Complainant

Respondent

Anonymised Parties

A Former Employee

A Financial Services Provider

Representatives

Terry Gorry of Terry Gorry & Co Solicitors

Mr Brian Hallissey BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038909-001

27/07/2020

The Complainant is claiming he was unfairly dismissed for reasons which arose outside of the workplace and that the Respondent has not shown substantial grounds for the dismissal. The Respondent maintains that it lost trust and confidence in the Complainant and that his dismissal was reasonable in the circumstances.  

The Respondent stated that on 9 July 2018, it received a communication from a Garda Superintendent requesting information on DEASP (Department of Employment Affairs and Social Protection) transactions in the name of a particular individual - Mr X - for the purposes of this decision. The gardaí advised that the information was required to assist in its investigations of an allegation of theft and fraud allegedly committed by the Complainant. The Respondent was advised that the Complainant had been arrested in connection with the allegation. Following his release from custody, the Complainant spoke with the Respondent’s Investigation Branch Security Manager (Witness 4) and confirmed that he had been arrested and charged on the 16th July 2018 with withdrawing approximately €40,000 from Mr X’s credit union account. The Complainant denied any wrongdoing in respect of the DEASP transactions but admitted that there had been irregularities regarding the withdrawal of funds from Mr X’s credit union account. Thereafter the Complainant was suspended from duty and was subject to an investigation and disciplinary process by the Respondent which resulted in the Complainant’s dismissal. The Respondent maintained that its investigation and disciplinary process was fair, thorough and reasonable and in that regard it outlined the following:

·       That it acted in accordance with its discipline policy and procedure;

·       That the Complainant was afforded fair procedures throughout including representation, and the right of appeal;

·       That the dismissal was based on the conduct of the Complainant in respect of his admission of fraudulently withdrawing €40,000 from Mr X’s credit union account. In that regard, the Complainant had pleaded guilty to a charge under the Criminal Justice (Theft and Fraud Offences) Act 2001 in a criminal prosecution and as a result, the Respondent considered that the mutual trust between the employer and employee had been fundamentally breached.

The Respondent presented a number of witnesses who – inter alia – outlined their role in the disciplinary process.

Witness 1, Employee Relations give evidence that she had been 43 years working with the Respondent and that she had experience of all areas of HR in the company. In that regard she outlined her role in the investigation process, in assembling the information and in the drafting and issuing of letters to the Complainant in connection with his suspension and the disciplinary process. Witness 1 also clarified that relevant letters are copied to the relevant trade union where the employee is a member. In particular Witness 1 referred to her letter to the Complainant of the 1st November 2018 which among other things recounted the criminal charge against the Complainant, his relationship with Mr X, his role as a nominated agent for Mr X with regard to the latter’s DEASP payments, the matter of the payment of an oil bill of €1000 and the matter of an amount of €852 Euro which was short when the Complainant balanced his drawer on the 14th July 2018. The letter also recounted information the Complainant had conveyed to the Respondent regarding his personal circumstances and mental health and that the Complainant had been advised by the Respondent of the availability of the Respondent’s welfare services should he wish to utilise same. The letter of the 1st November 2018 also stated:

“In light of the matters referred to above we believe a serious question has arisen as to the trust and confidence which the Company can have in you as an employee. Please be aware that the Company’s considerations, given the seriousness of the above matters, may include a decision up to and including your dismissal.

Before any decision is taken we wish to afford you an opportunity to furnish any explanation, and/or to make any union or other representations you might wish to make in relation to the issues outlined above……

You are also being afforded the opportunity if you so wish, of attending an oral hearing in addition to, or as an alternative to furnishing a written explanation. You may be accompanied at such hearing by a union representative or by a friend”

Witness 1 outlined that the Complainant was accommodated throughout the investigation/disciplinary process with time extensions. She also outlined her dealings with the Complainant’s medical evidence including referrals to the Chief Medical Officer (CMO).

Witness 1 was cross examined on her evidence by the Complainant’s legal advisor including in relation to the Complainant’s full co-operation with the investigation/disciplinary process, the Respondent’s interview of the Complainant on 17/7/2018, the referrals to the CMO, the CMO’s review of the medical evidence which did not include a face to face meeting with the Complainant and an internal welfare report concerning the Complainant which was not sent to the CMO. Witness 1 outlined that when her role in the process was complete the case and all documentation accumulated to that point – including the record of the oral disciplinary hearing which had taken place on the 15th January 2019, was passed to Witness 2.

Witness 2 was the Respondent’s Human Resource Manager Retail. He conducted a paper review of the investigation and disciplinary process including the record of the oral disciplinary hearing which had been agreed with the Complainant. In his evidence at the adjudication hearing, Witness 2 outlined his career with the Respondent spanning in the region of forty one years. He stated that when he received the file he checked that the initial steps of the disciplinary process had been properly followed, that the Respondent’s concerns had been identified, that the Complainant had been properly notified of the seriousness of the allegations, had the opportunity to respond and afforded representation. He also checked the medical evidence and the Respondent’s welfare report on the Complainant. Witness 2 stated that he also considered potential mitigation factors including the Complainant’s personal circumstances, his length of service, his record of satisfactory service with the Respondent and potential alternative roles within the Respondent. Witness 2 stated that ultimately he made the decision to dismiss the Complainant on the basis of a lack of trust and confidence. In this regard, at the adjudication hearing, Witness 2 stated that given the nature of its business which requires “absolute reliance” on every employee, the Respondent “needs trust and confidence at every position in every employee”.  

The decision to dismiss was communicated to the Complainant by Witness 2 in his letter of 13th June 2019. In the dismissal letter, Witness 2 stated that he had concluded that three of the disciplinary charges did not have relevance “to the serious question of how the Company can have trust and confidence in you as an employee”. The dismissal letter went on to state:

“It is fundamental to the success of [the Respondent], given the business areas it operates in, that the company can have trust and confidence in its employees.

You have pleaded guilty to fraudulently withdrawing €40,000 from the credit union account of [Mr X]. Your actions, in this regard, have brought the Company to not have trust and confidence in you as an employee.

In the circumstances, I see no viable alternative but that you be dismissed…..”

Witness 2 was cross examined on his evidence by the Complainant’s legal representative in particular in relation to the medical evidence and the issue of loss of trust and confidence. In response Witness 2 accepted that no issue had arisen in the workplace which gave rise to trust and confidence concerns. Witness 2 also accepted that no issue had arisen affecting the reputation of the Respondent and that prior to then, the Complainant had an unblemished record of twenty one years. He stated that each case is dealt with on its merits.  

The dismissal letter advised the Complainant of his right of appeal and that he was being afforded the opportunity of an oral appeal hearing.

Witness 3 was the Respondent’s Director of HR Business Partnering, Retail and Corporate. Witness 3 dealt with the appeal. In that regard, he gave evidence in relation to written submissions he received from the Complainant dated 16/3/20 wherein the Complainant stated – inter alia – that he was “not confident to be interviewed again with support”, that the Respondent had “made no effort to understand the root cause of the problem….” and that he felt he was being “criminalised because of [his] psychological problems”. The Complainant also outlined his length of service and unblemished record, his financial reliance on his employment and that he was “being dismissed for [his] actions outside the workplace,not for any performance in the workplace”. He also stated that “There has been no engagement with [Complainant] to discuss any constructive path forward such as finding an alternative position in the organisation. I [Complainant] haveexpressed my willingness to look at other roles and/or retraining”. Witness 3 stated that the appeal process was deferred at the Complainant’s request and due to Covid-19. Witness 3 also gave evidence in relation to various medical submissions he had received from the Complainant. In his letter to the Complainant of the 22nd April 2020 Witness 3 recounted the grounds of appeal, outlined the medical documentation and references he had received from the Complainant and advised that he would consider all of these matters in deciding on the appeal. In his evidence at the adjudication hearing Witness 3 recounted his considerations in relation to the appeal including the application of the procedures, the Complainant’s admission in relation to the €40k withdrawal, the Complainant’s denials in relation to other matters, alternatives to dismissal, the level of sanction and mitigation. Witness 3 stated that he was not satisfied that the medical evidence submitted by the Complainant demonstrated that he could not “distinguish right from wrong”. In that regard Witness 3 stated that he had no doubt the Complainant had issues/challenges but he had not provided any medical evidence “to account for the fraud”.  He stated that whilst the Complainant’s actions occurred outside the workplace, nonetheless they raised significant and sufficient trust and confidence issues, that Mr X had put his trust in the Complainant, that the Complainant had “abused that trust” which raised the issue of the Complainant’s “integrity and honesty”.  By letter of the 12th June 2020, Witness 3 conveyed the outcome of the appeal to the Complainant that the original decision to dismiss was being upheld. The appeal outcome letter dealt with each of the Complainant’s grounds of appeal and stated:

“I have considered all of these matters together with the character reference….. None of these matters alter my view that by your actions, whereby in fraudently withdrawing €40,000 from the Credit Union account of [Mr X], you undermined the trust and confidence the Company can have in you, such that the decision to dismiss you from your employment from the company is warranted.”

Witness 3 was cross examined on his evidence including in relation to a letter sent by the Complainant’s Consultant Psychiatrist  to the Chief Medical Officer (CMO) which Witness 3 stated he had not seen but that he was aware of the CMO’s views.  Witness 3 accepted that the Complainant’s mental health was a strong feature of the case. It was put to Witness 3 that he was seeking medical confirmation that the Complainant could not distinguish between right or wrong as opposed to recognising that the medical stressors the Complainant was encountering had led to “bad decisions” on his part and that this in essence was a reversal of the burden of proof. Witness 3 accepted that the Complainant had not met the CMO. Witness 3 maintained that no medical evidence had been submitted to indicate that the Complainant did not know what he was doing “but still he did it…..engaged in a wilful act of defrauding €40k”. Witness 3 maintained that he considered all the medical evidence.

Witness 4 was the Security Manager with the Respondent since 2008. He gave evidence that he was informed that the Complainant had been arrested on the 16th July 2018, that he met the Complainant outside the Garda station that day and advised him he was being suspended. Witness 4 stated that the Complainant was forthcoming in relation to the reasons for his arrest. Witness 4 arranged to meet with the Complainant the following day 17/7/2018 and on the evening beforehand the Complainant was offered the opportunity to be accompanied at that meeting. The Complainant attended the meeting on 17/7/2018 on his own and was interviewed “under caution”. Witness 4 interviewed Mr X on 18/7/2018. Witness 4 stated that he recorded all the information and furnished it to the Respondent’s HR department which in turn was copied to the Complainant.

Witness 4 was cross examined on his evidence. He clarified under cross examination that after he met the Complainant outside the Garda station on 16/7/2018 he then accompanied the Complainant back to his house where they had tea and he stayed for approximately 30/40 minutes. It was put to Witness 4 that the Complainant had not been cautioned about admissions of wrong doing. It was also put to Witness 4 that it was not practically possible for the Complainant to secure representation for the meeting on 17/7/2018. The witness reiterated that the Complainant was offered representation. It was also put to Witness 4 that the outcome of his investigation should have been that the Complainant had no case to answer for any alleged wrong doing within the workplace.

It is the position of the Respondent that it conducted a fair and impartial disciplinary process in accordance with its own disciplinary procedures and SI 146/2000, that at all stages it considered the Complainant’s explanations and that it has discharged the burden of proving that the dismissal was fair and proportionate on the basis of the Complainant’s conduct. In that regard the Respondent stated that the Complainant had “opened the door” in relation to his withdrawals from Mr X’s credit union account, that he had admitted the wrong doing and pleaded guilty in the criminal courts, that his actions amounted to gross misconduct and in the circumstances, the Respondent deemed the sanction of dismissal to be within the band of reasonable responses. The Respondent maintained that the actions of an employee outside the workplace can have an impact on employment and that its ability to have trust and confidence in its employees was fundamental given the nature of its business. In that regard, the Respondent stated:

“In this case, the Complainant while in the course of his duties for the Respondent conducted himself in a manner which has had the effect of destroying the relationship of confidence and trust between them”

The Respondent also stated that it considered all the medical evidence and allowed for further medical submissions, that there was no reversal of the burden of proof and that it considered there was “nothing conclusive in it…..nothing of any substantial nature” in terms of explaining the Complainant’s conduct. The Respondent cited various case law in support of its position.

The Complainant commenced employment with the Respondent on the 21st June 1999. His dismissal was effective from the 19th June 2020. The Complainant maintains that he had an exemplary and unblemished record within the Respondent, was in a position of trust, had acted as branch manager and was a keyholder. He maintains that the Respondent has not shown substantial grounds for his dismissal.

The Complainant outlined the background to the difficulties which arose for him which mainly consisted of a series of events of a personal nature including his recognition of his homosexuality, his marriage breakdown, the mental stress and anxiety which he experienced and the intense personal pressure from his new relationship including financial pressure. He stated that Mr X was a family friend aged in his mid eighties and that he/the Complainant was helping to manage Mr X’s finances and had been nominated by Mr X as his agent for the collection of his DEASP payments.

The Complainant outlined that he had been admitted as an inpatient and outpatient in St Patrick’s mental health service at various times since December 2016. In that regard, the Complainant referred to the views of his consultant psychiatrist and various letters written on his behalf. He stated that he was surprised the CMO had not made an appointment to see him in person. He said he did not know the Respondent was seeking a specific medical explanation for what he did and that this constituted a reversal of the burden of proof.

In the course of his oral evidence the Complainant outlined his various roles within the Respondent including as Acting Branch Manager for a period. He outlined his responsibilities with regard to handling cash and that in 2010 he could handle approx. €250k twice a week and was responsible for balancing the cash. He stated that he gave the Respondent his full commitment.

The Complainant outlined the circumstances of his arrest on 16 July 2018. He stated that when he left the garda station at 5:30pm he was met by the Respondent’s Security Manager/Witness 4 who came with him to his apartment. The Complainant stated that he was exhausted at that stage having been questioned all day by the gardaí and that his mental state was “not good”. He stated that he found his meeting with Witness 4 very challenging. In relation to the meeting with Witness 4 on 17 July 2018, the Complainant stated that he did not have a phone number to contact any union official and that he did not have the time to secure representation for that meeting. He stated that the meeting on 17/7/2018 lasted approximately an hour and that afterwards he was furnished with the record of the meeting which he accepted was accurate.

The Complainant stated that at all times he was upfront, honest and forthcoming with his responses. In that regard, he accepted his wrongdoing in relation to withdrawing €40,000 for Mr X’s credit union account and stated that he had immediately pleaded guilty in respect of this matter in the criminal courts and had already repaid approx. €32k to the injured party Mr X. However, the Complainant disputed and denied the complaints in relation to the DEASP payments. The Complainant stated that he explained the matters in relation to the payment of an oil bill for Mr X and the matter of a shortfall of €852 in his counter balance on the 14th July 2018. He stated that outlined all of these matters at the disciplinary hearing on 15 January 2019. In relation to the €40,000 the Complainant explained that he gave this money to his then partner who had represented to him that he needed the money for various reasons including to help his parents and pay rent. He stated by that stage his marriage had broken down and that his new partner had “exploited” him. The Complainant stated that he personally did not gain from any of the money.

The Complainant stated that he was not aware of any reputational damage to the Respondent as his criminal court case was heard ‘in camera’. In relation to the potential of alternative employment, the Complainant stated that he would do anything “no matter how menial”. He stated that he enjoyed working for the Respondent and always gave of his best.

The Complainant was cross examined on his evidence. In response to a question that on 16 July 2018 his meeting with Witness 4 had concluded by 7pm, the Complainant accepted that he did not try to contact anyone that evening in relation to securing representation for the meeting on the following day 17 July. In relation to the meeting of 17 July and his admission of fraudulently withdrawing €40,000 from Mr X’s credit union account, the Complainant stated in response to questions, that he would have made that admission “whether friend present or not” as he was going to be honest and that he knew the purpose of the meeting with Witness 4.

In relation to the disciplinary meeting on 15 January 2019, the Complainant confirmed under cross examination that he was accompanied at that meeting by his union representative and he stated that by that stage he had pleaded guilty in the criminal court to the €40,000 withdrawal from Mr X’s credit union account. The Complainant also confirmed that he was assisted by his union at the appeal stage.

The Complainant was questioned about the extent of his withdrawals for Mr X’s credit union account and in response he stated that the withdrawals started approximately October/November 2017, that the amount each time was in the region of €350 as this was the maximum he could take out of the account at any one time. Accordingly he explained there were multiple withdrawals over the period up to approx 140. It was put to the Complainant that he had engaged in a “sustained campaign” of withdrawing money from Mr X’s credit union account to which the Complainant replied that he did not know “how he got caught”. The Complainant speculated that Mr X’s carer may have seen something in his accounts and reported it to the gardaí. It was put to the Complainant as to how he could see no connection between “stealing money from a vulnerable person over 140 times” and his role in the Respondent. In response the Complainant maintained that the wrongdoing did not occur in the workplace, that what he did was wrong, that it was a “family issue…. [and] could have been resolved as a family issue only someone else got involved”. However the Complainant also stated under cross examination, that he accepted “that doing something wrong outside of [a] job can affect job” and that he accepted there was a connection between his wrong doing outside of the workplace and his role within the Respondent.

The Complainant was cross examined in relation to his medical evidence. It was put to the Complainant that the medical evidence did not state that his mind was so overborne that he did not know what he was doing and that the CMO was a qualified medical practitioner capable of forming a medical judgement. In response the Complainant accepted that his medical evidence had been considered by the Respondent – albeit – in his view - unfairly rejected. The Complainant also stated that his medical advisors had recommended a return to the workplace.

The Complainant accepted under cross examination that the Respondent was a “trust organisation” in terms of the necessity to have trust in its employees and that on a general level, outside of his own case, the Respondent was entitled to consider dismissal as an option. The Complainant stated that in light of his otherwise unblemished career history with the Respondent, he believes there could have been a job within the Respondent which he could have done – eg customer services – which would have “no involvement of cash”.

The Complainant stated that since his dismissal he has been in receipt of the Carer’s Allowance as he was caring for his mother. He had started a cleaning job for 18 hours/week. The Complainant stated that the initial investigation by Witness 4 was done with unseeming haste after his day long Garda interview and that he did not have representation nor time to secure representation on 17/7/2018. The Complainant also stated that he should have been seen in person by the CMO and that he was being placed in a position where the onus was on him to provide particular medical evidence thereby reversing the burden of proof. Finally, the Complainant stated that sufficient regard was not given to his long and unblemished career in the Respondent, to the significant medical and personal issues he faced at the time, that the Respondent suffered no loss of reputation and that the ‘trust and confidence’ reason featured in many dismissal cases and cannot be used as a ‘catch all’ reason. The Complainant reiterated that he was willing to take on any role in the Respondent….eg cleaner,  including any role not dealing with cash. In all the circumstances it is the position of the Complainant that the sanction of dismissal was excessive and disproportionate. The Complainant cited various case law in support of his position.

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (4) of the Unfair Dismissals Act [1977-2017] states that the dismissal of an employee “shall be deemed…..not to be an unfair dismissal, if it results wholly or mainly from one or more of the following”:

a)      “the capability, competence or qualifications of the employee ….,

b)      “the conduct of the employee,

c)       “the redundancy of the employee, and

d)      …..”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

a)      “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)      to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

As is clear from Section 6(7) of the Act, I am required to consider whether the Respondent dealt with its concerns in a reasonable manner in compliance with fair procedures and the company’s disciplinary procedure. The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, to afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       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.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

In the instant case, the Complainant has stated that his first interview with Witness 4 was done with unseeming haste and that he had no opportunity for representation at the meeting on 17/7/2018. The Respondent has disputed this and pointed out that the Complainant accepted under cross examination that he was intent on accepting responsibility with regard to the withdrawals from the credit union, that there was sufficient time to obtain representation for the meeting on 17 July, that he was represented at the disciplinary hearing on 15 January 2019 and that he had the opportunity of a further oral hearing at the appeal stage, which he declined.

I have carefully considered the extensive evidence and submissions of the parties with regard to the conduct of the disciplinary and appeal procedures. Whilst I accept that the meeting with Witness 4 on 16 July 2018 was unduly and unnecessarily hasty and that the Complainant should have been represented at the meeting on 17 July, nonetheless on balance, I am of the view that the Complainant was afforded adequate fair procedures over the course of the entire disciplinary and appeals process. In particular, I am satisfied that the letter to the Complainant of the 1st November 2018 was comprehensive, that it clearly set out the issues of concern for the Complainant and the Respondent and that it put the Complainant on notice that his dismissal was under consideration as was the issue of trust and confidence. Thereafter the Complainant availed of representation including at the disciplinary hearing held on the 15th January 2019 and he participated in the appeals process by way of written submission of the 16th March 2020. Further, I am satisfied from the sequence, that the Complainant was granted adjournments at his request and was provided with and agreed the records of the various meetings.

I have carefully considered the Complainant’s arguments in relation to the medical evidence which included letters from his GP of the 15th January 2019, the 20th January 2020 and 13th March, 2020 and  letters from his Consultant Psychiatrist of the 21st March 2019, 4th July 2019 and the 16th July 2019. These medical letters invariably confirm the extreme mental pressure the Complainant was experiencing at the time and his vulnerable state arising from his personal circumstances and the threat of dismissal. The medical letters also contain the statement that the Complainant “knows he committed wrong….and is now highly ashamed and is regretful of his actions” and the Complainant’s medical advisors’ exhort the Respondent not to dismiss him.  The Respondent stated at the adjudication hearing that it considered all the medical evidence submitted and I note that under cross examination this was accepted by the Complainant. The Respondent further argued that the medical evidence did not explain the Complainant’s misconduct in terms of any lack of ability on his part to distinguish right from wrong. Further, the Respondent pointed to the medical advice it had received from the CMO as outlined to the Complainant in a letter dated 9th April 2019 wherein it was stated:

“On the 3rd April 2019 [the] Chief Medical Officer….advised that he was in receipt of a report from your specialist. He advised that there was insufficient information to indicate whether you have a medical condition that would have been a contributory factor in the matters for which you came under notice”.

In relation to the medical submissions, I am of the view, that the critical issue from a fair procedures perspective, is whether these submissions were adequately considered by the Respondent before the decision to dismiss. From my consideration of the sequence of letters and documents associated with the disciplinary process and the sworn evidence at the adjudication hearing, I consider they were. Ultimately, the decision to dismiss was a matter for the Respondent having considered all the evidence and submissions put forward by the Complainant and it is the Respondent who must answer for that decision. Further, I am of the view, that in terms of the decision to dismiss, different considerations apply in terms of the perspective of an employer and a medical advisor.

Lastly, I wish to consider the matter of the sanction of dismissal and whether it was excessive and disproportionate as argued by the Complainant. At the outset, the letter of the 1st November 2018 cited four allegations against the Complainant related to Mr X’s DEASP payments, payment of Mr X’s oil bill, an amount of €852 short on the Complainant’s counter on the 14th July 2018 and the fraudulent withdrawal of monies to the approximate value of €40,000 from Mr X’s credit union account. Following the disciplinary process the Complainant was advised by letter of the 13th June 2019 that he was being dismissed on the sole basis of his admissions in relation to the credit union withdrawals – which decision was upheld on appeal. There is no dispute in relation to the Complainant’s fraudulently withdrawing €40,000 from Mr X’s credit union account and the agreed record of the disciplinary hearing of 15/1/19 records that the Complainant “stated that he had been charged by the guards and has pleaded guilty”.  Under cross examination, the Complainant accepted that there were multiple withdrawals/up to 140 of approximately €350 each time from around October/November 2017 and that he did not know “how he got caught”. The critical issue for the Complainant was that this wrong doing occurred outside the workplace and that the Respondent found no misconduct on his part in respect of any workplace issue. The Respondent outlined that its primary business was dealing in financial transactions and accordingly, that it must have trust and confidence at every level of employment. The Respondent argued that it cannot be precluded from considering issues which arise outside the workplace citing in particular the case of Gregory Crowe V An Post [UD1153/2014] in relation to “….some nexus between the employees conduct and the employers business”. I note that under cross examination the Complainant accepted this but argued for a lesser sanction and/or to be deployed to a role not involving the handling of cash. The Complainant cited his lengthy unblemished career with the Respondent and the lack of reputational damage to the Respondent as a consequence of his actions. The Complainant also cited various case law in support of his position including a UK Court of Appeal case – Leach v The Office of Communications (OFCOM) which considered the mutual duty of trust and confidence “at the heart of the employment relationship” and stated that this was “not a convenient label to stick on any situation” and Moore v Tesco Ireland Ltd [UD2423/2011] as regards failure to sufficiently consider alternative sanctions to dismissal.

In the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], I note that the Labour Court stated as follows in relation to the band of reasonable responses available to an employer: 

In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness?..........It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators……There is no doubt that a record of good service to an employer might be a significant factor for consideration in a possible dismissal. Equally, however, it may be of little help in evaluating possible action. It depends on the particular circumstances of the case………It is not the Court’s role to substitute its view for that of the Respondent and to determine if the Court would have dismissed the Complainant if it found itself in the role of the Respondent……”

In conclusion, I am satisfied that the Complainant was afforded fair procedures and that his medical evidence was considered. I am also satisfied – particularly given the nature of the Respondent’s business – that it was not unreasonable for the Respondent to instigate its disciplinary procedure in respect of the particular issues which arose outside the workplace involving the Complainant. In terms of alternatives to dismissal, I am persuaded by the Respondent’s arguments that given the nature of its business its ability to have trust and confidence in its employees at every level is paramount. In these circumstances, I consider that the Respondent was not obliged to create a new job for the Complainant of an entirely different nature to the duties he had been undertaking or to deploy the Complainant to an entirely different role. In all the circumstances therefore and whilst recognising the challenging personal circumstances the Complainant found himself in, in my view, it is difficult to see how the decision of the Respondent could be seen as so unreasonable that no reasonable employer would have arrived at that decision. Accordingly, following my consideration of all the submissions and sworn testimony, I find that the Respondent has discharged the burden of proving that the dismissal of the Complainant was not unfair.

CA-00038909 -001

For the reasons outlined this complaint is not well founded.

Unfair Dismissal, Conduct outside the workplace, fraud