ADJ-00033695

Complainant

Respondent

Parties

Yvonne  Cregan

Royal Masterpeace Ltd

Representatives

Alpha Employment Representation Services

 HRS Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044509-001

08/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044509-002

08/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044509-003

08/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044509-005

08/06/2021

At the complainant’s interview for the position on May 30th, 2018, she says the respondent,

assured her that she would never work an hour for the company and not be paid for same.  

She subsequently made payments to herself on foot of this alleged commitment which the respondent says were unauthorised.

Following a disciplinary process her employment was terminated, which she complains was unfair.

The respondent says that over an extended period of time the trust placed in the complainant was abused as a result of her making unauthorised payments through the wages system into her personal account from the business account. Her employment was terminated after a fair process.

The complainant unreasonably interpreted an initial conversation with the company owner, and other subsequent conversations to mean that she could pay herself without further authorisation for excess hours she worked, and she proceeded to do so.

Evidence shows the extra payments as calculated at the time of dismissal €3.076 extra in 2018, €8,970.87 in 2019 and €11,794 in 2020. Plus 11.05% employers PAYE and PRSI.  It is very evident that the more she escaped attention the more she paid herself.

This breach of trust is a clear case of gross misconduct.

The employer in this case followed fair procedures and provided her with several opportunities to explain her actions.

There was an initial meeting with the MD, followed by an independent investigation, disciplinary and appeal process, following which the respondent terminated the complainant’s employment.

The complainant had hidden the hours for which she claimed payment on an excel spreadsheet on her computer.

The employer was unaware of this spreadsheet or of any hours being kept or logged and at investigation the complainant admitted the existence of this hidden file, gave the investigator the password but said that the password should not be given to the employer.

Personal difficulties, and other explanations were used to justify excess attendance in the office, and this reduced the opportunity for the MD to go into the payment systems and to detect the wrongdoing.  While this may look like commitment to her work, in fact it was to prevent the respondent from accessing the system and discovering what was going on.

Despite her contention that all these extraordinary payments were authorised, her explanation for never mentioning them even when discussing a pay rise or separately a bonus is that it ‘never entered her head’.

She showed no concern for the impact of her actions on the business and its employees.

Evidence was submitted of the secret, protected document and that the complainant’s upwards trajectory of financial transfers to her account at over €26,000 over the twenty-six months in employment were very quickly going to double if they were not detected.

A few weeks before the matter was detected the complainant was ill in hospital late on Wednesday  October 14th  and she texted the employer to notify him.  She was told by the MD not to worry about the wages, the employer telling her he would process a standard week for everyone and that she should take care of herself.

However, she said wages were her “priority” and despite the employer’s insistence that she should not, the complainant came in to work anyway.

There is also a dispute about the complainant’s correct salary.  She says it should have been €42,000 and not €40,000.

Given the number of unauthorised payments made by the complainant to herself this is a minor aspect of the matter.  The respondent did not know that the complainant was getting close to €40k through extra payments she paid herself.

There were then lump sum payments made which were not authorised, requested, or approved.

The suggestion that an employee who is in charge of banking could authorise payments and make transfers of substantial amounts of money into their personal account makes no sense and would damage any business.

No employee on an annual salary gets extra payments and other employees that are liable to do overtime follow a clear authorisation path. Claims are signed off by the employee and their supervisor and there is a comprehensive paper trail for these authorisations.

The complainant was responsible for processing these extra payments and would be aware of this system, but never used this system herself.

 She also failed to mention her extra payments to herself when a bonus was discussed. At the time of dismissal, the loss to the company was calculated at €26.000. More forensic analysis of the accounts established that the loss was more than this.

Regarding the procedure leading to the termination, there was a meeting with the complainant when this was discovered following which she was suspended. She was then invited to an investigation meeting.

A letter was sent on 4th November inviting the complainant to an investigation meeting on Monday 9th November. The complainant sought comprehensive documentation most of which did not seem to be relevant and stating that she would not be attend any investigation until she was given all this information.

It was pointed out that the function of a suspension and the requirement to co-operate and providing a final opportunity to co-operate. A letter was also sent as it was seen as an unacceptable delay and frustration of the investigation

Even though it appeared that the complainant was frustrating the process, the respondent wanted to be fair to her and establish what exactly happened. The meeting was rescheduled for Wednesday November11th.

The complainant, despite being told this was a final opportunity to attend and that she was to be available to attend, indicated that this date was not suitable and as it was too short of notice.

Following a number of delays, she eventually attended the investigation and, on foot of its conclusions, was then invited to a number of disciplinary meetings which she failed to attend.

Eventually, given over a month of paid suspension was exhausted the meeting proceeded without the complainant but she had been provided with an opportunity to, and did appeal.

The appeal was held by an independent HR professional who dismissed the appeal.

Both elements of a fair dismissal related to the substance of the case and the procedure followed are clearly met by the employer.

Detail was submitted ofthe extra payments as calculated at the time of dismissal €3.076 extra in 2018, €8,970.87 in 2019 and €11,794 in 2020. Plus 11.05% employers PAYE and PRSI. 

The investigation found against the complainant and recommended the matter be progressed through the disciplinary procedure.

Following the decision to dismiss the complainant was offered an opportunity to appeal to a different external HR Professional. The complainant did attend the appeal. The appeal was not successful.

On the terms of information complaint, the respondent conceded this complaint.

On the holidays, the respondent says that she should be compensated for holidays on top of all the unauthorised payments referred to above.

In respect of the notice payment, given it is gross misconduct no notice applies.

At the complainant’s interview for the position on May 30th, 2018, the respondent detailed the various roles associated with the position being offered, such as taking control of the office, managing office staff, and assisting in rebuilding positive relationships with both suppliers and customers.

He assured her that she would never work an hour for the company and not be paid for same.  At no time throughout the disciplinary process has Mr Farrelly denied he made that financial commitment to Ms Cregan.

It is extraordinary that from June 27th, 2018 to October 30th, 2020 the Managing Director was unaware of Ms Cregan’s actual remuneration.

In the first number of weeks of her employment the complainant had no access to their bank’s procedures and protocols. However, she still prepared all wages and included her additional hours, notified the respondent of what she had done, and it was he who authorised these payments with the bank in the full knowledge of what everybody was being paid.

After several weeks of letting the MD know her additional hours, he advised her not to be worried about these hours.  Ms Cregan understandably assumed this to mean that she was trusted to self-manage their remuneration agreement.

In addition to payroll duties Ms Cregan produced detailed quarterly and yearly accounts which include all payroll data which were presented to Mr Farrelly who no doubt in turn shared with his accountant for auditing purposes. We again contend that the respondent and his accountant must have been aware of what everybody was being paid.

With the exception of holiday periods, she worked overtime every week of her employment

The complainant kept a personal record of the hours she worked, and it is inconceivable that the company would not have been aware of the considerable additional hours she worked to complete her work. Furthermore, as a keyholder they would have been aware of the many occasions when she was last to leave the premises.

The disciplinary process was flawed and unfair to Ms Cregan.

On many occasions she was given very limited time to prepare adequately for either the investigation or disciplinary hearings. In reality it appears the MD participated in all aspects of the process from the investigation right through to the appeal itself.

In addition, on many occasions Ms Cregan only received potential important documents after hearings had been concluded.

Finally, it was extremely unfair that the disciplinary process was concluded without the opportunity for Ms Cregan to attend a disciplinary hearing in person.

Ms Cregan did not receive a written statement of her terms of employment and raised this issue with the company on a number of occasions when she commenced in Royal Masterpeace Limited.

She did not receive a minimum notice payment when her employment was terminated. In addition, Ms Cregan did not receive a payslip for the pay period to the December 3rd to December 9th, 2020, or for the day in which her employment was terminated.

Ms Cregan did not receive her paid holiday/annual leave entitlement, believed to be in the region of three weeks.

Aside from the fact that Ms Cregan denies all the allegations against her it is her contention that the totality of the disciplinary process was flawed, unfair and unreasonable, and this gives rise to her complaint under the industrial Relations Act.

Prior to this employment Ms Cregan had a good thirty-one year employment record with her former employer with an unblemished disciplinary record. The company’s decision to dismiss her has resulted in her losing her livelihood.

At the heart of this case lies the exchange which the complainant says took place in the course of her recruitment to work with the respondent.

In her version, (and interpretation) in the course of her interview for the position on May 30th, 2018, the owner of the company went through the various details related to the position and then, according to her, ‘assured her that she would never work an hour for the company and not be paid for it’.

It is possible that he did, although as the complainant was to be a salaried employee that makes it somewhat less likely. However, that potential conflict pales into insignificance when placed beside how the matter unfolded.

That was that, based on what she perceived as a degree of disinterest in her actual working arrangements and excess hours, she proceeded to pay herself for those extra hours without seeking authorisation for them, on the basis that the respondent’s comments at the interview provided the necessary authority to do so.

This refers in particular to the assertion in the submission that ‘Ms Cregan understandably assumed this [a particular exchange] to mean that she was trusted to self-manage their remuneration agreement’.

It is an explanation that is breath-taking in its naivete from a complainant whose professional role was as an accounts’ specialist, and who had thirty years or more experience in that role and it is quite unbelievable.

The further attempt to imply some endorsement of her liberty to act in this way as a result of a degree of latitude extended to her during the first three months, and later to make payments up to a certain limit does nothing to reduce the scale of the misconduct involved in the case.

In the course of the hearing the demeanour of the complainant indicated a degree of innocence of any wrongdoing and clearly, she did not regard herself as having engaged in any breach of proper conduct.

That she did not do so is also simply incredible.

That said the jurisdiction of an Adjudication Officer does not extend to deciding the merits of the case and the jurisdiction has been often repeated in Unfair Dismissals cases at both the EAT and the WRC Adjudication service.

The EAT decision in Looney and Co v Looney UD843/1984 and the view of Dr Mary Redmond to the same effect were that.

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

Judged by that yardstick the respondent had no alternative but to act and on the basis of the submission above followed a good standard of fair procedure.

An issue arises about the manner in which the disciplinary process was concluded, in particular the final stages when the complainant did not attend the Disciplinary Hearing, indeed refused to attend it other than on her own terms. This was not the first (or last) occasion when there was an issue about the complainant’s cooperation with the process.

She has complained that ‘on many occasions she was given very limited time to prepare adequately for either the investigation or disciplinary hearings. In relation to the investigation, she had no justification for not cooperating in a more timely way with the investigator.

A workplace investigation is not a criminal trial, it is a simple fact-finding exercise. An employee is obliged to attend and give their account of whatever is being investigated. If time or an additional opportunity  is needed to produce additional records or material this can easily be accommodated as the employee must verify their account of any interview before it is passed to other parties.

The initial interview in an investigation is but the first step in the process which will offer numerous opportunities to the employee who is subject to the investigation to add to, or amend the record or the materials the investigator is obliged to consider.

There is some confusion about the dates; the respondent says the first invitation to a disciplinary hearing was on November 27th, the complainant on November 30th, 2020.

In any event she was invited to attend a disciplinary hearing to take place on December 2nd, 2020, but the following day she said that this was insufficient notice and she suggested Friday 4th December as an alternative date. The company responded suggesting December 3rd.

The complainant declined saying she could attend on the 4th.

By 16.00 on the 3rd the complainant confirmed she could not attend but the following day the decision maker said she was going to proceed on the basis of a documents only decision and inviting her to make a submission, to be received by 12.30 on December 7th.

One is left wondering why, if the decision could have been postponed until December 7th a hearing could not have been held, as requested by the complainant. This apparently had something to do with the availability of the decision maker.

It is regrettable that, perhaps exasperated buy the delay, the respondent eventually proceeded in her absence.

The question is therefore whether taken in the context of what had gone before, this aspect of the final act in the matter is sufficient to make the process unfair, noting that the complainant had, without much justification contributed to a lot of delay in bringing the matter to a conclusion.

On the one hand this could have been better handled by the respondent who could surely have ensured that the complainant was accorded a hearing in person, and the non-availability of a specific person is poor justification for its failure to do so.

On the other, the complainant was quite clearly being uncooperative, and not for the first time; there was a pattern of such conduct (and it was to be repeated at the appeal stage), and of course the subject matter of the disciplinary action was very serious.

In respect of one of the disciplinary hearings she declined to attend because she had another meeting. While this may have been with her advisor, it is not an acceptable reason to fail to attend a disciplinary hearing and provides some evidence of the level of her cooperation with the process. 

She had the investigation report which issued around November 21st in her possession for sufficient time to prepare for a hearing, and in any event all of the facts in that report were well known to her since October 30th.

A person is entitled, in general, to have a hearing in person (including these days, online) and she was being offered this up to December 4th, but she declined to attend twice, which bearing in mind she had offered to be available on that day is hard to understand.

Given the complainant had been on paid suspension at that point since October 30th, the disciplinary hearing eventually went ahead without the complainant, due to her stated unavailability and the suitability of the times set up for the meeting.

After considering all the facts available and on the basis of the documentary material only, including a written submission from the complainant, the decision of the disciplinary meeting was to dismiss the complainant and a letter was issued to this effect with the option to appeal.

She appealed unsuccessfully. I note she again sought a two-week deferral of the appeal hearing the day before it was due to happen.

I find that in general she did not cooperate to the required standard at various stages of the process.

I also find that she was offered reasonable opportunity to attend a hearing in person but unreasonably declined to attend.

There was a clear obligation on her to make herself available, she had ample opportunity to attend, and I could find no reasonable basis for her refusal to be available.

I find that on these very particular facts the respondent was justified in proceeding in her absence.

Specifically, I take into account the complainant’s general lack of cooperation with the investigation and disciplinary processes and the reasonable expectation that she would continue to do so.

A further critical factor is that the complainant made a written submission to the decision maker, which is evidence of acquiescence in the proposed way of proceeding. It also appears that the complainant had the benefit of professional support and advice at that stage.

I have regard also to the fact that in her internal appeal she made no complaint about the disciplinary hearing being conducted in her absence (although she did at this hearing). Her appeal was based on the alleged failure to properly consider her written submission.

Therefore, I find that the manner in which the final decision was made falls within what can only be a very small category of situations in which a hearing may proceed in the absence of the employee in question, where they have demonstrated a lack of cooperation or obstruction of the process.

For those reasons the respondent’s actions survive being rendered unfair by virtue of the complainant not being in attendance.

Her unfair dismissal complaint fails.

Regarding her other complaints it was accepted that she had not been given a statutory statement of her terms of employment and this complaint succeeds.

Her complaint regarding notice payment does not succeed as she was dismissed for gross misconduct.

I find that she was not paid her full annual leave entitlements. The respondent submitted that, given the circumstances of the case she should not be paid any leave due.

However, the entitlement to annual leave is based on statute and may not be diminished as a result of an employee’s conduct.  On the basis of the submissions of the parties I find she is owed eighty-eight hours or twelve days annual leave.

For the reasons set out above I find as follows.

Complaints CA-00044509 001 and 003 are not well founded.

Complaint CA-00044509-002 is well founded and I award the complainant a payment of €810.00

Complaint CA-00044509-005 is well founded and I award the complainant €1944.00.

Unfair Dismissal, procedures,