Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

Representatives

Shane Lambert - Fórsa Trade Union

 Eamonn Hunt – LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039800-001

14/09/2020

The Complainant has been employed by the Respondent for over twenty-five years.  The Complaint Form was received by the WRC on the 14th September, 2020. Issues arose in 2019 in relation to the Complainant’s alleged role in the carrying out of refit works in a particular household in the Respondent’s authority area. As a consequence, the Respondent initiated an investigation and disciplinary process. The Complainant asserts that the disciplinary process was flawed in a number of respects and that he was treated unfairly and unjustly. The Respondent denies the complaint and maintains there were legitimate grounds including requirements of public accountability to proceed with its inquiry and disciplinary sanction.

The Complainant’s role in the Respondent was that of Clerk of Works where he was involved in assessing applications and approving payments to households under the Housing Adaptation Grant Scheme. The Complainant stated that he had an unblemished record with the local authority prior to the current dispute. The Complainant outlined the background which resulted in the initiation of disciplinary procedures against him. The Complainant outlined that in March 2019 the Respondent notified him of a complaint against him which he speculated may have been from an elected representative – hereinafter referred to as the original complainant and the original complaint. The complaint related to the Complainant’s dealings with a particular household in relation to their grant applications and works carried out under the Housing Adaptation Grant Scheme. The Complainant stated that he was not furnished with any details of this original complaint or the identity of the original complainant. In or around that time, the Complainant was suspended on full pay pending the outcome of an investigation/disciplinary process initiated by the Respondent and conducted by the Respondent’s Director of Services.

On the 23rd May 2019 the Respondent’s Director of Services wrote to the Complainant setting out four complaints against him which related to allegations of soliciting payments and/or receiving payments from the recipient household of various housing adaption grants. The particular works related to the replacement of windows and doors, a bathroom upgrade, a grant towards a house extension, the selection of a particular contractor to carry out the works in question and the delivery of ten loads of road planings. The letter to the Complainant of the 23rd May 2019 attached a number of appendices which included the Director of Services notes of meetings of the 29th March 2019 (dated in error 2018) and 15th April 2019 between the Respondent’s Director and members of the household in question, invoices and other documentation in relation to the grant applications. The letter of the 23rd May also stated that:

“Having made these enquiries and conducted various interviews with relevant parties, I wish to inform you that I have not received information to substantiate allegation number 3 above [re soliciting and receiving a payment in respect of the approval of a grant towards a house extension]. On this basis, my investigation is proceeding in respect of allegations 1, 2 and 4 only…….Before I proceed to draw conclusions in these matters, I wish to meet with you to ascertain your perspective…..You may bring along a recognised trade union representative or a colleague of your choice to this interview”.

The Complainant met with the Respondent’s Director of Services on the 13th June and the 4th of October 2019. The Complainant was accompanied by his union at these meetings in the course of which he strongly disputed and rejected the complaints against him and maintained there was insufficient or no evidence to support the complaints. The Complainant stated that he provided comprehensive and honest explanations to the Respondent in respect of each of the allegations. In this regard, the Complainant was adamant that he had not solicited or received payments for any works approved or carried out on behalf of the Respondent, that he had never done so over the course of his twenty-five years of employment and he provided detailed explanations in respect of each of the allegations. In relation to the allegation related to selecting a contractor to do the works, the Complainant maintained that when he received a housing grant file – including this particular file - there was always two contractor quotes included. Therefore he explained he had no involvement in selecting a contractor to do the work in question. The Complainant also pointed out that it was the contractor who had made this allegation.

In relation to one particular issue, the Complainant accepted that he had certified that access ramps had been installed in the household in question when in fact this was not the case. The Complainant maintained that he did this as extra works such as fixing pipes, leaks and doors and the removal of a partition wall were carried out instead and that these works were of equivalent monetary value to the installation of ramps – ie €1500. The Complainant accepted that he had not recorded how the grant was actually used on the file and stated that this “was an oversight on his behalf as he had been extremely busy but that he had verbally informed…”  his Line Manager and another official of the Respondent. The Complainant produced a diary entry of the 6th November 2018 - from his own diary - to this effect. The Complainant stated that “Whilst line management could not recall the conversation in question they also stated that they could not deny that such a conversation happened….[and that] The omitted alteration on the checklist, was nothing more than human error and should be treated as same. Equally it did not form part of the original allegations put to [the Complainant]”.

The Complainant maintained that he had previous dealings with the household in question and that he had legitimately refused a previous grant application. Consequently, the Complainant considered there was motivation behind the complaints made against him.  Throughout, the Complainant also raised his concerns regarding the Respondent’s failure to adhere to fair procedures in the conduct of the investigation/disciplinary process. 

On the 1st November 2019 the Respondent’s Director of Services wrote to the Complainant advising of his conclusions. In that regard, the Director outlined his assessment of each of the allegations and concluded that the Complainant had colluded with a particular contractor to financially benefit with respect to a specific Housing Adaptation Grant and that he had solicited and received payment in respect of the provision of road planings. The Director’s letter also stated that the household’s complaints were not vexatious and that the Complainant “did not execute [his] duties to the standard expected”. The letter concluded by stating:

“Having drawn the above conclusion and having consulted with the Grievance and Disciplinary Policies of [the Respondent] I am of the view that the above acts constitute gross misconduct and are a serious breach of your contractual terms of employment…..Before I proceed to recommend sanction in respect of my conclusions above, I wish to meet with you to ascertain your perspective….”

Thereafter, the Complainant met with the Respondent’s Director on the 27th of November 2019 and was accompanied by his trade union representative. At this meeting, the Complainant strongly took issue with the Director’s conclusions and continued to raise his concerns about the Respondent’s failure to adhere to fair procedures. The Director responded in writing to the Complainant’s concerns by letter of the 23rd December 2019. On the 13th January 2020 the Respondent’s Director wrote to the Complainant and advised that he intended “to recommend to the Chief Executive that [Complainant] be dismissed from [his] post….” and that if Complainant was “dissatisfied with [Director’s] investigation, findings or sanction [he] was entitled to lodge an appeal…..”.

On the 13th February 2020 the Complainant appealed the findings to the Respondent’s Chief Executive. An appeal meeting was held on the 9th March 2020. By letter of the 6th April 2020 the Chief Executive notified the Complainant of the outcome of his appeal and that the sanction of dismissal was being set aside and replaced with a final written warning and further, that he was being transferred to a Clerk of Works role in another department.

It is the position of the Complainant that the sanction of dismissal and subsequently final written warning was not warranted, was disproportionate, that his honest account and explanations of matters was not given due credence, that he was subjected to an entirely flawed investigation/disciplinary process and further, that he was not afforded fair procedures and natural justice. The Complainant’s submission to the WRC detailed the breaches of fair procedures and these included:

·       The failure to set out terms of reference for the investigation/disciplinary process, the failure to distinguish between an investigation and disciplinary process, the failure to furnish the Complainant with relevant disciplinary policies and potential sanctions and the failure to establish an independent investigation;

·       The failure to disclose to the Complainant the identity of the original complainant and details of the original complaint;

·       That he was not afforded the opportunity to meet or cross examine members of the household at the centre of the allegations;

·       That the Director of Services chose who to interview, interviewed members of the household in question without the Complainant’s knowledge or involvement, that the notes of those interviews were not countersigned by the interviewees, that the Director did not interview persons whom the Complainant considered material to the investigation such as the building contractors who provided quotes for the works to be carried out and that he/the Complainant was not provided a written account of the Director’s discussions with the two officials of the Respondent with whom he had spoken about the €1500 grant application for the installation of the ramps;

·       That the process was not impartial, that comments were made “which insinuated the view that [the Complainant] was guilty”, thatthe process was prejudiced from the outset and that the Respondent’s Director of Services “acted in the roles of Judge, Jury and Executioner”;

·       That the Respondent failed to adequately consider the prior course of dealings between the Complainant and the household in question including the impact of the Complainant’s refusal of a previous grant application.

The Complainant stated that the entire process had a detrimental impact on his health and well being, that he was subjected to a “witch hunt”, that his good name and reputation was unnecessarily and unfairly tarnished and that the Respondent breached its duty of care towards him. Accordingly, the Complainant is seeking the removal of “any sanction….from [his] record and [his] unblemished record restored”.  The Complainant is also seeking compensation for the manner in which he was treated by the Respondent and for the reputational damage he has suffered.

The Respondent outlined the Complainant’s role in terms of assessing applications and approving payments for individuals making applications under the Housing Adaptation Grant Scheme. The Respondent stated that it has statutory responsibility for the administration of the scheme which is funded 80% by the Exchequer and the balance by the local authority. The Respondent stated that there are significant sums of money involved.

In terms of the allegations made against the Complainant which led to the instigation of a disciplinary procedure, the Respondent outlined the following:

·       That in 2019 the Respondent was advised by an elected member of the Council that the Complainant “had engaged in inappropriate discussions with a family who had applied for funding under the scheme”;

·       That the Respondent appointed its Director of Services to carry out an initial review of the allegation which included meeting with the elected member and thereafter with the individual family at the centre of the allegations;

·       That the Respondent was satisfied there was a prima facie case to be addressed and placed  the Complainant on administrative leave;

·       That the Respondent undertook a formal investigation following which one of the allegations was deemed to be well founded. In respect of this allegation, the Respondent stated that the Complainant accepted that he had certified payment under the Housing Adaptation Grant Scheme for €1500 to be paid for a ramp which was in fact never provided. In this regard the Respondent noted in its submissions that  “….it is the position of the complainant that he certified this payment to enable additional payment to be made to the contractor for other work not included in the grant. He advised that he had a diary entry to support this position and that he had advised his own line managers of what he had done”;

·       That as a consequence of the serious nature of the allegation upheld against the Complainant there was a finding of gross misconduct and a recommendation that he be dismissed;

·       That the Complainant was afforded a right of appeal to the Respondent’s Chief Executive which resulted in the setting aside of the dismissal and the issuing of a final written warning.

In addition the Complainant was assigned to another role at the level of his existing terms and conditions where he would no longer have responsibility for the approval of grants under the Housing Adaptation Grant Scheme.

The Respondent rejected the Complainant’s contention that the process undertaken was flawed, prejudiced or lacked impartiality or transparency. In that regard, the Respondent stated that the Complainant was provided with all necessary information to enable him fully respond to the complaints and that the investigation report and appeal decision documents outline the Complainant’s responses and demonstrate his knowledge of the detail of the complaints. In relation to the Complainant’s contention that the contractor involved should have been spoken to as part of the investigation/disciplinary process, the Respondent did not accept this as “Such engagement could prejudice an investigation by other parties into the allegations that were not proceeded with”. In terms of the Complainant’s contention that he had informed his Line Managers of the payment of the €1500,  the Respondent stated that this was considered at both the investigation and appeal stages but that as the staff concerned were unable to either confirm or deny any such conversation with the Complainant and that the matter was evaluated on that basis.

In relation to the matter of cross examination in the course of the investigation/disciplinary process, the Respondent accepted that the Complainant was not afforded the opportunity to cross examine the persons making the complaint. In this regard, the Respondent stated “…[it] would firstly advise that in this instance the persons making the complaint were third parties to whom the [Respondent] had no power to compel to engage in such a process. However more importantly the [Respondent] is satisfied that the complainant was not in any way prejudiced by this, in that the matter of which was the subject of the disciplinary matter was based on facts which the Complainant confirmed as being factually correct”.

It is the position of the Respondent that there was a legitimate basis to undertake a preliminary examination of the original complaint and thereafter proceed with a formal investigation and disciplinary process. The Respondent stated there is a requirement to audit any public money spent by a public body regardless of the amount and establish that the money was spent for the purpose specified. The Respondent stated that it must ensure appropriate governance and that the Complainant lacked insight in this matter. The Respondent stated that in reaching the decision to dismiss the Complainant, the investigation had found that he had altered a document thereby breaching and/or disregarding the Respondent’s procedures, that his actions caused a potential breakdown of customer trust and exposed the Respondent to considerable legal and reputational risk. The Respondent was satisfied that the Complainant had “breached the implied term of trust and confidence in the working relationship…”.

In all the circumstances, the Respondent contended that its original sanction of dismissal was proportionate given the serious nature of the Complainant’s action and rejected the Complainant’s allegation that its disciplinary process did not adhere to the principles of natural justice and fair procedures. The Respondent also cited SI 146/2000 and Frizzelle V New Ross Credit Union Ltd [1997 IEHC 137]  in support of its approach.

I have considered the written and oral submissions in relation to this dispute including all the correspondence and emails furnished to me all of which were exchanged between the parties. In summary allegations arose in respect of the Complainant’s dealings with a particular household concerning the Housing Adaptation Grant Scheme. This was initially brought to the Respondent’s attention by an elected member of the local authority but the identity of this person or what he had reported was not disclosed to the Complainant. The Respondent appointed its Director of Services to inquire into the allegations.

The Respondent’s Director set out the allegations in his letter to the Complainant of the 23rd May 2019 and in his notes of the interviews he had conducted with members of the household in question. Thereafter, the Respondent’s Director met with the Complainant and his union. Following his assessment of the allegations the Respondent’s Director concluded in his letter of the 1st November 2019 that the Complainant had engaged in gross misconduct and had breached his contractual terms of employment. Following a further meeting with the Complainant, the Respondent’s Director issued the final outcome of his investigation/disciplinary process by letter of the 13th January 2020  which upheld the finding of gross misconduct and in addition recommended dismissal of the Complainant subject to appeal to the Respondent’s Chief Executive. The appeal resulted in the setting aside of the dismissal in favour of a final written warning together with the transfer of the Complainant to another department at the level of his existing terms and conditions.

The Respondent maintained that it has statutory responsibility for the administration of the Housing Adaptation Grant Scheme and that it is accountable for the disbursement of public funds. I accept the Respondent’s position in this regard and I recognise that there are significant sums of money involved in the adaptation and refit of houses for the purposes of the scheme. Accordingly, I am satisfied that the Respondent was entitled to pursue the allegations made against the Complainant on the basis that it considered them to be very serious and going to the root of the trust and confidence which the Respondent  expected of  its employee.

In terms of the investigation/disciplinary process embarked upon by the Respondent,  I am of the view, that the non disclosure of the identity of the original complainant/the member of the local authority and the content of what this person reported, did not materially disadvantage the Complainant. In that regard, I am satisfied that the Complainant was fully appraised of the details of the allegations and afforded an opportunity to respond. That being said however, I am of the view that given the gravity of the matters at issue and the consequences for the Complainant, the Respondent did not fully adhere to the principles of fair procedures and natural justice in its conduct of the investigation/disciplinary process. These principles are set out generally in Statutory Instrument (SI) 146/2000 and require:

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

 Having regard to the evidence presented to me, I am of the view that the investigation/disciplinary process fell short of the principles of fair procedures in the following respects in particular:

·       The Complainant was not furnished with any terms of reference or procedure for the investigation and disciplinary process and as a result, what emerged was a lack of distinction between these two processes. This lack of clarity between the conclusion of the investigation process and the commencement of the disciplinary process was compounded by the fact that the Respondent’s Director of Services managed the entire investigation and disciplinary process – from receiving the allegations, assessing the allegations, deciding that in some cases there was a conflict of evidence and/or insufficient information to substantiate the particular allegation,  deciding who should be interviewed, meeting with the members of the household in question, deciding that gross misconduct had occurred and ultimately deciding to recommend the sanction of dismissal. Whilst there is no evidence or suggestion that the Director of Services did not act in good faith, given the centrality of his decision making role with respect to the process followed and the substance of the complaints, I cannot be satisfied that the Complainant was afforded a fully independent and fair investigation and disciplinary process. Nor can I be satisfied that the Respondent’s Director was not prejudicially influenced – consciously or unconsciously – as a result of directly engaging with the members of the household in question and other parties in circumstances where the Complainant was not afforded this opportunity;

·       The Complainant was not afforded the opportunity to meet with or question the members of the household at the centre of the allegations thereby denying him the right to challenge the evidence against him. I note that in his letter to the Complainant of the 23rd December 2019, the Director of Services explained why cross examination was not possible and stated that in the particular circumstances he considered it would be “disproportionate to expect them, as complainants to present themselves for cross examination, which would inevitably be confrontational and difficult”. Notwithstanding the potential challenges of cross examination in the particular circumstances, given the consequences for the Complainant and the evident conflicts between his account of what occurred and that of the members of the household, I am of the view that efforts should have been made to afford the Complainant an opportunity to directly question the members of the household at the centre of the allegations and that this could have been managed in an appropriate manner;

·       I am also of the view that in the course of the investigation/disciplinary process efforts should have been made to interview certain witnesses put forward by the Complainant and to afford the Complainant an opportunity to question those witnesses. This would include the contractors who provided the quotes for the works to be carried out, who carried out much of the proposed work and who were implicated with the Complainant in the finding of collusion for financial benefit.  The Complainant should also have been afforded the opportunity to directly question his Line Manager and other official of the Respondent with respect to his discussions with them about the grant application of €1500 and/or the works allegedly done in lieu of the installation of a ramp.

The Complainant has also argued that the sanction of dismissal was disproportionate. In that regard, I have considered all of the evidence in relation to the non installation of the ramp, the evidence of the Complainant in relation to the works of equivalent value which he stated were carried out and the Housing Grant Application Checklist which was incorrectly completed by the Complainant. From the evidence I am satisfied that the actions of the Complainant in certifying the grant of €1500 for the installation of a ramp which was never actually installed significantly contributed to his dismissal. However, in terms of a fair disciplinary process, I find no evidence that prior to the dismissal, there was any exploration of dealing with the Complainant’s wrong doing by any action short of dismissal – and that is not to say that had other avenues been explored the Respondent would not still have moved to dismiss. This is particularly concerning given that the Complainant was a long serving staff member. Whilst a different sanction was imposed following the appeal including a transfer to another department, I consider the appeal outcome was in response to the dismissal decision taken at first instance and in any event, the appeal process did not address or seek to remedy the breaches of fair procedures which I have identified.  

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Accordingly, in light of my findings and conclusions I recommend as follows:

·       That the Respondent’s decision at first instance to dismiss the Complainant be revoked and expunged from the Complainant’s personnel record;

·       That the Respondent’s decision to issue a final written warning to the Complainant following the appeal process also be revoked and expunged from the Complainant’s personnel record;

·       That the Respondent and Complainant engage in constructive negotiations to explore the possibility of restoring the Complainant to his original role as Clerk of Works – should he so wish - subject to such measures as are necessary being put in place to ensure strict compliance and oversight of all necessary checks and balances in relation to the approval of grants and the disbursement of public funds.

Investigation/Disciplinary Procedure; Fair Procedures