Complainant

Respondent

Anonymised Parties

An Insurance Salesperson

An Insurance Company

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8 of    the Unfair Dismissals Act, 1977

CA-00010133-001

08/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00010133-002

08/03/2017

The complainant had been employed   between February 2006 and the date of his dismissal in January 2017 as a salesperson   with the respondent o a salary of €2,500 per month.

He was dismissed following the investigation   of alleged irregularities in the generation of new business.

Summary of Respondent’s Case:

The respondent conducts quarterly reviews of employee performance and   in the course of one of these a serious issue arose in respect of how some of   the complainant’s new business was being generated.

There were fourteen cases in all where he was suspected of a   practise known in the insurance industry as ‘churning’, which is essentially   the creation of new business unnecessarily for the purpose of generating a   fresh stream of commission income for the salesperson.

At the outset, fourteen cases were identified and of these four were   selected for further investigation.

Initially, a meeting took place between the complainant and his   manager on July 10^th 2014. In the course of this the complainant’s   manager produced the letters cancelling the previous policies which were in   the complainant’s handwriting.

This meeting was not part of the formal investigation process and at   that point no decision had been made on whether or how a disciplinary process   might take place. Criticism of this meeting arising from the fact that the   complainant was not accompanied, or that he did not have a prior indication   of its purpose have therefore no validity.

The complainant’s reaction at that first meeting was defensive but   shortly after the meeting, on July 14th he accepted that the new business had   not been written in accordance with the respondent’s business replacement   policy. He was suspended on that day and various resources used by him had to   be returned to the respondent.

An investigation commenced.

In due course it was decided to initiate disciplinary proceedings in   February 2015 and a Decision Maker was appointed. She wrote to the complainant   on February 11^th 2015 outlining the process and inviting the   complainant to a Disciplinary hearing on March 3^rd. Some time   earlier the complainant had written to the respondent accepting his ‘error’   and authorising it to deduct the commission which had arisen from the various   transactions.

The disciplinary hearing took place on March 9^th. The   cases of the various customers were reviewed in detail and the meeting lasted   from 1pm until 2.45pm.

By letter of April 19^th the respondent sent a very detailed   outcome letter reviewing the four allegations on an individual basis. The   decision maker upheld all of them and concluded that the behaviour   represented serious misconduct and that the appropriate sanction was   dismissal.

He was notified of his right to appeal.

He did so and an appeal adjudicator was appointed. The appeal was   heard on July 7^th and the complainant was represented by his trade   union which made a detailed submission to the appeal.

The decision was issued in January 2017 and ran to some eighteen   pages. The initial decision to dismiss was upheld. He was paid his full   notice entitlement to notice in the amount of eight week’s pay. No claim   arises under the Minimum Notice Act

The matter was then referred to the WRC.

The complainant was invited to   a meeting on July 14^th 2014 to discuss a number of client accounts   and in particular how the matter of ‘business replacement’ was being handled.

As a result of the meting he   was placed on paid leave, which he regarded as a suspension. He was not given   any prior indication of the purpose of this meeting nor was he accorded the   right to be represented.

He then commenced a period of   extended sick leave and in the meantime the company undertook an   investigation which he says was not conducted properly and which breached his   rights to fair procedure.

He says the respondent has   incorrectly drawn conclusions from documentation which did not reflect the   process that the complainant was obliged to follow by his manager.

This report was completed on   November 21^st and resulted in an adverse finding against him. The complainant   was given a copy of the report on February 5th.

He also says the disciplinary   process was fundamentally flawed in that the decision maker did not interview   the customers involved, or other relevant employees.

She did no more that replicate   the initial investigation.

The complainant says that the   customers involved can verify that the disputed business was not replacement   business but new business.

The complainant also says that   the appeal was flawed in that the Decision Maker reached his decision on the   basis of an interview with the complainant’s manager (who first raised the   issue with him the previous July.

The complainant says that the   decision to dismiss him should be set aside and that he be reinstated in view   of the failure of the respondent to follow its own procedures.

I have considered all the relevant evidence that was laid before   me, both before and in the course of the hearing.

There are three ‘pillars’ which guide the adjudicator to a   decision in a complaint of unfair dismissal.

The onus under the Act falls on the employer to justify the   dismissal.

In order for a dismissal to be fair there must be some   significant grounds to support disciplinary proceedings or other actions   against the employee related to performance or conduct.

Secondly, in our employment rights system there are well   established procedural obligations placed on an employer who is carrying out   disciplinary action in order to protect the rights of the employee or other   parties affected and to ensure that justice is done.

These are not   particularly onerous and are generally well known. They are referred to by   such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of the key facts not   being in dispute and the outcome normally turns on alleged inadequacies in   the procedures and/or the appropriateness of the sanction.

Finally there is the matter of sanction which must fall within what is   described as a range of reasonable responses by the employer.

It was on this latter point that the respondent relied on the EAT   decision in Looney and Co v Looney UD843/194 and the view of Dr Mary Redmond   to the same effect that;

It is not for the EAT to establish the guilt or innocence of the   claimant nor is it for the EAT to indicate or consider whether we, in the   employer’s position, would have acted as it did in its investigation or   concluded as it did or decided as it did, as to do so would be to substitute   our own mind and decisions for that of the employer.. Our responsibility is   to consider against the facts what a reasonable employer in his position and   circumstances at that time would have done and decided and to set this up as   a standard against which the employer’s actions and decisions are to be   judged’.

As will be   clear from the text this does not entirely rule out intervention by an   Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his positon   and circumstances at that time would have done…’

That is the standard I will apply.

In this case the complainant initially denied any wrongdoing and   then later accepted that there had been a breach of the company’s policy and   offered to forego any commission he earned from the disputed transactions.

The   complainant raised a series of alleged breaches of procedures which I examine   below.

In   respect of the first phase of the process; the investigation stage he says   that no proper investigation was carried out, and makes some supporting   points.

The   starting point is the meeting of July 10^th 2014 with the   complainant’s manager.

This   was a normal meeting of the sort any manager is entitled to hold with a   co-worker on any matter of concern. True, it might also be described as part   of the investigation of the material which had come to the manager’s   attention but to do so does not confer on it some status of the sort ascribed   by the complainant.

It   may not elevate it to the level where representation is required or more   particularly where the absence of such representation or prior notice   represents some fundamental flaw which contaminates what follows in the   course of the formal disciplinary process. There was, at this stage, quite a   long road to travel before the complainant’s rights as an employee came into   play.

While   each case will turn on its own facts an employer is entitled to conduct   inquiries into such matters without invoking the strict requirements of fair   procedure, although diligent investigation ought to mimic fair procedure   requirements as a matter of efficiency.

His   contention that this meeting ‘was void and the minutes of the meeting should   be suppressed and not relied on’ is devoid of merit.

As   it happens the complainant (not initially but eventually) at the July 10^th   meeting agreed that he had written letters on behalf of customers cancelling   their policies.

Four   days later he wrote to the respondent accepting that he ‘did not process the   new business correctly’ and offering to do so.

It   was at this point that he was suspended. He also then went on sick leave.

Following   this his manager undertook further investigation into the matter on the basis   of earlier work by the compliance department and presented his report on   November 21^st 2014 and this confirmed that the business had not   been processed properly.

The   complainant has alleged that the company ‘incorrectly’ drew conclusions from   the material in the investigation. The only interview conducted by the   investigator was with the complainant and lasted, he says, about fifteen   minutes.

The   complainant also says he was denied the opportunity to ‘call additional   witnesses to rebut the allegations’ and in particular to involve the   customers, and that this was a denial of fair procedure.

This   submission is without merit. The investigation is a fact finding exercise only.   It reached conclusions only on the complainant’s compliance with the company   policy. It concluded that he ‘attempted   to manipulate the system for personal gain and falsified company   documentation’.

This   is primarily a matter for the company to assess and its customers have no   legitimate interest in that aspect of the matter. The issue was the conduct   of the complainant, not what the customers knew or otherwise.

Indeed   the investigator concluded that the complainant’s review of values online for   the original saving policies showed that he was ‘clearly aware that the   original policies were in place’.

The   complainant did not provide evidence to support his contention that the   company drew ‘incorrect conclusions’ from the material.

In   any event the investigation did no more than trigger the disciplinary process   where he would have the opportunity to mount a full defence of his conduct,   admittedly made difficult by his acceptance that he had not followed the   correct procedures. He was given a   copy of the report before the disciplinary process.

Turning   to the disciplinary process the respondent made a series of attempts to   convene the hearing which were not successful due to the complainant’s absence   on certified sick leave.

He was certified fit   to participate in the hearing following a medical review in September but   there were further delays and eventually it took place on March 9^th   2016.

The complainant   makes two sets of complaints about the hearing.

The   first concerns the failure to interview the customers. In my view and   experience it would rarely be either helpful, necessary or appropriate to do   so.

The   charge against the complainant related to his conduct as an employee and his   compliance with the company’s rules and procedures. This is an internal   matter for any company and it is difficult to imagine very many circumstances   where a third party would have a role to play. Again bear in mind that the   complainant admitted the deficits in his processing of the business in July   2014.

I   have reviewed the decision of the Disciplinary Hearing. The decision maker   gave evidence to the hearing and said that she heard and fully considered all   the complainant’s arguments both about the process and on the detail of the   customers’ accounts.

She   is a senior manager in the industry in question and she set out her findings   in a reasoned decision having reviewed the customer accounts in detail.

She   found that there were no compelling reasons to write the new business and   that in all of the cases the new business was a worse deal for the customer.   It is hard to see how the opinions of the customers could have modulated   this. She is in a better position to make a professional assessment of this   than a WRC adjudicator, who will primarily be focussing on the procedure.

The   appeal was equally thorough; there was no challenge to the impartiality of   the decision maker and the decision, running to eighteen pages, was   impressively thorough and he conducted a rigorous review of the grounds of   appeal. He addressed all aspects of the complainant’s criticism of the   processing of the case. This included alleged impropriety against the   complainant’s manager which turned out to be misplaced and was withdrawn.

I   conclude and find as follows. I refer again to the extract from the EAT case   cited above Looney v Looney.

I   am satisfied that the respondent had adequate, initial grounds for concern   about the complainant’s conduct.

Investigations   take various forms and I find the respondent cannot be unduly faulted for how   it proceeded prior to the disciplinary step. Certainly there was nothing to   invalidate the decision to trigger the disciplinary process which is where   the full suite of fair procedure rights become active.

I   find that the respondent conducted the initial disciplinary hearing and the   appeal to a high standard of fairness and the detail in the decisions   emanating from both are testament to that.

I   accept that the sum involved was relatively small and note the complainant’s   submission about the serious impact that this has had on his career and   personal life.

But   having regard to all the circumstances, and to the implications for the   company and its customers of the complainant’s actions the decision to   terminate his employment was proportionate and fair and his complaint fails.

Regarding   the complaint under the Minimum Notice and Terms of Employment Act 1973 this   was withdrawn at the hearing.

For the reasons set out above   in detail I do not uphold complaint CA-00010133-001 under the Unfair   Dismissal Act 1977. Complaint CA-00010133-002 under the Minimum Notice and   Terms of Employment Act 1973 was withdrawn.

Unfair dismissal, investigation, fair procedure