Complainant

Respondent

Anonymised Parties

Employee

Bank

Representatives

Breiffni O'Neill

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-00027978-001

26/04/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that she was unfairly dismissed (CA- 00027978-001)

The Complainant commenced employment with the Respondent on the 13th April 2015 as a Senior

Sales Executive and is a qualified and experienced QFA.

In July 2016 a Sales Manager (SM) was appointed and prior to this appointment the Complainant submitted that she had excellent work results. The Complainant submitted she was a happy and motivated employee with a view to building her career in the company and was progressing with her qualifications and had excellent relationship with colleagues and other managers.

In or about August 2016, the Complainant was asked to work on a specific project with another colleague by the SM. However, the Complainant did not feel comfortable working on this particular project and was accused by the SM of lacking ‘emotional intelligence’. Further, in or around the same time the Complaint submitted that the SM started to exercise different HR processes against her over what she regarded as trivial matters without any attempts for the Team Leader (TL)   to resolve these matters. Accordingly, the Complainant was beginning to feel demotivated by the SM

On or about the 12th January 207, it was alleged that a colleague had made numerous complaints in relation to the Complainant’s emails without any valid reasons. The Complainant contacted her TL about feeling humiliated and seeking some support however no formal investigation of her concerns occurred.  

On or about the 10th February 2017, the Complainant applied for the role of acting team leader. This application was rejected with no opportunity for the Complainant to attend for interview and no feedback was given. The Complainant believed she had sufficient qualifications for this post and submitted that this role was ultimately awarded to individuals who supported the SM’s agenda. The Complainant perceived she had been discriminated against and further her right for dignity and respect in the work place had been infringed.

On or about the 5th of April 2017 a disciplinary procedure was initiated by the SM in relation to emails sent by the Complainant. This caused the Complainant significant stress and anxiety. The Disciplinary meeting was held on the 7th of April 2017 with the SM and the HR business partner. In the course of the disciplinary hearing, the Complainant expressed her concerns about the SM’s conduct and how his behaviour had negatively impacted on her health.

On the 12th May 2017, the Complainant made a bullying and harassment complaint against the SM. Later that day, the Complainant received the decision of the disciplinary hearing wherein she was given a verbal warning and this was to remain on her record for 12 months. The Complainant submitted that this verbal warning was not valid as it was not in compliance with the Respondents own Code of Ethics in relation to professionalism. Further, there had been no review of the Complainants own bullying complaint against the SM. The Complainant appealed this decision on the 8th June 2017.

The Complainant made a formal complaint on or about the 15th May 2017 under the victimization policy to the Policy Manager (PM) but this has never been investigated. The Complainant was informed on the 13th July 2017 that her appeal was unsuccessful and the verbal warning was to remain on her record for 12 months. The Complainant sought to be moved from the same department as the SM and exercised internal bank procedures but submitted that no response was received by the Senior Sales Manager of her department.  

On or about the 16th July 2017, the Complainant made a protective disclosure to the HR Director over alleged unethical requests and practices in her department to obtain aggressive sales targets against credit policy and enforcing treatment of all agents by the SM. On the 9th October 2017 the Protective Disclosure was   closed stating the audit did not find anything and there was no sign of wrongdoing. The Complainant submitted that the work environment improved following mediation/conciliation meetings in the WRC however, ultimately, the Complainant felt ostracised and demotivated.

On the 23rd of October 2017 the Complainant made a second   Protective Disclosure to the   CEO under the clause of breaches of internal governance procedures as per European Banking Federation Conduct Risk and Leadership Standards (effective from 23rd of Sept 2014) challenging conduct risk in team leaders and managers behaviours as required in banks/banking organizations. The Complainant was suspended from work on the 3rd November 2017 and asked to attend with the Company Doctor.

The Complainant returned to work and on the 3rd of December 2017 had a disciplinary meeting with Senior Manager (SM) in relation to her emails to her TL and not adhering to the commitments made in August 2017 although the Complainant submitted that management had not adhered to them either.

The Complainant was informed on the 3rd of January 2018 in relation to her previous bullying and harassment complaint that it had been unfounded and consequently closed. The Complainant was invited to a disciplinary meeting on the 9th of January 2018 and on the 26th January 2018 in relation to different matters.

The Complainant was informed on the 26th of January 2018 that the 2nd Protective Disclosure was not upheld and this particular matter was closed. The Complainant was then suspended from work and was informed she would be notified when she could return.

The Complainant referred a Complaint to the Workplace Relations Commission in relation to the protected disclosures on the 25th June 2018.

The Complainant attended a disciplinary meeting on the 11th July 2018 and was informed that this stage of the HR procedure could result in her dismissal. The Complainant was informed in a meeting on the 24th August 2018 with the Operations Manager and the Industrial Relations Manager that her employment had been terminated with one months notice and there was an opportunity to appeal.

The Complainant appealed her dismissal to the HR Director on the 4th September 2018 on the grounds of lack of sufficient evidence to terminate her employment along with, inter alia, no facts provided to prove allegations against her, no investigation performed and the enforcement of HR processes without any objectivity or fairness.

Ultimately, the Complainant was informed on the 24th of October 2018 by the Interim Director that her appeal had been unsuccessful and accordingly her employment was terminated.

The Complainant returned to full employment on the 1st November 2018.  

This complaint was received by the Workplace Relations Commission on the 26th April 2019.

The Respondent outlines the timeline in relation to the Complainant’s employment from the 13th April 215 until the 24th October 2019 as follows.

The Complainant was working as a Customer Sales Advisor with the Bank at the time of her

dismissal. As outlined in her contract of employment, the Complainant’s role at the time of her dismissal was deemed to be a ‘Control Function’ role under the Central Bank of Ireland Fitness and Probity requirements, introduced under the Central Bank Reform Act 2010. Employees who hold ‘Control Functions’ must abide by the Fitness and Probity Standards set out by the Central Bank.

The Respondent had cause to carry out three separate investigations in relation to the Complainants behaviour since her employment commenced in 2015.

On 10th August 2016, the Complainant was involved in a verbal altercation with another employee. The incident was subject to an investigation by the Respondent further to which the Complainant was written to on 22nd November 2016 and informed that any further conduct issues could result in disciplinary action being taken.

On the 9th February 2017, the Complainant was spoken to by the Level 2 SM who worked in the Complainant’s area, in relation to her general conduct and specifically the tone of her email

correspondence in the workplace. This message was subsequently reiterated in written correspondence on 23rd February 2017 to the Complainant and she was also reminded of the letter of 22nd November 2016 letter wherein she had been informed that further negative behaviour or conduct issues could lead to disciplinary action being taken by the Bank.

Notwithstanding this correspondence, the Respondent submitted that the Complainant’s aforementioned behaviour continued. This led to an investigation being carried out by the Bank in relation to emails sent by the Complainant to colleagues in March 2017. Following the completion of the investigation, a disciplinary hearing was convened.

The outcome of this disciplinary process was that the Complainant was issued with a verbal warning on 10th May 2017, which was subsequently appealed by the Complainant and this appeal was not upheld.

On the 12th May 2017, the Complainant made a bullying and harassment complaint against her Level 3 manager SM. A full investigation was carried out by the Bank in accordance with its Dignity and Respect policy. Following completion of the investigation, a report was issued to the Complainant on 18th December 2017. The report found that none of the allegations made by the Complainant were upheld. The investigation took from May until December 2017 due to protected disclosures being made by the Complainant under the Bank’s ‘Whistleblowing Policy’ on

16th July 2017 and 26th October 2017.These disclosures were both investigated in full and no relevant wrongdoings were found to have occurred.

On the 9th January 2018 the Bank commenced an investigation into allegations relating to her refusal to follow instruction and her lack of professionalism in the workplace. Further to the commencement of this investigation, there was a further incident in the workplace on 10th January 2018 which resulted in the Complainant’s suspension from the workplace with pay on special leave on 26th January 2018. A second and parallel investigation into these new allegations against the Complainant commenced on 7th February 2018.

Both of these investigations found the Complainant had a disciplinary case to answer and the matter proceeded to a disciplinary hearing on 11th July 2018, in line with the Bank’s Disciplinary Procedure.

The Respondent submitted that the Complainant was afforded her rights under natural justice and

associated legislation throughout the various aforementioned investigations and was further given the opportunity to be represented at the disciplinary hearing.

The outcome of this disciplinary hearing concluded that the Complainant had breached the Banks Code of Ethics, section 5.3 of the Bank's Anti-Money Laundering and Counter Terrorist Financing Procedures and the Central Bank of Ireland's Fitness and Probity Standards (Codes issued under Section 50 of the Central Bank Reform Act 2010), in particular Section 3.2(d) and Section 3.2 (e)).

The Respondent submitted that the Complainant’s actions were deemed to constitute serious misconduct and a sanction of dismissal was applied on 27th August 2018. Following the decision to dismiss, the Complainant appealed the decision through the Bank appeals process. This appeal hearing took place on 24th September 2018.

While the findings of the disciplinary hearing were not upheld in relation to a breach of section 5.3 of the Bank's Anti-Money Laundering and Counter Terrorist Financing Procedures following the appeal hearing, the decision to dismiss was upheld. This was communicated to the Complainant on 24th October 2018.

The Respondent submitted that they are satisfied that the decision to dismiss the Complainant for

serious misconduct was reasonable and not unfair. In that regard, while the Unfair Dismissals Act 1977, as amended, was enacted to provide employees with a greater sense of job security, the legislation also considers the position of an employer. According to Cox et al (‘Employment Law in Ireland’, Clarus Press 2009, [21-56]) “[…], a constant theme running through the legislation is that, subject to natural justice and fair procedure, the employer must retain the discretion and the ultimate authority to dismiss an employee for stated reasons if it is in the best interests of the business.”

The Respondent submitted, therefore, that there were substantial grounds to justify the termination of employment of the Complainant by reason of her acts which clearly constitute serious misconduct. Accordingly sections 6(1) and 6(4)(b) of the Unfair Dismissals Acts 1977-2013 are applicable. The Bank conducted two investigations, a disciplinary hearing and an appeal in conformity with its disciplinary procedure and this process afforded the Complainant fair procedures and natural justice. The Bank was entitled to form the view that, based on the available evidence, and the particular nature of her role, that, on the balance of probabilities, the Complainant had committed the acts alleged and that her actions therefore constituted serious misconduct.

In the circumstances of this matter, the Respondent determined that the Complainant’s behaviour and conduct was of a type that could not be tolerated and the explanations provided for her actions were in and of themselves concerning for the Bank. Accordingly, the termination of the Complainants employment was fair, reasonable and did not constitute a breach of the Unfair Dismissals Acts 1977-2015. Further, it is submitted that   given the actions of the Complainant and, in particular, the need for trust and confidence required of her by the Bank having regard to the nature of her duties of employment, the sanction of dismissal was fair and reasonable.

The Respondent submitted that for the avoidance of doubt, the decision to dismiss was not wholly or mainly related to the Complainant having made protected disclosures under the Bank’s ‘Whistleblowing Policy’. The decision to dismiss was entirely due to the aforementioned conduct of the employee.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties and have considered the written submissions provided.

Section 6 of the Unfair   Dismissals Act 1977 as amended (‘the Act’) provides, inter alia, as follows:

‘(1) Subject to the provisions of this section, the dismissal of an   employee shall be deemed, for the purposes of this Act, to be an unfair   dismissal unless, having regard to all the circumstances, there were   substantial grounds justifying the dismissal.’

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377aptly sets out my remit in relation to disputes regarding internal investigations as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am   satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In consideration of the above, I have found   that that the procedures adopted by the Bank, in the circumstances of this case conformed to the generally accepted standard of fairness and objectivity and that the general principles of natural justice and fair procedures were complied with.

In terms of the approach taken by the Respondent to dismiss the Complainant , I note that in AIB v Purcell ([2012] 23 E.L.R. 189) Linnane J stated as follows:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

Further, In Bank of Ireland v Reilly ([2015] IEHC 241), Noonan J, in endorsing the approach taken by Judge Linnane , provided some guidance on the test to be applied when determining the question of an employer’s reasonableness

“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”

In the particular circumstances of this case and in consideration of the detailed submissions, the oral evidence of the respective parties, the statutory requirements and definitions and the relevant case law, discussed above, I prefer the evidence of the Respondent and accordingly I find that the complaint herein fails.

I further note that in relation to the referral of the complaint regarding the   protected disclosures (ADJ-00015341), it was found that the Bank carried out a detailed investigation and had arrived at a clear outcome and the complaints were not upheld, had acted in a fair and reasonable manner and there was no case to answer.

I find that the Complaint (CA-00027978-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, fails.

Unfair Dismissal