff and he submitted that he was never furnished with notes or minutes of the meeting.He submitted that up until the appointment of the current auditor/accountant he had been involved in preparing the budgets with the previous postholder but this all stopped when the new incumbent was appointed.The claimant asserted that when he was initially appointed he was advised by the Director of Service that he had full authority to manage the centre – on foot of this he assumed he had the autonomy to resolve the issue misappropriation of funds while protecting the position of the respondent in ensuring any loss was made good and at the same time fulfilling his duty of care to the staff member involved.
He stated that he had asked for help on the 5th.Dec. 2013 – contending that in the past he could have availed of advice from the Human Resources Dept. – but he received no response.He questioned the propriety of the accountants exchanges with the duty manager rather than with himself as Senior Manager of the Centre.He advanced that he had never been issued with the document now being relied upon by the respondent with respect to Terms and Conditions of Employment & Quaifications and if he had been furnished with said document he would have sought amendments to correct the inaccuracies contained therein.The claimant took issue with the respondents records of the investigation and disciplinary meetings and submitted that they failed to take on board amendments that he had submitted to correct inaccuracies in the respondents recordsDuring the course of the second hearing he set out his version of the disputed exchanges .He advanced that the respondents records did not show deflection of blame by him – rather he had accepted responsibility .He suggested that the respondents records were concocted to justify the company’s actions.
The claimant questioned why the respondent had failed to carry out a comprehensive review at the appeal stage by reinterviewing the staff involved to establish the facts .The claimant asserted that the respondent had been inconsistent in disciplining him and at the same time failing to impose any sanction on the duty manager who had been aware of the funding issue for over a year and had failed to inform the claimant as manager of what had transpired .
He submitted that the respondent “ found themselves on unsafe ground in these attempts to terminate my employment .Their next course of action was to make my position untenable by suspending me without pay for 3 months , making it impossible for me to secure other employment or to avail of government assistance.Delayed my final payment for a month”.
The claimant submitted that he had rectified the loss incurred by the respondent by recovering the money in full .He submitted that he had a duty of care to the staff member who was encountering enormous personal difficulties and he was obliged to fulfil that duty of care to her.He asserted that when he successfully challenged the initial charges made against him of failing to sign off on rosters r follow up on outstanding customer balances , the respondent continued to “ change tack until they felt they were justified in taking my position”.
The claimant questioned the delays in the carrying out of the investigation and referred to he and the staff member under investigation being allowed to stay in post during that prolonged period – “ The BOD knew they had nothing to fear from either of us”.
The claimant asserted that during his tenure he saved the respondent and the taxpayer €.5million.He submitted that the respondent had promoted the duty manager and paid her an additional €11,0000 more than the claimant while refusing to consider the request from staff for a pay review.
Respondent’s Submission and Presentation:
The respondent denied the complaint of constructive dismissal and set out a chronology of the respondent’s investigation into the misappropriation of funds at the centre and the ensuing discipliniary actions.It was submitted that the investigation and disciplinary processes were carried out in accordance with the respondents procedures and that the claimant was afforded his rights under natural justice.It was submitted that the investigation team found the claimant to be guilty of gross misconduct and when his dismissal was recommended he was afforded a right of appeal to the Chairman of the Board of the centre.The outcome of the appeal was that a sanction of 3 months suspension was imposed with a warning that the likely consequence of further misconduct would be dismissal.
The claimant’s letter of resignation was received on the 14th.May 2015 – it was acknowledged by the respondent on the 19th.May 2015 wherein the claimant was advised “ If you wish to discuss the matter of your resignation further please do not hesitate to contact me”.
It was submitted that there was no basis for the claimant contending that the conduct of the respondent was such that he was entitled to resign and the provisions of Western Excavations (ECC)Ltd.vSharp [1978] Q.B.761 and EAT determination UD1090/208 were invoked in support of that position.
It was submitted that there was reasonable cause to initiate disciplinary action against the claimant on foot of allegations that fell within the boundaries of gross misconduct.It was asserted that full consideration was given to all of the parties including the manager , the claimant who was responsible for corporate governance in the management of the funds of the leisure centre.It was advanced that it was not the respondent that was guilty of a fundamental breach of contract but the claimant who was in breach of his contract as manager.It was advanced that the claimant’s actions and inactions led to a breach of trust and could have caused reputational and other damage to the respondent .
It was contended that a sanction of dismissal was not unreasonable in the circumstances but on the basis of a plea of mitigation made by the claimant’s legal representative , the sanction was reduced to suspension without pay – “ not an unknown sanction within disciplinary procedures”.
It was submitted that the claimant could have remained in the employment and pursued his grievances regarding the penalty imposed through the state’s third party machinery if he had so wished.
It was submitted that it was well established that a question of constructive dismissal must be considered under 2 headings – entitlement and reasonableness.An employee must act reasonably in terminating his employment .It was submitted that resignation must not be the first option and all other reasonable options must first be explored.It was asserted that there were other options available to the claimant.
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.
Decision:
I have reviewed the submissions and evidence advanced at the hearings and accept the respondents contention that there is a very high standard of proof required in a constructive dismissal case.The test requires that an essential element of the contract of employment was breached and/or the respondent acted in such an unreasonable manner that the employee could not be expected to put up with the conduct any longer.Additionally a level of immediacy is usually required in relation to the alleged breach of contract/ unreasonable behaviour.
I acknowledge the validity of the claimant’s contention that there were a number of significant flaws in the processing of the disciplinary action against the claimant not least of which were
- The significant discrepancies between the content of the notifications issued to all parties in relation to the “Disciplinary Investigation “
an assurance from the respondent at the investigatory meeting on the 24thOct 2013 that” the interview is being held to ascertain objectively what happened in relation to the allegations being brought by Ms.x” and “ The Investigating Team do not make any recommendations and will report their findings” when in fact the investigating team proceeded to find that the claimant was guilty of gross misconduct. This breached the respondent’s own policy which quite rightly distinguishes between the investigatory and disciplinary processes.
A failure on the part of the investigating team to adhere to the procedures notified to the claimant – specifically the provision that where minutes were not agreed “ any differences would be noted”
The failure to clearly identify to the claimant that from the outset the claimant was being investigated for gross misconduct
- The initial failure to furnish the claimant with the record of the interview meeting / notes with the other parties involved in the investigation.
Notwithstanding these flaws , the fact of the matter is that the respondent did not dismiss the claimant and the matter to be determined is whether or not the claimant was constructively dismissed.
Having reviewed the entirety of the evidence and noting in particular the chronology of events leading up to the claimant’s resignation , the fact that throughout the disciplinary process he was legally represented and appears to have relied upon an exchange with the Dept. of Social Protection to justify his decision to resign, the fact that it was open to the claimant to challenge the sanction ultimately imposed and in fact the process of dismissal through the State’s third party machinery while continuing in employment but did not do so and given the opportunity he was afforded to discuss his resignation with the respondent , I find the claimant has failed to satisfy the tests that have to be met to succeed with his complaint. Consequently I do not uphold the complaint of constructive dismissal and I find against the claimant.
Dated: 17th November 2016