UDD1971

Background

The Complainant commenced employment with the Respondent on 20^thFebruary 1986. He was employed as a Sales Representative and his function was to sell the products of the Respondent to new and existing customer’s. His Employment came to an end by way of dismissal on the 17^thJanuary 2017. Dismissal is not in dispute, and in those circumstances, it is for the Respondent to show that the dismissal was fair.

Respondent’s case.

It is the Respondent’s case that the role of a Sales Representative in the insurance industry is a heavily regulated one with policy training and customer centred focus being a key requirement of the role in order to ensure regulatory compliance. During a routine quarterly financial review concerns were raised that the Complainant had not completed business replacement information appropriately. Four sample cases were selected and referred to the Complainants department for examination.

The Complainant was invited to attend a meeting by the Head of Sales Direct Business. He was informed by email in advance of the meeting that the meeting was to discuss issues pertaining to four identified customer files. In the course of the meeting the Complainant indicated that the client had cancelled the original policy and that he was not aware the old policy had issued until after the new plan was in place. The Head of Sales and Direct Business showed the Complainant the four letters cancelling the policies and brought to his attention the fact that each of the letters appeared to be in the Complainant’s handwriting. The Complainant confirmed that he had written each of the letters. The Complainant was placed on paid leave pending a full investigation into the matter, he was given a copy of the Respondent’s Disciplinary process and the employee assistance programme. Later that same day the Complainant sent in a letter stating that having read the Business Replacement rules he now realised that he had not processed the business correctly and requesting that he now be allowed to make amendments to correct same.

The following day the 15^thJuly 2014 the Complainant went on sick leave until the 21^stNovember 2014. On the 21^stof November 2014 the head of Sales and Direct Business completed his report in relation to the issues. The decision was that there was a case to be answered and the issues were to be processed to the next stage which was the disciplinary process. By letter dated 5^thFebruary 2015 the Complainant was provided with a copy of the report, the allegations against him, the fact that disciplinary action up to and including dismissal could be the outcome and the name of the person appointed to carry out the disciplinary hearing.

The Complainant was out sick for a period of time as a result the disciplinary hearing did not take place until the 9^thMarch 2016. Ms Mary Cregan was appointed to carry out the disciplinary hearing. Ms Cregan in her evidence told the Court that the allegations were put to the Complainant at the start of the meeting. The Complainant indicated that he disagreed with the report of the 5^thFebruary 2014 and that he now wanted to withdraw the letter of the 14^thJuly 2014 that he had written. It was Ms Cregan’s evidence that no reason was given at the meeting as to why he wanted to resile from the letter he had written. Ms Cregan told the Court that she was trying to understand the rational for what the Complainant had done as based on the information she had it appeared that they were replacement policies. This was supported by the fact that the Complainant had written the cancellation letters. The Complainant could have gone back and amended the records at the time, but he did not.

It was Ms Cregan’s submission to the Court that she struggled to get a cogent explanation from the Complainant in relation to what had happened. In coming to the decision to dismiss it was Ms Cregan’s evidence that she listened to what he had to say in response to the allegations. However, his answers did not make sense and in her view what he had done was not in the customer’s best interest. The Complainant despite the letter he had written continued to maintain that he had not done anything wrong. She looked at the training he received in relation to the policies and there was no issue there. At his request she listened to the “welcome call” which she believed did not assist his case and she took account of his personal circumstances.

It was Ms Cregan’s evidence that the Complainant was in a controlled function and that the Respondent had to be satisfied that an individual in such a position was “fit and proper”. Based on his responses to the allegations she did not believe that what he had done was in the customer’s interest and therefore he could not be left in a controlled function role. He had not accepted his wrongdoing and had changed his position in relation to same. It was her submission that the bond of trust had been broken and that retraining or moving him to another position was not an option. By letter dated 19^thApril 2016 the Complainant was advised of Ms Cregan’s decision in relation to each of the allegations and that she had decided that the appropriate sanction was dismissal. The letter went on to set out the details for making an appeal.

The Complainant appealed to Mr Se Weston who was appointed to hear the appeal. It was Mr Weston’s evidence that the Complainant had submitted eleven grounds of appeal. He told the Court that immediately prior to the formal appeal hearing that the Complainant and his representative were given an opportunity to listen to the “welcome calls”. When the appeal hearing commenced the Complainant read his letter setting out his grounds for appeal. It was Mr Weston’s evidence to the Court that he took time to investigate each of the grounds of appeal put forward by the Complainant and that he issued a detailed report containing his findings. Mr Weston told the Court that during the process it came to his attention that despite the Complainant’s assertion that he had not done anything wrong that all the letters cancelling the old policies were signed before the commencement of the new plans which contradicted what the Complainant had stated. He said that it was the Complainant’s response to the allegations that the customers wanted to keep double plans. However, this did not tally with the welcome calls or the letters that the Complainant had written on their behalf. He felt the evidence that the Complainant had not followed the business replacement procedures was overwhelming and that the business needed to be able to trust their advisors. He could find no basis for changing the decision to dismiss and had upheld same. The Complainant’s employment was terminated with effect from the 17^thJanuary 2017 and he was paid in lieu of notice.

The Respondent submitted to the Court that the seriousness with which the Respondent must treat issues of this nature is clear from the training that is given to staff which is regularly refreshed and the detailed policies in place. Failure by the Respondent to address issues of this nature would put the Respondent in a position whereby it was breaching regulatory requirements.

Complainant’s case.

The Complainant had an exemplary work record and was not involved in any disciplinary matters prior to this incident. At the meeting of the 14^thJuly 2014 the Complainant’s work laptop was taken from him and he was advised not to talk to the Respondents clients. It was his submission that this put him at a disadvantage. In his evidence the Complainant told the Court that the four cases were new business and therefore he did not need to fill out the business replacement form. He did not dispute that he wrote the letters for the customers but that was after they had taken out the new policies. It was his evidence that he wrote the letter of the 14^thJuly 2014 because he thought he had done something wrong. He confirmed that he was aware of the procedure relating to commission and that they company could claw it back within six months. He understood that to mean if a client had cancelled a policy in the six months before the new policy then the commission could be clawed back by the Respondent. It was his evidence that this did not apply to policies that were in existence at the time the new policy was taken out and then cancelled. He told the Court in his evidence that he decided to withdraw the letter as having read the business replacement policy he did not believe he had done anything wrong. He accepted that he had done the online training, but it was his evidence that he would just keep doing it till he got it right answers and reached the pass mark. In response to a question from the Respondent’s representative during cross-examination the Complainant stated that he was not obliged to complete business replacement if it occurred after he had closed the sale of a new policy. The Complainant at the request of the Court looked at the business replacement policy and accepted that it stated it applied for six months after the date of the new policy. It was the Representative for the Complainant’s submission that the Respondent failed to afford the Complainant fair procedures and that the sanction imposed was disproportionate.

The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

• 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
  
  (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
  
  • (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
    (b) the conduct of the employee,
    (c) the redundancy of the employee, and
    (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Issue for the Court

Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

In this case the conduct of the Complainant is not disputed but what is disputed by the Complainant is that said conduct breached the Respondent’s policy. In his own evidence the Complainant contradicted himself as to whether or not the policy covered a situation for the six months after a policy was sold. However, when he was brought to the policy in question, he accepted that it referred to a period of six months after the policy was sold.

The question to be considered by the Court is whether or not the Respondent acted in a reasonable manner in coming to the decision to dismiss. The Court’s attention was drawn to a number of cases by the parties that were opened to the Court relevant to the issue under consideration. The Court in its deliberations noted that the test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

• 1) Did the company believe that the employee misconducted himself as alleged?

  2) if so, did the company have reasonable grounds to sustain that belief?

  3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

• “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The Court is of the view that, applying the ‘ratio’ of the cases cited above to the facts of this case, the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and therefore, the Court determines that the decision to dismiss was fair.

Determination

The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is upheld. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CC______________________
2 December 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.