UDD1968

Background

The Complainant commenced employment with the Respondent on 1^stJuly 2007. He was employed as a Customer Service Advisor and then appointed to the position of Senior Customer Adviser. His Employment came to an end by way of dismissal on the 22nd February 2018. Dismissal is not in dispute, and in those circumstances, it is for the Respondent to show that the dismissal was fair.

Respondent’s case.

The Complainant’s role was one that is classified as a “Controlled Function” as defined by the Central Bank Reform Act 2010. That Act requires the Respondent to regularly complete due diligence to assess employees’ fitness and probity. In order to meet the requirements of the Central Bank Reform Act 2010 the Respondent has in place a suite of policies and procedures including a Fraud Prevention Policy, Cheque Handling and Cashing Policy which also covers Bank Drafts, and a Code of Ethics. All staff receive training and updating on these procedures on a regular basis. All staff are aware that if they fail to follow the Code of Ethics or if they fail to report something that has broken the principles of the Code, they may face disciplinary action up to and including dismissal.

The Cheque Handling Policy which also covers Bank Drafts states “a Cheque may be payable to one or more payees. All cheques payable to joint payees must be lodged to a joint account except if presented for an account to which all are not parties, both parties must endorse the Cheque….”

The facts in relation to the incident that occurred in September 2017 are not in dispute. Nor is it in dispute that the Complainant did not benefit in any manner from the incident. The incident involved an endorsed Bank Draft. Two days after the incident the Complainant told his Branch Manager that he had made a serious mistake. The Complainant then took steps to rectify the matter. On the 3^rdOctober 2017 the matter was reported to the HR department and Mr John O’Brien and Mr David Smith were assigned to carry out an investigation into the matter.

Mr Smith in his evidence told the Court that they had considered suspending the Complainant. However, taking into account the factors set outBank of Ireland v Reilly[2015] IEHC 241 and in particular paragraph 41 of the judgment, that states, that a decision to suspend should not be taken lightly,they decided not to suspend . The main reasons for coming to that conclusion were:- there was no dispute over what had happened; they felt that the process would be carried out in a timely manner and so should not take too long, and that it was unlikely that the Complainant would repeat the incident in the short term.

Mr Smith informed the Court that a letter was sent to the Complainant advising that Mr O’ Brien himself and had been appointed to carry out an investigation into the events that occurred on the 25^thSeptember 2017 and that they would interview any witnesses they deemed appropriate. The letter invited him to attend a meeting at Head Office on 20^thOctober 2017 and advised that he could bring a trade union official or work colleague. It also set out the procedure that would be followed and enclosed all relevant documents that would be relied on. It was Mr Smith’s evidence to the Court that the Complainant at the meeting said it was a busy Monday and that he was stressed because of another issue with the “tcr machine”. He advised that he had informed the customer that the bank draft would need to be endorsed by both parties, but she got flustered and said there wasn’t a joint account. He was distracted by another customer from whom he was under pressure and said put both names on it. He then lodged it to her account. It was only later he realised he should not have done it and brought it to the attention of a Manager.

It was Mr Smith’s evidence that in the course of the meeting the Complainant confirmed that he did not know the customer. Notes of the meeting were sent to the Complainant and his comments were included in the investigation report which was then sent up the line. Mr O’ Brien was the next person for the Respondent to give evidence. He was part of the process with Mr Smith and his evidence was of a similar nature.

By letter dated 5^thDecember 2017 Ms Aoife McMorrow wrote to the Complainant to advise that she and Mr Declan Fitzpatrick had been appointed to conduct a disciplinary process in relation to the matters investigated. He was notified of the date of the disciplinary hearing and advised of the right of representation and the right to make a full response. The Complainant was provided with any supporting documentation that was to be relied on and advised that during the hearing he would be required to respond to allegations of breaches of the Respondent’s Fraud Prevention Policy, Cash Handling and Cashing Policy and its Code of Ethics.

It was Ms McMorrow’s evidence to the Court that at the start of meeting the Complainant was asked to confirm that he received the letter and that he was familiar with the various policies under consideration. The Complainant then went through what happened on the day of the incident and following days. He described the incident as a moment of madness, but he accepted that he was aware of the policies and procedures.

It was Ms McMorrow’s evidence that after the hearing she discussed with Mr Fitzpatrick what they had heard at the disciplinary meeting. They decided not to make a decision at that point but to reflect on what they had heard and meet at a later date to decide but not before the minutes of the meeting had been agreed. They met about a week later and went through the minutes and took into consideration the policies that had been breached, the length of time the Complainant had worked for the Respondent, and the sanctions that were available.

Ms McMorrow in her evidence identified other areas in the Respondent’s business where she had considered moving the Complainant to but ultimately, she considered them not to be suitable and she gave evidence as to why. It was her submission that the Complainant was a long-term member of staff, who had previously worked in very busy areas of the Respondent’s business. He had trained new staff in and was all too aware of the policies. Ms McMorrow’s evidence was that while they were confident enough that he would not repeat the error in the short term, and therefore there was no need to suspend him while going through the disciplinary process they did not have the same confidence that going forward there would not be another breach. Of particular importance to her in coming to that decision was the fact that initially the Complainant had advised the customer of the correct procedure but then had incorrectly advised the customer in a manner that breached a number of the Respondent’s policies. Ultimately, she felt that dismissal for gross misconduct was the only option. She agreed with Mr Fitzpatrick that they would hold off on issuing their decision until after Christmas. The decision was issued in the New year.

The next witness for the Respondent was Mr Fitzpatrick who had carried out the disciplinary procedure with Ms McMorrow. In terms of coming to the decision to dismiss Mr Fitzpatrick gave evidence that he had considered other areas in the Respondent’s business but felt that because of the nature of the incident they would not be appropriate. He considered whether additional training would make a difference but because the Complainant was such an experienced member of staff and because he had deliberately made a decision in breach of the Respondent’s policies having firstly given the correct response, he did not believe this could be addressed by training. It was Mr Fitzpatrick’s evidence that because it was a deliberate action, he could not trust him on his team. He did consider the Complainant’s record but felt in this incident his long record was a double- edged sword as he knew what he was doing was a breach of policy. It was his evidence that he came to the conclusion that dismissal for gross misconduct was the only option.

The Complainant was informed by letter dated 22^ndDecember 2017 which he received on 2^ndJanuary 2018 that he was being dismissed for gross misconduct with immediate effect. He was advised of the appeal process available to him. The Complainant appealed by letter of 15^thJanuary 2015 and set out three grounds of appeal 1) his length of service and the fact that he had owned up to the incident immediately, 2) that the sanction was disproportionate to the offence, and 3)the fact that he had not been suspended during the process showed that the bond of trust had not been broken.

Ms Lynn Mullin and Mr Brendan Kerin were appointed to hear the appeal. The appeal hearing took place on the 2^ndof February 2018. Both Ms Mullins and Mr Kerin in their evidence to the Court stated that they went through each of the grounds of appeal with the Complainant and then asked him if there was anything he wanted to add. The Complainant asked them to also take into account the fact that he was going through some issues at home at the time of the incident. They both stated that they gave consideration to the issues raised by the Complainant in his appeal, but they kept coming back to the fact that as a Senior Customer Adviser he would know that what was done was a breach of a number of polices. The fact that he had initially taken the right approach but then went on to breach the policies was something they could not get away from and this showed that there was no doubt but that he knew what he was doing was not in accordance with the correct procedures. They had both looked at other options but had for various reasons ruled them out. On that basis they upheld the decision to dismiss and the Complainant was informed by letter dated 20^thFebruary 2018.

The representative for the Respondent submitted to the Court that the Respondent in deciding not to suspend during the investigation had done the right thing and that should not now be used as a “stick to beat them with”. The Respondent acknowledged that the procedures followed may not have been flawless but any flaws were of a minor nature and not fatal to the process.

Complainant’s case

The Complainant was employed by the Respondent for in excess of ten years and during this period of time he had a clean, unblemished and exemplary disciplinary record with no previous disciplinary proceedings nor sanctions having been initiated, imposed or taken against him. The Complainant acknowledged that the action taken by him was a serious breach of a number of the Respondent’s policies. As soon as the issue was brought to his attention the Complainant realised the error of judgment that he had made and admitted his wrongdoing. At no stage did the Complainant try to justify his actions or try and cover them up. The Complainant acknowledged and apologised for his mistake. There was no malice or intent in his actions and he in no way benefited from the incident. This was the first and only time an incident of this nature had occurred. The Representative for the Complainant submitted to the Court that the fact that the Respondent had allowed the Complainant stay in post during the disciplinary proceeding mitigated against their statement that the bond of trust had been irreparably broken. In those circumstances the Respondent had a suite of other options they could have considered. It was the Complainant’s submission that the Respondent could have placed the Complainant’s on special leave with full pay without falling foul of the findings in Bank of Ireland v Reilly.

While the Complainant was not raising any issues in relation to the disciplinary process that the Respondent followed it was their clear submission to the Court that the sanction imposed was disproportionate in the circumstances of this case.

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 and therefore, 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 well-founded. The Decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
TH______________________
14 November 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.