UDD1733

This is an appeal on behalf of Sparrow Insurances Limited (“the Respondent”) against the decision of an Adjudication Officer (ADJ-00001058) dated 10 August 2016. The Notice of Appeal was received by the Court on 16 September 2016. The Court heard the appeal in Portlaoise on 21 February 2017. At first instance, the Adjudication Officer upheld Ms Bennet Gee’s (“the Complainant”) complaint of constructive unfair dismissal and awarded her compensation of €12,000.00.

Complainant’s Submission

The Complainant was employed as Team Leader in the Respondent insurance broker’s Commercial Department. She resigned her employment by letter dated 8 July 2015. She had been due to attend a disciplinary meeting, accompanied by her legal advisors, on the previous day – 7 July 2015. However, it transpired that the disciplinary meeting was to be conducted by Ms Eilish Sparrow, a Director of the Respondent. The Complainant took exception to Ms Sparrow conducting the disciplinary hearing on the bases that Ms Sparrow had also instigated the initial complaint against the Complainant, suspended the Complainant (on full pay), had investigated the complaint and was now seeking to be the sole decision-maker in relation to the complaint.

In her letter of resignation the Complainant framed her concerns in this regard as follows:

• “3. Eilish Sparrow insisted that she was to sit as the sole member of the disciplinary panel. In advance of the disciplinary hearing on the 7^thof July, 2015 it became clear that the employer was providing no evidence other than the report of the 20^thof May, 2015. Any additional information required to substantiate the allegations in the hearing was to be provided by Eilish Sparrow. Eilish Sparrow instigated, investigated, sought to substantiate the complaint and now seeks to be the sole adjudicator in the disciplinary hearing. This is utterly unfair and in breach of natural justice. The process has a preordained determination.

  4. By letter dated the 7^thJuly, 2015 Eilish Sparrow, on behalf of the employer, proposed to seek my involvement in disciplinary hearings which remain fundamentally unfair, in breach of natural justice and in breach of fundamental terms of my contract of employment, express and implied. The requirement of trust and confidence which must be in place in such a relationship has been breached by the actions of the employer.”

Counsel for the Complainant made a detailed legal submission in which he opened a number of authorities to the Court including:Mehigan v Dyflin Publications LtdUD582/2001;Nowak v PWCUD148/2010;The Governor and Company of Bank of Ireland v James Reilly[2015] IEHC 241;Cassidy v Shannon Castle Banquets and Heritage Limited[1999] IEHC 245;Dowling v Cumann na nDaoine Aontaithe TeoUD545/2007.

Respondent’s Submission

It was submitted on behalf of the Respondent that it had at all times treated the Complainant “fairly and in accordance with natural justice, fair procedures, her contract of employment and S.I.146/2000”. Ms Eilish Sparrow gave detailed evidence to the Court in the course of which she confirmed that in May 2015 she had identified, what she termed, “a potential transactional irregularity” regarding the Complainant. She further confirmed that, having taken “independent advice”, she suspended the Complainant pending an investigation which she then proceeded to carry out. She concluded from her investigation that the Respondent’s records “indicated that the [Complainant] wrote off fees/commission when she was not entitled to do so and that this new and disturbing behaviour had escalated.” On the basis of her investigation, Ms Sparrow moved to commence a disciplinary process by letter to the Complainant dated 20 May 2015 in which she set out three allegations and to which she attached a copy of her investigatory report. The allegations were stated as follows:

• “Arising from this investigation a number of matters are now alleged against you as follows:

  1. That you wrote-off amounts of fees and/or commission for family members and friends for which you had no authority to do.

  2. That you wrote-off commission for you and your husband where the amounts in question exceeded the commission figures applicable to those transactions.

  3. That you failed on two occasions to collect and appropriately apply to the Company premiums owed in relation to endorsements on policies for family members.”

Ms Sparrow gave evidence that she attended at the appointed venue to conduct the disciplinary meeting as agreed on 7 July 2015, accompanied by a HR Consultant. She told the Court that the Consultant’s intended role was to assist her by ensuring that fair procedures were adhered to. The meeting did not go ahead on that date as the Complainant’s representatives sought a report on the write-off activity of eight named staff which she agreed to provide to them overnight with a view to rescheduling the meeting for the following day. Ms Sparrow stated that she provided the report as requested and was notified by the Complainant that the meeting would not go ahead the following day as planned and that the Complainant’s resignation would follow.

Counsel for the Respondent submitted that the within case before the Court “is not a case in regard to allegations against [the Complainant]. Rather it is a case where [the Complainant] is alleging she was refused fair procedures and it was reasonable for her to resign.” He further submitted that there is “a high onus” on a complainant in a constructive unfair dismissal case and that the Complainant herein has substantially failed to meet the required threshold of proof. Counsel also submitted that facts of the within case were to be distinguished from those ofThe Governor and Company of Bank of Ireland v James Reilly[2015] IEHC 241 and accordingly Ms Sparrow was contractually entitled to suspend the Complainant on full pay pending an investigation into her alleged wrongdoing and in doing so Ms Sparrow did not breach the Complainant’s entitlements to fair procedures and/or natural justice. Counsel also referred the Court to the following authorities:Moran v The Christina Noble Children’s Foundation (Ireland) LimitedUD24/2005;Shortt v Royal Liver Assurance[2008] IEHC 332;Mooney v An Post[1998] 4 IR 288;O’Callaghan v Disciplinary Tribunal[2002] 1 IR 1;Giblin v Irish Life & Permanent Plc [2010]IEHC 36;McGreevy v Ulster Bank Ireland LimitedUD962/2009.

Discussion and Decision

The question the Court has to determine in this case was correctly characterised by Counsel for the Respondent as being whether, in all the circumstances, the Complainant was entitled to resign her employment. The Complainant has advanced three grounds in justification for her decision to resign: her sudden and unexpected suspension on full pay; what she believes was the unfounded and contrived nature of the allegations made against her by Ms Sparrow; and Ms Sparrow’s insistence on being the sole decision-maker in the disciplinary process in circumstances where she had framed the allegations and also conducted the investigation. Clearly, the timing of the Complainant’s decision to resign is of some significance coming as it did apparently on 7 July 2015 (i.e. the date on which the parties had agreed to hold the disciplinary meeting) and communicated to the Respondent by letter the following day.

In light of the foregoing sequence of events, and the evidence and submissions it received, the Court is of the view that the Complainant attaches most significance to the third ground advanced by her to justify her decision to resign her employment i.e. Ms Sparrow’s role as both prosecutor and intended decision-maker in the disciplinary process, in breach of natural justice. The Court finds that, in all the circumstances, Ms Sparrow’s pervasive role in the process amounted to a breach of natural justice. Her failure to recuse herself from the role of decision-maker in the disciplinary process, when requested expressly to do so by the Complainant’s legal representatives, is ample justification for the Complainant’s resignation. It was reasonable for the Complainant to resign her employment and proceed to claim constructive unfair dismissal in circumstances where she had cause to believe that the process the Respondent was attempting to impose on her did not afford her the basics of natural justice. The Complainant had been put on notice that the gravity of the allegations made against her meant that she was at risk of having a disciplinary sanction up to and including dismissal imposed on her yet she was being denied the opportunity to exercise her fullRe Haugheyrights in circumstances where her accuser and the decision-maker in her case were one and the same person. The Respondent did not demonstrate to the Court that no other duly qualified person was not available or could not have been contracted in to hear and decide the disciplinary matter. Having made its decision based on one of the three grounds advanced by the Complainant, it is not necessary for the Court to make a finding on either of the other two grounds advanced by her.

Accordingly, the Court confirms the decision of the Adjudication Officer that the Complainant was constructively unfairly dismissed. The Court also confirms the award of €12,000.00 made by the Adjudication Officer as being just and equitable in the circumstances. This award is by way of compensation for loss of earning arising from the Complainant’s dismissal and is, therefore, taxable.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
4 July 2017.______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.