ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00017929

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/05/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Credit Controller from the 1st October 1999. She maintained she was unfairly dismissed on the 5th October 2018. The Complainant submitted that she had been advised in September 2018 by the Respondent that an investigation was to be conducted regarding complaints against her. The Complainant was placed on leave. Difficulties arose with regards to progressing with the investigation and it was submitted that her Trade Union Representative was unavailable for a period of time. The Complainant submitted this was accepted by the investigator.

Subsequently she sought information with regards to her training records relating to data protection and other matters in order to respond to the allegations, but when she sought this information the investigator advised her that he would not give it to her until the investigation commenced.

Following these frustrations, the Complainant, through her Trade Union Representative, advised the investigator on 4th October 2018 that she was in a position to commence the investigation. However, at that stage she was informed that the investigator was not progressing with the investigation, and on 5th October 2018 she was dismissed by way of a letter from the Respondent. The Complainant maintained that she was not provided with a fair procedure and that the decision to dismiss her was disproportionate to the allegations that were made against her.

The Complainant alsosubmitted that the respondent had failed to:

• provide her with written notification of her terms and condition of employment which did not comply with section 3 of the Terms of Information (Employment) Act 1994;

• that the respondent failed to provide the Complainant with her minimum notice period on the termination of her employment in accordance with the Minimum Notice and Terms Of Employment Act, 1973; and

• that the Complainant failed to receive her appropriate payment in lieu of notice on the termination of her employment which was a breach under the Payment Of Wages Act, 1991.

Summary of Respondent’s Case:

As the complaint mainly referred to an Unfair Dismissal, and where the Complainant submitted she had been dismissed, the Respondent provided evidence regarding the termination of the Complainant’s employment.

CA-00023078-004 Response to Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent acknowledged the Complainant was dismissed on 5th October 2018. The Respondent denied that it did not provide the Complainant with a fair procedure before dismissing her for an allegation of gross misconduct.

The Respondent submitted that the Complainant had disclosed confidential and sensitive financial data relating to its clients to a third party, the Complainant’s Trade Union Representative, by email on the 31st August 2018. This confidential information was attached to an email sent by the Complainant to other staff members and where her Trade Union Representative was copied on the email. It maintained that such a breach amounted to gross misconduct and accordingly it was entitled to summarily dismiss the Complainant. The Respondent also advised that when it became aware of the breaches of sensitive data made by the Complainant it sought to place the Complainant on administrative leave to allow it to investigate the matter but that the Complainant refused to leave the premises on the 31st August 2018 when instructed to do so. The Respondent maintained that this failure to carry out a lawful instruction amounted to an act of gross misconduct.

The Respondent submitted that the information disclosed to the third party included client information regarding client payments, lodgements, cheque details and bank account details. The Respondent submitted as evidence examples of the information it alleged the Complainant had disclosed. The Respondent was not satisfied that attempts made by the Complainant to immediately withdraw these emails mitigated against the breach of confidentiality. The Respondent was satisfied that an email had been sent to and received by the Complainant’s Trade Union Representative, and that the Trade Union Representative had confirmed receipt of the data but that nobody else had seen the details.

The Respondent advised that it suspended the Complainant on full pay on the 31st August 2018 for the purposes of investigating the breaches regarding the disclosure, and the refusal of the Complainant to leave the premises.

On the 5th September 2018 the Respondent appointed an external HR consultant with a long standing relationship with the Respondent to view the alleged breaches. This consultant reviewed the emails and advised the Respondent that there had been a breach of highly sensitive information which had been released to a third party and that this matter should be investigated. The Respondent then instructed the same HR consultant to act as investigator to conduct an investigation of the allegations. The investigator attended the hearing as a witness and provided evidence.

On the 7th September 2018 a letter was sent to the Complainant advising her of potential gross misconduct and that the Respondent had appointed the external HR consultant to conduct an investigation of the matters. In this correspondence the Respondent requested the Complainant to cooperate with the procedures and advised that a failure to cooperate would lead to disciplinary action. It also advised the Complainant that she had a right to be accompanied throughout the disciplinary investigation process. No terms of reference were established for the investigation.

On 11th September 2018 the Complainant’s trade union contacted the investigator advising that a representative would not be available until the 28th September 2018. The investigator submitted that he would have engaged in a confidential off the record discussions with the Complainant’s trade union and that he was not in a position to disclose the nature of those discussions. The Investigator in his evidence outlined that such discussions would be a normal part of industrial relations and where the role as investigator could involve talks about settlement. These discussions did not resolve the matter and a number of attempts were made to engage with the Complainant to respond to the allegations.

Notwithstanding the investigator advised he was happy to defer the meeting with the Respondent until her representative had returned.

The Respondent advised that on the 28th September 2018 the investigator again attempted to set up an investigation meeting with the Complainant and her representative however on this date the Trade Union Representative demanded to be provided with copies of the organisation’s policies and relevant information. The Respondent confirmed that the information being requested by the trade union included the Respondent’s privacy policy, and details of training provided to the Complainant on data protection procedures. The investigator advised that he was not agreeable to the provision of this information prior to the commencement of the investigation. The investigator also advised that the union representative maintained that the Respondent would not be prepared to meet with the investigation until this information was provided.

The Respondent submitted that the investigator had a further “without prejudice” discussion with the Trade Union Representative on the 4th October 2018 and that the Trade Union Representative advised that the Complainant was now agreeable to participate in the process. Notwithstanding the investigator concluded at that point that due to the lack of cooperation he would discontinue the investigation and move to make his findings. The Investigator advised the Respondent’s Operations Manager on the 4th October 2018 that he could not progress with the investigation. The investigator confirmed when he reported to the Operations Manager that the investigation would not progress he did not provide a written report, and he never sent any of his conclusions on this matter to the Complainant for her comment.

The investigator maintained that due to the lack of cooperation with the Complainant there was “no life” left in the investigation, and it was on that basis he decided the investigation process was over. The Investigator concluded that the Complainant had disclosed confidential data about one of the respondent’s clients, and also concluded that the alleged refusal of the Complainant to leave the premises on the 31st August 2018 had occurred. As a consequence, the investigator recommended that the Complainant be dismissed for gross misconduct.

The Investigator provided the information to the Managing Director and a decision was made on the 4th October 2018 to terminate the Complainants employment. The investigator advised he was not aware of any subsequent disciplinary hearing or further investigation of the matter.

At the hearing, in his evidence the Operations Manager advised he was not aware of the Complainant’s Trade Union Representative advising the investigator on the 4th October 2018 that the Complainant was willing to participate in the investigation. The Operations Manager maintained at that point he had understood the investigator had been seeking for over a month to engage with the Complainant who was on paid suspension but that she had failed to engage in the process. He further advised that there were genuine reasons for gross misconduct in that the Complainant had released confidential financial information about one of their clients to her Trade Union Representative, and when she was spoken to on that day she was not in the position to confirm that such an issue would not reoccur. He also advised that the Complainant had been asked to leave the premises to enable the Respondent investigate the matter, but that the Complainant had refused to leave and had gone back to her workplace and spoken to other colleagues. This, he contended, was failure to follow a lawful instruction.

The Managing Director indicated the challenge for the company was that on the day that the alleged breaches of confidentiality occurred that the Complainant, having acknowledge it happened, was not in the position to confirm the breach would not continue. He further advised that attempts by the investigator to engage with the Complainants representatives had broken down and he decided to terminate her employment as a consequence of her lack of cooperation with the process. He advised that the investigation process was very slow and where a number of attempts had been made to engage with the Complainant. The Managing Director was satisfied the process had to be abandoned due to the lack of cooperation for the Complainant. On the 5th October 2018 the Respondent advised that it issued a letter of dismissal to the Complainant. He advised the decision to dismiss the Complainant was due to a culmination of her lack of cooperation with the Respondent, that the Complainant had been subject to a previous disciplinary matter for which she had received a warning in April 2018, and did not appeal that warning until July 2018. The Complainant was also advised of her right to appeal the decision to dismiss her.

The Managing Director submitted that he was not initially aware of an email from the Complainant’s Trade Union Representative on 4th October 2018 advising that the Complainant was in a position to cooperate with the investigation but acknowledged when his letter to dismiss the Complainant was issued on 05th October 2018 this information had been brought to his attention. The Managing Director advised that he had made the decision to dismiss the Complainant before he became aware of the email.

The Respondent advised that the decision to dismiss the Complainant took place without a disciplinary hearing. The Respondent maintained the Complainant had a right to appeal and this appeal was made. The appeal was considered by the owner director.

The owner director provided evidence at the hearing with regards to the conduct of the appeal. The owner director advised that he was provided with evidence from the Managing Director and from the investigator, and he would have conducted a paper review of the documentation and came to his conclusion not to uphold the appeal. He believed the decision to dismiss the Complainant was fair in light of the severity of what the Complainant had done by sending confidential client information to her trade union. He advised at the time this occurred the Complainant did not deny it had happened and he could find no reason for this occurring.  As part of the appealthe Owner Director advised he would have received a verbal briefing from the investigator where the matter was discussed but there was no notes of the meeting and nor were any of these discussions disclosed with the Complainant as part of the appeal process.

In deeming the dismissal to be fair the Respondent advised that when the Complainant had been asked would she continue exchanging confidential information through emails that she was not in a position to acknowledge that it would not happen again and therefore it drew the conclusion that her attitude was uncooperative. It further stated that as the Complainant had been on full pay for one month to allow the investigation take place and as there had been no engagement with the Complainant to cooperate in progressing the investigation it decided at that point to dismiss the Complainant. It advised that when making this decision it was relying on Appendix 1 of the employee handbook which referred to gross misconduct as being insubordination or wilful disregard to carrying out any superiors reasonable request including failure to carry out a reasonable instruction, under protest if necessary; and the disclosure of confidential company information to unauthorised third party. The Respondent submitted that the Complainant had been aware of the staff handbook as it was drafted in 2016 and she would have been working in the office with the HR manager who had drafted the policy at that time.

The Respondent advised that the Complainant had been provided with a copy of her terms and conditions of employment and these were signed on the 20th November 2007. The contract of employment clearly set out the disciplinary procedures and appeal process. It also clearly set out a confidentiality cause and would have indicated breaches of confidentiality and the behaviour of the Complainant amounts to gross misconduct, and were grave breaches of her contract of employment.

The Respondent submitted that the events which occurred were fundamental breaches of confidence between the employee and the Respondent and the accounts of gross misconduct had irretrievably damaged the trust in the employment relationship.

It further advised that the Complainant had been represented, and over a period of five weeks had been given every opportunity to apologies or to explain what had happened and was given the opportunity to engage in fair procedures but she did not cooperate with those procedures. The Respondent maintained that it takes its responsibility very seriously dealing with its employees and providing them with fair procedures. It contended that the fact of the matter was the Complainant did not cooperate in a manner that an employee is expected to do, and did not behave in a reasonable manner towards the Respondent. The Respondent argued the Complainant held an important role as a credit controller where confidentiality was key, and where there were serious breaches in that confidentiality. The Respondent maintained that no other employee had behaved in a manner as serious as the Complainant. The Respondent advised that its business relies on its relationships with its clients, and the Complainant put that relationship seriously at risk.

The Managing Director in his evidence outlined that it was a family owned business that employees 170 people. They would have a history of dealing with HR issues in house and informally, and where all matters would be resolved. He explained that there were two or three similar issues with staff where warnings had been issued and staff would acknowled they had made mistakes. In one case when a member of staff had apologised the warning had been removed from that employees file. The Managing Director therefore indicated that this would demonstrate they have a fair approach for dealing with employees under such matters.

Legal Submission

In making it’s decision to dismiss the Complainant the Respondent referred to jurisprudence as set out in Jean-Guy Twagirayezu v Rational FT Services (Ireland) Ltd UD1268/2014 where it was decided that an employee must cooperate with procedures that are in place; and in O’Mahony v PJF Insurance [2012]ELR 86 that where a party had acted contrary to company procedures where a very serious situation occurs an employee would be expected not to continue with this. However in the case within the Respondent argued that the Complainant could not confirm she would not continue with the breaches of sharing confidential client data with a third party (her Union Representative). The Respondent further stated that it would be unreasonable to draw the conclusion that the HR consultant moved from one process of his initial enquiry into another process of investigation. It stated that it was one process to investigate matters on the whole where the HR consultant as an investigator attempted to engage with the Complainant and her union, but this did not happen. It was reasonable therefore to dismiss the Complainant based on her non-compliance and as such the dismissal would not be unfair.

The Respondent also referred to a Nurse v Hospital ADJ 00008279 where a nurse had disclosed a list of patients by losing her journal list and by that it was deemed to be breach of this confidential information that warranted a fair dismissal. It also referred to the case of Frizell v New Ross Credit Union Ltd [1997] IEHC137 where data disclosed by an employee had resulted in a fair dismissal.

It therefore submitted that the decision to dismiss the Complainant was both fair in the process it offered to the Complainant, and in light of the serious breaches that occurred by the Complainant.

CA-00023078-001 Response to Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent maintained that the Complainant had been issued with her terms of condition of employment in November 2007 and where she would have signed receipt of the contact at that time. It further maintained that the Act stated that any conditions set out prior to 1994 did not have to be complied with post 1994.

Therefore, it denied it had breached the provisions of the Act with regards to providing the Complainant with information on her terms and condition of employment.

With regards to the Terms and Conditions of Employment, the Respondent submitted that the Complainant had never requested for a “better contract” having received her contract on the 20th November 2007.

CA-00023078-002 Response to Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                                                            

As the Respondent maintained the Complainant was dismissed following an investigation into allegations of gross misconduct, it was submitted the Complainant was dismissed with immediate effect following the investigation in accordance with her conditions of employment. As such the Respondent contended there was not breach of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant maintained that in accordance with section 8 of the Act, nothing in the Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct of the other party.

CA-00023078-003 Response to Complaint under section 6 of the Payment of Wages Act, 1991   

As the Respondent maintained the Complainant was dismissed following an investigation into allegations of gross misconduct, it was submitted the Complainant was dismissed with immediate effect following the investigation in accordance with her conditions of employment. As such the Respondent contended there was not breach of the Payment of Wages Act, 1991.

The Respondent also submitted that in 2013 the Complainant had been provided with a loan of €2,300 with an agreement that this would be paid back when her employment with the Respondent ended. The Respondent therefore deducted €616 from the Complainant upon termination of her employment, and contended a further €1,684 was still outstanding.

Summary of Complainant’s Case:

CA-00023078-004 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that the investigator had completed an investigation of the matters before being appointed to investigate the issues and where the investigator had communicated directly with the Respondent with regards to his initial findings recommending a disciplinary investigation. The investigator was subsequently appointed to complete the investigation. On that basis the Complainant submitted the process was flawed and in effect was a window dressing exercise. The Complainant submitted the investigator was not independent of the process in light of his earlier review of matters, and with regard to how he engaged with the Respondent during the course of the investigation and the decision to dismiss the Complainant. The Complainant further submitted that the investigator had made a decision to dismiss her but had not set out what was found during the investigation.

The Complainant also submitted that the Operations Director was aware that the Complainant had committed to participate in the process on the 4th October 2018 yet he issued a letter of dismissal on 5th October 2018.

The Complainant submitted that the termination of her employment occurred without a disciplinary hearing, without being told that her job was at risk, without being provided with all the relevant information that had been gleaned in the course of the investigation, and without any disciplinary procedures following the investigation phase. The Complainant also submitted that she had not been treated in a similar fashion to other employees where the Respondent had submitted at the hearing that when other very serious issues had occurred, and employees had apologised, that these issues were struck off the record.

The Complainant submitted that she was called into a meeting, was never given an opportunity as the other employees to apologise or retract what had happened and instead the Managing Director decided to terminate her position in a manner which was a complete diversion of its own procedures. It was argued that the Respondent had ignored the law of unfair dismissal, and whilst that in itself was a serious matter, it was more serious that it did not even adhere to its own procedures. Whilst stating that ignorance of the law is no defence the Complainant further asserted that the fact that the Respondent ignored its own procedures was particularly noticeable and unfair to the Complainant. On that basis the Complainant submitted that the Respondent was determined it was not going to follow procedures and had dismissed the Complainant without any due process.

The Complainant also submitted that the appeal hearing process was flawed where initially it was suggested that the appeal process was dealt with by the Owner Director through a review of documentation, but further evidence indicated that discussions would have taken place between the owner/director and the investigator, and at no stage did the owner director speak with the Complainant. The Complainant contended that the records indicated that the Complainant raised her appeal she had been written back to by the Respondent advising her that she needed to detail the basis of her appeal. The Complainant maintained she advised that the basis of her appeal was that the process was unfair. The Complainant therefore argued that she was never heard with regards to what she deemed as being an unfair process, and therefore the appeal process was unfair and flawed.

Legal Submission

With regards to being treated differently to others, the Complainant submitted jurisprudence with the Bank of Ireland VS Riley Case where the principle was set that Riley had been treated differently to his colleagues who were doing something similar to Riley and therefore he was reinstated due to this unfair treatment with regards to the disciplinary procedures taken against Riley. The Complainant submitted that her situation was similar in that other employees had been given the opportunity to apologise and that their disciplinary record had been removed, whereas in her case she was not given such an opportunity. Similarly, the Respondent submitted that the documentation provided to the hearing contained the exact financial information regarding the Respondent’s clients without any redaction with regards to such information. It argued that it would have been reasonable in submitting the documentation to the WRC that proper redaction of financial information should have been made. However, the Respondent had failed to do that but yet it was prepared to dismiss the Complainant for doing something similar when forwarding information to her Trade Union Representative.

On that basis the Complainant submitted that there was extremely serious breach of fair procedures. In light of what the Complainant had experienced she was seeking to be reinstated. The Complainant submitter that her gross pay was €600 per week. She advised she had been out of work for a period of time where she spent 8 weeks seeking work. She then was appointed in a temporary role for thirteen weeks where her earnings over that period of time were €5,000. She was a further five weeks out of work, and she was appointed to a new role on the 20th May 2019 with the same number of hours and where her gross pay was €350 per week amounting to a loss of €250 per week.

CA-00023078-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that she had not been provided with a written statement of her terns of employment, in accordance with Section 3 of the Act.

CA-00023078-002 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973           

The Complainant submitted that she did not receive her payment in lieu of notice.

CA-00023078-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant submitted that she did not receive her payment in lieu of notice.

Findings and Conclusions:

CA-00023078-004 Findings to Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Having considered the evidence provided I am satisfied that a breach of serious concern occurred where the Complainant has admitted that confidential documentation was forwarded to her Trade Union Representative. Following this incident, the Respondent attempted to address the matter which at which stage the Complainant was suspended on pay to enable an investigation to be concluded. I am satisfied that the Respondent was entitled to conduct such an investigation under its procedures. The respondent also maintained that it had concerns with the Complainant’s response to the breaches.

The evidence presented indicates that the Respondent appointed a trusted HR consultant to conduct a review of matters and to report his observations to the Respondent. The evidence suggests that the HR consultant conducted an initial review and he came to a conclusion that there were serious breaches of confidentiality and a failure of the Complainant to follow a lawful instruction with regards to her leaving the premises on the day in question. Having drawn this conclusion, the HR consultant was subsequently appointed to conduct an investigation of matters.

Having reviewed the evidence it is noted that the HR consultant acknowledged that there was no terms of reference for the investigation. However, I am satisfied the evidence supports that the Complainant received a letter from the Respondent indicating that an investigation of the alleged events was to take place, and where in this letter the process to be engaged by the consultant was clearly identified. Whilst there may be concerns with regards to the HR consultant moving from an initial review of matters where he drew conclusions that there were breaches and then moved to investigate his own work in this matter. It is noted that the investigator acted to seek a settlement of the issue between the Complainant and the Respondent, but this did not resolve matters. The investigator indicated that this was normal in his practice and experience, however it does raise concerns regarding his impartiality. Whilst a prudent employer would clearly separate the intial steps form an investigation, I am conscious that the Complainant, who was represented by her trade union, did not appear to object to the investigators ongoing involvement with the investigation at that point in time.

The evidence supports that the investigator experienced difficulties in progressing with the investigation due to what he believed was the non-cooperation of the Complainant. I am satisfied that some delays did occur with regards to the availability of the Complainant’s chosen Trade Union Representative and where time was facilitated to the Complainant for her representative to be available. I further note when a representative did become available some procedural issues arose between the Complainant and the investigator and where through her Trade Union Representative

she sought documentation which she believed was relevant to her response to matters. The investigator refused to provide this information and subsequently drew the conclusion that the Complainant was not willing to cooperate with the investigation. Be that as it may, it is clear that despite not being provided with this information the Complainant subsequently agreed on the 4th October 2018 to participate and meet with the investigator. Remarkably on the same day the Investigator advised the Operations Director of the situation, and the Operations Director instructed the investigator to terminate the investigation process. The investigator in his evidence submitted that he felt at this time there was no life left in the investigation.

Having considered this matter I find it reasonable that where the Complainant was suspended and did not have access to company records that she would seek these through her representative to enable her to respond to the investigation. Under these circumstances I also find it reasonable that these documents be provided to her. Indeed, in this case the investigator had agreed with her Trade Union Representative to adjourn the process for some weeks. It is therefore not clear as to why the investigator decided the information was not to be provided to the Complainant before the investigation progressed, and why he also took the instruction from the Respondent to close the investigation process.

It is remarkable that in light of the long standing employment of the Complainant and the fact that she acknowledged her willingness to participate in the Investigation on 4th October 2018 that the following day the Respondent would have written to her dismissing her due to her lack of cooperation, and at a time the Respondent became aware that the Complainant had agreed to participate in the process.

I am therefore satisfied that the decision to dismiss the Complainant occurred without a proper investigation of matters, and where the Respondent failed clearly warn the Complainant that should she not cooperate with the investigation her position was at risk. Whilst it may be reasonable to conclude that non-cooperation may result in an investigation coming to its own conclusions, it seems remarkable that such conclusions were drawn without any investigation or report being produced. Such actions were contrary to the investigation procedures that were laid out to the Complainant by way of a letter to her when the investigator commenced the process. I am therefore satisfied that the Complainant chose to disregard it’s own procedures and moved to dismiss the Complainant a day after she had advised the investigator she was in a position to cooperate.

The Complainant then appealed this decision to dismiss her. Based on the evidence provided an appeal was conducted by the Owner Director. Initially the Owner Director’s evidence indicated that it was a paper review, however from cross examination at the hearing within he acknowledged that he met with and received a briefing form the investigator. It is difficult to reconcile how this information would not have influenced the Owner Director, yet he failed to present this information to the Complainant, or to provide the Complainant with the opportunity to be heard before drawing his decision. I find this process astonishing particularly in circumstances where the Complainant clearly indicated in her appeal that she felt the process of the investigation was unfair.

In light of the sudden shut down of the investigation at a time the Complainant had indicated she was available and willing to participate, and the one sided approach taken to the handling of the Complainants appeal, I conclude the investigation and appeal process were tainted with bias against the Complainant, and were flawed to a point of deeming the entire process to be unfair.

CA-00023078-001 Findings to Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Based on the evidence provided I am satisfied that the Respondent had in fact met its obligations under section 3 of the Act in that it provided a detailed terms and conditions of employment to the Complainant on 20th November 2007.

CA-00023078-002 Findings to Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 4 (e) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service of his employer for fifteen years or more, eight weeks.

I therefore find that as the Complainant was unfairly dismissed she did not receive her statutory notice period and accordingly find that the Respondent is in contravention of Section 4 of the Act.

CA-00023078-003 Findings to Complaint under section 6 of the Payment of Wages Act, 1991     

This matter has been dealt with underCA-00023078-002.

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.

CA-00023078-001 Response to Complaint under section 7 of the Terms of Employment (Information) Act, 1994

In accordance with Section 7 of the Act I find that the complaint is not well founded and therefore falls.

CA-00023078-002 Decision to Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                                                                     

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act. As I have found the Respondent is in Contravention of the Act and I direct that the Respondent pay to the employee compensation of eight weeks’ pay, which represents her statutory notice, and amounts to €4,800.

CA-00023078-003 Decision to Complaint under section 6 of the Payment of Wages Act, 1991     

This matter has been dealt with underCA-00023078-002.

CA-00023078-004 Decision to Complaint under Section 8 of the Unfair Dismissals Act, 1977

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.

In accordance with the Act I also have to consider both the actions and or omissions of the employer with regards to adhering to the policies and procedures in addition to any act or omission on behalf of the employee with regards to the decision to dismiss.

In deciding on this matter, I am conscious of the serious allegations that were made against the Complainant, and particularly that she acknowledged she would have disclosed confidential information relating to client finances to her Trade Union Representative. It would be reasonable to conclude that a financial controller should be aware of her data protection responsibilities with regards to protecting client’s financial information. The sharing of this information to the Trade Union Representative was a serious breach which in accordance with the Respondent’s procedures could be deemed as gross misconduct and lead to a dismissal. Evidence provided to the hearing also supported that the Complainant had been issued with a warning some four months prior to the breach, and that this warning related to a serious matter.

Under these circumstances I am satisfied that the Complainant has contributed to her dismissal in light of the serious breaches that occurred.

However, I also find the flaws within the process were obvious and fundamental. It is clear that employers are obliged to comply with fair procedures in addition to adhering to their own agreed procedures with regards to decisions relating to dismissal and termination of employment. Decisions to dismiss an employee are the most significant disciplinary sanction that can be imposed on an employee and therefore require a fairness of application. In this case the Complainant received a letter outlining the process to be followed by the Respondent and was facilitated with time to cater for the availability of her Trade Union Representative, but she was not provided with the information she had sought from the Respondent to allow her to prepare her defence. Then on the day she agreed to participate without this information the investigator closed the investigation process. In addition, the Respondent dismissed the Complainant the following day on the basis of the Complainant’s lack of cooperation and due to the seriousness of the allegations. Significantly this dismissal occurred where there was no notification given to the Complainant up to that point that her alleged non-cooperation would potentially lead to her dismissal. Based on the evidence provided it is apparent the Investigator met with the Respondent and a decision was made to close the investigation and dismiss the Complainant. This raises questions regarding the impartiality of the investigator who on the same day was also aware that the Complainant was willing to participate in the process.

Furthermore, when the Complainant appealed the decision the owner director who handled the appeal initially indicated the appeal took place without a hearing. However, the evidence corroborates that the owner director as part of the appeal process spoke with the investigator, did not share this evidence with the Complainant, and did not afford the Complainant with an opportunity to orally present her concerns. On that basis the appeal process was unfairly conducted  

I therefore decide that due to the acts and omissions of the respondent in its management of the investigation, the decision to dismiss the Complainant before properly conducting its investigation, and in its handling of the appeal, it did not afford the Complainant with a fair process. However, the Complainant contributed in to her own dismissal. In light of the transgressions by the Respondent I decide the appropriate compensation payable to the Complainant is €15,000 and this award takes into consideration the Complainant’s own actions to dismiss her. As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way.

Dated:   16th January 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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