Complainant

Respondent

Anonymised Parties

A Banker

A Bank

Representatives

Tom Mallon, BL instructed by Daniel Spring & Co Solicitors

Claire Bruton, BL, instructed by Mason Hayes & Curran Solicitors

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-00001663-001

23/12/2015

The complainant, a banker, worked for the respondent between the 2nd January 2003 and the 17th December 2015. His gross monthly remuneration was €5,833. The respondent dismissed the complainant on grounds of gross misconduct, namely dishonesty and theft as well as the serious and persistent neglect of respondent instructions. The complainant claims unfair dismissal and seeks re-instatement. The respondent denies the claim.

In opening submissions, the respondent outlined that the investigation had been a fact finding process, which was outside of the disciplinary process. While the minutes of the fact find meeting had been amended, they had not been signed off. The complainant was suspended in May 2015 and remained on suspension until the end of his employment. The first disciplinary meeting occurred on the 3rd November 2015, at which the complainant was permitted legal representation. There followed correspondence and the minutes of this meeting were not agreed. The complainant did not attend the second disciplinary meeting and it proceeded in his absence. The respondent issued the letter of dismissal of the 17th December 2015.

The respondent submitted that the adjudication was the first time the complainant had raised the significance of the monthly sign-off of accounts. He had been afforded the opportunity to provide documentation to the disciplinary process. The note of the 5th November 2015 gives the input of the Sponsor and the Colleague into the investigation. The complainant could have invited witnesses to the disciplinary hearing. The complainant’s submission ignores the significant effort that went into the investigation. This process had been fact finding and was not final; it did not, therefore, attract the same level of rights and fair procedures.

The evidence of the investigator

The investigator gave evidence. He had investigated potential staff misconduct since 2006. He was a specialist resource and an independent party. He had carried out a couple of hundred investigations. He was approached by the Sponsor, the complainant’s line manager and the head of the Capital Markets Division. He said that in an email of the 5th March 2015, he was sent details of the higher interest rate being applied to the deposit account. He was also sent details of the relationships involved in this case. He made numerous phone calls to the office to find out how it operated, in particular regarding process. He interviewed witnesses on an informal basis. He took a note of whatever was said if it was something he could rely on, for example to quote back or if it was absolutely material. He met the complainant on the 18th May 2015. He took the complainant’s account and so did not put to him his conversations with the Sponsor or others. The investigator stated that the complainant worked in the dealing room and in the day-to-day operations at the time of the transactions. He acted on the instructions of the relationship manager. The rate of interest on a deposit was determined by how long it was to be held by the bank, i.e. the maturity date. At the maturity date, the relationship manager needed fresh instructions from the client.

The investigator outlined that he had gone through the terms of reference and wanted to ensure that there were no surprises in the investigation. This was not part of the disciplinary process and was evidence-based. It sought to establish facts. He carried out the investigation in accordance with the section of the disciplinary process that provides for investigations. While this is contained in the disciplinary policy, it is separate. The investigator referred to the letter of invitation of the 11th May 2015 to the fact find meeting and the minutes of the meeting. The notetaker took handwritten notes during the meeting. Later, he and the notetaker agreed the minutes between themselves. They were forwarded to the complainant, who was asked to come back with changes. While the complainant’s amendments were incorporated into the notes, they could not be agreed.

Prior to the meeting, the investigator reviewed the IT system which managed deposit accounts to establish the dates of transactions and which staff member had commissioned each transaction. There were references to emails in the notes of several transactions, so he retrieved copies of these emails. They were provided to the complainant in advance of the investigation meeting. Commenting on the interview notes, the investigator explained that the reference in the invitation letter to “as discussed” was because such a meeting should be preceded by a discussion. He explained that he had earlier met with the complainant’s sibling and this is referred to at page 4 of the minutes. On page 5, the investigator stated he clarified the complainant’s user ID information. He was aware that the complainant’s father had a business account and later a joint deposit account based in a branch. He put this to the complainant. He reviewed the history of the account and stated that the first occasion it was identified on the IT system was November 2008. The investigator referred to the complainant’s statement at page 8 of the minutes that “every piece of documentation was in place to allow me to assist in the management of the account.” While the complainant had also referred to the Former Manager as the person who set up the account, the investigator could not find any such documentation. The investigator said that this manager was a former employee and he, and the Former Director, were not included in the investigation as they were former employees.

The investigator outlined that the rolling of accounts followed the account reaching its maturity date. As part of this process, he enquired as to the application of a breakeven rate. Where there was no instruction, the rate of interest would drop to the breakeven rate. At the fact find meeting, the investigator sought to get a feel of the nature of the relationship in managing the account, in particular as a banker. There were occasions where someone else had carried out the transaction and also occasions when the complainant had rolled the account himself. He noted the longstanding instruction from the complainant and his sibling and it was not their colleagues’ role to challenge the instruction. The investigator commented that he had not seen the apology email sent by the Head of Service & Execution to the complainant as this was not relevant.

The investigator referred to transactions and corresponding email communication. He referred to the trade of the 17th November 2008, which includes a note about paying away from the account and the role of the complainant’s sibling. The trade is executed by the complainant. The investigator referred to the corresponding emails between the complainant and his sibling of 15.04 and 15.06 hours.

Referring to the transaction of the 22nd October 2009, the investigator noted the reference to the complainant’s sibling, who gave the instruction. The interest rate on the deposit was 3%, although he noted that the market rate was 1.1%. He further noted the email from the complainant of the 8th September 2009 regarding copying a named trader. The investigator referred to page 17 of the investigation minutes and the acknowledgement by the complainant that his sibling set the rate. It was practice in the respondent that the relationship manager would set the rate and it would be applied by the Markets division. The minutes record that the investigator questioned the complainant about the email of the 22nd October 2009 and the related transaction. The complainant replies that the Former Manager had set the rate at a higher rate than the market rate.

The investigator referred to the transaction of the 18th February 2010 and commented that there was no email relating to this roll over. He further noted the transaction of the 6th May 2010 and a related email, where the complainant states that the account has been rolled over at the same rate. He also referred to the transaction and email trail of the 15th April 2011. He referred to an email exchange between the complainant and his sibling of September 2011, in particular the complainant’s statement that the rate had been 0.70% for a week and that he did not want his father to lose money. The investigator said he questioned whether this account was a special case as he wanted to find out if everyone knew that the rate should be higher. In respect of the transaction and related emails of the 7th July 2012, the investigator said he wanted to know the rationale for the transaction. He wanted to know as the complainant was not directly involved, as he had been before. He enquired about the reference in the complainant’s email to buying a coffee for his colleague to explore the nature of the relationships.

Commenting on the transaction of the 8th October 2012, the investigator stated that the practice was that the trading room took instructions from the relationship manager and once it received the instruction, they assumed that the transaction was approved. He asked about the reference to the complainant’s sibling going on a date in the email of the 4th December 2012 as he wanted to explore the social interactions. The investigator referred to his questioning about who the relationship manager was as the complainant’s email of the 31st March 2014 referred to “Rate set by RM”. The investigator probed to see how the rate applied was identified.

The investigator said that it was clear that the complainant did not see the conflict of interest issues arising in his case. He then spoke with the Sponsor executive about the conflict of interest issue and the matter was referred to HR. The investigator did not make the decision to suspend the complainant and could not have taken such a step. The investigator outlined that his role had been to carry out the investigation. He referred to the investigation report and its eight appendices. He had looked 50 to 60 transactions made between the 17th November 2008 and the 8th June 2011. He looked at the transactions with the complainant’s trade ID on the account. Commenting on a spreadsheet circulated on the 30th October 2009, the investigator said that this was significant as it listed the complainant’s sibling as the relationship manager. This was a document created internally and it was significant as it was this staff member’s view of who the relationship manager was. The investigator stated that the email from the Former Director of the 24th March 2010 tags the account to the relationship manager in a named branch. He did not know who the relationship manager in this branch was. While the complainant’s reply has acknowledged the relationship with the deposit holder, the email did not make visible or transparent the complainant’s role in rolling the account.

In respect of the transaction with the entry date of the 19th April 2011, the investigator said that the related email was significant as it was from a customer advisor who was not involved in the commercial side of the business. The advisor had contacted the complainant directly. This was unusual and different to the other transactions. The investigator said that he spoke with two named traders to find out the practice in Capital Markets. He had been struck by the complainant’s comment at page 12 of the minutes of his and his sibling’s involvement in the management of the relationship with “these customers”, i.e. their parents. The complainant had been directly involved in the management and actioning of transactions on his parents’ deposit account.

The investigator referred to an email of the 19th May 2009 to all staff to remind them of the Code of Conduct regarding conflicts of interest and referred to the policy. It was significant that the complainant did not recognise the existence of a conflict of interest. There was an onus on the employee to be able to identify a conflict of interest and to bring this to their manager’s attention. If the complainant had done so, there may have been a different outcome. The investigator said that from the outset, had it been the case of the respondent’s understanding the complainant’s involvement in the managing and actioning the account, there would have been no need for the investigation. It was clear that the deposit account existed, but the issue was the actioning carried out by the complainant in the background. He stated that the interest that the account ought to have earned was €7,540,07 while it earned €18,027.73.

The investigator said that the Sponsor had informed him of his discussions across his reports about the level of awareness into the management of this deposit. There was no awareness of the degree of involvement in the actioning of the deposit. It was clear that the deposit existed but the information regarding the background handling of the account was not clear. Based on his experience, the investigator said that the complainant should have distanced himself from the account. The respondent never approved of relatives doing steps on a family member’s account. Where a staff member has a mandate for a relative, they should interact with the bank as an ordinary customer.

The investigator said that he supplied his report to HR and to the Sponsor. He was later asked to provide a supplemental note during the disciplinary process. He submitted this note on the 5th November 2015 and he received a telephone call from the disciplinary manager a couple of days later.

The investigator said that he inferred from the delay between 2010 and 2015 that the Colleague was not aware of the complainant’s conflict of interest. He also had regard to the complainant’s belief that there was no conflict. He would not, therefore, have told his managers. The investigator’s role had not been to put together a shopping list of misdemeanours but to correlate the facts and evidence fairly. He was not involved in the formulation of allegations.

Cross-examination of the investigator

In cross-examination, the investigator confirmed that he stood over the investigation report in its entirety. He stated that there were no errors in the report that he was aware of. It was prepared in full conformity with the respondent guidelines. The investigator was asked whether there were minutes of all the meetings he held; he replied that they were not as in the context of the respondent, there was no need to include minutes of all meetings. He confirmed that all meetings did not have to be recorded. The investigator agreed that there were people that he met or interviewed who were not referred to in the report. The investigator also accepted that his report was the basis of the disciplinary process and the disciplinary manager had nothing else to go on. It was put to the investigator that if his report was flawed then the disciplinary process must be flawed; he replied that it was for the disciplinary manager to ask more questions and he accepted that if the report was flawed, this might taint the process.

In respect of his contact with the Sponsor, the investigator said that he spoke with him to glean information and that he had been the sponsor of the investigation. The investigator’s 26 years in the bank had influenced how he addressed the investigation. He obtained a vast amount of information from the Sponsor on how the capital markets division worked on a day-to-day basis. He stated that there were some notes of this conversation, but he had not written everything down and he did not have the notes with him. He confirmed that a data access request would discover these notes. It was put to the investigator that no such notes had been provided to the data access request made; he replied that he had not been requested to provide any material. He said that the notes of his discussions with the Sponsor may identify the complainant but he could not say. He confirmed that the notes were not provided to the complainant or his union representative. He also confirmed that the Sponsor was not formally interviewed as a witness. The investigator said that he also spoke with the Operations Manager. They discussed the origins of the deposit and whether there were legacy systems that might hold records. He accepted that this conversation was not mentioned in the report and he had taken notes in a day-book. The Operations Manager provided a spreadsheet of interactions and the applicable rates of interest and this is summarised at appendix 8 of the report.

In respect of the transactions exhibited at appendix 4 of his report, the investigator said that they were each occasion of a financial entry on the account. They were documents of the Capital Markets Division and he included the entries he reviewed. He believed that he had all the relevant documentation, although he had been looking over a period of eight years. He could not say with certainty that every document was included. He requested additional documentation when he identified activity on the account. He tracked the entries through changes made to the rate applied on the account and the amount of the deposit.

The investigator confirmed speaking with the Sponsor executive and arranged meetings through her. She was the sponsor delegate and the contact person. The investigator had emailed a named trader to get screen print outs and additional documents. He followed a logical plan in obtaining documents from a starting point and had not asked for all documents at once. He spoke with two members of the banks forensics digital team as well as with the Head of Service & Execution as he had held an administrative managerial function in the Capital Markets Division. He spoke with members of the moneydesk team in another office of the respondent as the deposit was placed there between February and May 2009. The investigator spoke with the Trader and a fellow trader, who were staff members in Capital Markets and worked in the dealing room. They had interactions on the account and these discussions were not directly related to the account. The investigator had not interviewed everyone whose trader ID appeared in the transactions contained in appendix 4. He did not believe that it was necessary to speak with everyone who had actioned the account. In his conversation with one trader, they discussed how instructions were received in the dealing room, for example when a deposit was maturing. The Trader said that the dealing room would have sought instruction from the relationship manager and in this case, this had been identified as the complainant’s sibling. The investigator stated that this was apparent from the records, for example those of the IT system and the emails. The investigator said that it was his belief that the complainant’s sibling had been the relationship manager and he established this from his analysis of the documentation. It was put to the investigator that the complainant would dispute this. The investigator said that the complainant stated that he had not known who the relationship manager was and his sibling had said that she did not believe she was. The investigator said that he had not asked anyone else who the relationship manager was. The investigator said that the Trader told him that where there was no instruction, the rate rolled over at the breakeven rate. He had not kept notes of his meeting with the Trader.

The Sponsor confirmed to the investigator that a breakeven rate was applied where there was no instruction. Another trader said that where there was no instruction, the deposit would roll forward at its previous rate. In respect of this apparent conflict, the investigator said that the rate would go forward at the breakeven rate where there was no instruction. The investigator was asked whether he carried out separate investigations in relation to the complainant and his sibling; he replied that when he interviewed people, he addressed information for both. He had spoken with the sibling’s manager, but did not refer to the complainant. It was put to the investigator that the note-taker at the interview was his line manager; he replied that this was not unusual and she was available and experienced.

The investigator was asked whether he had also spoken with the Colleague, the Former Manager and the Head of Service & Execution; he replied that he had not. He commenced the investigation in March 2015 after being notified by his manager. He received some printouts from the IT system. He understood that this was started by something the Colleague said to the Operations Manager. The investigator had not spoken to the Colleague. The investigator was asked whether the interpersonal matter was relevant; he replied that it was not and he had not enquired into their interpersonal difficulties. It was put to the investigator that the complainant had complained about the Colleague’s behaviour; he replied that he had not been aware of this. He had not been aware of the complainant’s request for an apology in March 2015. He confirmed that he was first made aware of the matters addressed in this investigation on the 5th March 2015.

It was put to the investigator that the entire report contains the extent of the fact find meeting and the emails. It was put to the investigator that the complainant could not have had any involvement on the account between 2013 and 2015; the investigator accepted that he could not have activated the IT system after 2013. He stated that between 2013 and 2015, the account was actioned by named traders. He had not interviewed these traders as he did not believe this was necessary as he was aware of the provenance of the instruction.

In respect of individual transactions, the investigator said that the transaction of the 19th August 2008 posed a concern because of the complainant’s action on the account. He should not have had any interaction on the account. It was put to the investigator that he could have been instructed to do this trade; he replied that he had not discussed the trade with the complainant’s manager. He stated that his concern with the transaction of the 22nd October 2009 was the reference to the complainant actioning the trade on foot of his sibling’s instruction. The complainant had said he had authority to act but the investigator could not find the relevant paperwork. The investigator accepted that the complainant had his parents’ authority to act on their behalf. It was put to the investigator that there was nothing wrong with a member of staff instructing on a parent’s account; he agreed that there was nothing wrong and he had done so on his late father’s account. He said that a staff member was required to have written authority.

The investigator accepted that the complainant’s last trade on the account was the 8th June 2011. He agreed that the trade of the 14th September 2011 was actioned by a named trader and this had been a roll over where no instruction had been provided. It was put to the investigator that the trade of the 21st September 2011 provided a dealt rate of 3% while the market rate of 1.54%; he replied that he had not discussed this with the trader identified and the note referred to the complainant’s sibling. The trader had recorded the source of the instruction and the investigator stated that a relationship manager could influence the interest rate applied. The investigator said he had not inquired into why there had been retrospective transactions on the account. In respect of the trade of the 9th February 2012, the investigator was asked why this same trader had retrospectively applied a rate of 3% and whether he could link this to the complainant; the investigator replied that there was nothing in the documentation to link this to the complainant. It was put to the investigator that there was no evidence of wrongdoing in respect of this trade; he replied that he was concerned at the differential rate applied and accepted that he had not interviewed the trader. The investigator accepted that there was no link between the complainant and the trades of the 21st and 22nd March 2012. He accepted that there was no link between the complainant and the transaction of the 25th June 2012. In respect of the trade of the 6th July 2012, the investigator stated that the complainant had not set the rate but had emailed a named colleague about a difficulty in making a withdrawal. In respect of the trades of the 6th and 7th March 2013, the investigator said that he had not spoken to the Trader about these trades and there was nothing wrong with these trades. He accepted that the complainant had not set the rate of 3% in the trades of the 13th and 14th March 2013. The investigator had not asked a named trader about his note in the trade of the 20th March 2013 that the complainant’s sibling was the relationship manager.

It was put to the investigator that everyone in the dealing room knew of the family relationship between the complainant, his sibling and the account; he agreed and said that all people who actioned the account would have known of the relationship. In respect of the trade of the 30th September 2014, the investigator accepted that the complainant was not acting as relationship manager on this trade. He accepted that while two traders referred to the complainant, they did not take instruction regarding the rate to be applied. He agreed that the complainant was not the relationship manager and did not set the rate. He accepted that from 2011 onwards, the complainant had not set the interest rate and was no longer a trader. He accepted that there was no evidence the complainant was guilty of wrongdoing in these later trades. He agreed that his report had been the trigger for disciplinary action.

In respect of the note-taker, the investigator said that her role at the meeting was to take notes. She also provided internal insight around his report. She provided quality assurance and suggested amendments to the report. The suggestions were in writing and he did not have the notes. The investigator stated that this was his report and he stood over it. It was put to the investigator that it could not be ignored that the note-taker was his boss and was also at the meeting. The investigator accepted that the note-taker could have been influenced by being at the meeting.

In respect of the interview notes, the investigator said that in advance of a meeting, he prepared a plan for the meeting and set out some of the questions in a pre-typed document. It was for the note-taker to record responses. In respect to the reference to “as discussed” in the invitation letter, the investigator said that this was included as the matter would normally be discussed by the line manager with the employee prior to handing out the letter. The investigator was asked about the reference in the meeting notes to the central role played by the Former Manager; he replied that he had not asked to meet him as he was a former member of staff. He ascertained this by checking with HR. He had never interviewed a former member of staff in an internal investigation. The investigator was asked about the complainant’s comment of being allowed to assist in the management of the account; he replied that he expected to see documentation related to this mandate.

The investigator was asked whether it was surprising that at the time when the fact find meeting was scheduled there were emails between the Head of Service & Execution and the complainant regarding instructions for the account; he replied that this was a matter for the Head of Service & Execution. It was put to the investigator that the complainant had been clear at the meeting about his involvement on behalf of his parents. The investigator said that he accepted the complainant’s statement regarding the role of two managers in the setting up of his parents’ account and that they had left the respondent. It was put to the investigator that the complainant had stated his name in entries on the IT system and his role was “up there in lights”. He had also not made such entries in the last two or three years; the investigator agreed. He had not expected there to have been a review in the last three years or at previous times. He agreed that internal reports included the rates of interest applied on accounts.

The investigator was asked whether he was surprised that over the eight years of this deposit, no manager had noticed or taken steps over the higher rate of interest applied to this account; he replied that he was surprised and had not recorded this in the report. He had mentioned this to the Sponsor and changes and internal controls were introduced following his report. It was put to the investigator that on every occasion an account is rolled over, this is recorded on a daily report; he agreed and said that employees were afforded a level of trust and the oversight might not have been robust enough to identify issues. It was put to the investigator that the oversight might have said that there was nothing wrong with the account; he agreed that this may be the case. He was asked whether he had interviewed those with oversight at the time; he replied that he had not. It was put to the investigator that the complainant had referred to the paperwork and had acted on this authority for eight years; he replied that it was unusual for the complainant to have actioned such trades and the respondent did not have any paperwork. He accepted that the respondent had lost documentation in the past. He also accepted that the respondent offered different rates of interest on products and some were at above breakeven rate. The investigator established the amount of loss incurred by the respondent in conversation with the Sponsor and the Operations Manager as well as from emails, for example one from September or October 2009 which stated that interest rates above the breakeven rate would be charged back to the unit. He stated that there could be occasions when there was a cost as opposed to a loss. The investigator accepted that what occurred was that the complainant would be asked what his parents wanted to do and he would ask that the account be rolled over, with the trader setting the rate.

In respect of the question asked at the fact find meeting as to whether there was a relationship manager, the investigator said that he had raised this with the Trader as well as with the Sponsor about untied customers and legacy customers who pre-dated the IT system. It was put to the investigator that he knew there were accounts in Capital Markets who did not have relationship managers and the complainant had told him he did not know who the relationship manager was and his sibling had denied having this role; he said that he could not accept that this was an account without a relationship manager as a family member would have made it their business to find out who the relationship manager was. It did not sit right not knowing who the relationship manager was. The investigator was asked whether there was a tagging mechanism in branch banking; he replied that not every client had a dedicated account manager. There could be mass market deposits without a designated relationship manager. This deposit should have been in the money market department and not in capital markets. It was put to the investigator that the transactions in question were taxable and therefore included in reports available to the whole dealing room; he could not accept this and had not asked the dealers whether they had read the complainant’s remarks on individual transactions. He also accepted that in the email of the 8th September 2009 the complainant asked his sibling to copy the Former Trader. Asked whether this was an example of transparency, he replied that the complainant had not explained the significance of the email at the investigation meeting. He had not interviewed the Former Trader as he was no longer an employee of the respondent.

In respect of a section of the minutes of the meeting, the investigator accepted that the complainant had stated that it was markets who set the rates on roll overs and that his sibling could not have set the rate, as it was a matter for whoever in markets was rolling over the account. The investigator said that he had given the complainant and his union representative the documents and emails and they were happy to proceed with the meeting at 12.10. The investigator said that he thought that what the complainant had done represented a conflict of interest as he had used a bank system. There was no issue in him acting as a customer on behalf of a family member, but there was an issue in acting as banker and customer at the same time. It was put to the investigator that people had provided contradictory answers in the investigation; he accepted that he had to draw inferences from the inconsistencies. It was clear that the complainant had traded on the account, but had given an unsatisfactory answer on what a trader’s role was. This was inconsistent as the complainant, as a trader, would have known. As this was his parents’ life savings, the complainant should have known about activity on the account. The investigator stated that he had not believed it necessary to hold a second interview.

It was put to the investigator that the complainant says that everyone in the department knew and the transactions had been on book. The investigator accepted that no one brought this to the complainant’s attention in 7 or 8 years of managing the account. Asked whether others had failed in their oversight duties, he replied that he was not aware of any other investigations.

In respect of the disciplinary policy, the investigator said that while the investigation is referenced in the Disciplinary Support Pack, it does not form part of the disciplinary policy. The steps contained in the pack broadly informed his approach, as did the Investigation Policy Standards, available on an intranet. He was asked whether the complainant had answered the questions fully and honestly; he replied that he believed that the complainant had answered honestly. He said that within the respondent there was a process to categorise the gravity of incidents on a scale of 1 to 5, assessed according to any possible loss or to the effect on a group of customers. Anything over a 4 was referred to an outside investigator. This case was assessed as a “3”. He did not have any witness statements for other witnesses. He did not accept that the complainant had been the only witness interviewed. He kept notes of his conversations with two traders and with the Sponsor but they were not treated as witnesses.

The investigator accepted that the complainant had been suspended on the first day of the fact find investigation. After their meeting, he had spoken with the Sponsor executive and said that the complainant did not accept that a conflict arose. She was aware of the scope of the investigation and he had not gone into the details of the transactions. The investigator accepted that he had not provided to the complainant notes of other conversations, apart from his own interview. The other conversations, for example with two traders were general as he wanted to understand the business. He had asked one trader whether the complainant had instructed them in relation to a trade. The investigator confirmed that he had put together all the notes and paperwork and that there was other material not contained in the report. The references in the report to people in bold were colleagues based in branches.

The investigator was asked who he had meant by “line management” in the concluding part of his investigation where he said that the complainant had not advised “line management” of the nature and degree of his involvement; he replied that he could not name them. He said that by virtue of the fact the complainant had said there was no conflict was the reason the conflict of interest policy was engaged. The investigator was asked whether this finding was based on the complainant’s ignorance; he replied that he had also based it on what the Sponsor had communicated to him. The Sponsor had said that no one in the management team was aware of the nature and extent of the complainant’s involvement. This was supported by the material that showed the complainant trading directly on the account. The complainant should have discussed this with his line manager and the investigator did not have names of the line managers. It was put to the investigator that the managers included the Former Manager and the Former Trader; he accepted this and said that this had been a family account but the level of interaction was not apparent. It was put to the investigator that for the first period of his trades, a report was produced every time the account was rolled over and this report set out all the details. It was further put to the investigator that the complainant could not be guilty in the second period and that he had made no finding in relation to this second period.

In further cross-examination, the investigator was asked about the email of the 10th February 2009 and where the negative income was tagged to; he replied that it was tagged back to the respondent but was not sure which unit. He said that the manager for the tag back would have been the manager in a named branch, but he had not spoken to the manager about this. The investigator was asked when Former Manager left the bank; he replied that he was there at the time of the first transaction on the account in 2008 but the account had moved out of capital markets in 2009. He accepted that the deposit was with capital markets on the 11th January 2007 when the Former Manager was manager.

In respect of the HR notes, the investigator said that P&A meant ‘policy and advice’ and this was part of HR. A named person was the case consultant. The investigator was referred to the HR notes which stated that he had recommended suspension; he replied that he did not make such recommendations and nor had he said that it was a case of potential gross misconduct. He was surprised by the reference in the HR notes to him having advised that he would recommend suspension. He commented that this had been a case of potential gross misconduct.

The investigation part of the disciplinary policy was put to the investigator and the reference to interviewing witnesses, taking notes and sharing these with the employee; he replied that he had taken notes of his meeting with two traders, but they were not witness interviews. He had decided that he wanted to discuss their general expertise.

Further evidence and questioning of the investigator

In re-direction, the investigator said that Former Manager left the respondent on the 31st August 2009. The complainant’s father had first opened an account on the 21st December 2004 and a joint account was created in 2009. The single-person account was not within the scope of his investigation. The first entry on the IT system was on the 17th November 2008 and showed that the market rate was applied, then 5.07%. The Former Manager left on the 31st August 2009 and the transaction of the 8th September 2009 was the first where there was a difference between the market rate and the dealt rate (1.1% and 3%). After the fact find meeting, the investigator left the room and gave a verbal update to the Sponsor executive. He was concerned about the conflict of interest issue. He recommended that the Sponsor executive contact HR to move forward and their conversation lasted no more than five minutes.

The investigator commented on the email of the 8th September 2009 which the complainant received from his sibling, stating that the rate to be applied was 3% for six months. This was an instruction from the complainant’s sibling to him. He commented on the complainant’s email of the 15th September 2011 where he said that he did not want his father to lose money. It appeared that the complainant was acting as a customer. He further commented on the email of the 6th July 2012 from the complainant to a branch official, where he refers to her as the relationship manager. He also commented on the email of the 31st March 2014 from the Treasury department giving details of the breakeven rate and the complainant’s email of 14.12 hours stating that the rate of interest would be 3%, referring to the relationship manager. The transaction of the 8th December 2010 refers to the complainant’s sibling as the relationship manager. He said that this showed that the complainant’s sibling was the relationship manager and this was unusual given the family relationship. This also applied to the trade on the 8th December 2010.

The investigator also referred to the email from a Treasury employee of the 30th October 2009 which identified the tagging, value and rate applied to deposits. This states that the complainant’s sibling was the relationship manager. The investigator said that this was inconsistent with the complainant’s evidence of not knowing who the relationship manager was. In emails, the complainant’s sibling gave instructions to trade on the account. The investigator had conducted a search of emails after the fact find meeting to see if either the Former Manager or the Former Director had sent emails regarding the deposit to probe what the complainant had told him. He also carried out a search of Capital Markets for the mandate but had not been able to find any such mandate. It was not common for documents to go missing and would be unusual in a case such as this. A mandate only allows the employee to act as a customer and not as an employee, for example to engage with the IT system or the other actions. He referred to an email of the 6th July 2014 as a typical email an employee with a mandate an acting as a customer would send.

The investigator stated that the supplemental note of the 5th November 2015 was in response to a request for clarification from the disciplinary manager. This document stated who he had talked to and it was sent to the complainant. The investigator was concerned with the email exchange in 2009 with the Former Director. He said that the Colleague had been the complainant’s line manager until 2012 and then it was the Head of Service & Execution. In respect of Appendix 8 of his report, this was a comparison between the dealt rate and market rate and the investigator said that he had not referred to a loss to the respondent.

The investigator had initially received the IT system documents and reached out to obtain additional information. He was comfortable and satisfied that he had all the IT system records needed to prepare the report. He had needed to understand the origin of the transactions and how they had taken place. The investigator commented that in the transaction of the 15th September 2011, the complainant noted that his father was losing interest, indicating that the complainant was aware that the interest rate dropped down if no instruction was received. The investigator said that the complainant had not mentioned the Colleague during the fact find meeting. In respect of the transaction of the 6th July 2012, the investigator understood that the complainant requested the instruction to be issued to Capital Markets.

The investigator said that draft investigation reports are not furnished to employees and they are distributed on publication. It was policy with a small ‘p’ not to interview former employees of the respondent because of data protection issues. There may have been issues with how left the respondent and they might not cooperate. The investigator believed that additional controls were put in place in capital markets following his report. He believed that the complainant had backtracked in his answer to a question about his sibling suggesting the rate for the deposit. This was because he answered that markets set the rate when he had previously said that his sibling set the rate. There had been several occasions when the complainant’s sibling had advised the rate.

In respect of the reference in the fact find minutes to the former Trader being copied in an email, the investigator said that the complainant had not made the point that copying the former Trader was done for transparency. He would have expected the complainant to have said this as it should have been front and centre, especially as this occurred the day after the deposit moved back to capital markets. The investigator said that he had no input in the allegations prepared by the disciplinary manager. His report findings related to the “management and actioning” on the account, in particular the use of the IT system. The reference to “line management” referred to management in the business, for example the Operations Manager and the Sponsor. There had been no awareness in the business of the extent of actioning and management on the account. This issue was raised by the Colleague in February 2015 and he would have raised it before, had he been aware of the issue. The investigator outlined that the report refers to the figure of €18,000 as a fact and not as a cost or loss to the respondent. He would have attended a disciplinary meeting as a witness, had this request been made.

In further cross-examination, the investigator said that he did not ask the Colleague about his awareness prior to February 2015. Others, for example, the Operations Manager and the Sponsor had said that they had not known. The investigator accepted that other deposit holders were paid over the market rate. He had not been asked by the respondent to attend the disciplinary meeting and had done so before. He was referred to correspondence from the respondent’s solicitors of the 30th October 2015 where it is stated that the respondent would not be calling witnesses to the disciplinary process.

The evidence of the disciplinary manager

The disciplinary manager outlined that he joined the respondent in 2014. He was the new head of shared services and was asked by the Sponsor executive to look into this case. He had been a disciplinary manager on three occasions with the respondent and on other occasions with previous employers. He received the investigation report, email correspondence and the disciplinary policy as well as an overview from the case consultant, who was the HR representative. He had no knowledge of the HR notes or of the conversation between the Sponsor executive and the investigator shortly after the end of the fact find meeting. The case consultant mentioned to him that this was a case of potential gross misconduct. He had no contact with the investigator prior to the 9th August 2015. He then met the complainant and the case consultant followed up with the investigator to get his note.

Commenting on the disciplinary invitation letter of the 4th August 2015, the disciplinary manager said that he reviewed the investigation report and summarised the findings into two allegations. He did not agree that the allegations contradicted the investigation report. The first allegation related to the conflict of interest and the second to the application of the rate. He looked at the documents and the higher rate of interest applied to the customers. He used the figure of €10,487 as the basis of the report. He spent three or four days reviewing the material and met the case consultant for 90 minutes to formulate the letter. The letter refers to the ongoing rolling over of the account at a higher rate of interest as well as the complainant’s emails and contact with his sibling and others in relation to the rate of interest to be applied. These paragraphs were taken from the investigation report.

The disciplinary manager outlined that he detailed and summarised emails to get a clear picture of the allegations. He looked only the emails in the investigation report. He had looked at the definition of “gross misconduct” in the disciplinary policy from where he drew the words “dishonesty, fraud and theft” used in the letter of the 4th August 2015.

The disciplinary manager said that the conflict of interest policy was available on the respondent intranet and was the main point of reference. He referred to an email of the 19th May 2009 sent to all in capital markets; this was referenced in the letter of the 4th August 2015. There were quarterly policy review meetings where participants were assessed on their knowledge of policies. Serious negligence quoted in the conflict of interest policy was contained in the disciplinary policy as gross misconduct.

The disciplinary manager said he wanted to ask questions of the complainant and to gather more information. He would then take appropriate steps, including to speak to others. He used the disciplinary meeting checklist provided in the policy. It was usually a union representative or a fellow employee who would accompany an employee.

The disciplinary manager commented on the letter from the complainant’s union representative of the 19th August 2015, which refers to the complainant bringing witnesses. He said that the complainant had not offered any witnesses. In respect of the complainant’s challenge to him being disciplinary manager, he said that he had not worked directly with the complainant, but recognised him from the building. He led a team of 150 staff and the migration process including the IT system. He accepted that the complainant had worked over a weekend on the migration of the IT system. He had not been the complainant’s line manager and saw no conflict of interest. He did not agree that there was a question regarding his impartiality and he had known nothing about the case. Commenting on the complainant’s solicitor’s letter of the 29th October 2015 challenging his role, the disciplinary manager said that there was no scope in the disciplinary policy to appoint an outside party to hear a disciplinary process.

The disciplinary manager said that he took the decision not to call witnesses as there was no need to. He wanted to ask questions of the complainant and to get his view on the report and the documents. He would have then followed up on matters arising. One potential witness had left the respondent and the other line managers were not necessary. At that point, he did not intend calling witnesses, but this was not a prejudged matter. Commenting on the minutes of the disciplinary meeting of the 3rd November 2015, the disciplinary manager said he opened the meeting and asked the complainant whether he had read the disciplinary policy. The complainant’s counsel then made some points regarding the fairness of the disciplinary process and the need to hear from witnesses. The complainant had not contributed to the disciplinary meeting and the disciplinary manager wanted to hear his response to the points. He was disappointed that the complainant had not stated his view regarding the allegations. After the meeting, the disciplinary manager went through the minutes and agreed them. On the basis of counsel’s submission, the disciplinary manager obtained the follow-up note from the investigator. The disciplinary manager said that he agreed to provide the complainant with a full, unredacted copy of the email exchange of the 12th March 2015. The disciplinary manager sought clarification from the complainant’s counsel regarding whether this was an issue of timing. The disciplinary manager said that he had not interviewed the members of staff identified by the complainant’s counsel during the hearing. He had wanted to hear from the complainant. In respect of one part of the minutes, the disciplinary manager denied that he had looked smugly at a colleague during the hearing, as alleged. There had been a second break in the meeting, where the respondent had sought to obtain a copy of the apology email and surrounding emails, but this could not be done in time.

The disciplinary manager said that he had taken the investigation report to formulate the allegations, so he was not both the prosecutor and arbiter. This did not present him with a conflict of interest in chairing the disciplinary process. The allegations were not created outside of the report. The disciplinary manager had sight of the letters sent by the complainant’s solicitors and he liaised with the respondent’s solicitors. He received advice from the case consultant and nobody else. He said that he had no predetermined view of the disciplinary hearing or the outcome. He agreed with the contents of the respondent’s solicitors letter of the 16th November 2015, in particular that he would not recuse himself. Commenting on the reference in the complainant’s solicitors letter of the 23rd November 2015 to cross-examining parties, including the Colleague, the disciplinary manager referred to the response of the 27th November 2015 and the reference to the complainant being able to call his own witnesses. This meant people voluntarily attending the disciplinary meeting to give evidence on behalf of the complainant.

The disciplinary manager said that the disciplinary meeting proceeded on the 10th December 2015 in the absence of the complainant. He did not believe that there was anything of added value in the disciplinary minutes or the witness statements. The supplemental note had been supplied to the complainant and there was no reason to delay. There was no engagement by the complainant and the disciplinary manager was disappointed not to hear his response. The disciplinary manager said that following the complainant’s letter of the 9th December 2015, amendments were made to the minutes of the first disciplinary meeting. The hearing proceeded on the 10th December 2015 and he had hoped that the complainant would turn up. At the meeting, the disciplinary manager and the case consultant reviewed all the material and correspondence and formulated a decision. This took 2.5 hours. He reached the decision to dismiss on the 10th December 2015 and was satisfied that the incident with the Head of Service & Execution was not connected. The disciplinary manager found that the complainant had concealed his role, as if he had a mandate. He did not go through a named branch official. The disciplinary manager had not seen documentary evidence of authority so he could conclude that the complainant was acting without authority. The disciplinary manager said that when an employee had a mandate, they could give instructions, but could not act themselves. In respect of the spreadsheet dated the 30th October 2009, the disciplinary manager said that it was only appropriate to compare accounts denominated in euros, as opposed to other currencies. The market rate would vary depending on the amount of the deposit and the time period.

In respect of the email from the Former Director of the 24th March 2010, the disciplinary manager said that while the email showed that the Former Director knew of the existence of the account in Capital Markets, he had not known the rate of interest applied to the account or who the relationship manager was. The disciplinary manager concluded that there was a conflict of interest in this case. It was the combination of the complainant’s actions on the account and the rate of interest applied that meant it constituted gross misconduct. He based this on the conflict of interest policy. This was an issue of honesty and the interest earned on the account was above the market rate. It would be unusual to receive an offering of 3% from the respondent for such a long time. Referring to the complainant’s answer to a question asked in the investigation about whether the offer of paying the higher rate was open-ended, he commented that any rate 0.5% above the market rate was a good rate. Any preferential rates are based on the money markets and would not continue. The rate is re-negotiated at a roll-over according to the market rate. The disciplinary manager had never seen a rate continue for the lifetime of a deposit.

In respect of the dismissal, the disciplinary manager said that he had not taken the decision lightly. There was no difference between putting your hand in the till or applying a higher rate of interest for such a long time. The dismissal had been proportionate. He also referred to the availability of an independent appeal in the disciplinary policy.

Cross-examination of the disciplinary manager

In cross-examination, the disciplinary manager said that he had been with the respondent since 2009. He started consulting for the respondent and then took a management position. He had not spent any time in HR. He had received briefings on disciplinary and investigative practices, but no specific training. He would familiarise himself with policy and the format of the process, but he had no formal training.

The disciplinary manager accepted that if an investigation is defective, the disciplinary process would also be defective. He confirmed that he had not interviewed the employees the investigator had spoken with but not included in the report and not kept notes of. The disciplinary manager had not made enquiries with the branch. In respect of the role of the case consultant, they met and she had briefed him on the disciplinary policy. They had met two or three weeks prior to issuing the invitation letter and he did not have a note of the meeting. By this stage, he had received the investigation report and the appendices. He received nothing else. The case consultant briefed him and supplied him with the policy documentation. It had been the Sponsor executive who asked him to hear the disciplinary hearing and it was practice to find a senior person from outside of the area. The case consultant was the only person he had spoken with prior to the first disciplinary meeting. He spoke with the investigator after the first meeting, leading to his supplemental note.

The disciplinary manager said that the invitation letter of the 4th August 2015 was drafted by the case consultant following their discussion. He had made notes to prepare for drafting the letter and was nearly sure that he had disposed of these notes. He had supplied everything he had to the complainant in his data access request. He was not sure if the case consultant had notes. The disciplinary manager stated that the allegations contained in the invitation letter came from the investigation report. The exact wording of the allegations was not used in the investigation report but they were formulated from the report. It was put to the disciplinary manager that the allegation that the complainant was in breach of the conflict of interest policy was not included in the invitation letter; he replied that he formulated allegations specifically dealing with the interest rate and the family relationship. He accepted that there was no reference to conflict of interest and that he was the drafter of the allegations. In respect of the decision he had to make, he said that he had to review the documentation and reach a conclusion on the allegations. He had taken the investigator’s findings as final and conclusive. The disciplinary manager was asked whether he would revisit the investigator’s findings; he replied that there was no reason to review the findings. The disciplinary manager was asked whether the fact that others were interviewed and no notes taken change his view of the process. He was asked whether he had doubt over the report. The disciplinary manager replied that it could have been a factor to consider additional information but this did not change his mind regarding the allegations. He accepted that he did not know what these other people had stated. He had accepted the investigation report and the information behind it. He said that while the more information you get the better, in this case, looking behind at the additional notes would not have changed his mind. It was put to the disciplinary manager that he could not know of their conversations with the investigator to decide whether to interview them; he replied that the purpose of the meeting was to discuss the allegations with the complainant. It was put to the disciplinary manager that he had been asked at the first disciplinary hearing to produce certain people. The disciplinary manager was further referred to the solicitors’ letter of the 29th October 2015 regarding witnesses and the fact that there had been no previous opportunity for the complainant to challenge the evidence in the investigation; he replied that it was his decision not to call witnesses and the first meeting was to find facts. In relation to the respondent solicitors’ letter of the 30th October 2015, the disciplinary manager said that at this point in time, he did not see the need to call witnesses. He sought clarification from the investigator and his mind was not closed on other issues. It was put to the disciplinary manager that this letter requires the complainant to put up a defence and the respondent would not look behind the allegations unless the complainant could defend himself; he replied that he was keen to understand anything related to the interest rate and the family dealing. He would have considered other documents. In respect of the investigation findings of fact, he confirmed that he had decided not to speak to anyone else and that the process was fair. He further accepted that he approved the minutes of the disciplinary hearing and that the complainant had not had the chance to challenge his accusers at the investigation stage. It was put to the disciplinary manager that he was not calling any witnesses; he replied that he was not calling witnesses to the initial meeting. He was not involved in the complainant’s suspension or whether this should have been kept under review.

In respect of the disciplinary meeting, it was put to the disciplinary manager that the complainant had sought to cross-examine the investigator and other witnesses; he replied that the investigation report was the basis of the disciplinary invitation. It was put to the disciplinary manager that it was important to know whether the complainant’s supervisors had authorised his actions; he replied that there was no evidence in the investigation report that the superiors either knew or authorised them. He outlined that the initial meeting was about the report and the allegations. He accepted that there was no suggestion of a second meeting or this had been a preliminary meeting. He accepted that the superiors’ role “might” be relevant. He had not sought to establish the superiors’ state of knowledge. He accepted that he had made an assumption about the superiors’ lack of knowledge without verification. He also accepted that the complainant had also raised the issue of the behaviour of a manager and the apology email which followed and that this all happened at the same time. It was put to the disciplinary manager that the process was unfair as the investigation report was taken at face value and the complainant was asked to defend himself; he replied that the investigation report was fact-based information from which he formulated allegations. The disciplinary process would seek relevant information to follow up on, which he did. He had not asked the investigator who else he had spoken with as he did not believe this was relevant. Any notes of conversations were separate to the report and not on file. There was evidence in the report and he wanted the complainant’s view on the allegations and on the evidence in the documentation.

It was put to the disciplinary manager that the complainant had sought to interview the Sponsor and others. It was put to the disciplinary manager that there was the timing of the “feeble” apology given to the complainant and the fact of the complainant’s role on the account being an issue when it had been up and running for eight years. It was put to the disciplinary manager that the complainant had said he had spoken to managers regarding transactions on the account; he replied that he decided not to interview managers. It was put to the disciplinary manager that the case consultant had said she would check whether the investigator had spoken with others regarding the “nature and degree” of the complainant’s involvement. In respect of the HR notes, the disciplinary manager was asked whether he accepted that it was the investigator who recommended suspension; he replied that he had not looked at the notes and had no role in the suspension. He would have expected the case consultant to see the HR notes. In respect of the supplemental report of the 5th November 2015, he said that he looked at the email exchange from 2010 where the complainant confirms the familial relationship. It was put to the disciplinary manager that any reading of the supplemental report showed that there had not been a proper enquiry regarding the knowledge of the superiors as the investigator had only referred to conversations with the Sponsor and the Head of Service & Execution; others are not mentioned and ought he have known of the others? The disciplinary manager replied that he would like any report to be as full as possible, without gaps. He was asked whether the gaps should have been filled; he replied that he would like any decision to be fully informed. He agreed that the investigator had not referred to interviewing others and could not comment whether the investigator had missed the opportunity to fill in gaps. It was put to the disciplinary manager that there were other meetings and witnesses interviewed and the complainant had asked for the notes and these gaps were not filled.

The disciplinary manager confirmed that he had set out the allegations and that he was to decide on the complainant’s guilt or innocence. It was put to the disciplinary manager that the complainant had said that he could be either the prosecutor or the judge and that he had done away with the jury as “facts were facts”. It was put to the disciplinary manager that the complainant had sought to challenge the investigator’s express finding that he had not advised his line manager of the “nature and degree” of his involvement on the account. It was further put to the disciplinary manager that the complainant had said that other people should be interviewed or asked if they had been interviewed then the notes should be provided; he replied that the investigator had said that some managers had left the respondent and had not said that others were not interviewed. The disciplinary manager did not accept the characterisation of the process as either unfair or flawed and said that there had been a “gap”. He agreed that the question was whether the gap led to a flaw or to unfairness. He accepted that there was a gap regarding the interview notes but did not agree that it invalidated the process or that it was unfair.

In respect of the 10th December 2015, the disciplinary manager attended the second disciplinary hearing and reviewed the matter with the case consultant. He then made his final decision in respect of the sanction. He took time to draft and review the letter of dismissal of the 17th December 2015. He agreed that he had found that the complainant was guilty of gross misconduct, dishonesty, unethical behaviour and fraud. He stated that the gap related to one piece of information and the complainant had been given the opportunity to challenge this. When asked about the opportunity to challenge his accusers, the disciplinary manager replied that an employee had to give his version and this was giving a reply to the information presented to him.

Additional evidence of the disciplinary manager

In re-examination, the disciplinary manager said that he formed the allegations in the invitation letter of the 4th August 2015 from the investigation report, the first relating to the high interest rate and the second to dealing on a family account. He had no documentation other than the investigation report. He had seen the minutes of the fact find meeting with the complainant. All items that populated the disciplinary invitation letter arose from the investigation report. He outlined that the letter of 29th October 2015 was the first occasion the complainant had challenged the invitation letter of the 4th August 2015. The respondent replied that there were no new allegations in the invitation letter. They agreed to obtain a supplemental report to clarify the points raised at the disciplinary meeting and to clarify the awareness of management. He had completed two disciplinary processes in the respondent and six overall. He had never encountered a situation where the employee did not attend. He was open to the complainant bringing witnesses to the 10th December 2015 meeting. The complainant was afforded the right to legal representation at all meetings and a right of appeal. In respect of his role as the disciplinary manager, he was not “judge and jury” as he did not include anything new in the allegations he formulated. It was his understanding that the respondent did not require former employees to partake in a disciplinary process. There was an obligation on employees to fully partake in a disciplinary hearing and this was contained in the disciplinary policy and the support pack. This refers to the employee making every effort to attend and that the employee is obliged to cooperate. The complainant did not comply with these provisions as he did not partake in the process. The disciplinary manager did not agree that the process was so flawed that he should not attend the second disciplinary meeting. The complainant should have engaged in the process and had he done so, they could have looked at other supporting documents or explored the matter with other people. In further cross-examination, the disciplinary manager said that there was no policy that excludes former employees from a disciplinary process and that employees leaving the respondent may agree to stay involved in specific proceedings.

Submissions of the respondent

The respondent made written submissions following the last day of the adjudication hearing. In respect of the suspension, the respondent submitted that the complainant’s suspension had been holding in nature and not punitive. It pointed to the fact that it treated the complainant the same as his sibling, who was also investigated by the respondent. It submitted that the complainant was subject to a holding suspension in order to facilitate an investigation and the subsequent disciplinary process. In respect of the application of fair procedures to investigations and disciplinary processes, the respondent pointed to the variable nature of those fair procedures. Applying Mooney v An Post [1998] IR 288, the respondent submits that the applicable fair procedures depend upon the terms of employment and the circumstances surrounding the potential dismissal. In Mooney v An Post, the Supreme Court held that an oral hearing was not required in the circumstances. The respondent relies on Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 where Laffoy J. held that the applicable fair procedures will depend on the terms of employment and the circumstances surrounding the disciplinary action and in that case, they did not require cross-examination. The respondent differentiated the instant case from Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 as the investigation in this case was evidence-gathering where no final findings were made and the complainant was not prevented from cross-examining any witness of his choosing. The respondent relied on Moore v Knox Hotel and Resort Limited (UD27/2004) where the Employment Appeals Tribunal reduced the compensation awarded to the employee in a procedurally unfair but substantively fair dismissal, where the claimant had not availed of an appeal.

In further submissions, the respondent relied on O’Brien v AON Insurance Managers (Dublin) Ltd [2005] IEHC 3, where Clarke J. held that the recommendation of an investigation stage that a disciplinary hearing be held did not amount to a sanction and did not attract In Re Haughey rights. The respondent also refers to the High Court authorities of O’Sullivan v Law Society [2009] IEHC 632 and EG v The Society of Actuaries in Ireland [2017] IEHC 392 where it was held that the full extent of fair procedures did not apply at investigation stage where it did not make a final decision and where there was a full opportunity to deal with relevant concerns at a disciplinary hearing. The respondent submits that the investigation in the instant case was merely an evidence-gathering tool for use at the disciplinary hearing.

The respondent refers to Kinsella v Ulster Bank (unapproved judgment, High Court, Gilligan J., 25th October 2016) where Gilligan J. held at paragraph 66: “I am satisfied as a matter of law that the rules of natural justice do not apply in this instance to the investigative process on the basis that it does not amount to any finding of fact either adverse or otherwise concerning the plaintiff. It does appear to be purely investigative leading in this instance to the instigation of a disciplinary process. I note in particular the views of this Court (Clarke J. as stated in O’Brien) that the type of pure investigations which do not involve any findings are not a matter to which the rules of natural justice apply to and not a matter therefore which the court should interfere with.”

The respondent submitted that in the investigations which have been held to breach fair procedures, the investigators went beyond the realm of pure investigation in making findings and imposing sanctions. These authorities, including McLoughlin v Setanta Insurance Services Ltd [2011] IEHC 401, do not apply in the instant case as the investigation report went no further than gathering evidence and no decision was made as to sanction. It was submitted that even if there were a flaw in the investigation (which the respondent does not accept) this would not be fatal to a fair hearing and a fair dismissal. The investigation was an evidence-gathering exercise and was not final. The allegations made in the disciplinary process had been discussed at the fact find meeting and did not take the complainant by surprise. The complainant had ample opportunity to provide his response to the allegations – which were not findings – but had failed to do so, without justifiable excuse. It is submitted that the complainant was able to challenge the contents of the investigation report at the disciplinary stage. The respondent relied on NM v Limerick and Clare Education and Training Board (Unreported, High Court, McDermott J., 27 June 2017) in that the complainant could provide any evidence or call witnesses to give evidence. This included the two witnesses the complainant called to the adjudication to give evidence on his behalf. The respondent submitted that Former Manager’s evidence had not correlated with the complainant’s, who had said that the Former Manager set the interest rate. The respondent criticises the complainant for not calling the Former Manager to address the disciplinary hearing, in particular in the light of the union letter of the 19th August 2015. It was submitted that the disciplinary manager had taken a considered approach to the case and had requested additional information following the disciplinary meeting of the 3rd November 2015. He was not aware of the HR notes, nor of statements made by two named traders.

The respondent submitted that the complainant contributed to the dismissal on a number of grounds: his actions, his failure to recognise the seriousness of his actions in particular as he admitted at the adjudication that he set the rate, his failure to participate in the disciplinary hearing, his refusal to answer questions asked by the disciplinary manager, his refusal to attend the second disciplinary hearing and his failure to appeal the dismissal to what was an independent person. The respondent submits that the complainant’s evidence contradicted that of the Former Manager as the Former Manager had said he did not set the rate and at no time in the Former Manager’s tenure was the rate higher than the market rate. It is submitted that the respondent solicitor’s letter of the 27th November 2015 was clear that there was no refusal to supply witnesses. It was submitted that the fact of no one raising an issue regarding the complainant’s action on his parents account did not detract from the absence of permission and the serious nature of the complainant’s actions. It is further submitted that the relationship of mutual trust and confidence essential to the employment relationship required the complainant’s participation in the disciplinary procedures and relying on Mooney v An Post that an employee is not entitled to merely remain silent. It is submitted that the complainant’s failure to appeal the dismissal decision contributed to his own dismissal, and that if he had engaged with the disciplinary manager or the appeal, the outcome could have been very different. It is submitted that the High Court in eircom limited v Mahon (Unreported, High Court, 27th September 2016) criticised the plaintiff for not engaging in an appeal process. It is submitted that the complainant’s failure to engage in the appeal process has disentitled him to the relief of re-instatement. It was submitted that the complainant was not entitled to disengage from the disciplinary process and he was obliged to participate in the process to meet the allegations made against him. His failure to do so very substantially contributed to his dismissal.

In respect of the remedy sought of re-instatement, the respondent submitted that this remedy is not appropriate given that the relationship of mutual trust and confidence has broken down and that the complainant has failed to engage in the disciplinary process. It is submitted that the adjudication officer (or Labour Court) have absolute discretion “having regard to all the circumstances” to choose a remedy. It is submitted that an employer should not be ordered to re-employ an employee they no longer have confidence in. It relied on Sheehan v Continental Administration Co Ltd (UD858/1999) where the Employment Appeals Tribunal held that neither re-instatement nor re-engagement were appropriate, in particular where the relief had the potential of creating “future friction, disharmony and possibly an acrimonious relationship.”

The respondent further submits that the decision to re-instate in Bank of Ireland v Reilly [2015] 26 ELR 229 depended on the facts of the case, in particular the minor nature of the alleged offences and the employee’s participation in the disciplinary procedure, including appeal, when compared to the instant case. The respondent refers to the following comments of Noonan J. in Bank of Ireland v Reilly: “It would of course be unreal to suggest that the court could not have regard to the conduct of the employee in considering in a general sense whether the remedies of re-instatement or re-engagement were appropriate.” It is submitted that the misconduct in the instant case was much more serious than the issues in Reilly and were also of a different nature as they involved dishonesty and theft. It submitted that the remedy of re-instatement is precluded because of the destruction of the relationship of mutual trust and confidence. This also arises because the complainant has alleged there was a vendetta against him and where he sought alternative employment while on suspension. It submitted that the complainant could have obtained alternative employment in the financial sector, unlike the circumstances arising in the Reilly case and that the complainant’s mitigation was inadequate. Re-instatement is inappropriate as the complainant has failed to engage in the disciplinary and appeal process, in particular as he was aware that his fitness and probity was at stake. In conclusion, the respondent submitted that the complainant was dismissed on grounds of gross misconduct and on the basis of the findings of the disciplinary process, which followed an investigation. There were substantial reasons to justify the dismissal of the complainant, per section 6(1) and 6(4) of the Unfair Dismissals Act. This was an appropriate finding in respect of the two allegations. There was no breach of fair procedures and that the complainant’s refusal to participate in the disciplinary hearings and appeal was unreasonable and unwarranted.

In opening submissions, the complainant outlined that the Colleague was only identified as the source of the complaint against the complainant on the 5th November 2015. The complainant did not accept the statement that the Head of Service & Execution brought the issue to the attention of the Sponsor and he placed the respondent on proof of this. The complainant did not accept that they did not know of this account. The complainant submits that this case involved a most flawed disciplinary process. The investigation was part of the disciplinary process and amounted to an interview of the complainant and a review of bank documents. The investigator may have interviewed others, but no notes were produced of these interviews. The investigator should have spoken with others, for example the Colleague, the Sponsor and the Former Director as well as the employees who conducted the transactions. The process was entirely flawed once these steps were not taken.

The disciplinary manager had converted the finding of fact made at investigation into two allegations, including one of fraud. The disciplinary hearing had only been about asking questions of the employee. The complainant submitted that the overall process and the application of the process was flawed. He was not guilty. His role in relation to the account had been most transparent and other people had direct involvement in applying the interest rate to the account. The respondent signed off on the account on a monthly basis. The respondent had not interviewed the Relationship Manager.

The evidence of the Former Manager

The Former Manager commenced employment with a subsidiary of the respondent in 1970 and finished his employment in 2009. He worked in Treasury from 1976 until the end of his employment and had worked on all Treasury-related activities. He had never worked in a branch. He always worked on the funding side, i.e. taking in money. He was the complainant’s line manager for three or four years before he retired. He stated that he was aware from the outset of the parents’ account and signed off on the creation of the account. There were conflict of interest provisions, but there was no issue with an instruction to re-invest. It was evident in 2007 that funding became more difficult and the respondent had to defend its position, as competitors were offering higher rates of interest. The respondent set up a unit to counter this by taking in more money and to fight to keep accounts. There was flexibility in setting interest rates to find business.

The Former Manager outlined that the market rate is the Euribor rate while the dealt rate was akin to this, but it could be different depending on the circumstances. He had access to reports on the interest rates applied to clients. He had instant access to trades when they were made. On maturity, there was a need for an action or follow-up. On small accounts such as this, he could see the state of play instantly, including the interest rate. He agreed that he had to ensure that there was the best value but also to see if anything was out of sync. The Former Manager outlined that he was not replaced when he left but the Former Director, his line manager, took over. The Former Director had sight of deals and could have asked more questions of the interest rates applied.

In respect of the email from the Former Director to the complainant of the 29th March 2010, the Former Manager outlined that they had to tag investors who were also retail customers. This has been a case of giving “wooden dollars”. He commented that the only thing strange in the emails was the evident link to the complainant’s family name. He stated that the investigation report did not have the original emails of the 8th March 2015. He stated that the difference between the market rate and dealt rate on the trades was obvious.

In cross-examination, the Former Manager said that he might have become aware of the complainant leaving the respondent at a Christmas function in 2015. He had also heard about it in September 2015. He stated that he had no contact with the complainant prior to his dismissal and there was no contact from the union. He would have attended any disciplinary hearing. The complainant had starting working with him in 2005 or 2006 and he had one other direct report. They had a specific function to capture clients. While he was not a manager, he had been in control of 20 to 50 employees and a great number more over the years.

In respect of the deposit account of the complainant’s parents, the Former Manager said that the complainant had told him about the account. His father had retired and wished to open a deposit account with the respondent. He possibly signed off on the paperwork and this would have been finalised by the back office. He had not set parameters for the account. There was the market rate and whatever rate was necessary in the circumstances. It had been the respondent who determined that they needed “new funds that would stay put” between 2007 and 2009. He said that the person who did the transaction would set the rate, depending on the circumstances and in consultation with him and the Former Director. He agreed that he would ask why a rate higher than market rate was being applied and seek a legitimate reason for this. He accepted that the complainant was one of the traders on the account. Having seen the transactions, he had no reason to question the rate applied by the complainant to his parents’ account. He agreed that approval was required and that the complainant had not sought it. He had no reason to doubt the reason for the rate applied to the account. He said that he would see a trade on a report as soon as it was done. In respect of a trade on the 18th September 2009, he said that this would have been obvious on the report and all over the respondent. He had left the respondent by this stage.

The Former Manager was asked whether he had ever encountered a situation where the parent and relative are identified in the “remarks” section of a trade; he replied that he had seen this before maybe 5, 10 or 20 times in his career. It was put to Former Manager that this was exceptional; he did not accept that it was. He stated that he had never seen the dealt rate being higher than the market rate on such a parents’ account. It was put to him that this was exceptional; he replied that it was exceptional only that the dealer happened to be the son where the money belonged to the parent. Everyone had to justify the higher rate and he had never encountered this in the context of a blood relative. The Former Manager said that he had not assured the complainant that they would apply a good rate to his parents’ account, but that they were applying good rates to all accounts. The Former Manager was asked whether these better rates were applied for so long, between 2009 and 2015; he replied that he has seen ongoing rollovers in excess of market rates for numerous customers. It was put to the Former Manager that presumably the respondent’s priorities had changed over this time; he agreed and said that these transactions were there for everyone to see. They were fed into reports and managed by teams. They were not hidden in the dark. It was put to the Former Manager that this deposit account was used on a retail basis; he agreed and this occurred when customers took money out. He saw this as an account where there was a blood relationship and where the customer made regular withdrawals. It was put to the Former Manager that there could be 200 maturities in a day and he was asked whether he could go through the daily report in detail; he replied that he could scan through the report and make the necessary calls. This was what they did every day.

The Former Manager was asked whether he had discussed the conflict of interest policy with the complainant; he said that he had not and the complainant was aware of the guidelines as were the Former Director and others. There was an appraisal of all employees every year and this included a review of their worth and their adherence to policies. It was put to the Former Manager that the complainant’s actions on his parents’ account could amount to a conflict of interest; he replied that this could arise only where handing over cash. It was a conflict where performing a transaction when they benefit. People do family transactions for expediency but if they do so deceitfully or dishonestly, it is a conflict. It was put to the Former Manager that the complainant was getting higher than the market rate; he replied that in 2008 and 2009, everyone had to get in as much money in as possible. The evidence of the higher rate was available to all. It was put to the Former Manager that the complainant should have disclosed the conflict of applying a higher rate; he replied that every transaction performed is evident in the report. It was put to the Former Manager that approval had been required for the higher rate and the complainant should have declared the conflict as this involved a blood relationship and dealing at a higher rate, as this was exceptional. It was also put to the Former Manager that the complainant had not provided evidence of disclosing this conflict. The Former Manager was asked whether this was a matter of the respondent’s negligence; he said that it was not and that traders do trades and they were executed through the system. Evidence was there on the support systems for all to see.

It was put to the Former Manager that if this was wrong, it was wrong even if it was not picked up and that it had been picked up in 2015. He responded that this occurred seven years later. It was put to the Former Manager that the email of the 24th March 2010 from the Former Director to the complainant made no reference to the dealt rate; he accepted this and said that he would ask what triggered this email. He accepted that there was no reference to the complainant’s sibling in the related IT system print-out. He accepted that there was no evidence that the Former Director had raised the dealt rate.

In re-examination, the Former Manager commented on the spreadsheet circulated on the 30th October 2009 and said that interest rates of 3% and 3.1% had been applied to other accounts. He pointed to the transaction of the 4th August 2011 and subsequent transactions done by other traders at a higher dealt rate. He said that transactions where other traders applied a higher rate should have raised a flag. Higher rates could also be “okay” if they matched a retail rate. It was reasonable to ask the people who had authority. In further cross-examination, the Former Manager was asked whether he had signed a document that set a particular rate; he said that he had not and if he had signed a document, it was to set up the account. It was put to the Former Manager that the disciplinary manager had said that the rate would depend on the size of the deposit and the length of the rollover; he agreed and it might also depend on the circumstances of the initial lodgment, for example if it was retail.

The evidence of the Area Manager

The Area Manager gave evidence that he left the respondent in December 2009. He was also a customer of the respondent and had monies in retail. He had been paid interest of 4% until the 20th November 2012 and this dropped to 3.5% in April 2013. In November 2013, it dropped to 3.1% and then to 2.25% in 2014. The lodgment was not more than €120,000.

In cross-examination, the Area Manager said that he had direct dealings with the complainant in moving deposits to betters accounts to defend the client. He covered the branch in which the parents’ deposit account was opened in 2005. He was not aware of the transfer of this account. He was not asked to attend the disciplinary hearing and was aware of this matter through the complainant’s sibling. He stated that in 2009, he had received a headline rate of 4% and confirmed that he could take money out. He had less than €100,000 in the account then. He said that retail and markets accounts were different. He had set the rate at 4% and had actioned the account himself and it had been his account. In re-direction, he confirmed that he would have attended a disciplinary hearing.

The evidence of the complainant

In evidence, the complainant said that he joined the respondent in 2003 from college and he had also worked for the respondent while in college. He had started in wealth management under a named manager. He began in an administrative role on the private clients team. After a year, a role came up in the dealing room and he was interviewed for the role by the Former Director and the Former Manager. He started in the dealing room in 2005 and worked on the sterling book.

The complainant outlined that the team monitored liquidity and real rates. There were 5-day and 30-day liquidity windows and he had to ensure that the respondent had enough liquidity. In 2007, the complainant sought a role with more interaction with clients and moved to work with the Former Manager. He, the Former Manager and a named colleague managed the deposit book, including the rollover of deposits. He and the Former Manager would split the work and this was done informally and on an ad hoc basis. Some clients knew the Former Manager well and vice versa. They were always required to speak with clients and there was a great variety of clients, for example farmers or corporate clients. While some relationship managers handled the work, they often spoke directly with clients. Some communication was done by email or on the phone, but they would always phone clients where this was the usual means of contact. After the Former Manager left, the complainant reported to the Former Director, who has also been a director of respondent companies. As head count in the respondent was being reduced, the complainant and a named colleague shared the work and did some of the Former Manager’s role. The complainant said that when executing a trade on the IT system, there was a window showing the trades maturing on that day. This stated the name of the person, the rate applied and the rollover date. The trader would add their initials to the trade. The system was not set up for taxable trades so this had to be done manually.

The complainant said that in 2010, he was approached by the Colleague to work in the financial institutions team. The complainant wanted exposure to foreign exchange and moved role. He no longer reported to the Former Director. He continued to rollover deposits as well as doing the multinational work. He was learning the ropes on foreign exchange for large multinationals and financial institutions. The complainant then asked the Sponsor to meet for coffee and told him that he was unhappy with the Colleague’s man-management style. He also continued to rollover deposits and no one had been trained to do this. The complainant said that within a matter of weeks, he moved to Head of Service & Execution’s team, which dealt with interest rate derivatives and foreign exchange. He brought over all the deposits, apart from the multinationals and the financial institutions. He had been tasked to train others to manage these accounts. The last occasion he rolled over accounts was in 2011. At this time, a manager had created a separate deposits team, sometime in 2012. He was not involved from 2011/2012 and the account was rolled over by the deposits team.

In respect of the email from the Former Director from 2010, the complainant said that this was sent on the same day as he was paid his bonus. He then had reservations about senior managers removing their deposits from the respondent at a time when they were trying to get deposits in. This set a bad example and the complainant raised that his parents had a deposit. He said that he never hid his relationship with the account. He had been open and transparent. There was nothing to say that senior management had not known about the rate. This was not business done on the side; people would shout across the room, even forcefully. People would speak openly about their parents’ accounts. He commented that timing is everything in markets and people must act quickly. Other people had rolled over his parents’ deposit between 2011 and 2015.

In respect of the apology given to him by the Head of Service & Execution, the complainant had been on the desk speaking with a colleague about a client’s instructions. At the time of the conversation, a phone rang and the Head of Service & Execution said “answer the f***ing phone”. This was not the first time. The complainant spoke with the Head of Service & Execution and sent him an email. He wanted to deal with the issue “man-to-man”. The complainant outlined that the Sponsor’s email of 17.37 hours on the 12th March 2015 makes his position clear. No issue or question was raised in the email regarding his parents’ account. Two months later, he was suspended. He had only known from the supplemental note that it was Colleague who had raised the issue of his role on his parents’ account.

The complainant said that the interview of the 18th May 2015 started at 12 noon and took two hours. After the meeting, he spoke with the union and his sibling, and went back to work until 5pm. He was asked by the Head of Service & Execution to go into a meeting room where they were joined by the Sponsor executive. He was handed the suspension letter, which he was asked to read and sign. The complainant said that he had complied with the terms set out in the letter of suspension, for example he telephoned the Head of Service & Execution on 50 occasions and also called the Sponsor executive. He was suspended from May to August 2015 and received no further communication from the investigator. He was sidelined. There was no other explanation for the suspension apart from the contents of the letter of the 18th May 2015.

In respect of the disciplinary policy, the complainant said that he was told that there could be a disciplinary charge as opposed that there would be a disciplinary charge. No allegations had then been put to him. He had not heard anyone else’s evidence against him and he asked for this. The case consultant said that he would get this information. In respect of provisions in the policy relating to providing him with information, the complainant said that he had received no further information other than the screenshots. In respect of the provision in the disciplinary policy regarding witness statements, he never received interview notes other than those of his interview. In respect of the provision in the policy regarding suspension, the complainant was not aware of any review of his suspension and he had asked for updates. The notes taken by the Sponsor executive on the HR records were at odds with what he had said to her. His solicitors had raised these concerns during the process. He had not been given the opportunity to challenge the evidence of the Colleague, the Head of Service & Execution (as decision-maker for the suspension) and the Sponsor regarding the coincidence of the apology. He had been dismissed by letter of the 17th December 2015 and this was delivered to him by courier. He was not paid in lieu of notice.

The complainant said he sought alternative roles. He was offered roles at two financial institutions during 2015 but had to turn them down as he was under investigation. These were regulated positions under Central Bank rules. The allegation of “dishonesty, theft or fraud” meant that he could not do an approved role. He could only do a back-office role. He could not have done any of the roles he had previously worked. The complainant stated that he will never work in banking again. The complainant said he had sought alternative employment, applying for roles via recruitment agencies and for roles in other industries. He sought a role at a named golf course. He had not had any interviews apart from the interviews in 2015. He left his CVs with recruiters and tried to open a sporting franchise, but this was not successful. The complainant said that he had huge support around him. He had obtained a diagnosis of PTSD and depression and had attended medical services. This has a devastating effect on him and his family and it was difficult for him to pick himself up. His second child was born in March 2015 and he had been on paternity leave at the start of the investigation and disciplinary process.

Cross-examination of the complainant

In cross-examination, the complainant said he started working for the respondent in 2003. He began in wealth management and then moved to the dealing room in Treasury. He agreed that he had a good understanding of the procedures in the dealing room. It was put to the complainant that the Former Manager left in August 2009 and the Former Director took over; he agreed with this and agreed with the Former Manager’s evidence. In respect of the letter of suspension, the complainant said that there had been no discussion of his suspension prior to his opening this letter at the meeting with the respondent. It was put to the complainant that the letter of the 5th May 2015 stated the purpose of the fact find meeting; he replied that he did not know what the meeting specifically related to. The complainant said that he asked the Sponsor, the Head of Service & Execution or a named trader to represent him at the fact find meeting, but was later told that this was not possible. He did not ask for a second adjournment as he wanted to deal with the matter. In respect of the fact find minutes, the complainant said he did not sign off on the minutes as they were not accurate, for example the conflict of interest issue was addressed in the first person and not the third person. Even with the investigator’s changes, the notes could not be signed off on. He referred to a transcribed answer in the minutes, which he described as skewed, and stated what he had said to the investigator. The complainant did not accept that he had not given the respondent the opportunity to correct the minutes and said that the corrections to the minutes were not made.

It was put to the complainant that the Former Manager’s evidence was that he had set up the account but had not set the rate; he replied that the Former Manager had said he “thought” he opened the account. More than likely, he booked the account. As they did not have information prior to the IT system, they could not say who set the rate. The complainant was asked whether he disputed the Former Manager’s evidence that he did not set the rate; he replied that they could not know. It was put to the complainant that the first difference in the interest rate applied to the account came after the Former Manager left the respondent; he accepted this and said that he had inputted the trade. He commented that the trade of the 17th November 2008 was the first migrated deal and they could not say whether this was the first occasion that a higher rate was applied as they did not have the documents. He asked where the trades the Former Manager had rolled over. It was put to the complainant that his answer at the fact find meeting about the Former Manager setting the rate was inaccurate; he replied that the respondent had put deals in front of the Former Manager that he did not do. It was put to the complainant that at the time of the email correspondence with the Former Director in 2010 regarding his role, the Former Director had not known the rate applied to the account; he disagreed and said that the Former Director had known. He had spoken with the Former Director about people taking their deposits out of the respondent and raised his parents’ deposit. The Former Director had asked the complainant whether he was looking after them and asked him what the rate was. The complainant replied that it was 3% and that he would look after them.

The complainant accepted that at the fact find meeting, he referred to his sibling as managing the account. It was put to the complainant that he also referred to his managing the account; he replied that he had never acted as both banker and customer at the same time. There was no conflict of interest here and a line manager would have identified this. It was put to the complainant that Former Manager’s evidence was that he had not seen two family members manage an account; he agreed and said there were more recent cases where this happened. In respect of the Former Manager’s offer not being open ended; the complainant acknowledged this and said that the rate changed over time. In respect of his July 2012 email referring to “I need the email to come from the RM”, the complainant stated that he did not know who the RM was and sent this email to a named branch official. The respondent suggested to the complainant that interposing someone else in the management of the account was suspicious; he did not agree and said that he was being transparent. In respect of needing the email from the RM, the complainant said that this email referred to a payment out of the account to a third-party bank.

The complainant was asked whether he had documentation relating to the setting up of the account; he replied that he had not been allowed to keep documents, for example Treasury mandates. He suggested that the respondent should have all the documents. It was put to the complainant that he had been able to provide documents to help his case at the investigation; he replied that he could only use a data access request to get his information. It was also not his problem to gather documentation for the respondent. It was put to the complainant that his parents could have submitted a data access request; he replied that they had been through enough. He stated that he did not know what documentation the respondent had and the respondent had not been able to bring anything. It was put to the complainant that there were occasions when the dealt rate was higher than the market rate; he replied that this had been transparent. He did not accept that this was unusual practice. It was put to the complainant that this was unusual and that these matters were not trivial; he replied there was “no previous discussion” as stated in the letter of invitation and that this matter may not have gone to the fact find investigation had he and the Head of Service & Execution had the chance to discuss this. It was put to the complainant that the disciplinary manager had not seen the HR notes and was not aware of their contents; he replied that they were referred to in the correspondence from the respondent solicitors.

It was put to the complainant that he had not mentioned the conversation with the Former Director during the investigation; he replied that there had been no need to mention this conversation regarding rates. This had been open and transparent. He had mentioned the Former Director’s role on the account, as recorded in the minutes. The complainant said that he could have a clear recollection of this conversation as it was also when he was paid a bonus. It was put to the complainant that this was the first occasion they had heard of this conversation; he replied that this was not the case and the fact find meeting had only lasted two hours. The Former Director was a director of the respondent. It was put to the complainant that he says his role was open and transparent but there was no evidence of his discussing the conflict of interest with the Colleague and that he had only mentioned discussing this with the Former Manager and the Former Director. The complainant replied that he had said that everyone knew. It was put to the complainant that he had no details of specific conversations with other managers; he replied that it was open and transparent for everyone, including the Sponsor. The complainant said that he had referred to the Former Manager and the Former Director specifically at the fact find meeting, but also referred to “everyone in the business”. He would have attended a second fact find meeting. He did not mention Colleague, but he had discussed it with him. A named trader had messaged him at the time of the fact find and the complainant replied that he was not rolling over the deposit.

It was put to the complainant that he did everything but press the button on the trades done by others; he replied that the Former Trader was a senior trader and had seen no issue. He commented that the notes relating to the two traders were kept from him, even though the investigator later admitted to talking to them. In respect of the email of the 31st March 2014, the complainant was asked why he had made the reference to relationship manager in the email; he replied that this was generic wording. This could have been asked of the Colleague or the two traders. It was put to the complainant that the two managers he identified in the fact find meeting were no longer employees of the bank and he had made no reference to raising the conflict of interest with the Colleague; he did not accept that there was a conflict of interest. He strongly rejected an assertion that he had not provided evidence to the fact find meeting regarding the setting of the rate and the extent of his involvement. He said that he attended the fact find meeting in good faith. The investigator had used a pro forma document with the questions typed into the document. The investigator could have asked other questions and the complainant was also available 9 to 5. He had also asked 50 times for updates, but no one asked him another question. It was put to the complainant that he had not discussed the account with other senior managers; he replied that he had specific conversations with the Colleague but had not rolled over the account when working for him. He only knew of the Colleague being the source of the concern some eight months later and could not cross-examine him at the disciplinary hearing. The complainant said that he had always over-achieved in the role and performed well. He and his manager had signed off on his Personal Development Plan.

The complainant was asked whether he had informed the respondent of his conversations with the Colleague; he replied that they asked for the Colleague to attend the disciplinary hearing. The complainant was asked whether he had told the disciplinary manager of the Colleague’s knowledge; he replied that they had raised the issue with the respondent and asked for the Colleague to attend. The Colleague had a motive and knew everything. He had issues with the Colleague in 2010. The complainant was asked whether there was a vendetta against him in the respondent; he replied that he did not know and he would never know. The complainant agreed it had been the disciplinary manager who dismissed him. He said that the investigator had made the decision to suspend him. He confirmed that his sibling had also been suspended. It was put to the complainant that the respondent’s letter of the 10th June 2015 explained the reason for his suspension; he did not agree with the statement. The suspension had been imposed two hours after the fact find meeting, despite the investigator saying he would take additional steps. It was put to the complainant that the letter of the 4th August 2015 showed the interaction between the respondent and the union; he said that this related to the minutes. He agreed that the respondent’s letter of the 5th May 2015 made him aware that something could happen after the fact find meeting.

The complainant agreed that the respondent letter of the 4th August 2015 made it clear that his job was on the line and the impact on his fitness and probity and this was included in the union’s reply of the 18th August 2015. The complainant did not know which witnesses the union letter of the 19th August 2015 referred to. It was put to the complainant that he had only sought to contact witnesses in late 2015; he replied that he had not contacted the Former Manager prior to his dismissal and would not have been able to call him to the disciplinary meeting. The investigator had said that the fact find meeting was a “closed room” meeting so nothing could be said to others. The same statement is made in the letter of suspension. In the minutes, the investigator referred to the obligation of confidentiality and this is repeated in the disciplinary invitation letter.

It was put to the complainant that the respondent solicitors letter of the 27th November 2015 is clear that he was entitled to call witnesses; he replied that he could not call witnesses who were bank employees and he wished to challenge how this matter came to light. The complainant said that it was misleading to say that there was no prohibition on him bringing witnesses as the respondent was not providing employees to be cross-examined. It was only after the 5th November 2015 that the disciplinary manager knew of the notes relating to the Colleague. The complainant said that there had been no notes of the meetings with others and it had not been a fair process.

It was put to the complainant that the first allegation set out in the letter of the 4th August 2015 is contained on page 14 of the investigation report, dealing with the rate of interest paid on the account. It was put to the complainant that the second allegation is contained in the investigation report; he replied that the investigation report had contained one finding relating to conflict of interest and this had been converted into two allegations. He totally disagreed that the issues looked at in the investigation were also contained in allegations set out in the letter of the 4th August 2015. The complainant said that he was missing the email with the Former Director and the email to the Former Trader. There were two documents missing from the investigation report. It was put to the complainant that in the email exchange of the 24th March 2010, he did not state his involvement on his parents’ account; he replied that the Former Director had seen that this related to his parents and he could also see the start and maturity dates as well as the market rate. The “deal history” function allowed one to see all rollovers. It was not relevant that he had not mentioned his sibling in his reply. The complainant did not agree that the Former Director may not have seen the rollovers on the account as he was looking at many reports. The complainant said that he would have seen everything. The Former Director left the respondent in April 2010.

It was put to the complainant that the disciplinary policy did not allow for lawyers to attend disciplinary meetings, but he had always been allowed a lawyer; he agreed and said that he should have been able to cross-examine witnesses. He agreed that the letter of the 4th August 2015 contained references to the disciplinary policy, his right to representation, the details of the allegations and the level of sanction. He agreed that he had a duty to cooperate and as he had worked with the disciplinary manager, he asked for him to be removed. It was put to the complainant that he had only spoken at the fact find meeting and had not spoken at the disciplinary hearing; he replied that he had been suffering from depression and medical certs were sent in. He had been represented at the disciplinary hearing. He made 50 phone calls while on suspension and would have attended another fact find meeting. The issue had to be resolved. The respondent put it to the complainant that he had been medically fit to attend the disciplinary hearing.

It was put to the complainant that had he attended the second disciplinary hearing and put forward witnesses and documentation, things could have been different; he replied that he could not bring witnesses and raised an issue with the person appointed to hear an appeal. He could not have faith, then or now. It was put to the complainant that the appointment of someone to hear an appeal must be approved by the parties; he said that he did not know who the person was until 2016. It was put to the complainant that he could have asked for an external party to hear the appeal. The complainant was asked whether he had put forward his version of events; he replied that he would have given his response after he had been given fair procedures. The complainant said that he knew his fitness and probity was at risk following the letter of the 4th August 2015.

The complainant was asked whether he had been asked about his fitness and probity in the two roles he sought in 2015; he replied that in July 2015 one prospective employer engaged an external company to carry out checks including fitness and probity. As the role was a controlled function, he was aware that fitness and probity would be an issue.

The complainant agreed that he had not attended the second disciplinary hearing and informed the respondent of this in advance. The disciplinary manager had acted on the investigation report and would not address his concerns. It was put to the complainant that the respondent was entitled to dismiss him when he did not make any reply. It was put to the complainant that this could have been avoided by answering the allegations and appealing any negative decision; he said that he, his sibling and his family have been hard done by and if the respondent had provided fair procedures, he would have given all his replies.

It was put to the complainant that he was aware that one allegation referred to “theft”; he replied that he was aware from May 2015 that something very wrong was happening. He could not be expected to apologise for being dismissed from a flawed process. He said that he will never get an apology. Asked whether he had trust in the respondent, the complainant said that he had a lot of friends in the respondent. It was put to the complainant that he had issues with the Colleague and the Head of Service & Execution and there was the finding of theft; he replied that he did not know who was responsible and that he did not hold anything against the disciplinary manager or the Head of Service & Execution. The issue with Colleague related to comments regarding sexual orientation. He had worked for years with the Head of Service & Execution and for eight years with the Sponsor. They have both now left the respondent.

The complainant was asked who set the rate on his parents’ deposit account; he replied that this had been set by different dealers, including him. He had set the rate at 3% and rolled over the account. It was put to the complainant that there was a conflict of interest in him setting the rate; he referred to favourable statements from the two traders. It was put to the complainant that he was fit to look for work from 2015; he replied that he is 100% able for work and looking for work daily, including with recruitment agencies. He is restricted because he has lost fitness and probity. He has spent the time since his dismissal looking after his children. After the dismissal, he was in receipt of jobseeker’s benefit and not illness benefit. The complainant did not agree that there were gaps in his mitigation, as he continued to look for work.

Additional evidence of the complainant

In re-examination, the complainant said that the minutes of the fact find meeting were not attached to the investigation report and so the disciplinary manager could not have seen them. The complainant had not been asked by the investigator whether he had specific conversations with a current member of the team regarding the account. Most of the questions asked by the investigator were typed in a pre-populated sheet, with some written in handwriting. All the answers were handwritten. There had been six-monthly and annual PDP meetings where he and his line manager made assessments. This included the category of “risk” and the regular reading of online policy updates. The complainant would have expected a line manager to raise any conflict of interest and no one had ever raised his involvement with his parents’ deposit account. He referred to his answer in the fact find meeting that everyone was aware or should or could have been aware of this. He referred to being contacted by a trader and by the Head of Execution & Service about rolling over the account just before the start of the fact find process. The complainant said he had last rolled over the account in 2011, some four years before.

In respect of reference to “theft, fraud and dishonesty”, the complainant said that they were not the same as a conflict of interest. They are the worst things you could say about a banker. He would have felt more comfortable with an allegation relating to conflict of interest. He commented that the respondent had described this as putting his hand in the till but the matter had not been referred to the Gardaí.

In respect of the figures for loss, the complainant commented that the prevailing market rate is the inter-bank rate and he had never heard of the “legitimate market rate.” He said that his parents would have signed mandates at the opening of the account and they were never produced by the respondent. The respondent had expected him to prove his innocence and from 2011, other dealers had set the rate.

Submissions of the complainant

In submissions, the complainant outlined that at no time had he hid his relationship with his parents, the owners of the deposit account. At all times, his line manager knew of this relationship and the respondent had not provided any evidence to the contrary. It was also not disputed that the complainant had rolled over the account while acting as employee and that it was rolled over by a significant number of other employees. It was submitted that it had been established in cross-examination that there was no evidence of wrongdoing after 2011 and it would not have been possible for the complainant to action the account after 2013. The complainant refers to the fact that the rollovers occurred over a period of seven years and would have been included in reports to senior management.

In respect of the investigation, the complainant refers to the Disciplinary Support Pack and the provisions relating to the investigation. This includes that the investigator should build a complete picture of the allegations and ensure that the investigation is thorough. It was submitted that any interview notes shall be provided to the employee. It was clear that the investigator only interviewed the complainant and examined documents relating to the account. The investigator determined that the complainant in not advising or discussing with line management the nature and degree of his involvement on the account had not observed the conflict of interest policy. In the supplemental note of the 5th November 2015, the investigator states that from his discussion with the Sponsor there appeared not to be knowledge of the nature and degree of the complainant’s involvement. It was submitted that the absence of a note of this discussion with the Sponsor is a flaw. The investigator had also stated that he had spoken with the Operations Manager as well as with two traders, whose user IDs appeared on trades. The investigator did not produce notes of these discussions. He had also not spoken with other line managers, for example the Former Manager and the Colleague.

It was submitted that the investigation was fundamentally flawed as it did not comply with policy, did not ascertain all relevant facts and was not fair to the complainant. It is submitted that the investigator accepted that if the investigation is flawed then the disciplinary process was also flawed. It is submitted that the investigation report makes no allegation of fraud, dishonesty or theft, and that any disciplinary process based on the investigation report could not have led to dismissal, given the wide degree of knowledge of his relationship to the owners of the account.

It was submitted that the disciplinary invitation letter contained allegations of a more serious nature than the investigation finding. It was submitted that there was no basis to formulate the allegation of dishonesty, fraud and theft on such flimsy evidence. The complainant acknowledges that the second allegation more closely reflects the investigation finding and would not warrant dismissal in the light of the transparent way the account was managed. It is submitted that an inference can be drawn from the complainant’s role on the account being contemporaneous with the dispute between the complainant and his superior. It is submitted that the respondent did not hear evidence regarding how the matter of the management of the account was discovered and reported to the respondent.

The complainant submits that the respondent’s disciplinary process was flawed as it provides for an investigation and findings of fact. This triggered the disciplinary process and no evidence or witnesses, including the investigator, were adduced at the disciplinary process. The complainant submits that the process set out in the policy is contrary to the well-established principles contained in Irish law.

The complainant submits that his suspension was unnecessary as he had not worked in the relevant department for several years and he could have been instructed not to be involved on his parents’ account. No evidence was adduced to show why the suspension was necessary and it was not reviewed, despite the complainant contacting his line manager on 50 occasions. It was submitted that an Adjudication Officer is entitled to take account of the manner and duration of the suspension in assessing fairness on the part of the employer and whether the suspension adds to prejudgment or bias or whether it taints the process.

The complainant relied on In re Haughey [1971] IR 217, Gallagher v Revenue Commissioners [1995] 1 IR 55 and Kiely v Minister for Social Welfare [1977] IR 267 to submit that the cross-examination of the investigator at the adjudication had found serious gaps and flaws in the investigation, but the investigator had not been produced at the disciplinary process. The complainant submits that the process was fundamentally flawed in that he was expected to give his evidence in response to allegations without being able to cross-examine the basis of the allegations. The complainant relied on O’Sullivan v Mercy Hospital Cork Ltd [2005] IEHC 170 to submit that the investigator in the instant case made findings of fact and this classified his investigation very far along the spectrum referred to in the authority. The investigation concludes by making a specific finding relating to the “nature and degree” of the complainant’s involvement with the account. The complainant further relied on Lyons v Longford Westmeath ETB [2017] IEHC 272 regarding the right to cross-examination, given the possible consequences for him. It is submitted that the authorities require an employee faced with the possibility of dismissal to fair procedures including the right to cross-examine their accusers. The respondent failed to provide such fair procedures when requested by the complainant.

In respect of redress, the complainant submits that re-instatement is the appropriate remedy in this case. It submits that the respondent is a company with many employees and prior to these matters, he had an unblemished record. The complainant referred to Bank of Ireland v Reilly where re-instatement was ordered by the High Court six years after the employee’s dismissal.

The complainant commenced employment with the respondent on the 2nd January 2003 and had previously worked for the respondent and another bank while completing university education. He worked in four departments of the respondent, including in Capital Markets and the Markets Division. In September 2011, the complainant commenced as portfolio manager in Markets. The role is within scope of the Central Bank Fitness & Probity standards. The complainant submitted his 2014 appraisal, where he is awarded a performance rating of ‘3’. He is deemed to have met his objectives. The appraisal states that the “customer” is a strong area for the complainant. He receives praise from his manager for his actions in relation to a case of fraud. In his contribution to the appraisal, the complainant asserts that this saved the client and respondent £570,000. The appraisal describes how he moved teams in 2014 and how he is “an excellent team player and is very much liked by his colleagues in Markets.” The appraisal relating to the area of risk and control concludes: “[the complainant] is very risk aware and has fully bought into the risk awareness culture that not [sic] presides across Markets. [The complainant] has had no procedural breaches and this comes I think due to the experience he has. [The complainant]s RRV and CPD requirements have been completed. Objective met.”

The respondent “Managing Personal Conflicts” defines a close personal relationship (CPR) as where an employee has with another person a relationship that goes beyond a normal business relationship and has the potential to give rise to an actual or perceived Personal Conflict. It gives the example of an employee’s family member employed by another financial institution and where the employee has relevant business interaction with them. It also cites an example of a family member employed by a customer of the respondent or a third party supplier. The policy requires the employee to disclose CPRs that have the potential to give rise or actually give rise to a Personal Conflict. The policy includes in its list of prohibitions using their position for the benefit of a third party or furthering personal interests. The policy requires the line manager or supervisor to review and acknowledge a CPR and to assess steps in mitigation, for example to ask the employee to step down from involvement in a transaction or with a customer. The policy requires senior managers to establish “clear procedures and controls.”

As noted above, the complainant’s 2014 appraisal saw him in a strong position in the Markets team. The email correspondence depicts that in March and April 2015, there was discussion with the complainant and within the respondent about increasing his remuneration and his unsuccessful application for a regulatory role. There is correspondence regarding the events of the 12th March 2015. At 12.58 hours, the complainant emails the Head of Service & Execution regarding the shouting of bad language in the office. At 15.48 hours, the Head of Service & Execution replies to say that he should not have used bad language and states that the complainant has his unreserved apology. A draft version of this reply was forwarded by the Head of Service & Execution to the Sponsor at 13.59 hours. This includes an additional sentence where the Head of Service & Execution is critical of the complainant for not answering customer calls. The complainant submits that an inference can be drawn from the timing of this interaction and the issue raised regarding the complainant’s role on his parents’ account, especially as this had been ongoing for seven or eight years. The respondent rejects that this inference can be drawn and the evidence tendered on its behalf was that this interaction was irrelevant and post-dated the Colleague flagging the issue of the level of interest applied to the account. For the sake of completeness, the complainant also gave evidence that he took issue with the Colleague’s management style on an earlier occasion.

The first disclosed record relating to the investigation of the management of the deposit account is the entry to the HR notes of the 18th May 2015. This refers to the investigation commenced by the investigator and that a member of staff noticed that an inappropriate rate had been applied to a customer deposit account. The HR notes states that “This has been ingoing [sic] for a period of years but has come to light in the last few weeks.” The notes then refer to a “recommendation” that the complainant be placed on suspension.   The HR notes do not refer to how the issue came to light and what steps preceded the arrival of the investigator. There is no record of an original complaint about the activity on the deposit account. There is also no first acknowledgement or response, whereby the recipient of the original complaint sets out in writing or on email the details of the concern raised with them about the rate of interest applied to the account.

As part of the investigation, the investigator gathered some 59 pages of transactions carried out on the deposit account between 2008 and 2015. Much of the case relates to the rate of interest applied in these transactions. As background, the documentation shows that the market interest rate was 5.07% in 2008 and this declined to 0.02% as of the final trade on the 2nd March 2015. The issue in this case is the higher than market rate applied to the account as interest rates declined, and the complainant’s role in applying this rate of interest. Before addressing the substantive issue, it is worth noting that the IT system provides a screen shot of the key information on a trade. This includes a unique deal number, the start and maturity dates of the transaction and the entry date (in some cases, this is later than the start date of the transaction). The screen shot records the trader ID of the trader who completed the trade. In this case, the screen shots show that eight traders, including the complainant, effected trades. All but one of these traders carried out trades with the dealt rate was higher than the market rate. The interest rate is recorded in the section “Dealt/Mkt Rate” and records both figures. The screen shot allows for remarks to be entered by the trader, for example referring to client instructions. Appendix 8 of the investigation report contains a spreadsheet of 55 transactions on the account between 2008 up to the 4th May 2015, indicating a difference of €10,487.67 in the total dealt rate and market rate. According to the evidence, there was a daily sheet of trades maturing on each day. The details of each completed trade formed part of a daily report, available for line management to review. The daily reports were not included in the documentation considered at investigation and nor submitted to the adjudication. The evidence on the complainant’s side was that the daily reports made it clear to line management what rate of interest was applied to the deposit account.

Two documents before the adjudication provide an overview of the dealt and market rates applied to this deposit account as well as to other accounts. Both appear to have been generated as part of tagging exercises in 2009 when, the evidence suggests, there was movement of capital from the bank. The spreadsheet circulated by a named dealer on the 30th October 2009 was copied to the Head of Service & Execution, the Sponsor and the complainant. The email asks its recipients if they can shed light on the contents of the spreadsheet. According to the investigator’s evidence, this document was included in the investigation as it recorded the complainant’s sibling as the relationship manager. The document is also significant because it states interest of 3% was applied to the complainant’s parents deposit account. It also states that similar rates of interest were applied to some other euro-denominated accounts. I note that six of these seven accounts had deposits greater than the €115,000 in the account of the complainant’s parents (the lowest amount being €400,000). The investigation did not examine the circumstances as to why a rate of interest of around 3% was applied to these accounts. I also note that there were a great many other deposit accounts where lower rates of interest were applied. A similar picture is presented in the spreadsheet attached to the email of the Former Director to the complainant of the 16th November 2009. This email seeks to re-tag accounts by providing the actual names of relationship managers. The spreadsheet associates the complainant with his parents’ deposit account. It provides that the dealt interest rate is 3% and refers to nine other euro-denominated accounts where a rate of between 3 to 3.5% is applied.

The respondent disciplinary support pack includes the provisions opened in evidence regarding the conduct of an investigation. It provides that the investigation is for the respondent to “get a fair and balanced view of the facts of any disciplinary issues/allegations against an employee, before deciding whether to proceed with the formal disciplinary procedure. The level of investigation will depend on the issue/allegation and varies from case to case. It may involve interviewing and taking statements from the employee and any witnesses, and/or reviewing relevant documents.” The policy states that, at the fact find meeting, the investigator will discuss the issues/allegations, asking any questions needed and the employee will be asked to respond fully, putting forward any relevant points. The policy states that the investigator must speak to any witnesses and discuss how they are connected to the people involved, including any aspects of their relationship which might impact on their reliability/credibility. The policy requires that the witness discuss incidents where they were present or have relevant evidence. It provides that the fact of any witness statement being made will be sent to the employee should the matter proceed to formal disciplinary hearing. In this case, the investigation report of the 27th July 2015 concludes that “In not advising or discussing with his line management the nature and degree of his involvement in the operation of the […] account the complainant has not observed the Code of Conduct [on Conflict of Interest].”

The investigation report contains documentation relating to the account, including the transactions actioned by the complainant and others. It includes email correspondence exchanged by respondent employees, including the complainant and his sibling. The investigator met the complainant at one fact find meeting on the 18th May 2015 and the evidence confirmed that no other employee was formally interviewed as a witness. In his supplemental statement of the 5th November 2015, the investigator outlines that his first involvement in the matter was on the 5th March 2015 and that he established from the Sponsor that Capital Markets had no knowledge of the “nature and degree” of the complainant’s involvement on the account. The investigator states that “In early 2010 [the Colleague] became [the complainant’s] line manager and during 2010 and 2011 when [the complainant’s] user ID was actively being used to manage […] deposit. I understand that [the Colleague] continued in this capacity. In March 2015 it was [the Colleague] who identified the perceived issues relating to the operation of the […] deposit.” The note concludes with several determinations, including “I determined that [the complainant] had not discussed the nature and degree of his involvement in the operation of this deposit as required by the Bank’s Code of Conduct based on… [the Colleague’s] escalation of his concern in March 2015 regarding the rate applied to […] deposit and [The Head of Service & Execution’s] unawareness of [the complainant’s] involvement in the management of […] deposit.” In submissions, the parties differed as to whether the investigation had been purely fact finding or how far along the spectrum it was in relation to the application of fair procedures.

The Disciplinary Support Pack outlines the steps to be taken by the person appointed as disciplinary manager. It asserts that the employee should be informed in the invitation letter of the details of the issues/allegations, including dates, times and timescales as well as the details of the specific issues, including conduct. The policy provides that the employee will be supplied with copies of the documentation to be considered at the disciplinary meeting, including the paperwork from the investigation of an allegation of misconduct or gross misconduct. Arising from the evidence in this case, the policy is not explicit how and when allegations should be formulated, for example whether this is after the investigation is completed. In respect of the disciplinary meeting, the policy states that the employee will be talked through the “supporting evidence” and “asked whether they agree with the facts”. The employee will have the opportunity to put forward their version of events and that they, or their representative, will have the opportunity to ask questions. In respect of “reaching a decision”, the policy requires the decision-maker to consider all the original evidence and what has been discussed at the disciplinary meeting. The disciplinary manager must also take account of what the employee has put forward and any sanction must be reasonable. The policy provides that the disciplinary meeting can be re-convened and further investigations can be undertaken. It provides that where the employee holds a regulated role, the regulatory scheme will be notified of the disciplinary decision in accordance with the Regulations. The policy further provides for an appeal, which includes the possibility of further investigation and the interview of witnesses. The policy provides guidance for witnesses where they have relevant information about an incident or incidents. It states that an employee cannot unreasonably fail to cooperate in an investigation process. In this case, the complainant was informed of the disciplinary meeting on the 4th August 2015 and attended a disciplinary meeting on the 3rd November 2015. He did not attend the second disciplinary meeting on the 10th December 2015 and the letter of dismissal issued on the 17th December 2015.

One of the allegations on which the respondent dismissed the complainant was the finding that the complainant’s actions were unethical, amounting to Gross Misconduct, specifically dishonesty and theft. The terms “dishonesty” and “theft” are not defined in the Disciplinary Policy, but it is worth setting out definitions for each term. Collins Concise English dictionary defines “dishonest” as “not honest or fair; deceiving or fraudulent” and “dishonesty” as “1. the lack of honesty 2. a deceiving act or statement.” It defines “theft” as “the dishonest taking of property belonging to another person with the intention of depriving the owner permanently of its possession.”

In respect of the relevant legal test in cases of conduct dismissals, the Employment Appeals Tribunal in Bunyan v United Dominions Trust [1982] ILRM 404 held “the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

In a case involving a €50 note going missing from a cash till, the Labour Court in Ikoro v Woodies DIY Ltd (UDD1739) held “It is not for the Court to carry out an investigation of the events of 26thOctober 2015 or indeed to draw any conclusions or make inferences as to what happened to the €50 note. Rather the role of the Court is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the events of 26thOctober 2015. That decision and the disciplinary process leading to that decision took into account the outcome of the investigation which had been carried out by the Respondent. The Court has found that the investigation was not comprehensive. Consequently the Court must conclude that it was not reasonable of the Respondent to reach a decision to dismiss the Appellant in the absence of a comprehensive investigation of relevant facts and events.”

The respondent relied on Farrell v Minister for Defence (10 July 1984) HC, where the High Court held, in respect of the employee’s participation in a disciplinary process “… to refuse any explanation either at the time when the incident occurred or subsequently when called upon in writing to do so, would in any view justify the employer or any third party in drawing an inference that the plaintiff had been involved in an attempted larceny of his property and accordingly was not trustworthy.” In Rowland v An Post [2017] IESC 20, Clarke J. held that “it is not appropriate for a party to whom queries relevant to the performance of the contract are addressed to adopt a position which might be characterised as typical of Bart Simpson and demand proof. Rather it is appropriate to address the issues raised as best they can.”

In respect of whether fair procedures can be invoked at investigation stage, Clarke J. in O’Sullivan v Mercy Hospital Cork Ltd [2005] IEHC 170 held: “In between those two extremes may be a variety of forms of preliminary enquiry which may vary as to their formality in the sense of whether they are a formal and necessary step to a subsequent stage in a disciplinary process. They may also vary as to the extent that the inquirer may be authorised to make findings. It may well be that the extent (if any) to which any or all of the rules of natural justice may apply to such inquiries may vary depending on the nature and purpose of the enquiry involved.”

I make the following comments and findings in relation to the substance of this dispute. First, the complainant asks that an inference be drawn from the manner of his suspension to find prejudgment on the part of the respondent. Even if every criticism the complainant makes of his suspension is correct, I do not believe that such an inference can be made in these circumstances. The issue had been identified as potential gross misconduct and the disciplinary policy provides for the possibility of suspension with pay. The respondent availed of this provision and in the context of this adjudication pursuant to the Unfair Dismissals Act, it is difficult to make an inference of any weight regarding the overall process of investigation, disciplinary hearing and eventual dismissal.

Second, the complainant asked that an inference be drawn between incident and apology of the 12th March 2015 and the concern raised in 2015 regarding his management of the account. The evidence of the respondent was that no such inference could be drawn and that the incident of the 12th March 2015 was irrelevant. The respondent also contended that the investigation was already in train by the date of the incident. Their evidence was that the Colleague flagged his concern in February 2015 and the investigator spoke with the Sponsor about the issue on the 5th March 2015. In the letter of dismissal, the disciplinary manager concludes that “considering the relevant dates”, i.e. the identification of the interest rate issue in February 2015 and the later March incident, the investigation was not instigated because of the March incident. I have noted above the absence of any disclosed documentary note regarding the interest rate issue prior to the 18th May 2015. It is also striking that the final rollover was executed by the Trader on the 2nd March 2015 and applied an interest rate of 2% when the market rate was 0.02%. This occurred after the Trader’s line manager had raised his concern about the interest rate. There is no documentary evidence regarding what occurred on the interest rate issue prior to the 18th May 2015. There was, however, oral evidence from the investigator regarding the initiation of the investigation prior to the 12th March 2015, and in the light of this evidence, I cannot make the inference sought by the complainant.

The evidence shows that interest rates dropped between 2008 and 2015. A rate of interest was applied to the deposit account higher than the “market rate”. The letter of dismissal states that the complainant “deliberately and repeatedly manipulated the Bank’s system to apply a rate of interest to [his] parents’ deposit account that was significantly higher than the market rate available to other customers.” The Former Manager gave evidence that the “market rate” was the Euribor rate. The disciplinary manager gave evidence that it was unusual for a customer to continue to receive interest higher than the market rate for any period of time. It is clear from the IT system that each transaction had a dealt rate and a market rate. No document was produced that provides that it is the market rate that is ordinarily available to customers and sets out when a more beneficial dealt rate might apply. The evidence was not definitive that “other customers” did not have access to preferential dealt rates. The evidence tendered on behalf of the complainant was that higher rates of interest were applied in certain cases over time. A feature of this case is the lack of comparative documentation showing whether customers had the benefit of interest rates other than the market rate. I noted above that compilation reports generated from the IT system showing, for example, a day’s trades, were not produced at adjudication. I have referred to two spreadsheets created for tagging purposes in late 2009. While they show that a market interest rate was applied to a great number of accounts, several other euro-denominated accounts received the same or similar levels of interest to that applied to the account of the complainant’s parents. I asked the respondent witnesses whether they knew why these other accounts received this preferential treatment; they did not know and they said that the documents were included to show the relationship with the complainant and his sibling. There could, of course, be sound commercial reasons why these other account holders benefited from interest of 3% or so when the market rate was much lower. The interest rate applied could have been an inducement to stay with the respondent. It could have been because of an undertaking given on behalf of the respondent. The complainant gave evidence of why a higher rate of interest was applied to his parents’ account. The respondent did not accept the complainant’s explanation for applying the higher rate. It, however, did not consider why other accounts benefited from the similar levels of interest. This is a point to the sufficiency of evidence before the respondent in deciding the issues before it, in particular as there were no witnesses other than the complainant formally interviewed at the investigation and disciplinary stages.

Two things are striking from the evidence and documentation in this case. The first is the number of documents that record the complainant’s actions on this account. He uses his trader ID on trades between 2008 and 2011. He is referred to explicitly by other traders in the remarks section of the screen shots of later trades. The complainant uses his work email to discuss his actions with bank officials, including his sibling. This paper trail was accessible to include as appendices to the investigation report. The second feature is the number of bank officials involved in the transactions. I have noted the actions of eight traders and it is apparent from the emails that several branch officials were also involved. There were emails to and from the complainant up to the 11th May 2015 when a trader asks the complainant for his instruction on the roll over on his parents’ account. The letter of dismissal finds that the complainant sought to conceal his role in an email to a trader where he asks for an email to be sent from “the RM.” I note that this referred to a payment from the account, as opposed to the setting of the interest rate.

I note that this matter commenced with a referral from the Capital Markets Division to a specialist investigation function within the respondent. An investigator was appointed to deal with the referral. Terms of reference were drawn up, as set out in the “Objective & Scope” section of the report. There followed informal contacts with senior managers within the Division as well as with traders. The investigator proceeded to gather documentation, going through trade records and emails. By the time of the fact find meeting, the investigator had put together a significant body of documentary evidence for the complainant to review. There can be no issue with any of these steps. While these steps were taken in compliance with the investigation section of the disciplinary policy, it is unclear why the part of that policy dealing with witnesses and witness statements was not implemented. The policy is clear that the investigator should establish a fair and balanced picture and “must” gather witness statements. While the investigator touched base with line managers and colleagues, none were treated as witnesses within the scope of the policy. The investigation report does not provide an explanation as to why this approach was taken. Such an explanation is warranted because of the qualitative nature of the conclusion reached by the investigation, as well as several “determinations” made during the investigation.

In respect of the investigation, there may well be cases where it is sufficient to only hear from the employee. In this case, however, the investigator finalised the investigation with a qualitative conclusion. His finding was that it was the failure of the complainant to discuss or advise line management of the “nature and extent” or “nature and degree” of his involvement on the account that was a contravention of the Code of Conduct on Conflict of Interest, as opposed to his involvement per se. This was a qualitative assessment as it required an assessment of the nature and degree of the complainant’s actual involvement on the account and a determination of what awareness line management had of the nature and degree of this involvement. The complainant’s evidence at the fact find meeting was, in essence, that everyone knew of his involvement on the account. In the light of the complainant’s response, it was necessary to set out the evidence that line management were not aware of the nature and degree of his involvement. This did not occur during the investigation stage. Given the qualitative nature of the assessment made, this presented unassailable evidence for the complainant to rebut. A crucial determination had been made by the investigator, without the basis of this determination being available for the complainant to consider and to address.

I refer to the investigator having made “determinations” during the investigation. I use the term “determination” as the investigator states “I determined” in his note of the 5th November 2015. Most obviously, this relates to an explicit determination that the Head of Service & Execution had no knowledge of the complainant’s involvement on the account. This is significant as it is a conclusion reached in spite of the evidence before the investigator that the Head of Service & Execution was copied in tagging emails back in 2009, albeit in relation to the complainant’s sibling. The fact of such an absolute statement on the Head of Service & Execution’s awareness can be contrasted with the complainant’s reply that everyone knew. One would expect that, in the cause of a fair and balanced investigation, what the Head of Service & Execution stated as the basis of his having “no knowledge” would be set out for the complainant to address. Instead, this determination is set out in the supplemental note of the 5th November 2015.

The supplemental note of the 5th November 2015 refers to the Colleague’s escalation of his concern in March 2015, despite having been the complainant’s line manager in earlier years. In evidence, the investigator asserted that an inference could be drawn from the Colleague not having earlier flagged his concern. This may, or may not, be a correct inference to draw, but the issue here is the failure to present to the complainant what the Colleague had to say about only flagging a concern in February/March 2015. Again, this arises because the complainant’s reply to the investigator was that everyone knew of his involvement. Given the complainant’s reply, it was necessary for the investigator to set out what the Colleague said he knew of the complainant’s actions over the years. There was evidence of one appraisal, which held that the complainant fully complied with regulatory prescriptions. A question to be answered is how had the Colleague appraised the complainant when he was his line manager. What did the Colleague know of the complainant’s actioning on the account and whether it was approved or otherwise carried out with authority? These questions remain unanswered at the end of the investigation. The investigation, however, determined that the Colleague not raising this issue earlier stands to his not being aware of the complainant’s actions.

The evidence of the investigator places significant emphasis on the fact that traders acted on the instructions given to them. This is of importance in this case as the complainant’s last direct trade on his parents’ account was in 2011. In evidence, the investigator asserts that traders would effectively take as read that trades were approved when they received instructions to make the trade. This is far reaching given that the traders concerned were presumably, like the complainant, holders of Central Bank regulated roles. Two traders, including the trader who carried out the last trade on the 2nd March 2015, were spoken to as part of the investigation. They were not formal witnesses in the investigation process. It would seem to be a far reaching step to conclude that the traders instructed or asked to trade on the complainant’s account did so without regard to the correctness of that instruction or request. Six traders other than the complainant rolled over the account at interest rates higher than the prevailing market rate. Their evidence as to whether they thought there was anything wrong in applying a particular rate of interest was pertinent to assess whether the complainant is correct in his assertion that there was no wrongdoing. This evidence, in particular the evidence of the trader who effected the March 2015 trade and the other trader who sought the complainant’s instruction in May 2015, was necessary. The investigation considered that the traders applied levels of interest to roll overs as they were instructed, notwithstanding that they, presumably, hold regulated roles. As advanced by the complainant, perhaps they applied a higher rate of interest because there was nothing wrong in doing so on this account. The investigation was unable to consider whether this assertion provided a defence to the complainant because the traders were not treated as formal witnesses.

Emphasis is placed at the investigation stage on the absence of any written authority or mandate for the complainant’s role on the account. The absence of any such documentation is of note, given the longevity of this account. The issue is whether this can be attributed to concealment on the part of the complainant. It is striking that this account was opened at the time of change in the respondent and in banking generally; the account was moved because of these issues. No paperwork was apparently generated, but what followed was a course of dealing on the account. That practice changed in 2011 when the complainant moved role and stopped carrying out trades on the account. The absence of paperwork is not sufficient to draw an inference of concealment. As submitted by the complainant, his role on the account was “up in lights”. He detailed his involvement on the IT system and in emails. While the investigator described emails from branch officials (for example, that of the 19th April 2011) as significant, those officials were not interviewed regarding whether there had been concealment. Moreover, there were some eight sets of trades between 2011 and 2014 where there was no instruction from the complainant and a rate higher than the market rate was applied to the account. It was put to the investigator that he had not formally interviewed those with oversight on the account and it was accepted that this had not occurred.

The investigation addressed a complex set of transactions over many years, involving many traders and bank officials, against the backdrop of lowering interest rates. The investigator spoke with various senior bankers and traders, but not formally as witnesses. At the fact find meeting, the complainant asserted that everyone knew of his involvement on his parents’ account. As detailed above, the investigator made on a qualitative assessment based on what respondent officials had said informally to find against the complainant. The investigator made “determinations” during the investigation that channelled the investigation so that the only formal witness was the complainant. This leaves the complainant in a position where he must seek to challenge the unassailable findings made by the investigator, having spoken to the Colleague, the Head of Service & Execution and the Sponsor. We do not know what was said by any of these three, except for the findings made the investigator. This is not so much a case about cross-examination, but about the complainant knowing the case made out against him. In this case, the investigator made determinations on foot of his conversations with senior managers and colleagues, but did not set out these statements for the complainant to give his reply. This narrowed the scope of the investigation to the complainant being the only witness but only able to assert that “everyone knew”.

On the 4th August 2015, the respondent requested that the complainant attend the disciplinary hearing. The invitation letter formulates two disciplinary allegations, which the respondent submits arise from the investigation report. As noted above, the disciplinary policy is not clear whether disciplinary allegations are what trigger an investigation or are formulated from the investigation. I do not take any issue with how the allegations contained in this letter were formulated, so long as the complainant had the opportunity to challenge the evidence presented to him.

In evidence, the disciplinary manager accepted that he relied on the investigation report to formulate the allegations against the complainant. He also relied on the supplemental note of the 5th November 2015 to consider whether the allegations were substantiated. He also had the minutes of the disciplinary hearing of the 3rd November 2015. The complainant asked for certain witnesses to be called and the respondent stated that it did not intend to call witnesses. It stated that the complainant could call witnesses, but it is clear that the complainant could not compel respondent employees to attend an adjourned disciplinary hearing. This included the Colleague, the Head of Execution & Service and the Sponsor. As noted above, the disciplinary policy allows the respondent to require employees give witness statements, subject to disciplinary sanction if they fail to do so unreasonably. The complainant had no such power and the respondent declined to require any witnesses participate in the process. I note that the complainant did not ask the Former Manager and the Area Manager to give evidence on his behalf at the disciplinary hearing. This does not relieve the respondent of the requirement to set out to the complainant the evidence of alleged wrongdoing, for example what managers knew and did not know of his actions on the account.

Whatever “gaps” or “flaws” were in the investigation, they could have been addressed at the disciplinary stage by hearing from colleagues and managers. This was especially the case once the allegation of dishonesty and theft was formulated. The formulation of this allegation represents an escalation of the finding at investigation that the complainant had breached policy. It is also one that requires qualitative assessment of the facts and what managers and colleagues knew. The allegation required a finding that the complainant was dishonest in the sense of deception or fraudulent behaviour. It requires the misappropriation of, in this case, money in the form of interest applied to an account. First, in this case, the respondent did not establish that the application of interest higher than the market rate was a wrong. The evidence from the comparative documentation was that higher rates of interest were applied on a subset of accounts and no explanation was sought for this treatment. The evidence presented on behalf of the complainant pointed to circumstances where higher rates were applied. I have noted above that the disciplinary manager said that such treatment over a prolonged period was unusual. Second, the respondent has not set out who was deceived or the subject of complainant’s dishonesty. It did not set out evidence from managers or colleagues who could say that this occurred. This was a substantial flaw in the process that was not remedied at disciplinary stage. The complainant’s evidence was that his actions on the account were transparent, known across the dealing room and to senior managers. The disciplinary process did not hear any contrary, direct evidence, so the informal “determinations” reached at the investigation stage became unassailable for the complainant to reply to or to challenge. These determinations then formed the basis of the dishonesty allegation. Third, the respondent held the lack of a written mandate or other paperwork entirely against the complainant. While the absence of documentation is of note, it goes too far to identify this as concealment. It is not clear how the complainant should be held responsible for the absence of documentation. I also note that the complainant was clear about the steps he took on the account on the IT system and in emails, both before and after 2011. Taking these findings together, there was no reasonable basis for the respondent to conclude that either allegation was made out. There was no reasonable basis to conclude that the complainant had been dishonest or was guilty of theft. There was no reasonable basis to find that the complainant’s actions amounted to serious and persistent negligent of respondent instructions to be gross misconduct.

In assessing redress, I note the seriousness of the allegations made against the complainant. I note that he challenged the basis of the findings made against him and participated in fact find meeting. The respondent accepted that he had given honest answers at the meeting. Through his lawyer, he challenged the basis of the disciplinary process. This cannot be characterised as a “Bart Simpson” approach and nor was it a contribution to his own dismissal. I note the conclusion set out above that there was no reasonable basis to conclude that the allegations were made out. This is of importance when considering redress in the light of the allegation of dishonesty and theft. Given the finding of there being no reasonable basis for such a finding, re-instatement or re-engagement are viable forms of redress. I further note the evidence of the complainant’s contribution to fighting fraud, as set out in his 2014 appraisal. The evidence was that the complainant was a popular and successful employee of the respondent, and had progressed well in his career at the bank since 2003. He held a regulated position and the respondent held that he complied with all regulatory requirements. He stated that his four roles in the respondent were regulated roles. The evidence was that this dismissal has terminated the complainant’s career in banking, in particular any prospect of holding such a regulated role. The complainant also demonstrated active steps to find alternative work and to develop alternative sources of income. Given the extent of the complainant’s financial loss, re-engagement would not be just and equitable redress.

This points to re-instatement as being just and equitable redress in this case. The respondent raises the fear of this course of action leading to “future friction, disharmony and possibly an acrimonious relationship.” No direct evidence was presented at the adjudication of any basis for such fear. Such direct evidence would be required to substantiate any such fear, in the light of the clear, contradictory evidence. Such direct evidence is also required to establish that mutual trust and confidence no longer exists. In his direct evidence, the Former Manager gave evidence of working with the complainant. The complainant’s last appraisal was very positive and highlighted that he was an excellent team player. There was evidence of the complainant’s good working relationship with senior management. An earlier issue was ironed out by the complainant having coffee with a senior manager and the issue became an opportunity for the complainant to develop his career. The issue arising on the 12th March 2015 was nipped in the bud by the proactive intervention of a senior manager, leading to the complainant receiving an apology. This points to there being mutual trust and confidence between the parties and that the complainant’s re-instatement would not lead to friction, disharmony or acrimony. Given these comments and findings, I find that re-instatement is just and equitable.

CA-00001663-001

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

Unfair Dismissal Act

Central Bank Fitness and Probity

Re-instatement