ADJ-00024770

Complainant

Respondent

Anonymised Parties

An Accountant

A University

Representatives

Self

Tom Mallon BL instructed by Kevin Langford; Arthur Cox Solicitors.

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-00031357-001

03/10/2019

The Complainant was employed by the Respondent from 23rd July 2018 until 20th September 2019. The Complainant was employed as a Group Financial Controller. This complaint was received by the Workplace Relations Commission on 3rd October 2019.

The Complainant commenced employment with the Respondent as Group Financial Controller on 23rd July 2018. Clause 1.2 of the Complainant’s contract of employment state as follows: "Your employment is subject to a 12 month probationary period during which your performance and suitability for continued employment will be reviewed by the Respondent. The Respondent reserves the right to terminate your employment during or at the end of the probationary period on four weeks’ notice”. Following three probationary assessments required to be conducted as part of the Respondent’s Probationary Assessment process, the Respondent terminated the Complainant’s employment by letter dated 26th August 2019.   In that letter, the Respondent informed the Complainant that he had not satisfactorily completed his probationary period and that as a result, his employment with the Respondent would end on 20th September 2019. On 3rd October 2019, the Complainant submitted a Workplace Relations Complaint Form to the Workplace Relations Commission in which he claimed that he had been unfairly dismissed by the Respondent contrary to the Unfair Dismissals Act 1977-2015.

BACKGROUND AND CHRONOLOGY

Probation Assessments:

The Respondent’s Probationary Assessment Form stipulates that three probationary assessments be completed during an employee’s probationary period. The Probationary Assessment Form provides for probationary assessments to take place at three month intervals, i.e. in the case of the Complainant, in October 2018, January 2019 and April 2019 respectively. The Respondent’s Statute No. 5 of 2010 (Suspension and Dismissal of Employees). Section 6.8 of Statute No 5 states that the failure by an employee to successfully complete his or her probationary period may lead to the termination of his or her employment. Due to work demands faced by the Complainant’s line manager, the Deputy Director of Finance and his line manager, the Director of Finance, the Complainant’s first probationary assessment did not take place until 10th January 2019. However, there was significant engagement with the Complainant in the period between the commencement of his employment and the first probationary assessment. By way of illustration on 24th July 2018, shortly after the commencement of the Complainant’s employment, the Deputy Director of Finance emailed him copies of the previous year’s subsidiary group company accounts, as circulated to the Group’s Board of Directors. The preparation of the subsidiary group company accounts, and the consolidated group budget paper, were key components of the Complainant’s role. Subsequently, the Deputy Director of Finance gave a verbal instruction to the Complainant to circulate the draft Commercial Group budget paper to the Deputy Director of Finance, by 5th October 2018 in good time for the Group Board of Directors scheduled meeting on 19th October 2018. Despite several verbal reminders and requests, the Complainant did not circulate the draft budget paper by the agreed date. On 9th October 2018, the Deputy Director of Finance emailed the Complainant to request that it be circulated by him by close of business 11th October 2018. At 7.00 pm on 11th October 2018 the Complainant responded to the Deputy Director of Finance email, advising him that he “still [had] a few hours work to do” on the draft budget paper. The Complainant finally circulated the draft budget paper to the Deputy Director of Finance on 15th October 2018, following an additional written request from the Deputy Director of Finance. On 19th October 2018 the Deputy Director of Finance emailed the Complainant requesting him to address a number of issues with the preparation of the draft budget paper.   For reasons unconnected with the preparation of the draft budget paper the Board of Directors meeting was rescheduled to 26th October 2018.   Had it not been rescheduled the budget paper would not have been finalised in time for the meeting. On 18th December 2018 the Deputy Director of Finance emailed the Complainant to emphasise that the standard of the draft budget paper prepared by the Complainant in October 2018 was not to the standard required, and not in a format suitable for internal senior review prior to circulation to the Board of Directors. A number of documents were attachments were included with that email so that the Complainant might better understand what was required of him.

First Probationary Assessment:

The first probationary assessment took place on 10th January 2019 and was conducted by the Deputy Director of Finance. As is evident from the first probationary assessment, while certain of the Complainant’s duties were being performed in line with expectations, or “…mostly…” in line with expectations, other areas were identified in respect of which the assessor noted “further improvement required” and “objective not met”.   On page 3 of the assessment form, the assessor commented that the Complainant had “…. Potential for development in the role, subject to identified improvements being fulfilled”. The assessment form also discloses that “guidance on objectives for the period Jan-March 2019 has been provided”. This guidance was provided at a meeting attended by the Deputy Director of Finance and the Complainant before the Complainant’s first probationary meeting on 10th January 2019. At the meeting the Deputy Director of Finance went through the annual financial statement reporting requirements and emphasised to the Complainant that he needed to manage and co-ordinate the team to ensure accounts were produced in line with the reporting deadlines, and to an appropriate standard.   It was agreed that if the Complainant had any queries or questions, he would ask for assistance. It was also pointed out to the Complainant that the team had reported to him had a range of years of experience, and that the Complainant could, and indeed should, draw on that experience.

Second Probationary Assessment:

The second probationary assessment took place on 4th June 2019 and was again conducted by the Deputy Director of Finance.

At the second probationary assessment, the Deputy Director of Finance noted that there were “… fundamental and multiple issues with the draft financial statements produced and reviewed” by the Complainant. By way of illustration, the Deputy Director of Finance noted that current assets and current liabilities were incorrectly stated by approximately €25 million. In addition, State Capital Grants receivable were reported as approximately €21.3 million in the 2017 financial year but were reported to be nil in the 2018 financial year – despite the Cash Flow Statement and Deferred Capital Grants reporting a movement of only approximately €3 million. The Deputy Director of Finance further noted that it did not appear that the Complainant had undertaken an appropriate analytical review of the draft financial statements, which is standard procedure in the preparation of such statements. The Complainant accepted a number of errors made by him in the preparation of the draft financial statements. The Deputy Director of Finance noted that, if the financial statements had been circulated to the Respondent’s Audit Committee as prepared by the Complainant, the significant errors contained therein would have caused major reputational damage to the Respondent’s Finance Office. The Complainant’s responsibility for the managing the closeout of the Respondent’s commercial subsidiary companies’ consolidated accounts was also raised during the second probationary assessment. JK, Deputy Director of Finance noted that “…. The understanding of the underlying business dynamics which are represented in the numbers presented in the accounts did not seem to be understood by [the Complainant].” The Complainant confirmed at the second probationary assessment that the additional support put in place by the Respondent for the Complainant following the first probationary assessment – the temporary allocation of additional resource for a period of approximately three months from January 2019 – had been beneficial. During the second probationary assessment, the Deputy Director of Finance, noted that the Respondent was required by the Department of Public Expenditure and Reform, and the Higher Education Authority, to analyse external consulting and professional fee costs incurred during the relevant financial year. The Deputy Director of Finance noted in this regard that the analysis produced by the Complainant was unclear and was not presented in a suitable format for the preparation of disclosures required to be presented to the Respondent’s Audit Committee. As a result, another member of the Finance Team was asked to complete the analysis. While it was noted at the second probationary assessment that certain elements of the Complainant’s role had been performed by him “…. in line with expectations” it was also noted that “there are fundamental aspects of the duties and responsibilities of the role that have now not been met in either the first or second probationary period assessments”.   Further the Deputy Director of Finance noted that “… overall, a considerable further improvement is required” and that “the probationary assessments have highlighted significant weaknesses in the performance of the Group Financial Controller and have raised serious questions as to the Group Financial Controller’s ability to meet the requirements of the role as set out in the job description.  It is important to note that failure to improve work performance in line with management expectations may lead to you failing your final probationary assessment”. Following the second probationary assessment on 4th June 2019, a support meeting took place on 5th June 2019, attended by the Complainant, the Deputy Director of Finance, Assistant Financial Controller. At this meeting, the Deputy Director of Finance reiterated the basic quality standards required to ensure the accuracy of financial information prepared by the Complainant. Once again, the duties and responsibilities of the role of Group Financial Controller were explained to the Complainant and he was afforded the opportunity to ask questions. A further meeting between the Complainant, the Deputy Director of Finance and Assistant Financial Controller took place on 10th June 2019. The meeting took place in the context of statutory auditor, the Comptroller and Auditor General.   At the outset of the meeting, the Complainant presented revised financial accounts to the Deputy Director of Finance. During the meeting the Deputy Director of Finance reviewed the revised accounts with the Complainant and the following examples of errors were identified by him:

·         The treatment of interest payable was incorrect in the cash flow statement.   This had been identified in previous meetings, included at the second probationary assessment meeting.

·         Capital repayments were incorrectly reported in the cash flow statement, to the extent of c. €600,000.

·         Intercompany interest income was incorrectly reported, understating the Respondent’s profit for 2018 by over €420,000.

·         Debt issuance costs on the cash flow statement were overstated by €95,000.

·         The adjustment figures for tax disclosure notes were different, where they should have been consistent across the notes. In addition, the tax charge reported for subsidiary companies was significantly out of step with the actual tax charge in the Respondent’s Commercial Consolidated Accounts for 2017 – 2018.

 ·         The movement on debtors in the cash flow statement was inaccurate to the extent of €3.6 million.

·         There were no “taxation creditors” or “student fees in advance” notes in the disclosure lines in the Respondent’s current liabilities even though such disclosures were required in the Office of the Comptroller and Auditor General certified 2016-2017 accounts and would have been required for the XXXX audited accounts for 2017 – 2018 to ensure appropriate accounting alignment between the Respondent’s statutory and external auditors.

·         The amount stated to have been paid by the Respondent in income tax in the cash flow statement was incorrect by c. €520,000.

At a further meeting on 11th June 2019 attended by the Complainant and the Director of Finance, a briefing document previously circulated by the Complainant regarding the trading performance of the entities in the Respondent’s commercial group of companies was discussed. The Complainant was unable to answer a number of high-level questions in relation to the analysis produced by him and demonstrated a poor understanding of the underlying positions of the group. For example:

a) the lease cost relating to one entity’s lease of premises belonging to another entity was accrued in the lessee’s accounts, but the corresponding income was not recorded in the lessor entity’s accounts.

b) The commentary prepared by the Complainant in relation to one of the Group entities was inconsistent with the management accounts file on the shared drive, e.g. The Complainant stated that operating expenses were higher than what was budgeted for, due to higher student accommodation costs. However, the reality as reflected in the management accounts file, showed that host family costs and student accommodation costs were in fact favourable against what was budgeted for. The Complainant was not able to explain any of these issues at the meeting. The Director of Finance asked the Complainant if he had reviewed the management accounts, the Complainant confirmed that he had. The Deputy Director of Finance noted in this regard that the Complainant had prepared a number of trading updates in the 11 month period between the commencement of his employment and June 2019, and that a range of issues had been experienced in relation to substantially all of the updates.   Moreover, he concluded that the attention to detail, and the Complainant’s command of the underlying drivers of financial performance in producing trading updates, were inadequate. Following this meeting, the Director of Finance wrote to the Deputy Director of Finance on 15th June 2019 formally outlining his concerns with the quality of the Complainant’s work. In that correspondence, the Director of Finance notes that: “The Complainant’s performance has again fallen well short of what could reasonably be expected of someone in his position. He demonstrates an inability to have an appropriate understanding of the performance of the companies and his attention to detail is inadequate.   This demonstrates once more that the Complainant’s work cannot be relied upon which means it has to be carefully reviewed which is not acceptable”.

Third Probationary Assessment:

The third probationary assessment took place at 12.00 pm on 12th July 2019 and was conducted by the Deputy Director of Finance.   The Deputy Director of Finance noted in the third probationary assessment that: “Initiative and adaptability have not been sufficiently demonstrated. This is evidenced for example by the quality of financial analysis and financial information produced by [the Complainant].   Standard analytical review checks and attention to detail have not been appropriately applied to the financial reporting cycle by [the Complainant] …

…Fundamental aspects of the duties and responsibilities of the role have been consistently not met in the three probationary period assessments”.

The Deputy Director of Finance further noted:

“Notwithstanding the supports put in place, including the meeting of 5th June 2019 [the Respondent] consolidated accounts for 2017-2018 as represented for the meeting on 10th June 2019 still contained fundamental errors and unexplained trends. The performance in the probationary period, and cumulatively across all probationary assessments, has not been in accordance with the responsibilities described in the job description and not in accordance with the contract of employment”. The Deputy Director of Finance commented in the probationary assessment form that “warnings of inadequacies have been provided in each of the probationary meetings, and in other meetings with [the Complainant]”. During the third probationary assessment meeting the Complainant was asked whether he had undertaken the analytical review and checks which are standard in the production of financial information, and which were re-emphasised to him by the Deputy Director of Finance on several occasions, including at the support meeting on 5th June 2019. The Complainant did not respond to the question asked. At “Section E Overall Assessment of the third probationary assessment form the assessor concluded as follows: “I have concluded that [the Complainant] has failed his probation. I am recommending that the Respondent accept this conclusion.  The financial analysis and information presented by [the Complainant] throughout the period of employment has contained errors, unexplained trends not had standard routine checks and controls applied to its production and has as a result been unreliable and incorrect in most instances. Notwithstanding supports in place and probationary assessments, the performance of [the Complainant] has not been able to meet the requirements as described in the job description”.

Concerns raised by the Complainant

On 12th July 2019 at 3.58pm the Complainant submitted a complaint by email to the Respondent’s Human Resources Department. The Complainant’s complaint was not made via the appropriate channel which resulted in an acknowledgement issued by the Respondent being delayed. The Respondent acknowledged the Complainant’s email by letter dated 24th July 2019. On 15th July 2019 the Complainant emailed the Respondent’s Director of Human Resources to raise concerns under the Respondent’s Protected Disclosure Policy. The Director of Human Resources acknowledged this email by letter dated 17th July 2019. The Complainant raised further concerns by email to the Director of Human Resources on 19th July 2019. The concerns raised by the Complainant are currently the subject of an investigation being conducted by XXXXXXXX in its capacity as independent investigator appointed by the Respondent under the Respondent’s Protected Disclosure Policy.

Process for the termination of the employment of Probationers

The process by which a probationary employee’s employment may be terminated by the Respondent is set out at Section 6.8 of Statute No 5.   The first step in the process is summarised below:

a) The Director of Human Resources will write to the employee and inform him/her of the Respondent’s intention to terminate his/her employment for stated conduct or capability reasons or by reason of the employee not performing his/her duties at any time during the probationary period to the satisfaction of the Respondent, and will provide the employee concerned with the opportunity of making oral and/or written representations if he/she is of the view that his/her employment should not be terminated. Following the third probation assessment, the Human Resources Director wrote to the Complainant by letter dated 22nd July 2019. In that letter the Human Resources Director notified the Complainant of the Respondent’s intention to terminate his employment and offered the Complainant the opportunity to make oral and/or written submissions if he was of the view that his employment should not be terminated. Between 22nd July 2019 and 2nd August 2019, the Complainant absent from work on sick leave. The Respondent wrote to the Complainant by letter dated 25th July 2019 acknowledging receipt of medical certificates from him and scheduling an occupational health assessment. In addition, the Respondent accommodated the Complainant during that period by not scheduling the meeting at which he would have the opportunity to make oral and/or written submissions until after his return to work. That meeting subsequently took place on 12th August 2019 and was attended by the Complainant, the Human Resources Director, the Deputy Registrar and Dean of Teaching and Learning. At that meeting the Complainant made oral and written representations in relation to the Respondent’s intention to terminate his employment. The second step in the process by which a probationary employee’s employment may be terminated by the University is summarised below:

b) The Director of Human Resources will consider any representations made by the employee concerned and will then make a recommendation to the President [of the Respondent] as to whether the employee should or should not be dismissed during or at the end of the employee’s probationary period of employment or if the employee’s probationary period should be extended. If the President agrees with such recommendation and the decision made by him/her is to terminate the employee’s employment during or upon the expiry of the employee’s probation, a letter of confirmation will be sent to the employee concerned which shall specify the termination date, and in any such case the employee will not be entitled to a right of appeal. Following the meeting on 12th August 2019 the Human Resources Director wrote to the Complainant on 16th August 2019. In the letter, she informed the Complainant that no compelling reasons were submitted by the Complainant such as would cause her to recommend that the Complainant’s employment not be terminated. The Human Resources Director informed the Complainant that her recommendation to the President of the Respondent would be that the Complainant’s employment be terminated on the grounds that he had failed his probationary review. The Human Resources Director subsequently wrote to the Complainant by letter dated 26th August 2019 in which she informed the Complainant that the President of the Respondent had upheld her recommendation to terminate his employment due to his failure to successfully complete his probationary review. A copy of the President’s letter confirming his decision was appended to the letter.   The letter informed the Complainant that he would receive payment up to and including 20th September 2019 in accordance with his contractual entitlement to one month’s paid notice.

Remediation

Following the termination of the Complainant’s employment, in line with the Respondent’s policies and procedures, it became clear following an extensive further review undertaken by JK Deputy Director of Finance and other colleagues in the Finance Office that the Complainant had organised and overseen the provision of incorrect information to the external auditors – both the commercial auditors and the statutory auditors, the Comptroller and Auditor General. In addition, further errors were uncovered in the classification of income and expenditures. Following an extensive internal review, an updated position was communicated by letter from the Director of Finance to the Office of the Comptroller and Auditor General dated 20th September 2019. On 6th November 2019 the Deputy Director of Finance submitted revised financial statements to the Office of the Comptroller and Auditor General, together with a detailed analytical review and schedules setting out the various adjustments that were required to be made. Following a review of these adjustments, the Office of the Comptroller and Auditor General certified the Respondent’s consolidated accounts for the 2017/18 financial year on 19th December 2019 following receipt of the audit certification provided by the auditors on 17th December 2019. Despite the lack of attention to detail and due care exercised by the Complainant, which resulted in extensive remediation work being required, the accounts were certified within the target requirements set by the Office of the Comptroller and Auditor General, i.e. by 31st December in the year following the financial year under audit. To meet the target set by the Officer of the Comptroller and Auditor General, in addition to their existing workload including the 2018/19 financial year reporting cycle, the Deputy Director of Finance and other members of the Finance Team were required to work significant additional hours on a weekly basis.

Submissions

Section 3(1) of the Acts provides that:

“This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training –

a) if his contract of employment is in writing, the duration of the probation or training is one year or less and is specified in the contract, or …. “

As stated above, the Complainant’s employment was subject to a 12 month probationary period. As an express term of the Complainant’s employment, the Respondent reserved the right to terminate the Complainant’s employment during or at the end of the probationary period on four weeks’ notice. The Respondent exercised its contractual right under Clause 1.2 of the Complainant’s contract of employment to terminate his employment. Having regard to section 3 of the Acts, the Complainant has no locus standi to proceed with his claim. Without prejudice to the foregoing, the Respondent relies on Section 6(4) of the Acts as follows:

“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 …” It is an employer’s prerogative to include a probationary period in an employee’s terms and conditions of employment. Regrettably the Complainant did not perform the functions of his role to the satisfaction of the Respondent during his probationary period: this was the reason for the termination of his employment. The decision to dismiss an employee is not something which the Respondent takes lightly. The decision to dismiss the Respondent was entirely reasonable in the circumstances. The Respondent carefully considered the circumstances and took into consideration the Complainant’s performance leading up to each of his three probationary assessments.

Section 7(2) of the Acts provides the following in relation to mitigation of loss:

“Without prejudice to the generality of subsection (1) of this section in determining the amount of compensation payable under that subsection regard shall be had to –

a) ….

b) ….

c) the measures (if any) adopted by the employee or as the case may be his failure to adopt measures to mitigate the loss aforesaid”.

The Complainant has a statutory duty under the Acts to mitigate his loss. Strictly without prejudice to the Respondent’s position that the Complainant’s dismissal was fair, the Adjudication Officer must consider the attempts made by the Complainant to seek alternative employment and the Complainant’s actual loss to the date of the hearing. As provided for by section 3 (1) of the Acts, the Complainant’s employment was at all times subject to a 12 month probationary period. As an express term of the Complainant’s employment the Respondent reserved the right to terminate the Complainant’s employment during or at the end of the probationary period. The Respondent’s decision to dismiss the Complainant was a reasonable, proportionate and appropriate response.   Having completed thorough probationary assessments and very carefully considering the information available, the Respondent concluded that the Complainant’s performance during his probationary period was not such as to enable it to conclude that the Complainant had successfully passed probation. The Respondent was entitled to take a very serious view of the Complainant’s performance during his probationary period. Moreover, as Group Financial Controller, the Complainant was in an enhanced position of responsibility. The Respondent at all times applied fair procedures to the probationary assessments and treated the Complainant in a fair and transparent manner. The above submissions are without prejudice to the obligations of the Complainant to prove that he has mitigated his loss. The Respondent has no information in relation to whether the Complainant suffered any financial loss arising from the termination of his employment.

While a number of reviews were completed, and opportunity for appeal was afforded these were effectively box ticking exercises. During these reviews a balanced review of the work completed was not provided.   Following the appeal, no responses was provided for the many issues raised, and the sole comment of “no compelling reason was submitted to affect decision” was given. The Complainant contends that the unbalanced reviews were due to personality issues between himself and the Director and Deputy Director of Finance and following a number of disagreements and differences of opinion. Whilst other colleagues were very shocked at the Complainant’s departure from the Respondent, given improvements made etc the Complainant has not asked any of them to act as witness in this WRC Complaint. It would put any of his former colleagues in a bad position to give evidence against the Director and Deputy Director of Finance, given the autocratic management style and unwillingness to accept feedback.   Instead the Complainant is relying on the genuine undisputable improvements made in timely accurate filings and improved timeframes of preparing accounts. The Complainant feels that he suffered from significant unfair treatment at the Respondent company: Significant changes were being made to the Complainant’s team and he was not consulted or given any involvement in the decision making, until concerns were raised.   Following concerns, he raised on 31st May for the first time he was given a number of verbal updates from the Director of Finance on the process. To show how underhand the Director and Deputy Director were being, these updates were given at the same time as he was given (delayed) reviews which were trying to completely undermine his work and achievements while at the Respondent company. The updates were not given to keep him updated but purely to make it appear as though he was being involved. Similarly, when raising concerns on the changes impacting his team and he not being involved, he was asked to take part in an interview panel for an AP Manager.   This was purely again to make it appear as though he was being involved in hiring decisions, even though he wasn’t afforded any such opportunities effecting his own team.   This interview panel for the AP Manager that he was asked to sit on, was following his second review when it was clear that he was being set up to be removed, so it was another example of actions taken by the Finance Director / Deputy Director to present a picture that was completely different to reality. No holiday requests or expense claims were approved from February 2019 until the end of May 2019, when the Complainant raised a complaint regarding this. The Complainant and his wife were going through a number of IVF fertility treatments during his period of employment with the Respondent. This required his attendance at a number of consultations.   The Complainant had full remote access to the systems and emails etc using VPN on his work laptop – however when asking the Deputy Director for some flexibility to attend the office for half day, attend hospital consultation, and then make up time working remotely using VPN, he was told that the position was that he should take a half day out of my annual leave, which was quite unreasonable and showed no employer empathy or understanding. This approach was taken despite the Complainant having taken 0 days sick leave in his first 11 months of employment with the Respondent. Supports provided were completely disingenuous as when these were completed successfully, they obviously had no impact on decision to end the Complainant’s employment.   One support provided – to attend a presentation on a new system – was quite frivolous in the context of a support and was purely something which should have made sense from a business perspective. Probationary reviews were not conducted in accordance with HR timelines, and 2nd review was only carried out following querying why this wasn’t being done on a number of occasions. Reason being given for not doing that review in a timely manner, being that it was peak period (and there were heavy work requirements) is unreasonably given that main peak period work was the Respondent consolidation, to which Deputy Director gave no support, didn’t support handover, or do any form of review up to May 2019. Requests to share information and collaborate on important matters were ignored by Deputy Director. Reviews completely omit any reference to the prior year Financial Statements which were delinquent and were the most high priority and time consuming item of work during the first 5 months of calendar year 2019. This position of completely ignoring this item and giving no response has been maintained through the final review and appeal. Throughout the reviews there was minimal credit given for any of the significant improvements made during the Complainant’s time at the Respondent for example

·         13 Campus company annual returns (FY18) filed two months earlier than in prior year, closing out prior year FY17 financial statements which only got finalised in May 2019.

·         All FY18 Tax returns filed on times as per prior year.

·         Improved staff communication and collaboration.

·         Implementation of new improved monthly management accounts timeframe.

Consolidated Financial Statements (and audit) FY18 comments:

Issues identified by Statutory Auditors (OCAG), in a Special Report on Public Sector Financial Reporting, that there were significant issues / delays with Respondent’s accounts for the years (2014,2015, 2016, 2017) needs to be considered in the context of the reviews on my performance provided. Also, there is recognition by Respondent Finance management that the current process of Consolidation is completely manual and not fit for purpose and therefore is being replaced by a new software / reporting solution, Prevero. A number of manual errors made by a senior Assistant Financial Controller (with a couple of years of experience with Respondent) who also suffers from significant dyslexia, are also been entirely attributed to the Complainant which is unfair. No disciplinary procedure is being carried out, regarding this individual making a number of these mistakes. Main items being identified as having shortcomings (FY18 Consolidated Financial Statements) was an early draft and still hasn’t been finalised / submitted in November 2019 so was unreasonable to judge the Complainant’s performance on this early May 2019 draft. When trying to keep everything on track on May 2019 this was on the assumption that filings would be made in September 2019 which as in all recent years has not now taken place. The External Auditor had confirmed following their field audit that they were satisfied with the draft Financial Statements and that the OCAG audit could go ahead. These financial statements are the draft which the Complainant was being heavily criticised for. Points on having a lack of understanding are unfounded and were something that had never been mentioned until the end of the probationary period.

Given his academic background:

·         Being an FCA Chartered Accountant

·         Member of the Institute of Taxation CTA

·         Passing with Distinction advanced diploma in IFRS (International Financial Reporting standards) in 2017 and

Work experience where the Complainant had over 10 years of successful financial management experience, in industries where staff expectations are much higher and are much more challenging than the Respondent, from a workload perspective (and where he generally received exceeding expectations ratings), This assertion that he was not able to complete the work in line with his contract of employment is unfounded. An effort has been made to attribute all issues, past and present, in Financial Reporting onto the Complainant’s shoulders and despite significant improvements made on many fronts, to discredit his abilities. On the Qualified Disclosures submitted, apart from these Qualified Disclosures being acknowledged in writing, the Complainant has not to date received any updates on any findings / meaningful progress relating to these submissions. In addition, regarding concerns raised about his manager (Deputy Director) regarding a long list of items, including refusing to correct incorrect booking of expenses (which are buried in incorrect accounts) apart from (a delayed) acknowledgement, the Complainant has received no communication regarding any of the points made or investigation regarding these issues. In conclusion the review assessments were not conducted in a fair manner and did not conform with the Respondent HR’s own requirements (on timeline and who should attend).   Due to interpersonal issues with the Director and Deputy Director, completely unbalanced reviews were presented, without identifying any of the root causes for issues or the remedial fixes required to improve going forward; and largely ignoring any improvements made. Unfair treatment was received during the year, which both undermined the Complainant’s position, and made it difficult to maximise performance.

The statement of particulars of employment was issued on 9th July 2018 and this confirms his employment was subject to a 12 month probationary period of employment: “1.2 Your employment is subject to a 12 month probationary period during which your performance and suitability for continued employment will be reviewed by the University. The University reserves the right to terminate your employment during or at the end of the probationary period on four weeks’ notice”.  On the subject of assessment, the form HRF008.1 clearly states: “This form is for use in Staff Assessment during probation. At least three assessments will be conducted during the probationary year, the first not later than after THREE months’ service, the second after not more that SIX months’ service and the third and final assessment should be carried out after NINE months’ service. The final assessment will confirm that the probationer has fulfilled their contractual obligations and is performing satisfactorily”.

In this instance the assessments were carried out as follows:

First probationary assessment – conducted on 10/01/2019. 5½ months after commencement.

Second probationary assessment – conducted on 04/06/2019. 10 months after commencement.

Third probationary assessment – conducted on 12/07/2019. 11½ months after commencement. The Respondent’s performance in the timing of these probationary assessments is poor. At the hearing of this complaint these assessments were highlighted as being very important to the Respondent’s case and yet their approach to them during the Complainant’s probationary period left something to be desired. The Complainant contends that he was not provided with an opportunity to respond to the first review until he raised the matter at the end of May 2019 and that he received no negative feedback in the period between 10th January 2019 and 28th May 2019. The third and final probationary assessment took place on 12th July 2019 and was conducted by the Deputy Director of Finance. The overall assessment was poor, the Deputy Director’s assessment was as follows: “Initiative and adaptability have not been sufficiently demonstrated. This is evidenced for example by the quality of financial analysis and financial information produced by [the Complainant].   Standard analytical review checks and attention to detail have not been appropriately applied to the financial reporting cycle by [the Complainant] …

…Fundamental aspects of the duties and responsibilities of the role have been consistently not met in the three probationary period assessments”.

The Deputy Director of Finance further noted:

“Notwithstanding the supports put in place, including the meeting of 5th June 2019 [the Respondent] consolidated accounts for 2017-2018 as represented for the meeting on 10th June 2019 still contained fundamental errors and unexplained trends.

The performance in the probationary period, and cumulatively across all probationary assessments, has not been in accordance with the responsibilities described in the job description and not in accordance with the contract of employment”.  In relation to the overall assessment the Deputy Director of Finance concluded as follows: “I have concluded that [the Complainant] has failed his probation. I am recommending that the Respondent accept this conclusion.  The financial analysis and information presented by [the Complainant] throughout the period of employment has contained errors, unexplained trends not had standard routine checks and controls applied to its production and has as a result been unreliable and incorrect in most instances.  Notwithstanding supports in place and probationary assessments, the performance of [the Complainant] has not been able to meet the requirements as described in the job description”.

The legal representative for the Respondent points to section 3(1) of the Unfair Dismissals Act and specifically to:

“This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training –

a) if his contract of employment is in writing, the duration of the probation or training is one year or less and is specified in the contract, or …. “

The Respondent also points out that it is clear from the contract that the Respondent could terminate the employment during or at the end of the probationary period on four weeks’ notice (terms and conditions, clause 1.2). The Complainant accepts that reviews were conducted, and an appeal was granted, he states per submission: “While a number of reviews were completed, and opportunity for appeal was afforded these were effectively box ticking exercises.   During these reviews a balanced review of the work completed was not provided. Following the appeal, no responses was provided for the many issues raised, and the sole comment of “no compelling reason was submitted to affect decision” was given”. The Complainant has an opinion that the work he completed was not considered prior to the decision to dismiss him. The Complainant was employed to do a job. He commenced employment on a 12 months probationary period during which his ability to do the job would be assessed. Three assessment reviews took place, none of which would indicate that he was completing the tasks of the job to the satisfaction of his reporting manager and the criteria contained within his job description. Some of the errors made by the Complainant were of a magnitude that is shocking. Tasks were removed from the Complainant to let him focus more on certain elements of the job, he was also offered help by his line manager, these steps led to no improvement. Following the third and final assessment review the Complainant was informed that he had not passed his probationary period and following this he received notification of his dismissal. He was provided with the opportunity to appeal this decision, which he did to senior personnel unconnected to his work area. The appeal was not successful. I have considered the arguments presented by both the Complainant and the Respondent and have decided that the course of action followed by the Respondent was the correct course of action given all of the circumstances. The complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is not well founded and therefore fails.

As outlined above.

Unfair Dismissals Act, 1977. Probationary Period of Employment.