ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014822
Parties:
| Complainant | Respondent |
Anonymised Parties | Account Executive | Insurance Company |
Representatives | Cunningham & Co., Solicitors | Carter Anhold & Co |
Complaint(s):
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-00019340-001 | 22/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019340-002 | 22/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019340-003 | 22/05/2018 |
Date of Adjudication Hearing: 11/06/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 11 of the Minimum Notice & Terms of Employment Act , 1973 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The complaint under the Terms of Employment (Information) Act 1994 was withdrawn.
Summary of Respondent’s Case:
In a written submission to the WRC the respondent submitted as follows :
The Respondent herewith provides Updated Submissions in circumstances where the Claimant has lodged with the Workplace Relations Commission a number of complaints on the complaint form dated the 28th of May 2018 in respect of three complaints concerning 1, 2 and 3
1. Complaint CA-00019340-003 Compliant in relation to alleged Minimum Notice, and complaint under Section 11 of the Minimum Notice and Terms of Employment Act,1973
2. Compliant CA-00019340-002 Complaint in relation to alleged Terms and Conditions of Employment, complaint under Section 7 of the Terms of Employment (Information) Act, 1994
3. Complaint CA-00019340-001 A complaint for alleged Unfair Dismissal. Complainant under Section 8 of the Unfair Dismissals Act, 1977
Arising from the first hearing of this matter before the Adjudication Office on the 17th day of October 2018. The Claimant has withdrawn her complaint under CA-00019340-002, and therefore arising from this the herein updated submissions will no longer refer to the complaint under CA-00019340-002 being complaint number 2 in the submissions provided on behalf of the respondent furnished to the Adjudication Officer on the 17th day of October 2018.
The purposes of these updated submissions is intending to deal each of the complaints in order of 1 and 3. The complaints will be dealt with under the headings:
A. Material Facts B. Legal Basis for Claim C. Application of the law to the facts D. Conclusion E. List of supporting documentation are appended to the rear of these submissions
We would ask both the adjudication officer and the respondent to note that there are some minor additions and amendments to these updated Submissions primarily on page 8 of the said updated submissions and page 9 with regard to the timeline of events, this is simply for cross referencing purposes should any party wish to do so.
Section 1
COMPLAINT NUMBER 1 - CA-00019340-003
MATERIAL FACTS
The claimant as per complaint form CA-00019340 states the date of commencement of employment as the 1st of September 2015. The start date of employment is not an issue in dispute. The respondent terminated the employment as of the 4th of December 2017. The claimant has lodged a complaint under Section 11 of the Minimum Notice and Terms of Employment Act, 1973. (“hereinafter referred to as MNTEA, 1973”). Section 11(1) of the said act states “any dispute arising on any matter under this act (other than a dispute arising on any matter under Section 9 of this act) shall be referred in the prescribed manner to the tribunal”.
The claimant makes no reference in her statement to the Commission as to how she is grounding her claim under the MNTEA, 1973, and the particulars of same. Therefore is difficult to see on what basis the claimant is grounding this claim. However, the respondent seeks to rely on Section 8 of the said act of the Minimum Notice and Terms of Employment Act, 1973. The said section states “nothing in this act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.
MATERIAL FACTS
It is hereby submitted that the claimant has been justifiably dismissed by reason of gross misconduct and is guilty of gross misconduct. The circumstances substantiating the gross misconduct by the employee/Claimant and the grounds justifying dismissal are more adequately dealt with under the Unfair Dismissal Complaint heading below, and it is not sought to repeat them here. Please see details in Section 3. It is hereby submitted that if this adjudication finds in favour of the respondent and deems the dismissal does not to reach the bar of that alleged by the claimant, it is therefore respectfully submitted that the claimant’s complaint and claim for minimum notice must therein fail by virtue of Section 8 of the aforementioned MNTEA, 1973. In, other words, the employer in accordance with Section 8 of the MNTEA, 1973 is within its rights to terminate the contract of employment without notice because of misconduct by the employee.
APPLICATION OF THE LAW TO THE FACTS
“Redmond on Dismissal Law” third edition Desmond Ryan, Bloomsbury Professional Limited 2017 at page 72 recites as follows “The right to terminate the contract of employment with reasonable notice is quite separate from the right to terminate the contract summarily, ie without notice, in the case of breach by the other side where the grounds for dismissal during the term contracted for must be such that they amounted to a repudiation of the contract on the part of the employee. Termination of employment without notice will constitute a lawful dismissal only where there are grounds which the law regards as sufficient to justify the dismissal”.
CONCLUSION
Therefore, it is respectfully submitted in regard to all the above items referred to that should this adjudication find in favour of the employer/respondent on the issue of dismissal, it therefore naturally follows that the employer had the right to terminate the contract of employment without notice or subsequent notice pay.
Section 3
COMPLAINT NUMBER 3 – CA 0001934-001
Complainant under Section 8 of the Unfair Dismissals Act, 1977
Firstly, the complainant on her complaint form states that she was dismissed the 16th of January 2018. This is incorrect and the correct date for dismissal is the 15th of January 2018. It is hereby submitted that the claimant was dismissed fairly by reason of gross misconduct.
The claimant has submitted a claim under Section 8 of the Unfair Dismissals Act, 1977 (“hereinafter referred to as UDA 1977 ”). Section 8 of the said act states as follows “a claim by an employee against an employer for redress under this act for Unfair Dismissal may be brought by an employee before a rights commissioner or the tribunal and the commissioner or tribunal shall hear the parties and any evidence relevant to the claim tendered by them, and in the case of a rights commissioner, shall make a recommendation in relation to claim, and in the case of the tribunal, shall make a determination in relation to the claim.”
It is noted that the claimant does not refer to any further section of the said UDA 1977 and it is therefore impossible to establish from the claimants point of view as to what provision of the unfair dismissals act the claimant is seeking to rely upon in support of her complaint. The claimant by virtue of page.2 of her complaint form, accepts that she was dismissed for gross misconduct and only refers to the issue of allegedly the company maintaining that they had lost trust in her work and her perceived irregularities in relation to regulatory and internal procedures. No further particulars are provided in the complaint form. However, an undated statement furnished to the commission under cover of letter of the claimant’s representatives dated the 25th of September 2018, which only one can assume appears to be filed in accordance with the requirements with part 5 of the WRC procedures on investigation and adjudication of employment and inequality complaints. The main issues/points as alleged by the complaint appear in her statement appear to be as follows:
1) Alleged denial of Legal Representation issues in relation to suspension and the principles set down by the High Court in the case of - Governor and Company of Bank of Ireland –v- James Ruddy (2015 IEHC 241). It is submitted that whilst the statement provided by the Claimant under cover of letter of her solicitors dated the 25th of September 2018 sets out a timeline of events as per the claimants version of events, it is scarce in relation to what are the facts itself sought to be relied upon and application of the law to the facts. This furthermore makes the issues alleged by the complainant very difficult to decipher and equally makes the latter a more difficult one to defend by the respondent. At this point to make it more convenient for the adjudication to follow the respondent herein seeks to address the three items above as follows;
For the purposes of ease of reference please see copy of the statement of the claimant. On the issue of legal representation at internal employment investigation meetings the claimant was not denied representation in this matter in that the claimant was offered and informed that she could be represented if she so wished by a colleague, and this is evident in the email of Ms.MC appended at Appendix B dated the 16th of October 2017, and notes of the investigating meeting and investigation report of Appendix C and Appendix D attached hereon. It is hereby submitted that there is no absolute requirement or obligation for an employee to be permitted legal representation to be present at an employment setting, and this has been subject to extensive analysis by the Superior Courts in particular in the Supreme Court decision of Burns –v- Governor of Castlerea Prison (2009) 3 IR 682., held the question of whether legal representation is required is one which has to be assessed on the particular facts of each case. In the case of Stoskus –v- Goode Concrete Limited (2007) IEHC 432 the plaintiff in this case argued that he ought to have been permitted to have legal representation at a disciplinary hearing as there was a threat of dismissal. The High Court noted that it was not argued that the relevant contractual provisions were contrary to the Labour Relations Commission Code. The Court herein refused to grant an interlocutory injunction on the basis that the Plaintiff had failed to establish a strong case and furthermore Irvine J noted
“ To be successful in arguing his case at trial the plaintiff will have effectively prove that every employee threatened with potential dismissal has a right to legal representation at his disciplinary hearing, irrespective of any contractual provision which provides for lesser representation such as representation through a colleague or a trade union representative”
In the case of Aziz -v- The Midland Health Board (1995) ILRM48. Barr J - raised two points for consideration the first being that there is no general right to legal representation at quasi-judicial disciplinary hearings such as those in Aziz. Noting the facility of bringing a colleague or a trade union representative accorded, he said with widely accepted practice in the public service in semi-state bodies. The claimant is sought to rely on the decision of Michael Lyons –v- Longford Westmeath Education and Training Board (2007) IEHC272. However, it is submitted that this case is incorrectly relied upon in that this particular action was a judicial review arising out of an investigation regarding an allegation of a co- employee of bullying or harassment. This was not a matter in relation to gross misconduct or employee performance. The tenet of the judgement of Justice Eager is that fair procedures provide the accused the right to confront and cross examine an individual who has made allegations against him, and this case hinged on the refusal to allow for cross examination in a disciplinary hearing. However, the claimant in this complaint was not being accused of anything by a co-worker and was simply being asked for responses in relation to performance related issues, and therefore there was no central requirement for cross-examination and in circumstances whereby the incidents of gross misconduct were a matter of fact and not a matter of verbal contest as was the situation in Michael Lyons Case .
In relation to the suspension imposed on the Claimant between the 16th of October 2017 and the 4th of December 2017 the Claimant was suspended on full pay with her full terms and conditions attached and intact. The Claimant has only stated to the affect that this suspension was not in accordance with the principals set down in the case entitled Governor and Company of Bank of Ireland and James Reilly (2015) IEHC241. However, the claimant does not state how this particular case applies to her circumstances and furthermore does not state or explain how it was not in accordance with the alleged principles established in Governor and Company of Bank of Ireland and James Reilly (2015) IEHC241. It is hereby submitted that the claimant has erroneously sought to rely on this particular case in support of her complaint. The respondent does wish to highlight to the commission that His Honor Mr. Justice Noonan in the aforementioned case identified the following four incidents where suspension will normally be justified if it is necessary; 1) To prevent repetition of conduct complained of. 2) To prevent interference with evidence 3) To protect individuals at risk from such conduct or 4) To protect the employers business and reputation.
As will be seen from the passage below the employer/respondent had serious concerns about the work and poor standard and serious misgivings and misconduct in relation to the employees work in the workplace to the affect that the suspension was absolutely necessary in circumstances such as 1) To prevent the repetition of conduct complained of and 2) To protect the employers business and reputation.
MATERIAL FACTS
The claimant was an employee of the respondent company from the 1st of September 2015 to the 15th of January 2018 wherein the complainant was dismissed on foot of a dismissal and subsequent appeal filed by the Claimant . Letters notifying same dated the 15th of January 2018 are at Appendix E attached hereto. Furthermore, the letter setting out the outcome of the disciplinary hearing and dismissal are also attached by way of letter dated the 4th of December 2017 at Appendix F. The Claimant was employed as an Account Executive of the employer/respondent and responsible for working personal lines insurance and commercial lines insurance accounts with the duties of collecting information and compiling submissions to provide quotations for new insurance business and existing insurance business to insurance company providers. Quoting on new business insurance policies. Re-brokering existing insurance client renewals, to ensure they had the most competitive premium. Processing midterm alterations to insurance policies to existing clients in a timely manner. Ensuring the clients have the correct insurance cover in place to meet their needs. Invoicing new business premiums to the clients. Providing renewal insurance premiums to the client. Providing midterm adjustment premiums to clients. Ensuring that the client’s insurance premiums are fully paid up-to-date in order to avoid cancellations. Ensuring files are complied with and complete in accordance with requirements that are imposed on the employer under Central Bank requirements. Maintaining full and proper client records and details. Filing and providing a good level of service to customers.
As can be seen from the investigation report attached herewith at Appendix D there were 45 separate client files of which the claimant failed and/or omitted to either have proper details and notes recorded on the client’s file. Failed and/or omitted to invoice the client’s property. Failed to inform the insurers and the insurance companies with the correct details. Possible implications of these refusals to add information, errors or omissions can be seen in possible implications section of each of the 45 separate clients as is referred to in the investigation report. Furthermore, beyond the first 46 clients there are client’s number 46-83 in Appendix D where no terms of business was noted or created for that particular file or no invoices issued or risk detail included on the file and suchlike. These are very serious compliance issues for the employer/respondent and the full details for same can be seen in the investigation report at Appendix D herein.
Three specific cases of note of very grave concern to the employer contained in Apendix C & D are case numbers HUND02 HIGN01, DEVI01.
On HUND02 the insurer/insurance company in question was not informed of an existing claim on the particular customer’s policy. The claim was on a fleet policy being dealt with by the Claimant. The driver involved in the claim was the client company director & proposer on a private motor policy. The Claimant was handling the claim on the fleet which occurred in March 2016 & was ongoing. The Claimant re-broked the private motor policy in 2015 and, knowing there was connecting personal lines business, did not note the open claim under the driver for this to be referred. This issue was not reported to the respondent/employer and was picked up by personal lines team when the client called to the office to discuss the open claim with the Claimant. Personal lines staff recognised the name and recalled that there was a car policy but that there was no mention of a claim this policy was moved to Insurers X. Notes were edited on this policy by the claimant in the intervening period between insurance cover of 2015 and 2016. A note appeared to be back dated which, had it have been present, would have made the personal lines team aware of the open claim and they would have referred and correctly disclosed this to the insurers and prior to cover being incepted with Insurers X in November 2016. This issue was not raised with company management and simply came up on foot of a compliance check by the employer/respondent during the claimant’s period of annual leave.
Another serious issue arose in relation to client number HIGN01 this particular client referred to a motor vehicle renewal by the claimant’s mother. The client was offered renewal by insurer A at €729.00 an alternative quote was obtained with insurer B for €498.00, as opposed to €729.00 with insurer A. However the Policy was set up with a different alternative insurer, Insurer C. Insurer B cover was invoiced to the client. However, the claimant set up a policy with Insurers C. There were no notes placed on the client’s file as to why this happened. The premium payable was the sum of €566.70. The client HIGN01 paid €500.00 on the 30th of August 2016 as a result of non-payment of the full premium insurers C sent a cancellation letter of the policy on the 11th of November 2016 as the premium was not paid in full. The claimant then paid €66.70 on her own card. This was outside the said credit terms for the insurer. The employer/respondent queried why the premium was not collected in full. This had to be chased months later. The employer/respondent are still unsure if the client was ever made aware of this, given the balance of the premium was paid by the Claimant. The Compliance issues that arose here in this case were, Non-disclosure of fees, incorrect invoicing for cover taken, no record of premium advised/issued to client. This is a breach of Consumer Protection Code. This is sanction-able by the Central Bank. If discovered during a Central Bank audit the employer/respondent would be fined. Non-disclosure of fees on a repeated basis would be considered a serious breach. This issue was not highlighted to the employer at the time and only arose on foot of a compliance check by the employer. On questioning in the investigation the claimant said that she had no recollection of the incident or recall of dealing with her mother’s policy in that year despite the fact that this was her mother’s policy. This arose a serious issue in terms of compliance with the Central Bank requirements given that the customer must be provided with full details of premium paid and fees paid and this issue was not highlighted to the employer at the time despite an error occurring.
DEVI01 - A property policy whereby a gap in cover was created due to non-payment and non-provision of requested documents to the insurer. The Claimant invoiced the premium to the client incorrectly and ignored several requests from the insurer to send outstanding documents to them. Monies were outstanding and some owing to client due to invoicing errors. This was ongoing over the course approximately 18 months and once discovered during investigation needed to be reviewed from beginning of client transfer to the respondent from previous broker in 2015 until December 2017 to find out where monies needed to be allocated to amend errors.
The Claimant blamed accounts for the mistake, via emails to insurer, and later blamed the insurer for not raising the premium on the account. Claimant tried to make the insurer think it was their errors that lead to the policy being wrongly cancelled. The insurer sent evidence of having raised the outstanding monies to Claimant on 7 separate occasions.
Claimant, at this point, appears to have ignored the fact there was no insurance cover in place on this property from 29/06/2016 until 05/01/2017 and contacted the insurer requesting renewal terms for January 2017 as if there had been insurance in place in the interim.
The client’s cover was cancelled again on 26th January 2017 for a new policy because of failure to send the documents to the insurer as requested by the insurer. This policy was then re-instated but premium was never paid by client because it was not invoiced by Claimant resulting in premium never being paid by client so /Respondent are at a loss for this money because this was paid to the insurance company without receiving payment from client.
The Claimant when questioned about this at the investigation meeting said that she understood that everything with that was fine, and that she had thought everything was in order after going through each of the policies.
Had there have been any claims on this policy in the interim, when there was no cover in place due to outstanding monies and documents, the claim would not have been paid by insurer. It could have resulted in legal issues for the respondent , Central Bank compliance issues regarding breach of Consumer Protection Code concerning invoicing and issue of Section 30 receipts and timely issue of return premiums due in addition to loss of connecting business and irreparable reputational damage.
Additionally, the complainant on her complaint form states that she was dismissed the 16th of January 2018. This is incorrect and the correct date for dismissal is the 15th of January 2018. It is hereby submitted that the claimant was dismissed fairly by reason of gross misconduct.
TIMELINE OF EVENTS –
The timeline of events in relation to employee’s suspension through to dismissal is as follows:
a) 2nd of October 2017 the claimant took annual leave. During the period of annual leave a number of issues arose that had to be dealt with by other members of staff of the employer. These incidents and issues triggered a workplace investigation in to work carried out by the claimant. After preliminary investigation action was taken to suspend the claimant on full paid and terms and conditions pending a workplace investigation with affect from the 16th of October 2017. b) 16th of October 2017 suspension began. c) 19th of October 2017 an investigation meeting was held at 14:30 present was Ms.MC lead investigator of the respondent and Ms.B.C. of HR advisers. Representative and the claimant. d) 24th of October 2017 the claimant was urged to attend the second investigation meeting arranged for 25th October 2017. She was advised that she would be shown documentary evidence for the issues raised. e) 25th of October 2017 a second investigation meeting was arranged at 10:30 am at a local hotel. The claimant had been provided with a copy of the minutes from the previous investigation meeting in advance. The claimant did not attend. The respondent waited for a period of up to 2 hours to see if the Claimant would attend. The Respondent brought with them numerous boxes of full copies of the client files to provide to the Claimant on that date as requested by the Claimant. f) 27th of October 2017 -The claimant was informed by letter a further investigation meeting could be held, if she wished or that she may provide her submissions to the allegations if she did not feel comfortable attending the investigation meeting. The claimant did not seek another investigation meeting. g) 31st of October 2017 Ms.M.C. requested a written submission from the claimant. h) 2nd of November 2017 the claimant was asked again for a written statement. Claimant was also offered the opportunity to arrange another investigatory meeting where the evidence could be available. i) 14th of November 2017 the claimant was sent a letter inviting her to a formal disciplinary hearing on the 20th of November 2017. Furthermore, the Claimant was furnished with a very large data pack as requested as she had failed to take up the opportunity to receive same by way of attending the second investigation meeting on the 25th of October 2017. j) 20h November 2017 an independent disciplinary hearing was held and an independent disciplinary manager was appointed being Mr.C.L. Company Director & CEO, The disciplinary hearing was chaired by Mr.C.L.. Ms.M.McC H.R. Consultant was also present. k) 4th of December 2017, decision made to summarily dismiss claimant for gross misconduct. l) 12th of December 2017 the Claimant submits an appeal. m) 13th December 2017 the employee was invited to an appeal hearing. The employee/claimant did not attend the scheduled hearing on the 18th of December 2017. n) 22nd December 2017 the claimant was offered a further opportunity to attend an appeal hearing scheduled for the 9th of January 2018. The claimant did not attend. The claimant requested that a decision be made in her absence. o) 15th January 2018 the decision of the disciplinary hearing issues to allow the original decision of Mr.C.L. to stand.
APPLICATION OF THE LAW TO THE FACTS
It is hereby submitted that the claimant was fairly dismissed in circumstances where in accordance with Section 6(4) of the UDA, 1977 that the dismissal lies within the categories regarded to be fair namely that it concerns a) The capability, competence or qualifications of the employee for preforming work of the kind he was employed he was to do. b) the conduct of the employee.
Therefore, it is respectfully submitted that the dismissal by the claimant of the employer falls within categories a and b as aforementioned. The employer has set out above the reasons for dismissal and hereby submits by reason of the very large and grave risk that the employee posed to the company employer by way of liability issues to the company, risk of non-indemnity of the respondent’s client’s by reason of the claimant’s failure, errors or omissions in her daily work by misinforming or failing to inform insurers of vital client policy details that the said dismissal was reasonable and fair. Redmond on Dismissal Law third edition Desmond Ryan, Bloomsbury Professional Limited 2017 at page 281 states
“ an employer must be able to show why a sanction short of dismissal would not have sufficed in this particular case. In this context, it is important to reflect of the reality that several terms and sanctions are open to an employer to which can both punish an employee, send a clear message as to the position that the employer will adopt in relation to such wrongdoing, and arguably protect the business given that the sanctioned employee will be vulnerable to dismissal for any further offence”.
What is of grave concern to the employer/respondent is one whereby as can be seen from the investigation report and investigating meeting appended and Appendix C & Appendix D hereto is the employee/Claimant failed to acknowledge any of her short comings, errors, acts or omissions, and was extremely uncooperative with the said investigation, and appeared unwilling to be able to work with the employer/respondent to deal with these issues and how they had arisen.
Furthermore, the claimant refused to participate in any of the further investigation meetings and as a result it could only be said that her permission to return to the workplace would have caused further threat to the company by way of compliance and professional negligence issues. Therefore, the only option available to the employer was dismissal in circumstances where in the first instance the claimant was unwilling to accept her short comings. The claimant alleges that her workload was to heavy but as can been seen from the submission already provided by the employer/respondent on the 1st of August 2018 to Ms.S.M. the claimant was assisting 242 commercial client renewals in a five day working week. Other employees were dealing with 618 commercial renewals whilst working a four day working week. The average workload for all other remaining employees was 604.
LEGAL BASIS FOR CLAIM
APPLICATION OF LAW TO THE FACTS
- Grounds justifying dismissal
- The claimant has alleged some form of procedural defects in the manner of which she was dismissed. However, in the case of Byrne -v- Allied Transport Limited UD11/1979 The EAT found that
“procedural defects will not make a dismissal automatically unfair” … “ an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission it acted reasonably in the circumstances in deciding to dismiss an employee”. In the case of British Leyland UK Limited –v- Swift (1981) IRLR 91 the Court found that “dismissal is unfair if no reasonable employer would have dismissed him. But if a reasonable employer might reasonably have to dismissed him, then the dismissal was fair”
The key phrases here is a reasonable employer might reasonably have dismissed. It is hereby submitted that the respondent/employer acting reasonably in the circumstances of dismissing the claimant whereby
Finally, to briefly refer to the appeal process it is submitted that in relation to the appeal Redmond on Dismissal law, Desmond Ryan. 3rd edition Bloomsbury 2017, p.308 states
“there is no automatic right in natural justice to an appeal an employer’s decision to dismiss or take disciplinary action short of dismissal”.
Nonetheless, the Employer/Respondent in seeking to be as reasonable as possible provided the claimant with an appeal (as requested by the Claimant) which she refused to participate in. It is submitted the Claimant refused to participate in all of the procedures open to her, but at the same time argues she was not afforded fair procedures.
CONCLUSION
It is hereby submitted that the employee/claimant was fairly summarily dismissed given that it was reasonable and fair on behalf of the employer to dismiss the claimant in circumstances whereby she posed a very serious and grave risk to the company, and whereby the claimant refused to accept any of the issues highlighted to her with regard to her work, (including but not limited to) causing serious Compliance Issues for the Company/Employer and Professional Negligence exposure, and potential non-indemnification for the Company/Employer clients. The claimant also refused to co-operate with the employer in identifying same and possibly rectifying same.
Furthermore, it is submitted that the claimant created a situation whereby the employer could come to no other finding only summary dismissal in circumstances whereby she refused to cooperate fully with the investigation process and subsequently with the appeal process as was provided to her. This further hindered any full exercise of the ability to provide a reply on her behalf and the employer could only deal with the facts that were before it.
Three issues of very grave concern to the employer was one in particular being case number HUND02 whereby the insurer/insurance company in question was not informed of an existing claim on the particular customer’s policy. Notes were edited by the complainant in the intervening period between insurance cover of 2015 and 2016. A note appeared to be back dated which would only surfaced on renewal in 2016. This issue was not raised with company management and simply came up on foot of a compliance check by the employer/respondent during the claimant’s period of annual leave. Another serious issue arose in relation to client number HIGN01 this particular client referred to a motor vehicle renewal by the claimant’s mother. The client was offered renewal by insurer A at €729.00 an alternative quote was obtained with insurer B was obtained for €498.00, as opposed to €729.00 with insurer A. However the Policy was set up with Insurer C. Insurer B cover was invoiced to the client. However, the claimant set up a policy with Insurers C there were no notes placed on the client’s file as to why this happened. The premium that was payable was the sum of €566.70. The client HIGN01 paid €500.00 on the 30th of August 2016 as a result of non-payment of the full premium insurers C sent a cancellation letter of the policy on the 11th of November 2016 as the premium was not paid in full. The claimant then paid €66.70 on her own card. This was outside the said credit terms for the insurer. This issue was not highlighted to the employer at the time and only arose on foot of a compliance check by the employer. On questioning in the investigation the claimant said that she had no recollection of the incident or recall of dealing with her mother’s policy in that year despite the fact that this was her mother’s policy. This arose a serious issue in terms of compliance with the Central Bank requirements given that the customer must be provided with full details of premium paid and fees paid and this issue was not highlighted to the employer at the time despite an error occurring.
A supplementary submission was received by the WRC on the 15th.April 2019 - the text of which is set out below: The Additional Submissions on behalf of the Respondent are in reply to the undated Submissions of the Claimant furnished to the WRC in November 2018.
Firstly, in response to the last Submissions filed by the Complainant in response to the first Submissions made by the Respondent it is noted that a lot of the material facts stated by the Respondent and in particular the timeline of events as stated on page 9 of the Updated Submissions of the Respondent are not controverted.
Whilst the Claimants response Submissions are not separated into various sections it would appear the Respondent has sought to expand on her previous Submissions and they appear now to be only three main points of compliant raised by the Claimant those being:
1. The Claimants Complaint in relation to the right to legal representation in the disciplinary stage, and also the appeal stage in the unusual circumstances whereby the Claimant did not participate in the appeal stage.
2. The second complaint appears to be one based on the suspension of the Claimant from her employment with pay.
3. The lack of “a fair crack of the whip” in the investigation and disciplinary process.
The Respondent would like to return to the first issue of the right to legal representation in the investigation and disciplinary process. This issue has already been covered in pages 5 and 6 of the updated Submissions but furthermore the respondent would like to add to this in these further submissions by way of the following. It must be noted that the Claimant takes grave issue with lack of legal representation in the disciplinary process. The Respondent seeks to rely on the decision of Michael Lyons and Longford Westmeath Education Training Board (2017) IEHC272. The question of whether and at what stage an employee may be legally represented in the context of internal proceedings within his or her employment have been subject to extensive analysis by the superior Courts in recent years. The leading decision is that of the Supreme Court in Barnes –v- Governor of Castlerea Prison (2009) 3IR682. In the aforementioned Judgment Geoghegan J described the criteria set out when legal representation is a requirement and furthermore held the question of when an employee required legal representation would have to be assessed on the particular facts of that case. The relevant starting point for the criteria are:
1. The seriousness of the charge and the potential penalty 2. Whether any points of law are likely to arise 3. The capacity of the particular employee to present his or her own case 4. The procedural difficulty involved 5. The need for reasonable speed in making the adjudication that being the important consideration 6. The need for fairness between the persons involved
Whilst the Claimant seeks to rely heavily on the decision of Michael Lyons –v- Longford Westmeath Education Training Board, a more recent Judgment of the Court of Appeal in Iarnrod Eireann/Irish Rail and Barry McKelvey (2018) IECA346, decided the issue of an employees entitlement to legal representation in the context of disciplinary proceedings. The Court of Appeal hearing concluded that Murphy J. in the High Court hearing of this case erred in holding the employer had wrongly exercised its discretion in refusing the applicants request for legal representation. The Court of Appeal stated that there were no exceptional or special circumstances to justify permitting the employee to have legal representation on the facts of the present case. The Court of Appeal did accept that the seriousness of the allegations against the employee was a factor to be considered in determining whether exceptional circumstances exist on the facts of a particular case, and furthermore held there is nothing particularly unusual or exceptional about the inquiry into an accident or incidents of theft in the workplace, (as was the situation in the McKelvey case).
Furthermore, the Court went on to hold that the possibility of a sanction of dismissal being imposed was also not such as to make the circumstances exceptional such as entitling an employee to legal representation.
Furthermore, in the McKelvey case a poignant point that is referrable to the Claimant’s claim is that the Court also noted that the applicant in the McKelvey had a right to appeal and that the issue of legal representation could be re-visited at that stage in the event that matters requiring legal representation had arisen at first instance.
Finally, the Court also stated in the McKelvey case “not only will a disciplinary process which routinely involved the retention of lawyers have the effect of slowing down the process and making it more costly but it would also have significant potential adverse consequences for the relationship between management and the employee under investigation and also as between employees themselves.”
The Claimant appears to allege in her submissions that there is an axiomatic right to legal representation in employer/employee disciplinary processes and that this adjudication should follow the dicta in the Lyons case and are subsequently bound by the decision in the Lyons case as a result thereof.
This is simply incorrect, and the McKelvey decision as above referred to is a case that has put a finer point on this particular issue and has decided same more comprehensively.
Finally, in reiteration it is interesting to note that the Claimant alleges that her rights were breached by the refusal of the Respondent to allow legal representation “even at disciplinary stage and indeed the appeal stage”. What is more interesting here is that the Claimant complains about the process at the appeals stage in circumstances whereby the Claimant did not participate in any fashion and in any way shape or form in the actual appeals process afforded to her despite the fact that an appeal hearing was arranged on the 18th of December 2018 which she did not attend, a further appeal hearing was arranged on the 22nd of December 2018 ,which she also failed to attend, and again on the 9th of January 2019 of which the claimant failed to attend.
The Claimant takes issue with the Respondent’s decision to suspend her on full pay. The Claimant relies upon the decision of the Governor and Company of Bank of Ireland and James Reilly. It is interesting to note that the Claimant relies on paragraph 41 of the Judgment of Mr. Justice Noonan delivered on the 17th of April 2015.
The Respondent would also seek to refer to the Judgment in James Reilly case (2015) IEHC241.
This is in the context of the issues that had arisen during the Claimant’s employment which had not been brought to the employer/respondent’s attention during the duration of the employment. As can be seen from page 7 and the second paragraph of the section cited material facts in the updated submission appendix D clearly shows that there were 45 separate client files of which the Claimant failed and/or omitted to have proper details and notes recorded on the client’s file. There were other issues such as the failure of the Claimant to invoice clients properly, and failed to inform the insurers and the insurance companies of correct details of insured clients. Furthermore, there were a balance of client files especially number 46 and 83 where no terms of business were noted or created on the particular file or no invoices issued or risk details included in the files and such like. It should be noted the serious misgivings by the Claimant caused a very serious and grave risk to the employer/respondent in circumstances whereby the employer was by way of actions by the Claimant potentially in breach of its regulatory requirements to the Central Bank of Ireland as a result of it being a provider of financial services. Simply by way of further explanation at Appendix 1 herewith provided is a Settlement Agreement document issued by the Central Bank of Ireland, and its decision with regard to a settlement agreement agreed with Insurance Co.Y on the 8th of May 2014. It is noted a paragraph 4 of the said document that where customers were not provided with terms of business documents prior to entering into policies with new consumers that as a result of same Insurance Co. Y fell foul of the Consumer Protection Code 2006 and as a result had to pay monetary penalty of €490,000.00. It is cogently clear from the short comings of the work practices of the Claimant that they posed a very serious and grave risk to the employer company that had the Claimant being permitted to remain in her employment without a suspension on full pay that there was a very serious and grave risk of a repetition of the conduct of the Claimant which had now been identified by the employer and of which had occurred during the duration of her employment.
Furthermore, in circumstances where the Claimant failed to disclose and concealed these very serious issues from the Respondent employer and in particular in a situation that arose in the case of HIGNO1 whereby the Claimant herself paid a sum of €66.70 from her own funds to the account of the said client without informing the employer/respondent, and this issue only discovered on foot of the respondent/employer discovering this themselves, causing a very serious and grave potential risk of interference with evidence had the Claimant remained in employment and there was a very serious need to protect the customers of the employer who were at risk from such conduct or any such further conduct.
Furthermore, the said suspension with pay was vitally necessary to protect the employers business going forward and to prevent a repeat any further occurrence of the very serious number of difficulties that had arisen on the files of which the Claimant was working thereon and to prevent equally the reputation of the employer/respondent’s business.
It should be noted that there are two main types of suspension within the workplace that an employer can impose those being:
1. A non-punitive, or otherwise holding suspension or 2. A Punitive suspension which is sought to punish.
It is clear that the suspension herein was a holding suspension pending an investigation and potentially disciplinary process.
The Employer/Respondent would also wish to point out the recent Labour Court decision of Stephens –v- An Post (UD17/100) determination number 1867, Labour Court, 17th of December 2018. Herein the said decision it was held that employer’s decision to suspend on pay was upheld as appropriate in circumstances where the employer had legitimate concerns about a repeat of an altercation that gave rise to the suspension. In this particular case the Court accepted the employer/respondent’s view that it could not allow further and similar altercations or incidents that had occurred in the workplace previously to occur again pending the result of any action it might take following the investigation… (therefore, the Court does not find there was a breach of the rights of natural justice when she was suspended from work).
Prior to carrying out the said suspension of the employee on full pay it must be submitted that the employer/respondent carried out a very careful balancing exercise in relation to whether to carry out the said suspension or not. The employer/respondent can supplement this submission further by way of evidence but does wish to point out to the adjudication that it did consider looking at an alternative to not suspending the Claimant. The Respondent does wish to point out that the Claimant was on annual leave from the 2nd of October 2017 to the 16th of October2017 wherein the said suspension began. There would have been a very obvious reputational issue, and perhaps loss of face to the Claimant/employee had the employer asked the Claimant to return to work on the 16th of October 2017 after a period of leave, and therefore then moved the employee to another area of work which would have been automatic and essential in order to investigate and look into her previous work in the role that she entertained therein.
The Respondent/Employer did not wish to do so as this would only provoke or alert co-workers into asking or talking amongst themselves about a potential issue with the Claimant/Respondent’s work and work practices. The co-workers of the Respondent/Employer were simply informed that the Claimant had taken an extra week holiday/leave and therefore this was done in order to protect the reputation and image of the Claimant/Employee in the workplace. Had the Claimant/Employee been allowed to remain in the workplace this would have caused a very serious and grave risk to additional and further risk to the employers business and its clients and furthermore could have caused very serious reputational harm to the Claimant/Employee. The option of working remotely was not one available to the employer in circumstances whereby customer files simply cannot be removed from its offices because of the very serious risk of a breach of personal data in regard to the employer’s individual customers.
One issue that requires clarification in relation to the suspension itself but one which the claimant raises issue is about the telephone conversation between Mr.C.C. and the Claimant, it must be noted that the details of same are materially incorrect.
On the same day that Mr. C.C. Called the Claimant informing her of her suspension, a letter of suspension had been posted the previous day and the Claimant should have received the telephone conversation and the letter informing her of her suspension on the same day. The said telephone conversation was nothing else but a simple courtesy call to the Claimant, and to criticise the director of the employer for making a courtesy call appears somewhat short sighted. It was essential that telephone contact was made as the Claimant was on leave at the time from work and the employer did not want the employee arriving at work when the leave period was over only to be told to leave the premises again which obviously would have arose suspicion with her co-workers.
3. Finally, the Claimant makes submissions in relation to not getting a fair crack at the whip, and makes further assertions in relation to the wording of letters and questions the author of certain letters, of which it is very difficult to understand what is being asserted in this regard. It is entirely refuted that the suspension with pay was put in place to justify any sort of further action or build any further case and this was simply part of a standard work process which was vital for the investigation of the issues that had arisen during the duration of the employee’s employment. It is interesting to note that the Claimant is alleging that she did not get a fair crack of the whip but in circumstances whereby she failed to participate as is set out in the timeline of events on page 9 of the updated submissions in the investigation process, and furthermore in the disciplinary process, and furthermore in the appeal process.
4. The Claimant in part of her submissions seeks to rely on an email of Ms.B.C. of the H.R. company to Ms.M.C. of the Respondent/Employer of the 27th of October 2017 in relation to a potential date for a disciplinary hearing. It is very difficult to establish what is being asserted herein but all that can be said it that the Respondent/Employer cannot be held responsible or deemed guilty for the words of another party who appears to be suggesting matters to the Respondent/Employer of which there appears to be neither a request nor a reply by the Respondent/Employer to the said email of Ms. C. of the H.R. team.
One final point that the Respondent/Employer wishes to raise herein in the said submissions is the circumstances whereby the Claimant clearly failed to participate in the investigation process, further in the disciplinary meetings and hearing set out in the timeline of events on page 9 of the updated submissions and in the appeal process afforded to the Claimant of which she did not participate. It must be noted that an employee does not have the legal right to remain silent or not participate in the disciplinary process and proceedings, and an employee is obliged to cooperate in the said process. This is a principal set down in Farrell –v- The Minister for Defence (10th of July 1984), unreported HC. In this particular case the Plaintiff was dismissed for alleged involvement in attempting to take property belonging to the Defendant. Murphy J (High Court) found that 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 and inference that the Plaintiff had been involved in an attempted larceny of his property was not trustworthy. Furthermore, in the case of Rowland –v- An Post (2017) IESC20 Clark J. held “in the context of such a contract it is not appropriate for a party to whom queries relevant to the performance of a 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 as best they can”.
Therefore the above case clearly illustrates that the conduct during the investigation and disciplinary process and furthermore in the appeal process by the Employee/Respondent was simply not acceptable as is the same in the Rowland –v- An Post case the Claimant herein demanded proof, and failed to participate in the process itself, yet the very basis for her complaint seems to be grounded on the procedures enacted leading to her dismissal.
Ms.MC gave evidence on behalf of the respondent and set out the background to the establishment of the company - it now comprised one of the top 5 brokers in the country trading across 13 offices.She asserted that issues with the claimant came to light when it was discovered that the claimant had several unopened emails – this initially triggered concern about the claimant’s performance. She referred to Central Bank Regulations and how the company could be exposed if there were any gaps in cover of if issues arose regarding professional indemnity. She explained that policies can be voided if the correct documentation is not received .She outlined the potential risks to the company arising from non compliance including loss of customers ,reputational damage and inability to continue trading. She stated when she discovered the number of unopened emails and the concerns about a number of accounts , she weighed up the merits of putting the claimant in a separate office and decided the best option was suspension as it would not raise issues with other staff and her hope was that matters would ultimately be resolved.She asserted that the claimant’s non participation in the investigation was the biggest issue and a source of frustration – she engaged a HR company to advise on the process. It was put to Ms.MC under cross examination that while 45 allegations were made against the claimant , no evidence of gross misconduct was presented and only 3 files were put forward by way of submissions from the respondent.Ms.MC confirmed that she commenced working with the respondent company in 2015 and had previously been employed in marine consultancy. She did her examinations to become a certified insurance practitioner in May 2016.She was questioned as to why she was heading up an investigation when her background was in marine consultancy – she replied that she had experience of proof reading documents and having attention to detail.She confirmed that her father was Mr.C.C.She confirmed that the HR company got involved when the unopened emails were discovered.Ms.MC stated that Mr.CC decided on the letter of suspension .He appointed her to carry out the investigation and she consulted the Hr company on alternatives to suspension.Ms.MC stated that there were 200 unopened emails and a lot of issues that were not dealt with. The witness asserted that when she wrote the letter of suspension to the claimant on the 12th.October , she was still investigating matters. She asserted that she was unable to furnish the claimant wit the evidence she was seeking as she still at that time did not have all of the evidence available to her at the time and she was still working through the file. She “ hoped all would be sorted”.Ms.MC set out her account of the ensuing exchanges between herself and the claimant on the matter of documentary evidence. It was put to the witness that notwithstanding her assertions regarding the fact finding exercise , the respondent precluded the claimant from attending the Industry’s Annual Dinner by way of letter on the 27th.Oct. 2017.The witness replied that no decision had been made at this time.It was put to the witness that she had decided to initiate disciplinary action before the investigation was completed and that this was demonstrated by the email to her from the HR company.Ms.MC replied that she was not obliged to accept the advice of Hr and that at this point the claimant “ was not playing ball”.Ms.MC was asked if she thought it was wrong to arrange the disciplinary hearing before the investigation was complete and she replied that her role was to complete the investigation report. She was the investigating officer and she believed the process was fair.Ms.MC asserted that she had not made a decision on disciplinary action when she wrote to the claimant on the 31st.October and that if the claimant had participated in the process and provided evidence the outcome might well have been different.It was put to the witness that the Compliance Officer Mr.PMcM would have been more appropriate to undertake the investigation and the witness replied that she was the most suitable person.She asserted that she did consult with Mr.PMcM and that he said that there were compliance issues involved in the case. It was put to the witness that she only involved the Compliance Officer at the last minute to which she replied that not all of the issues involved the Compliance Officer.It was put to the witness that notwithstanding her assertions to the contrary that she was involved in the investigation , the disciplinary process and the appeal. The witness said that she was not an employment law expert and that she had completed a number of employment law courses. It was submitted that the entire process was flawed by the involvement of Ms.MC in all three processes. It was put to the witness that the first time documentation was furnished to the claimant’s side was on the 15th.Nov. 2017 -Ms.MC confirmed that the redacted files were available to the claimant at the 2nd.Investigation meeting on the 2nd.Nov. 2017 which the claimant did not attend.It was submitted by the claimant’s representative that it was unfair to expect the claimant to trawl through the files at an investigation meeting.Ms.MC asserted that it was the sheer volume of files and bad work practises that concerned her.The claimant’s representative asserted that there was no one from the company present to give evidence in relation to such work practises and consequently there was nobody that could be cross examined on the alleged performance deficits and that therefore his hands were tied on the matter. Ms.MC confirmed that the claimant had complained about her workload in 2016 and her lines were reduced from 600 to 200 files – she asserted that the claimant never complained after that. On re examination the witness set out the potential exposures for the company if no records are kept of open claims, if records are falsified and referred to the potential of cancellation in cases of non disclosure. In summing up the respondent’s representative asserted that the respondent had acted reasonably throughout the process and that the behaviour and actions of the claimant were not reasonable. It was submitted that the claimant had opted out and not attended the meetings without any physical impediment. It was contended that had the claimant participated in the process the outcome was very likely to have been different. The only reasonable summation was that the employee did not participate in the investigation / disciplinary process – the information available to the respondent led to the decision to dismiss. It was contended that in 2 of the cases , notes were altered on a later date leading to some other employee being misled as to the true situation. It was submitted that the claimant accepted that she did not bring serious matters to the attention of Mr.CC.It was imperative in a process that all parties take part – the claimant could have cooperated under protest – there was a major gap in the process and by her actions the claimant had prejudiced the process – it was submitted that the only reasonable conclusion was the one the respondent had reached. |
Summary of Claimant’s Case:
The claimant submitted the following statement to the WRC on the 25th.Sept. 2018 STATEMENT OF Claimant
I, began work with RG Ltd, Insurance Brokers on the 11th of October 1999 and worked my way up in this Company to Senior Accounts Executive by the year 2014/2015. I was the Senior Operative for RG Ltd for a number of years and would have intimate and good working relationship with that Company’s client base.
I learned in 2015, CR on deciding to retire also entered into negotiations with the Respondent firm for the sale to the Respondent Firm of the business of RG Ltd. It is my understanding that it was certainly part of the negotiations process that I would stay on in the my role in order to obviate and iron out any concerns that existing customers might have with the new acquisition.
I concluded my own negotiations with the Respondent and as part of those negotiations I was made redundant and then re-employed as an Accounts Executive by the Respondent and I entered into employment with the Respondent on the 31st of August 2015.
I have now lodged a Claim for Unfair Dismissal against the Respondent at the result of losing my job for alleged acts of “gross misconduct”. I confirm that the investigations/disciplinary process commenced some time before the 12th of October 2017.
I can say that I am extremely angry and hurt in relation to how the Respondent has treated me over this whole process. Looking back on it, it is quite clear that the Respondent used me for the purposes of my intimate knowledge of my previous employers client base. When the Respondent got their “handling” on my former employers business, I obviously became surplus to requirements and I feel that a process was begun to dismiss me from my Employment without any basis or without any apparent reference to the principal of natural justice or my rights under the Employment Legislation.
I would like to say that in all my years working for my former Employers from 1999 to 2015, I never once had any reason to receive any adverse finding or comments from my Employer.
I was on annual holidays in October 2017 and was not due back for another few days when I received a “heads up” phone call from Mr.C.C., alerting me to my impending suspension which was followed up by a Letter of Suspension dated the 12th of October 2017. I was suspended on full pay pending an investigation from Monday, the 16th of October 2017. An investigation meeting was arranged for one week later, Thursday, the 19th of October 2017. A number of allegations were made in this letter, but with no substance to any of these allegations. The letter did indicate that the five allegations made were “serious” and may “subject to investigation” amount to “Gross Misconduct due to the potential serious implication for the business”. It went on to say that an independent panel had been appointed to investigate these allegations.
I emailed the Respondent Company requesting that they forward to me a copy of all the materials that they intend to rely on at this meeting on the 16th of October 2017, in order for me to be able to properly respond to the allegations and to defend myself fully. I certainly was not accepting any basis for any action taken against me.
I received a response back to this email from Ms.M.C. on the 16th of October, to say that “the meeting is purely a fact finding exercise….. and that I do not have all the facts and therefore, I am unable to provide you with any documentation”. I was very concerned at this stage and some what baffled that I was suspended when the Company had little or no information to go on by their own admission.
This email and all subsequent emails over a number of months set out the Respondents position in regard to me, bringing to any investigations/disciplinary meeting Legal Representation. I did point out to the Respondent on a number of occasions that I was entitled to bring Representation, including Legal Representation to these meetings, however, I was denied this opportunity.
I have subsequently learned through my Solicitors that this is an inherent and fundamental right as laid out in the High Court decision of Michael Lyons v Longford Westmeath Education and Training Board (2017 IEHC272).
I was particularly concerned with being suspended with pay as I felt this would do severe and untold damage to my Professional Reputation in the Financial Sector. I made the Respondent aware of the fact that I was concerned about the damage that was being done to my reputation as a result of this suspension. I would submit that the Company did not take into account the principle set down by the High Court in Governor and Company the Bank of Ireland v James Reilly (2015 IEHC241) when deciding to suspend me with pay. I would further submit that if they had taken into account these principles that they could have dealt with any issues they had with my work, other than by way of suspension with full pay, with little or no consequence to themselves, if appropriate steps had been taken. I say that this is even more so considering that it is admitted by the Respondents at a very early stage, but following my suspension, that they were not in possession of the “full facts”. I further state that the Respondents, if they had adhered to their own policies and procedures as set out in their Policy and Procedure Handbook dated 1st of July 2015, could have dealt with any issue that they were concerned about through the Progressive Discipline Process as set out therein.
On the 19th of October 2017. I was told by way of email from Ms.M.C.(18th October 2017) that the information that I was seeking prior to the Hearing would be made available to me at the Hearing only. I agreed to attend a meeting, only on the basis that the material that had led the company to suspending me would be given to me on the Thursday, wherein then I would take it away for consideration and a further Investigatory meeting would be rearranged.
I was given no material at this particular meeting however a list of 46 Allegations were made against me. It can be seen from the minutes of the meeting of the 19th of October that the Company listed 46 grievances that they had in relation to my work and these 46 allegations were broken down under various headings titled 1.) Issues; 2.) Evidence and 3.) Possible Implications. I was given nothing more than what was contained within the above, which I had pointed out to the Company was wholly inadequate for me to be able to defend myself fully against the allegations that were being made. I indicated by various emails to the Company that I needed to see the evidence and/or the files for me to be able to respond in an appropriate manner. I was told by the Company (email from Ms.M.C. dated 24th October 2017) that I was not entitled to see any evidence until this matter proceeded to a Disciplinary Hearing. This email basically stated that I had “been provided with a copy of the issues this morning in the minutes. Each issue is itemised, as discussed in the meeting”.
I was totally frustrated and angry with the whole process and I indicated by email (24th October 2017) that there was no point in me attending a meeting as I had nothing to contribute in the absence of any material that I had requested, and was entitled to. To ask me to remember or have knowledge of all actions taken by me, in relation to my work is simply impossible. However, if I had access to my files and notes then I would have been in a better/stronger position to fairly and honestly answer these 46 Allegations that were made against me.
Inevitably, a Disciplinary Hearing was arranged initially for Friday, the 3rd of November 2017.
In the meantime, I had received further correspondence by way of letter dated 27th of October 2017, telling me that because I was suspended I was not allowed to attend a Social Annual Insurance Dinner that I had been invited to by a client. I was told in the said letter that as there would be fellow employees/customers and suppliers present, that my presence would not be welcome. There is no doubt that my presence at this dinner and in the lead up to it was noted and I would have been very conspicuous by my absence. This again I felt was impacting on my professional reputation and fuelling the rumours that had been spreading about my position in the Insurance Industry.
Prior to the Disciplinary Hearing been set I wrote by way of email (dated 31st October 2017) to the Company saying that I was concerned about the length of time this whole process was taking and again requesting the (evidence) material files that had been outlined in the 46 Allegations be furnished to me.
Various correspondence passed between the Company and myself in relation to the Disciplinary Hearing. I made it quite clear that I was willing to cooperate with the investigation and to attend to the Disciplinary Meeting once I was in possession of the evidence/files that was being relied on.
A letter was received on Tuesday, the 14th of November from the Respondent indicating that a Disciplinary Hearing had been arranged for Monday, the 20th of November 2017. With this letter I also received “the material” that the Company was relying on, which disappointingly was just the document containing the 46 Allegations once again. I once again requested the files that related to these 46 Allegations but once again was refused.
I attended the Disciplinary Hearing in any event on Monday, the 20th of November and received word on the 4th of December 2017, that as a result of this Hearing that I was being dismissed from the 4th of December, from the date of the letter.
I appealed this decision on the 12th of December and a Hearing was arranged for Monday, the 18th of December 2017. I again was requesting sight of the files that the Company based their decision on, however, they refused to give me access to it.
The reason that I was so insistent on seeing the files is quite simple in that I believe that once I was in receipt of the files, that I could answer all and any of the Allegations made against me by the Company. It was impossible for me, from the documents that they give me, to explain to the Company why certain actions were taken or not taken. I always felt that the Company was not in any way prejudiced by allowing me access to these files. Considering that my whole career was at stake here, it is the least I thought that I deserved, was a proper and fair chance in order to explain to the Company why certain actions were taken or not taken. I had requested this from a very early stage in this whole process and I was denied this access at every stage of the process.
The Appeal of the Investigatory Meeting was put off on a number of occasions but was eventually concluded in my absence on the 10th of January 2018. My absence was explained as per my email of the 8th of January 2018. I felt that there was little further that I could contribute to any Appeals Process if I did not have the information that I requested and accordingly, I did not attend as I could not contribute anymore than I did at the Investigatory/Disciplinary Stage. On the 6th.Nov. 2018 , the claimant’s representative responded as follows to the respondent’s submission:
“it is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers.”
It is quite clear accordingly that a change has arisen in the Law in regard to employees’ rights where any investigation process is undertaken by an employer which affects the good name, reputation and career of a respective employee.
It is accepted that this change in the Law is a recent one, however, the Complainant engaged the services of an Independent Human Resources Agency, which specialises in Employment Law and therefore, it is submitted, should have been aware or ought to have been aware that they were in breach of the Claimant’s rights under Article 40(3)(1)(2) of the Constitution as set out in paragraph 95 of Justice Eagar’s above decision.
It will further be submitted that as the Investigation in this instance made a finding and a recommendation (see letter of the 14th of November 2017, Respondent to Cliamant), they are bound by the decision in the Lyons Case.
Of course, the Complainant will say that this breach of her rights was compounded by the refusal of the Complainant to allow her legal representation even at the Disciplinary stage and indeed the Appeals stage.
“Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”.
Justice Noonan further articulated at paragraph 40 that “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career.”
The Court in that instance identified four circumstances where it would be justified 1) to prevent the repetition of the conduct complained of. 2) to prevent the interference with evidence. 3) to protect individual at risk from such conduct. 4) to protect the employer’s business and reputation.
The Complainant would draw the attention of the Commission to a recording of a telephone conversation between Mr. C.C., Director of the Respondent Company and the Complainant of the 13th of October 2017 (copy of phone conversation enclosed herewith). This is the first notification that the Complainant got, that there was an investigatory process being contemplated as against her. It will be seen from the tenor of that conversation that Mr. C.C. was not able to give any indication to the Complainant of what she was exactly being accused of other than issues had come up and she was being suspended with full pay. He further states that he is not in a position to discuss this any further, that he is being told to stay out of it (even though he is a Director of the Company) and it seems to indicate that there is a lot more going on and other individuals involved and that the investigation has not been concluded and that they are keeping an open mind. Crucially he never gives any reason for the suspension.
The letter of suspension, which follows fails also to identify any one substantial issue, that would have justified suspension.
With that in mind and referring to their own Disciplinary Procedures in the Contract of Employment where it states: -
“infringement of a term of this contract or of established Company rules can lead, depending on the gravity of the breach, to an informal or formal warning, (counselling, verbal, written, final written), - transfer to other duties and ultimately, persistent breaches or inadequate work performance can lead, following warnings, to dismissal.”
Given that it has been admitted by a Director that he is aware of what exactly is going on and given the Company Policy, the Claimant would submit that no consideration was given to the principals as set down in the aforementioned decision of The Governor and Company of the Bank of Ireland v James Reilly. It would appear that a decision was taken unilaterally to suspend.
The Complainant would ask that question whether any alternative to suspension was ever considered, it certainly does not seem so in light of the information that was received by the Complainant following her Data Information request. The Complainant would also ask the question why the investigation could not have been concluded whilst she continued her employment in the office and if need be in other duties. This would have afforded the Respondent the opportunity of going through each individual file that the Respondent felt there was an issue with, the Complainant could have had access to that file and probably would have been able to respond in an appropriate manner.
In short, the Claimant makes the case that the Respondent had it within its power to manage a situation going forward where none of the principals as identified by the Court in the above decisions would have necessitated the Claimant being suspended with pay.
It is further noted that no where in the Claimant’s Contract or in the Company Handbook is there a Zero Policy Tolerance in respect of the allegations as made against the Complainant.
Notwithstanding same, it is the Claimants position that none of the allegations complained of either individually or together amount to gross misconduct. Gross misconduct is a very serious charge and the obligation is on the employer to meet the requirement of a gross misconduct finding. It is the Claimants submission that the Respondents case at its very height does not meet the requirement for a finding of gross misconduct.
The letter of Suspension and indeed the telephone conversation that occurred between the Claimant and Mr.C.C, Director of the respondent company , the day before the letter was received, made this abundantly clear. All correspondence between the Complainant and the Respondent contains wordings to that effect.
It is unclear then why an outside firm was engaged by the Respondents to oversee this investigation. It is also unclear whether this outside firm had any prior knowledge of any of the regulatory requirements by the Central Bank or indeed had any knowledge of the required workings of the Insurance Industry. The “independent” Investigatory Panel was made up of Ms.MC (with less than two years’ experience in the Insurance Industry) and a Ms.B.C. from I. H. R. (with no history in the Insurance Industry). These individuals were been asked to conduct a proper and fair investigation whilst the Complainant was suspended on pay.
Ms.M.C. in an email to Complainant on the 17th of October 2017, confirmed that the evidence against her had not been compiled to date. The Complainant would submit that surely there had to have been at least one particular mistake that she had made that was of such serious nature that merited her being suspended with pay.
The Plaintiff would therefore submit that it is only logical to conclude that she was suspended with pay whilst a case was being put together to justify the Respondents desire to get rid of her.
The Claimant from her Data Information request was provided with a large amount of documents from the Respondent and amongst those documents is an internal email dated the 27th of October 2017 from Ms. B. C. to Ms.M.C.. To contextualise this particular email, the Compliant would point out that she had received an email from Ms.M.C. on the 24th of October 2017 at 12.48 p.m., a further email at 16.45 p.m. of the same date, 17.55 p.m. same date, and a letter dated 27th of October 2017. In all those emails and letter, it was at pains to point out that the investigation had not been concluded, no decision had been made in respect of the investigation and certainly a decision was not made to take this matter to a Disciplinary Meeting. Yet in the aforementioned email of the 27th of October 2017, Ms. B.C.has seen fit to email her colleague to the following effect: -
“my fear with the Disciplinary Hearing being held on 10th is that time would be tight in compiling the full report and giving ample notice to the claimant of the Disciplinary Hearing. Her deadline is 3rd November to have all of the information back (next Friday).”
It is quite clear from this email that a Disciplinary Meeting was contemplated before the Investigation had ever been completed.
This is not an isolated incident, and the Claimant would submit that there is a pattern in the information that was gleaned from the Data Information request. For example, the Plaintiff by letter of the 14th of November 2017 is advised that there is a Disciplinary Hearing to be convened on Monday, the 20th of November 2017. The letter is signed by Director C.L. It is quite clear from the Data Information documents furnished that is not the author of this documentation or any ensuing documentation, he may have signed his name to the said documents but all communication from Mr.C.L. is penned by the HR Company hired by the Respondent and who were involved heavily in the Investigation Procedure.
The claimant would question where the independence of this Disciplinary Procedure was at and whether there was fairness employed.
This is repeated again at the Appeals stage, wherein Mr.PD, Director writes to the Claimant on the 13th of December 2017 and it is quite clear that all correspondence between Mr. P.D. and the Claimant are actually penned once again by the Independent HR Company.
The Claimant will say that the whole process is tainted by virtue of the fact that the HR Company at all times was not corresponding with either Mr.C.L. or Mr.P.D.directly but actually all the correspondence was going to and from Ms.MC. The individual who oversaw the investigation.
The Claimant feels therefore that she never properly got a fair crack at the whip, that her fate was written in stone the minute she received the telephone call from Mr. C.C., Director.
The Plaintiff is furnishing with this submission a Book of Correspondence, a Book of Documents, copies of the two decisions referred to in the submission, The Governor and The Company of the Bank of Ireland v James Reilly and Michael Lyons v Longford Westmeath Education and Training Board, together with a copy of the recording of the telephone conversation with M.C.C. , Director and the claimant and finally a copy of the email referred to from Ms.B.C. to Ms.M.C. dated 27th October 2017 at 12.48 p.m. In direct evidence the claimant asserted that she had a meeting prior to departing on holidays with Mr.CC and that all matters were resolved at that meeting and to rely on it at this point was unfair and unjust to her. When questioned on a notation on a file under investigation , the claimant confirmed her undated notations on the file . The claimant stated that she always endeavoured to keep her notepad up to date but accepted on this occasion she had overlooked to update the note pad – she asserted that she had recorded the issue resolved on the personal file-she had inserted that the insurance in question had an open claim on the fleet policy. The claimant set out the background to the purchase of the company from her former employers by the respondent .She stated that she had a major function in the transition given her familiarity with the customer base of her former employer and that her imput was very important. She stated that in her discussions with Mr.CC she was assured that she would be well supported in the new company and that loyalty to customers had been instrumental in her decision to work with the respondent.She asserted that she was doing the work of 3 people and came in to work early stayed late . She was put on a rota of personal lines , counter duties and commercial lines – she asserted there was a huge difference in terms of workload between personal and commercial lines which were far more complex and involved a lot more additional working time. The claimant asserted that any outstanding issues including those referred to by Mr.CC in his letter to her of the 30th.Aug. 2018 , were dealt with before her departure on holidays.The claimant denied that she had 200 unopened emails.She stated that numerous emails can build up while absent on annual leave.The claimant outlined the series of correspondence exchanged between the parties during the course of the investigation and insisted that the respondent failed to specify what she had or had not done to warrant her suspension and subsequent dismissal.She denied the accuracy of the respondent’s record of the meeting where her mother’s insurance file was discussed.The claimant said she had nothing to hide and explained the circumstances and price options open to her mother.The claimant said that the files including the paper files would assist her in answering the respondent’s queries but she was not given this information.She saw no merit in attending the second investigation meeting as she was not given evidence and the respondents record of the first investigation meeting on the 19th.October was grossly inaccurate.The claimant said that she was none the wiser with the electronic documentation eventually furnished to her in mid November as the files did not contain any of the hard copy or hand written noted files.The claimant said that the whole process was tainted from the beginning – that if she had been given the files that would have juggled her memory to clear up any discrepancies .She submitted her health and safety had been jeopardised , that she was not sleeping and that customers were aware of what was going on.The claimant said that she felt she needed legal representation because she was being unfairly treated.She said that the whole town was aware of how she had been treated ; questions were being asked ; customers were sending text messages ;she did not want to go out and had lost her confidence. The claimant said she had been attending her GP and psychotherapy.The claimant gave an account of her efforts to mitigate her loss. She was currently working in a part time capacity. She did not see a future in the insurance industry she submitted because of the reputational damage that had been done to her. Her loss was quantified at €46,000 – taking account of the income from her time providing maternity cover. Under cross examination ,the claimant set out her experience of working in the insurance industry – she said she had 12 years experience with her former employer and had built up experience on commercial and personal lines. She said she was familiar with the obligations on her employer arising from regulation by the Central Bank .The claimant detailed her involvement with her mother’s insurance file , the options that were open to her mother and ultimately the choice made by her to go to company Z. She paid the difference between her mother’s payment of €500 and the outstanding €66.70 and asserted that it had been an oversight on her part and it had slipped her mind in terms of reporting her contribution. She was questioned on why she did not record the decision by her mother to opt for company Z and indicated it was an oversight on her part and that one of her colleagues would record it. The claimant’ s representative asserted that it was impossible for the claimant to respond in full to this level of questioning when she was denied the full file.When the claimant was accused of failing to put a note on her mother’s file to confirm the policy was now complete , the claimant stated that the person who processed the payment did not do so either.The claimant stated that she gave her card to MR.CC and he should have noted recorded the transaction.She stated that Mr.CC. accepted the card , processed the payment and she apologised for same.The claimant said that she did not issue an invoice in respect of her mother’s account as she was not dealing with the file. She did not inform MR.CC of having paid the premium difference herself as it was no major issue and she didn’t deal with the file. The claimant was unable to confirm if she had put a note on the H file recording an open claim under the fleet policy – she did not recall it and it was possible that someone else had recorded this.The claimant said it was possible that the other note of the 3.08.17 had been done by her. With respect to the matter of suspension , the claimant was asked if she would have preferred to come into work and be sent home rather than get an extra week’s holidays , the claimant replied that she would not have been embarrassed and would have accepted it. The claimant stated that she did not attend the investigation meeting of the 25th.Oct. 2017 , because she felt she could not contribute and she added “ nothing prevented me from attending T.G.”When it was put to her that it would have been courteous to say she was not attending , the claimant said that she had indicated she would not be attending – she did not see any evidence the respondent was relying on.The claimant said that she had expressed her views in previous emails and saw no point in showing up.She believed she was tainted from the start and that the respondent had arrived at a conclusion without an investigation.She did not respond to the invitation to make a written submission because she did not have the material the respondent was relying on. The claimant said she would have been happier if the Compliance Officer had undertaken the investigation because he was better qualified and more impartial than Ms.MC – she did not complain about Ms.MC because of the Head Space she was in at the time. The claimant stated that she was furnished with 2 box files of redacted evidence but she was seeking and needed the full original file.The redacted files contained issues and findings. The claimant was asked if she had taken a different course – she replied that she did not accept that there could have been a different outcome .She asserted the respondent made a predetermined decision – the original files were not presented .The claimant confirmed that she did not ask to attend the office to examine the original files.The claimant felt that the respondent had a lot more information that could have been provided to her to assist in answering their queries – “the files were incomplete”.
In summing up the claimant’s representative contended that reasonableness had to be assessed in the context of gross misconduct – which was a high bar to meet.An unbiased position was imperative and it was contended that that did not happen.It was submitted that the call to the claimant on the 12th.Oct. 2017 , came totally out of the blue – the claimant had done nothing that could have resulted in this process - .The claimant felt the process was all wrong – the thread of emails demonstrated that the claimant cooperated as best she could with the process.It was submitted that the respondent’s bona fides did not stand up to scrutiny when account is taken of the correspondence from HR regarding disciplinary action in advance of the conclusion of the investigation. It was submitted that no evidence had been given by the respondent of the disciplinary process or the appeals process.It was contended that effectively the solicitor representing the respondent gave evidence and that” cant be right”.It was submitted that even on the basis of the 3-4 files presented by the respondent , a finding of gross misconduct was not justified .It was submitted that it would be very difficult for the claimant to resurrect her career in a small community and that there was authorities in Meehan to provide for actual and future loss being taken int account as well as the conduct of the employer.It was submitted that the loss to today’s date was €29,216.The claimant had spoken to Mr.CC about her workload and had reminded him of his commitment to provide the claimant with support – his response had been that we are all under pressure and “pressure is for tyres”.“ |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have reviewed the voluminous submissions of the parties , the authorities relied upon and the direct evidence presented at the hearings.
At the heart of this dispute is a contention on the part of the claimant that by being denied full access to the insurance files at issue the claimant was unfairly treated throughout the investigation and disciplinary process .It was contended that by denying her legal representation during the disciplinary process , the claimant was unfairly treated and that the respondent was in breach of the principles established by Lyons v Longford Westmeath Education and Training Board [2017]IEHC 272.The respondent for their part asserted that the claimant was afforded all of her rights under the respondent’s procedures and under natural justice , that the claimant failed to cooperate with the investigation/ disciplinary process and that the claimant’s performance deficits were of sufficient seriousness and had such adverse consequences for the company that dismissal was warranted and fair.
I note that no direct evidence was presented by the respondent’s witnesses involved in the decision to suspend the claimant , to dismiss the claimant and to reject the claimant’s appeal. The claimant’s representative repeatedly argued that the non attendance of the respondent’s witnesses – with the exception of the investigator who attended every hearing - was unfair to the claimant as she was denied an opportunity to cross examine these witnesses.I accept there is merit in this argument and in my considerations have taken into account that none of the decision makers who decided upon the disciplinary sanction and the appeal gave evidence on behalf of the respondent to challenge the claimant’s assertions that she had an excessive workload and had repeatedly complained to the managing director about same.
It is clear from Irish Rail and McKelvey (2018) IECA436 that a disciplinary process is not rendered unfair by a refusal to allow an accused employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.
Accordingly , I do not accept the claimant’s contention that her rights were breached when the respondent company denied her legal representation at the disciplinary stage.
However , I do accept the claimant’s contention that there were significant shortcomings in the respondent’s management of the investigation and disciplinary process.The respondent’s HR policies provide for an escalating disciplinary procedure -described by the respondent as a Progressive Disciplinary Process.The Scope of the policy is set out as follows:
“The provision of this policy applies to all employees .There are 2 elements to this policy the first relating to non-achievement of performance or required behaviours or deterioration in achievement of performance or required behaviours (this is called the Progressive Disciplinary Process).The second element relates to serious breaches of the respondent’s Rules and Regulations that result in Gross Misconduct”.
No evidence was advanced by the decision makers in the disciplinary process to explain 1) why the escalating procedure was set aside , to explain 2) the necessity for suspension or to explain 3) why the HR policy provisions with respect to Coaching were not invoked .The Coaching policy provides that …”Where there is an issue in relation to the performance and/or conduct of an individual Employee , the matter shall be discussed in the first instance between the Team Leader /Manager and the Employee through coaching ….Before any progressive disciplinary actions are initiated the individual will be given clear performance and behavioural requirements and will also be given feedback and coaching to improve performance and behaviours”. The procedure further provides that “…It is to be recognised from the outset that coaching and counselling is a positive process throughout and a disciplinary approach is completely unsuitable in this framework .This approach to problem resolution provides for early conclusion of the vast majority of individual work related problems and prevents escalation to the disciplinary procedure”. No explanation for management’s failure to observe their own coaching procedures was proffered.
The hearing was advised that the decision to suspend the claimant was made by the Managing Director who did not attend to give evidence.The MD proceeded to appoint his daughter to carry out the investigation into the claimant’s alleged performance deficits.In the claimant’s letter of suspension (12.10.17) , she was advised “ In the interests of fairness to you , an independent panel has been appointed to investigate these allegations after which an informed decision will be made”.Natural justice and the provisions of SI 146/2000 highlight the necessity for fairness in any disciplinary process.I find that the appointment of the MD’s daughter to undertake the investigation was ill-judged and lacking in the imperatives of transparency, objectivity and independence required of a disciplinary/ dismissal process.To further compound matters the brief of the investigator extended to making recommendations on the initiation or otherwise of disciplinary proceedings .In such circumstances one must conclude that the investigation was an intrinsic element of the disciplinary process and accordingly the claimant was entitled to seek the entire files sought – given that they were to form the basis of a recommendation to initiate disciplinary action.The respondent asserted that the entirety of the files were available for inspection at the second investigation meeting. Having considered the chronology of events , I am satisfied that the claimant was entitled to full access to the files at issue ( including all electronic and hard copy data ) in advance of the second investigation meeting.This was denied to her and was consequently unfair to the claimant.
While I acknowledge the respondent’s assertion that the claimant refused to cooperate fully with the investigation process and refused to accept any of the issues highlighted by the investigation, it is evident from the documents furnished by the respondent that the claimant did co-operate with the first investigatory meeting and that she participated in the disciplinary meeting following which she was dismissed.It is accepted that she offered no comment with respect to a significant number of files at both meetings – notwithstanding this she did offer explanations in relation to some of the files and acknowledged oversights on her own part.I further note that the series of emails submitted by the respondent support the claimant’s representative’s assertion that a decision to embark upon disciplinary action was certainly contemplated prior to the conclusion of the investigation.I find the decision to dismiss was not reasonable given all of the foregoing circumstances and I have concluded that the sanction of dismissal was disproportionately harsh.A reasonable employer would have afforded the claimant the opportunity to remedy performance deficits through the company coaching procedure.Had the coaching process been invoked and had the claimant failed to cooperate with same , it would have been open to the respondent to initiate the escalating disciplinary procedure.
I am upholding the complaint of unfair dismissal and require the respondent to pay the claimant €23,000 compensation.
Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the relevant redress provisions of the Act.
In light of my finding that the claimant was unfairly dismissed , I am upholding this complaint and require the respondent to pay the claimant 2 weeks statutory notice.
Dated: 3rd October 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea