Complainant

Respondent

Anonymised Parties

I.T. Engineer

I.T. Specialist

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-00014274-001

25/09/2017

The complainant started work with the respondent as an I.T. engineer on Nov. 18th, 2013. In mid-2017 the respondent commenced investigatory – leading to disciplinary – proceedings against the claimant in respect of the violation of the respondent’s expenses policy. This led to the claimant’s dismissal on Aug. 24th, 2017.

The essence of the claimant’s case (see below) is that he was not afforded certain principles of natural justice in the course of the aforementioned proceedings.

The complainant did not attend the hearing. The case file confirms that due notification of the hearing was issued and that no excuse\reason for absence was proffered by the complainant.

The complainant alleges that he was called into a meeting without any sort of information on Aug. 14th, 2017. During the meeting he was informed that he was being suspended with full pay (albeit without relevant\supporting information). On the 18th of August, he was invited to an investigation meeting at which he was provided with the allegations and asked to outline his version of events. On the 24th of August, he attended a meeting at which he was informed that a decision had been taken in respect of his summary dismissal. Notably, the employer’s disciplinary policy and procedure states that: ‘Following any investigation, if we consider there are grounds for disciplinary action, you will be required to attend a hearing. We will advise you of the allegations against you, the basis for those allegations, and what the likely range of consequences will be if we decide after the hearing that the allegations are true.’ The policy also states that: ‘You may have the option to bring a work colleague as a companion to an investigation meeting. You must advise People and Purpose who your chosen companion is, at least 48 hours before the hearing.’ Based on the dates/times I did not have 48 hours between the invite and the meeting.

In March 2017, the claimant approached the respondent with an urgent request for a loan to,

allegedly, pay hospital treatment fees for his father who had been diagnosed as having cancer. On a humanitarian and extremely exceptional basis a sum of €3,000 was advanced to the claimant with an agreement that the respondent could deduct €1,000 per month from his salary over a 3-month period. While on a business trip to the US in April 2017 the claimant paid some legitimate business expenses on a company credit card that had been issued to him by the respondent. On 28 April 2017, the claimant spoke to his line manager about his father's health issues and requested that the manager personally loan him US$10,000. In relation to the US trip, in accordance with company procedure, the claimant had to subsequently submit an expenses report to the respondent's accounts department to account for the expenses incurred on the respondent's credit card. In submitting the expenses report the claimant, instead of claiming that they had been incurred on the company credit card, claimed that he had paid these expenses (in the sum of €5,772.84) personally and sought reimbursement from the respondent. On 2 May 2017, the claimant's manager (from his personal resources) lent the claimant US$10,000.

Based on the expense report submitted by the claimant, on 17 May 2017 the respondent paid

into the claimant's personal bank account, the sum of €5,772.84. On 23 June, the claimant told his manager that his father had to go through a triple by-pass which required an additional hospital stay, estimated to cost US$23,000. The claimant sought an additional loan of US$20,000 from his manager personally. On 22 June 2017, the claimant was advised by the respondent's accounts department that he had expenses of US$5651.93 (€5,772.84) incurred on his company credit card for which he had not entered an expense report for approval. He was reminded that under the respondent's expense policy: ‘all transactions needed to be submitted/approved in expense reports within 30days from when they are loaded’ into the respondent's accounts system.

On 26 June 2017, the claimant's manager told the claimant that he would provide, from his own resources a further loan of US$10,000. On 29 June 2017, the claimant's manager advanced the sum of US$10,000 to the claimant.

The claimant did not respond to the internal communication from the respondent’s account's

department until nearly three weeks later, on 10 July. In the response, the claimant said that: 'he

was not sure why the expenses were not submitted.’ The following day, 11 July, the accounts department responded stating that the claimant had:‘… marked a total of €5,772.84 out of your transactions as personal. This is the amountyou now owe …". The communication went on to give the respondent's bank details so that the money could be repaid.On 12 July 2017, the claimant approached, outside his normal management chain, a seniorleader within the respondent seeking financial assistance in the sum of €20,000, allegedly,because his father had complications arising from his treatment for cancer. The claimantclaimed that he needed the sum of €20,000 to pay back debts incurred due to the cost of thetreatment. The claimant was advised that his request would be passed onto the HR department.

On 17 July 2017, the claimant met with HR to discuss his request for the loan of €20,000 but it was confirmed that the respondent would not be making any further advances. He was advised that the previous loan had been exceptional and that, unfortunately, a further loan would not be forthcoming. At this meeting the claimant mentioned that his manager had lent him some money but that the manager had been repaid. The respondent subsequently became aware of the fact that the claimant had borrowed UD$20,000 from his manager but that it had not been paid as he alleged. The sum is still outstanding. The claimant was not happy with the decision not to give him a loan and requested that it be escalated. He also advised that he was moving to the UK because he wanted to finish his degree. The claimant did not advise HR of the fact that he owed €5,772.84 to the respondent and that repayment had been sought by the accounts department six days earlier.

By email dated 17 July 2017 the claimant escalated his request for a loan to the vice-president of HR, International & Operations. In his email the claimant specifically asked that his request not be made known to his manager. On 26 July, the vice-president of HR spoke to the claimant and advised him that the respondent would not be making any further loans to him. On the same day, the claimant asked if the respondent would support him by allowing him to post a link to a website where he was seeking public funding. The respondent advised the claimant that it was not prepared to allow him to use the company's communication channels to seek money for a personal matter. On the same day, 27 July, another employee advised HR that he had been approached by the claimant for a loan of €12,000. He so advised HR because he thought the approach was highly unusual.

At this time, HR met with the claimant and advised that the company had become aware of his various financial requests. He was advised not to use the respondent’s email addresses or contacts for such purposes. The claimant also revealed that LinkedIn had told him to stop spamming other LinkedIn users. On 14 August 2017, the claimant was advised at a meeting that it had been brought to the respondent's attention that there were questions around his management of financial matters in relation to the respondent's travel and expense policies. Arising from this, he was advised that a formal investigation was to take place to determine the facts. As part of the investigation process he was to be suspended with immediate effect on full pay until the investigation had been completed. He was advised that it was hoped to conclude the investigation within 7 to 10 business days. During the meeting the claimant said, in relation to any investigation: ‘please don't ask me anything about my dad, that is personal and you know the story there …. Well I know these things can go one way or another, so if it is headed in a certaindirection, then maybe it would be better now to reach an agreement and we close things offnicely. Could we talk about that?’ When asked what he meant by this, he went on to suggest that the company could come to a financial arrangement based on him being given stock options in the company.

On the same day, the respondents learnt that three other employees had lent the claimant money in amounts of US dollars 3000, 3,500, 5000 and 12,000 respectively. On 18 August 2017, the claimant was emailed by HR to advise that, as already communicated to him, a meeting would take place as part of the investigation process. He was advised that the meeting would take place on 21 August at 11 a.m. He was also advised that he would could bring a work colleague as a companion to the meeting. The claimant responded to the email by return and confirmed that he would be attending the meeting. He also advised that ‘at thismoment I do not wish to bring any representative’.

On 21 August, a disciplinary investigation meeting was held. It was noted that the claimant declined to bring along a colleague. It was put to the claimant that he owed the respondent nearly €6,000 and that he had been emailed about the issue as far back as June. The claimant claimed that he was not sure that he received the communication from the accounts department but it was pointed out to him that he had responded to two of the communications. It was put to the claimant that he had told neither the senior leader nor the HR personnel he interacted with about his request for the loan of €20,000 that he never mentioned that he already owed the respondent nearly €6,000. The claimant said that he ‘honestly’ did not remember receiving the communication from the accounts department (even though he had received a demand for the money from the accounts department the day before he approached the senior leader seeking a loan of €20,000). While the claimant offered to repay the money, the respondent expressed the concern that the claimant did not intend to pay the money back to the respondent (as at the date of the W.R.C. hearing the claimant has not repaid this sum). The claimant was advised that the abuse of the expense policy could be considered gross misconduct, to which, the claimant replied that he fully understood. It was put to the claimant that the respondent was concerned about its core values of integrity, the fact that he received the money, the fact that he breached the respondent’s policy and that this could be considered a gross violation. The claimant was advised that due and objective consideration would be given to what the claimant had shared at the meeting. He was further advised that if it was found to be gross misconduct it could lead to termination immediately and without notice. Finally, he was told that the respondent would come back later in the week after consideration and review of the facts.

On 22 August, unsolicited, the HR department was advised by another employee that the employee had lent the claimant €9,000 in April or May of that year. The employee further advised that while a sum of €900 had been repaid, the sum of €8,100 was still outstanding. The claimant attended the outcome meeting on 24 August and was afforded 3 working days to appeal the decision. On 25th August, unsolicited another employee came forward to share that he had lent the claimant €3,000, towards the end of July. The employee also advised the respondent that the claimant was not reachable and had unfriended the employee on Facebook. The claimant did not appeal the decision within the 3 working days allowed as advised to the claimant. By email dated 31 August the claimant sought to appeal the decision acknowledging that he was outside of the 3 days' time-frame to appeal. By email dated 6 September the claimant was advised that the timeframe within which an appeal can be submitted was outside of this timeframe and could not be considered.

With reference to the foregoing, it should be emphasised that the claimant was well aware of the issues and, indeed, tried, on two occasions, to negotiate a severance package in the course of the disciplinary process. He had a right of appeal and failed to exercise it. With regard to having someone to accompany him to the meetings, the claimant was given the option but declined. The dismissal was warranted by the claimant’s calculated deception to get money from the respondent. The claimant has not repaid the respondent. During the disciplinary process the claimant said that he would repay the money but he never has. The fact of the matter was that the claimant owed considerable sums of money most of which he had borrowed from his work colleagues (a fact that he never disclosed to the respondent).

Despite their (unexplained) absence at the hearing, based upon the information supplied on the completed (WRC) complaint form, it would appear that the essence of the claimant’s case (see above) is that he was not afforded certain principles of natural justice in the course of the aforementioned proceedings. Notably, this contention is refuted by the respondent (e.g. On Aug. 18th he was advised that the meeting would take place on 21 August at 11 a.m. He was also advised that he would could bring a work colleague as a companion to the meeting. The claimant responded to the email by return and confirmed that he would be attending the meeting. He also advised that: ‘at thismoment I do not wish to bring any representative.’) Related thereto, relevant precedent informs that whilst: ‘fairness is ever required, perfect is unattainable’ (Boyle v An Post [2015] IEHC 589). This point or precedent has also featured in equivalent cases that have been the subject of WRC adjudication proceedings (e.g. ADJ-00006103).

The claim is not well founded and fails.

Natural Justice       Dismissal   Gross Misconduct