ADJ-00035619

Complainant

Respondent

Anonymised Parties

An Accounts Manager

A Manufacturing Company

Representatives

Alpha Employment Representation Services

 HRS Consultants

This case was the subject of a number of complaints under the Unfair Dismissals Act, and other statutes which are the subject of a separate Decision. That decision contains a more detailed recitation of the facts and submissions than appears here.

While the facts and the arguments are the same this complaint is brought under the Industrial Relations Acts, 1969.

At the complainant’s interview for the position on May 30th, 2018, the respondent detailed the various roles associated with the position, such as taking control of the office, managing 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 it. At no time throughout the disciplinary process has the respondent denied he made that financial commitment to the complainant.

It is extraordinary that from June 27th, 2018, to October 30th, 2020, that the Managing Director appears to have been unaware of the complainant’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, including for 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 of her additional hours, he advised her not to be worried about these hours.

The complainant understandably assumed this to mean that she was trusted to self-manage their remuneration agreement.

In addition to payroll duties the complainant produced detailed quarterly and yearly accounts which include all payroll data which were presented to the respondent 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 the complainant.

On many occasions she was given very limited time to prepare adequately for either the investigation or disciplinary hearings. 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 the complainant only received important documents after hearings had been concluded.

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

Aside from the fact that the complainant 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 the complainant 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.

The respondent says that over an extended period of time the complainant made 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 any further authorisation for excess hours she worked, and she proceeded to do so.

The sums involved were approximately €26,000.00 and the breach of trust is a clear case of gross misconduct.

The employer in this case followed fair procedures and provided 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 was left with no option but to terminate the complainant’s employment.

The complainant had hidden the claimed hours on an excel spread sheet 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. 

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.

Following a number of delays, she eventually attended the investigation and, on foot of its conclusions, 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 November 4th inviting the complainant to an investigation meeting on November 9th. 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

Despite this, the respondent wanted to be fair to the complainant and establish what exactly happened and why. The rescheduled date was then set for Wednesday, November 11th. 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 the notice was too short.

She was then invited to a number of disciplinary meetings which she failed to attend.

Eventually, given that over a month of paid suspension had been 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.

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, and the dismissal stood.

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, the respondent 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.

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

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 in 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 high 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 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 timelier way with the investigator.

A workplace investigation is not a criminal trial, it is a fact-finding exercise. An employee is obliged to attend and give their account of whatever is required. If time is needed to produce additional records or material this can easily be accommodated.

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 the complainant’s 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 significant 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 had been 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 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 respondent’s reasonable concern 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 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 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 complaint under the Unfair Dismissals Act failed and I find that, while the same reservations apply to my consideration of the matter under the Industrial Relations Act, it would be neither just nor equitable on the above facts to provide her with any remedy. 

The complaint is dismissed.

Dismissal. Disciplinary procedures.