Complainant

Respondent

Anonymised Parties

A Mortgage Advisor

A Bank

Representatives

Maeve Brehony, Financial Services Union

Jenny Martin, Kane Tuohy Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028603-001

22/05/2019

This Dispute concerns the claimant’s dissatisfaction with the Disciplinary process and sanction applied by her Employer in 2017.

This process and sanction have since been the topic of an external appeal. The Union on behalf of the claimant referred the claim to the WRC in May 2019 and continues to seek a further Independent review and appeal of the sanction of final written warning.

The parties presented initially to hearing on 25 September 2019. On that day, on listening to both sides, I believed both sides would benefit from Mediation as a medium to get the claimant back to work. The parties agreed, and I catalogued the 7 issues both parties agreed to address for that purpose. I identified a 4-month window to achieve this. I reached out to the parties early in 2020 to ascertain progress and more time was requested to complete mediation. Eventually, I was informed that Mediation had not resolved the matter and the parties were prepared to return to Adjudication.

A delay in rescheduling was dictated by the National Pandemic and the parties reconvened at the earliest opportunity on September 16, 2020.

Both parties were represented, and both made extensive written submissions, inclusive of Medical Reports to Summer 2019.

The Claimant has been working as a Bank Official at the Employers Bank since June 1999. During this time, she has worked across several sites and has specialised as a Mortgage Advisor. The claimant enjoyed her busy job which she balanced against her home commitments. She had a clean disciplinary record.

The claimant seeks adjudication in respect of a period of suspension followed by an application of a final written warning in 2017. She has not returned to work since the date of her suspension 14 August 2017.

The Union on her behalf submitted that she had not been afforded her right to an objective investigation. The Employer had pursued a disciplinary process based on an unsubstantiated claim that a financial transaction undertaken on behalf of a connected customer ran contrary to the customers instructions.

The Employer issued a “Must Read” Memo on 24 November 2016 to issue clarification on how bank staff should address transactions on “connected accounts “

The Claimant has maintained throughout this case that she had not been introduced to this Memo during her work.

The claimant experienced a family bereavement in early 2017. The family member had intended to make a gift to the claimant’s family prior to his demise.

Following his death, the surviving family member wished to follow through on that intention and she prepared dockets to affect that transfer at the bank where the claimant worked. She requested that the claimant take carriage of the documents and this was undertaken and passed to a senior member of staff. This practice was permitted and prevalent at the bank and was overtaken by the “must read “memo.

The claimant was on annual leave 31 July to 14 August 2017. During this time, the Bank sought to validate the express wishes of the family member and made a home visit to that end. It appeared that some confusion had arisen on whose account the sum of money was to be transferred to and whether is was to be account inclusive of the family member or exclusive of her. The Claimant refuted that there should have been any confusion.

A Solicitor clarified the family members’ intentions in a letter to the Bank dated August 14 ,2017.

On the claimants return from leave on 14 August 2017, the complainant was suspended on pay from her position “regarding concerns regarding a transaction on the account of a Connected Person” She sought to clarify matters by the provision of the Solicitors letter which confirmed the account holders’ clear instructions but the Employer pursued the decision to suspend. The Union contended that suspension was “predetermined, unnecessary and in breach of fair procedure. “as she was unrepresented and denied natural justice. The action had a detrimental effect on her health. The claimant contended that she had been the topic of negative comments and innuendo from fellow staff members.

On 21 August 2017, the claimant submitted a chronology of the sequence of events governing the transaction at the heart of the case and was disturbed by the continuance of the special leave.

The Final Report of Internal Audit was concluded on 23 October 2017 and made 5 findings against the claimant. The claimant was invited to a Disciplinary Hearing on 17 November 2017.

“I am also concerned your actions potentially represent gross misconduct as outlined in Disciplinary procedures ……Finally, I believe your actions as outlined in the findings may potentially reflect a breach of the trust and confidence the Group is entitled to have in your “

The Complainant was represented at the hearing and made a supplementary submission. She argued

1.       She had not read the memo and had “inadvertently” failed to adhere to procedures due to not being aware of the memo which issued.

2.       Pressing family circumstances.

3.       Actions were not tainted by bad faith or misappropriation

4.       A clear plan had existed to lodge money to two separate accounts

5.       The Bank ought to have addressed the reason for the nonattendance of the customer at the branch.

6.       That she had wanted to do the right thing by the family member but had not gone the right way about it.

The claimant was invited to a second meeting to make further representations and this followed on 1 December 2017.The Complainant read from a statement and addressed the application of a final written warning.

1 Apologised for not reading “Must Read “memo.

2 Disciplinary sanction proposed was harsh given the admittance of error and clean record. No bad faith or misappropropriation and was singled out unfairly.

3 Very busy year

4 The Bank had not led out on the “must Read memo “and a lesser disciplinary sanction was sought.

The sanction of final written warning was upheld from 14 December 2017.

The claimant availed of her opportunity to appeal to a Nominee of the CEO on 17 January 2018. On 19 April 2018, the Appeal failed to alter the Disciplinary sanction of final written warning and applied the sanction from 19 April 2018.

The Claimant sought an Independent Third-Party Investigation in accordance with the Disciplinary procedures and this was conducted as an Appeal of Final Written Warning on 22 November 2018. By then the account at the centre of the case had been closed and a parallel complaint lodged through the corporate pathway.

The Claimant sought the removal of the final written warning, a refund of loss of earnings and a written statement which confirmed that she had not acted dishonestly. Both parties presented to the Investigator. On 13 December 2018, the Investigator found that:

1 the claimant had breached the policy with connected accounts. The bank accepted that she had not benefitted from this transaction.

2 Person difficulties had not impacted decision making

3 Bank is entitled to set and maintain its standards of operation

4 Serious breach of procedure warranted serious disciplinary action.

5 He did not accept the claimant’s plea for consideration of a written warning and upheld a final written warning to expire on 13 December 2018.

The Investigator went on to make recommendations to aide the claimants return to work. The Investigation was rejected by the claimant as she rejected the finding that she had breached a bank’s policy. She could not accept the application of a final written warning.

The case was referred to the WRC in May 2019.

Arguments:

1 There was a communication deficit around the conveyance of the contents of the “must Read memo “in November 2016. This resulted in the continuation of a practice by 6/7 of the branch staff without reference to a “zero tolerance policy “in relation to connected accounts.

2 The suspension was unjustified as the transaction had been affected in accordance with the customers wishes as endorsed by the same day letter from the Solicitor.

3 The claimant is innocent of the charges levelled against her. She has suffered greatly as a result compelling her attendance at multiple visits to Counselling, Psychologist and GP. She has described this damage as “irreparable “and is hampered in her return to work by others negative views and comments of their views on her behaviour,

4 There was an inconsistency in how the bank managed the expectation that a customer should compile their own dockets.

The Internal Audit found no mal-intent on behalf of the claimant.

5. The claimant acknowledged that the Bank had invited her back to work in November 2017, but she has not been able to return, and she identified a floor plan which would enable her to return. She has been on 50% pay through Income continuance since March 2019, her access to illness benefit has expired.

The Union on behalf of the claimant submitted that the claimant has by now considered every option open to her and it is her earnest wish to return to work at the Branch where she last worked.

The Union stated their difficulties with the Independent report and sought another external review of the case in the best interests of the claimant.

The Employer outlined the background to the events of the case. In July 2017, in accordance with its Fiduciary duties, the Bank had concerns in relation to a large transaction which took place on the account of a Connected person to the claimant. The transaction occurred between the accounts of two connected persons to the claimant. Following their own line of inquiry, the bank had concerns that the transaction may not have been carried out in accordance with one of the connected persons wishes.

The Employer decided to place the complainant on special leave pending an investigation in accordance with the Banks Disciplinary procedures.

The investigation concluded:

1 The claimant effected a connected account for a sizeable sum of money, completed the details on the dockets when customers are meant to compile these details themselves.

2 Procedures state that staff must not process instructions for customers, albeit on exceptional circumstances and signed off with explanation by an authorised official. There was no explanation as to why the customer had not presented at the branch in person.

3. The claimant had requested that staff add a family member as an authorised signature to this account in January 2017. She requested that a joint account open for the family members in March 2017.

4. Five transactions took place on the family members account in the first 6 months of 2017. The claimant had explained that she had not seen the “must see “memo.

The Employer outlined the disciplinary procedure which followed in the case. Stage 1 Disciplinary hearing took place on 17 November 2017 and was chaired by an Area Director. The claimant was represented.

On 24 November 2017, the Decision maker wrote to the claimant and flagged that the claimant’s involvement in the transaction warranted the potential disciplinary sanction of “Final Written warning” and the claimant was invited to respond before a final decision was made.

Concurrent with this approach, the Employer decided that special paid leave was no longer necessary and invited the claimant back to work. The Claimant was deemed medically unfit to return which was supported by the Occupational Health dept.

The stage 2 Disciplinary hearing took place on 1 December 2017, where the claimant was represented and participated fully both orally and by way of a written submission.

The Area Manager confirmed the application of a “Final Written warning “and the claimant was afforded an appeal.

On 23 December 2017, the claimant appealed by seeking a lesser sanction of a written warning.

This appeal was led by a CEO nominee, Ms A and took place on 6 April 2018. The Claimant was represented at that appeal and the sanction was not altered and the warning was to be applied from 19 April 2018.

The Employers procedures provided for a right of appeal to an external independent third party. The claimant availed of this appeal and the disciplinary sanction was suspended pending the outcome of the second appeal.

This Appeal under the Banks Disciplinary procedure was heard by the external independent third party on 22 November  2018. Both parties submitted to this process and findings were issued on 12 December 2018.

1.       Final written warning was upheld but commencement date altered to 14 December 2017 (date of first decision) This provide an expiration on 13 December 2018.

2.       Salary was to be restored covering the period of half pay.

3.       The Bank had already confirmed that the claimant had not benefitted from the transaction, nothing further was required in that regard.

4.       The claimant was advised to return to work as soon as possible and to explore the possibility of her re-locating to a different branch if mutually acceptable.

The Employer accepted these findings and administered the shortfall in pay to cover the period of half pay 27 May 2018 to 26 November 2018.

Following the referral to the WRC in May 2019, the Employer reached out to the claimant to arrange a discussion on return to work. This had not happened at the time of the first hearing in September 2019.

The claimant is currently paid income protection which amounts to half pay.

The Employer is keen to have the claimant return to work and submitted that the Bank had responded to its fiduciary duty to protect its customers and had initiated a paid suspension and investigation under that umbrella. The transaction at the heart of the case had not been undertaken in accordance with bank policy and blame for this went wider than the claimant and had been dealt with accordingly. The bank had not singled out the claimant.

The Employers representative contended that it was incumbent on the bank to maintain its standards, to govern its employees’ actions and protect its customers, conduct, colleagues and compliance “in accordance with the Code of Conduct. This code was known to the claimant and was followed by the terms of the “must read” memo from November 2016. The employer was uncertain as to why this document was unsigned but submitted that this was the typical circulation of such memos.

The Employer disputed that the practice of employees habitually taking carriage of documentation connected customer accounts simply did not happen at the branch and the claimant was mistaken in that regard.

The Employer submitted that the claimant had been treated fairly during the Disciplinary process. She was informed that the matter was going to be subject to investigation during the second part of the meeting which led to her suspension. The claimant accepted that she had participated in a procedural breach and asked for a lesser sanction.

The Employer did not support the Unions request for a further Independent review as they maintained that the matter had enough framework to support the claimants return to work, when medically fit through the pre-existing third-party appeal, parts of which stand already implemented.

The Employer was keen to have the claimant back to work in her base branch and were prepared to work with her to that end. They acknowledged that the business is currently subject to a large re-organisation programme.

During the second day of hearing in the case, the Employer was asked to clarify what the claimant was judged as doing wrong? They took a break and clarified that the claimant had brought a docket to the bank on behalf of a customer with a connected account. Other staff were also involved and were subject to a separate disciplinary procedure.

I have considered both presentations, both oral and written in this case. I have read both submissions, inclusive of the Medical /Counselling reports. The most recent medical reports are dated March and August 2019.

I have been requested to investigate this dispute, record my opinion on the merit of this dispute and make a recommendation, if possible. I have taken some time to address this imperative, clear that I am not to focus on whether the claimant was guilty of wrongdoing, but rather to consider the procedural framework relied on by the parties and to scope out any potential to assist the parties in a mutually agreeable return to work for the claimant. The Claimant has been clear over both hearings that this is her express wish over any of the other suggested paths to resolution.

I wish to acknowledge both parties’ commitment to engaging in mediation and for sticking with the process. Both parties are aware of their respective right to appeal my decision but as I explained at hearing, I wanted to give the case the best chance of resolution at first instance, if possible.

When I first met the parties on 25 September 2019, it was clear to me that the parties had yet to engage on the topic of the claimants return to work. They had not engaged on the terms of the Independent Third-Party Report, however the Employer had accepted the report and made good on the “half pay “recommendation. I appreciate that the claimant was on extended sick leave at that time.

I listened carefully to both parties stated positions and honestly believed that an agreement to try Mediation was the optimal approach to facilitate progress. I agreed that I would adjudicate on any residual issues, if any existed post that process and followed the parties up accordingly. On 30 September 30, 2019, I wrote to the parties and listed the objectives tabled by all parties and the Adjudicator on that day.

1 Securing a Medical certificate to enable the claimant return to work.

2 Exploration of restorative work location /reconfiguration

3 Communication Protocol surrounding Suspension

4 loss of earnings /medical expenses

5 Identified support person for the claimant on return to work

6 Claimants dignity at work to be upheld on her return

7 Organisational confirmation that the claimant is not blamed for the account activity while confirming that the final written warning had now expired

8 Stratification of Corporate issues from Employment issues

9 Engagement on the Independent Report December 2018.

I was requested to allow more time for mediation to conclude and I facilitated this request. The parties returned in September 2020 seeking a Recommendation in the case as Mediation had not bridged the gap between the parties.

The Union commenced  the second day of hearing by seeking another Independent review of the case to erase the final written warning and a declaration that the claimant had been denied fair procedures and natural justice across the suspension and disciplinary sanction. The Employer took issue with this proposal and reaffirmed the extended procedural process already undertaken.

For my part, I asked the Union to detail where the dissatisfaction lay with the December 2018 report from the Independent Reviewer, permitted as a last course of action within the internal procedures.

The Union agreed that the report was delivered in accordance with the agreed Terms of Reference. The Union expressed some doubt that the claimant had breached the policy on transactions with connected accounts or that she deserved a serious disciplinary sanction.

The Employer responded and re-affirmed the claimants past submissions to the Disciplinary hearing, reflected in the December 2018 report. The Union accepted that the claimant had confirmed that she had erred inadvertently and had sought a lesser sanction of written warning.

For my part, I have read and re-read both parties submissions and considered their oral presentations. The claimant has been out of work since August 2017 and has not been able to avail of an invitation to return to work due to illness. Three years have now passed, and we have now entered the era of a pandemic where skilled bank workers must be viewed as essential workers in terms of a return to work.

I noted that time may have placed an onerous burden on the claimant. I was troubled that her Counsellor reports reflect her reference to her own dismissal. The claimant has not been dismissed. I also note that the claimant tends to lean on the support of a written submission rather than an engagement where the other parties’ viewpoints are heard, debated and understood.

It is clear to me that the Employer in this case has an earnest wish to move forward and welcome the claimant back to work within the shortest possible time frame.

I will now detail my observations on the procedural framework engaged in by the parties since 14 August 2017.

The Suspension:

I appreciate this notification on return from annual leave unnerved the claimant. There are clear signs that she has not been able to move beyond this day due to trauma associated with this meeting.

I find that the Employer had a genuine fiduciary concern on the morning of 14 August which warranted further investigation. This concern was not fully abated by the arrival of the Solicitors letter in the late morning of 14 August.

While the letter of Suspension is clear on the purpose of the suspension i.e. investigation, I must find that the bank displayed an insensitivity towards the claimant when she sought representation. This should have been permitted, given that she found herself alone in the presence of two senior managers and the balance of power was disturbed. In addition, the meeting was held in two parts.

I found this to be short of best practice. I understand that the Employer was seeking to balance Fiduciary duties with the statutory responsibility for staff health and safety, however there was room for improvement in this balancing exercise.

I note the claimant’s insistent at hearing that she believed that the letter of suspension was fait accompli and prepared in advances. The disciplinary process recorded the letter as being raised by the Employer following the break in the meeting of August 14 and not before.

The Disciplinary Process:

I found that the Employer conducted a fair Disciplinary procedure. I found that the claimant was afforded the opportunity to be heard and asked on several occasions if she had further points to contribute. Written submissions were also received from the claimant. The claimant is on record at these fora acknowledging her error and seeking a lesser sanction i.e. written warning.

I note that the Employer in this case was seeking to balance its fiduciary duties against the duty of care to their employee. It may not have reached both goals simultaneously.

I found an inconsistency between the claimant’s presentation at this forum and her presentation to me that she had done nothing wrong. I had cause on several occasions to insist that the claimant concentrate on her claim for work rather than a family banking matter long since disposed of through account closure. The claimant clearly struggled with this but did try to focus.

I found that the Employer followed their own Disciplinary procedure and afforded the claimant natural justice and fair procedures throughout the application of sanction and on appeal. I note that the process was broadened to include transactions pre-dating the July transaction, but these were associated and relevant.

However, I also understand that the claimant believes that she cannot tolerate a final written warning despite its long expiration.

I note that the claimant changed representation within the Union at the end of the Disciplinary process. There were times during this case , where I observed that the complainant had forgotten that she had shared some admissions with her employer . I appreciate that this carried a vulnerability , but it clear that these were shared during the internal procedures .

The Independent Third-Party Appeal Decision:

The Independent Third party was agreed between the parties and Terms of Reference applied. I have considered this report carefully and mindful that the claimant took issue that she was not permitted to interview witnesses relied on by the Bank. I could not ascertain where this was sought within the process.

I also noted that 6 months passed from circulation of this report and the referral to the WRC. This period may have provided an opportunity for the parties to engage on the report.

I found that the Independent Third Party made a very comprehensive assessment of the issues at the heart of the case. I found it a sound report in keeping with the agreed Terms of Reference.

I also noted that the third-party review made some tough pronouncements on how he viewed the overall case, however, these were qualified.

Findings:

This is a case that requires a high level of empathy and compassion from all participants in addition to a high volume of courage to move matters forward. There is no merit in the current impasse.

I find that the extended time August 2017 to the present day has not favoured the claimant. She is outside work and surviving on income protection and has set several preconditions for her return to work. She is troubled by peer commentary and displays a high level of isolation from a job she previously loved. I also find that the change in representation may have confused her somewhat.

I find that a “loose practice “was in place at the bank surrounding connected accounts and in truth neither party adhered to best practice in that regard, but as I say, it is time to move forward.

The Employer is open to the claimants return but not to all her preconditions.

I have reflected on all the above and in giving my opinion on the merits of the dispute, I have also endeavoured to draw on empathy and compassion and from the medical reports opened to me.

The time has come to move forward into the area of compromise in this case. I find that there were some flaws on both sides of this dispute, but the matter has now reached a pronounced stage of analysis paralysis which is visibly blocking the claimant from returning to work. This is regrettable and in my view the claimant would benefit from adopting a more compassionate approach to herself.

In my opinion, the identified set of demands amount to a perfect outcome, however compromise is required of both parties to arrive at the very best outcome. It is vital for the claimant to return to work to take her rightful place in the workforce, but she is required to take the first step.

I have found some merit in this dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found some flaws in both party’s approach to the events of 14 August 2017. I appreciate that the claimant carries some trauma as a result.

I recommend that the claimant reflects on the last three years and seeks to move forward in the direction of consolidation of her career at the bank. I am certain that she has a bright future there.

I cannot accede to the Union claim for an alternative Independent review as I believe it is unwarranted.

The Employer clarified both items sought by the claimant at hearing

1. How the policy was perceived as breached. In so doing they summarised the records of the disciplinary process.

2. Why a disciplinary sanction was applied?

These clarifications should now be accepted by the claimant in the spirit of moving forward.

1.       The claimant should prioritise obtaining medical clearance for her return to work at a mutually acceptable location before 16   November 2020. If this permission is granted, she should be restored on the pay roll from that date.

2.       She should consider a phased return to work and this should be facilitated with Occupational Health support.

3.       The claimant should submit her out of pocket medical expenses and the employer should give close attention to paying these based on these unique circumstances.

4.       The claimant should be supported on her return to work through induction, coaching and peer support. I do not see a need to ask the Employer to write any further declaration on the claimant’s involvement in what is by now a long-spent warning.

5.       I would encourage the complainant to identify further training to assist her career progression and this should be funded by the Employer.

6.       I cannot accede to the claimants request for a return to a higher office, but this may evolve in time.

However , the final written warning has become the perennial obstacle in this case .It is viewed by the claimant as a wrong from which her trauma flows ,I find that application of a final written warning on a erstwhile clean record and a prevailing climate of “loose practice “was overly harsh and I recommend that the employer commute this to a written warning for 12 months since expired on 13 December 2018 .

I make this recommendation to enable the claimant to move forward with some dignity in the case, in full and final settlement of this Dispute and having regard to the Employers early invitation of a return to work dated 24 November 2017.

I wish the parties all the best for the future and once again thank them for their proven commitment in seeking a mutually agreeable resolution .

Appeal of Final Written Warning, Request for Independent Review.