Complainant

Respondent

Anonymised Parties

A Manager

A Hotel Group

Representatives

Warren Parkes, Solicitor

MP Guinness BL instructed by Jessica Boyne Solicitor.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022233-001

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022233-002

28/09/2018

The issues in contention concerned the alleged Unfair Dismissal of the Complainant, a Manager, by a major International Hotel/Hospitality Group.

The Complainant had commenced employment in August 2014. Matters progressed without incident until March 2017 when he transferred funds from the Company bank Account to discharge an outstanding invoice. Several months later the Respondent attempted to use this transfer of funds and an alleged refusal to cooperate with an Investigation into the transfer as facile excuses to begin Disciplinary actions against the Complainant.

Specifically, as regards the Funds transfer, he had prior verbal Authorisation from a very Senior Person (Ms. XX), in the overall Corporate Hierarchy, largely based in China, to make the transfer. He had often made funds transfers and this case was not in any way out of the ordinary. In the Disciplinary Hearings later it was clear that Ms. XX had been spoken to by the Respondent and any evidence she might give (via SKYPE from China) was totally compromised.

The actions of the Respondent during this entire process were hopelessly conflicted. The personnel handling the Disciplinary process were in no way independent of the Respondent.

In effect a decision had been taken well in advance of the process to remove the Complainant due to his raising unhelpful questions regarding the actions of the Respondents regarding the Operations of the Immigrant Investor Programme. The Respondents had been attempting to obtain entry for Chinese nationals to Ireland/EU by dubious means.

The allegations against the Complainant were baseless and he was denied all his rights of Natural Justice throughout. It was a complete but very professionally done employment law set up.

A detailed verbal presentation, extensive correspondence, e -mail traffic and documentation were supplied in support of the Complainant’s claim.

The Respondent made detailed verbal and written submissions supported by extensive documentation and e-mail records.

The Complainant had made a substantial funds transfer in March 2017 without proper Authorisation. This had come the Respondent’s notice in August and an investigation was initiated. The Complainant was suspended on pay on the 2nd September 2017.

An Independent Financial/Management Investigator, Mr. Y, was commissioned by the Respondent to investigate the Funds transfer. The Investigator followed all good practices, including offering the Complaint an opportunity to be accompanied by Legal Advisors at all times. The Complainant did not co-operate with the Investigation despite numerous requests in correspondence from Mr.Y. The draft Report was supplied by Mr. Y to the Complainant for his input in January 2018. A number of comments, of a general nature, were made, mostly regarding an alleged arrears of pay. Mr. Y completed his report and passed it to the Parties. A Disciplinary process was then initiated with a meeting due to take place on the 8th February 2018. A detailed letter setting out all matters to be considered, the rights to legal representation and all evidence gathered was sent to the Complainant in advance. Allowing for some delays a meeting eventually took place on the 27th February 2018. The meeting was chaired by Mr. DC. The Complainant stated that he was attending under “protest” as he objected to Mr. DC being the Chairman due to an alleged conflict of interest. This allegation was most forcibly denied.

The Complainant maintained that he had the prior authorisation of Ms. XX to make the transfer and offered to produce a tape recording to substantiate this statement. The Disciplinary meeting lasted some three- and one-half hours and was wide ranging and often contentious.

In follow, up correspondence the Respondent made a number of offers to the Complainant to produce the supporting evidence regarding Ms. XX. An offer was made to have a SKYPE meeting with Ms. XX – (resident in China). The Complainant declined to avail of this offer as he felt that the decision had already been made and Ms. XX was completely legally compromised. The Respondent rejected this allegation in its entirety. Ms.XX is a senior international level executive of the highest standing.

A very detailed and extensive letter was issue by Mr DC on the 13th April 2018 which informed the Complainant of his Dismissal and his rights to appeal.

An Independent HR Consultant, Ms. XA, was commissioned to handle the Appeal Process. Ms. XA is a professional person of the highest standing and integrity. She did not uphold the Appeal and confirmed the dismissal decision. Ms. XA, in her Appeal decision, made a number of serious, negative, observations regarding the approach of the Complainant to the entire process.

In overall summary the Respondent pointed out that the Complainant had breached Corporate Trust in making a substantial financial transfer that he was not authorised to do. His approach to the entire process of the Investigation had compounded this breach of Trust. Dismissal, while very regrettable, was the only option after a very fair and transparent process.

3:1       The Relevant Law.

The relevant law is set out in the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 – Statutory Code of Practice on Grievance & Disciplinary Procedures and an extensive body of Legal Precedents. The role of the principles of Natural Justice are critical and must be seen to be paramount.

3:2       Issue of Legal Precedents.

It is now well accepted Law, supported by numerous precedents, that an Adjudication Body, being formerly the Employment Appeals Tribunal or a Rights Commissioner now an Adjudication Officer does not reinvestigate, ab initio a Disciplinary issue. The role of the Adjudicator is to see that Natural Justice was applied in keeping with the Statutes.

The preeminent role of Natural Justice is well set out in Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Likewise, the Adjudicator/EAT does not seek to substitute or alter a penalty in a Disciplinary case once it is clear to all reasonable observers that any Employer decision falls within the bounds of “reasonableness” for that Industry.

I refer to Redmond on Dismissal Law -3rd Edition by Desmond RyanBloomsbury 2017 and Employment Law by Ms. Frances Meenan – Round Hall 2014 as the preeminent authorities consulted in arriving at the above points regarding legal precedents.

However, all cases rest on their own facts and circumstances and I will now consider these.

3:3         Consideration of the Evidence presented. The Role of Natural Justice.

The first observation to be made is that the overall Corporate structures in this case were, not to be impolite, byzantine in the extreme. However as stated it is not the role of the Adjudicator to reinvestigate matters, rather to see, if possible, if natural justice was done.

On this point I would have to point to the interactions between the Parties beginning with the first Disciplinary meeting on the 27th February 2018. This Disciplinary meeting was preceded by the Complainant being made fully aware of all evidence likely to be relied upon in correspondence /e mails in support. In this context the Investigation report from Mr. Y formed a substantial part of the material being referred to. The Complainant had a full opportunity, with Legal advice, to contribute to this, Mr. Y, investigation

Crucially the Complainant was always fully and professionally legally represented.

All rights to cross examine witnesses and seek further documentation were afforded. The outcome of the Disciplinary meeting was considerably delayed in efforts to establish alleged proofs from Ms. XX in China. The outcome letter written by Mr DC was detailed and considered.

In relation to his, Mr. DC’s required Objectivity and Corporate Independence I took the view that in any Disciplinary process it is not unreasonable to have a Respondent Senior Executive, not previously involved chair proceedings and act as Decision maker. Mr. DC gave oral evidence to the Adjudication hearing and I found him credible and professional.

In any event it was up to the Complainant’s’ Legal representatives to seek appropriate legal remedies, at an early stage, if they felt they had a sustainable case of bias. It must be remembered that the sums of money involved in this case were substantial and a request to a Higher Court, to address any perceived case of bias, would not have been an impossibility.

Regarding the Appeal process the Appeals Person, Ms. XA, is a most reputable figure well known in IR & Employment circles. In direct questioning from the Adjudicator on this point she reemphasised her Independence and Professional standing in all maters and in particular this case. She had not been influenced by any Respondent allurements.

Her Appeals Report was detailed and most professional.

All issues considered, with all evidence & reports presented looked at closely, I had to come to the view that the Rules of Natural justice had been observed to a legally satisfactory level.

3:4       Consideration of the Evidence – the actions of the Complainant.

The Complainant in this case, from all the evidence, was far from cooperative in the process. The initial investigation by Mr. Y was effectively shunned by the Complainant and his cooperation in the Appeals process with Ms. XA was uncertain.

It was pointed out to him on numerous occasions by the Respondent and indeed the Appeals Person, Ms. XA, that he was largely basing his defence on tape recordings/contacts with Ms. XX in China. However, he declined to participate in a SKYPE interview with Ms. XX and was unable or refused, it was not clear, to produce the required Tape Recordings.

The essence of the Complainant’s defence was that the entire process had been cleverly stage managed (with all correct Employment law procedures employed) to produce a predetermined outcome against him.

To countenance this argument would require the Adjudication Officer or indeed the EAT in former times to make a leap of faith and accept what was in effect a conspiracy theory.

Considering this point the evidence presented indicated that a detailed independent Investigation by Mr. Y and an IndependentAppeal by Ms. XA were involved in this case.

Both the Appeal Process and the earlier Investigation were exhaustive & detailed and conducted by experienced HR/Financial Consultants with Professional reputations at risk if any question of a lack of impartiality or being less than fully vigilant if there was any suggestion of a Respondent conspiracy.

In this process I could not see any evidence of a Bias in favour of either Party. Accordingly, I could not accept the Conspiracy argument from the Complainant.

In his Claim Form statement, the Complainant referred to alleged discrepancies with the Irish Government Immigrations /Foreign Investor Schemes. This did not seem to form a major part of the process.

The Complainant was afforded every opportunity to produce evidence that he maintained he had in his possession regarding Ms. XX in China. It was acknowledged by all sides that this evidence would have been of a crucial nature.

3:5:        Summary and Conclusion – Unfair Dismissal Complaint.

Having reviewed all the evidence presented, both oral and written, I came to the conclusion that

1.      The Rules of Natural Justice were properly observed /All proper procedures were followed. No lapses from SI 146 of2000 Code of Practice Statutory Code of Practice on Grievance & Disciplinary Procedures were obvious.

2.      Full professional Legal representation was allowed throughout.

3.      The Conspiracy Theory of a Pre-Determined Outcome lacks a good evidential base and does not stand up.

4.      Evidence was carefully considered, and all decisions were properly taken based on the available facts.

5.      The Appeals Process was detailed and Independent. A full and fair review of the entire situation was carried out.

6.      The Dismissal decision was considered carefully by the Respondent and it falls within the Band of Reasonableness for the Industry particularly where a Breach of Trust is at issue.

Accordingly, in view of the above points, I must come to the view, bearing in mind the Unfair Dismissals Act,1977 and Legal precedent, that the Dismissal decision was not Unfair. The claim does not succeed.

3:6       Terms and Conditons of Employment Complaint -CA-00022233-002

Surprisingly in all the extensive paperwork in this case I could not see a Formal Statement of the Terms and Conditons of the Complainant. However, this was a purely Technical deficiency when considered against the entire background of the case and the clear evidence of a Manager acting at a very senior level with little ambiguity as to his overall role.

I find that a purely Technical Breach of the Act has occurred and award a Redress sum of €500 in favour of the Complainant.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section 3 above for reasoning.

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

CA-00022233-001

Claim Dismissed as Not Well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022233-002

A Technical Breach of the Act has occurred. Redress of €500 is awarded to the Complainant.