Complainant

Respondent

Parties

David  Shanahan

Clonmel Chamber of Commerce Ltd County Tipperary Chamber

Representatives

Tom O’Donnell, BL instructed by   Cleary and Co. Solicitors

Sinéad Finnerty, Peninsula

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-00042283-001

02/02/2021

The Complainant commenced his employment with the Respondent on 23rd March 2017 as Chief Executive Officer. His employment was terminated on 18th September 2020.

The Complainant referred the within complaint to the Director General of the WRC on 2nd February 2021 alleging that he was unfairly dismissed.

The Respondent submits as follows.

The Complainant commenced employment with Clonmel Chamber of Commerce Limited as acting Chief Executive Officer on a fixed-term contract from 23rd March 2017. On 29th March 2019, the Complainant became a permanent employee of the Respondent as Chief Executive Officer.

On 17th September 2019, it came to the attention of the President of the Respondent, Ms Paula Carney-Hoffler, that a LinkedIn post uploaded by the Complainant on the Respondent’s account had attracted the attention of some of the Respondent’s members. The President was of the opinion that the post was political in nature and inappropriate. She requested that the Complainant remove the post. The Complainant maintains that he removed the post, but the post remained on the Respondent’s profile when the President checked in the afternoon. At some point the Nationalist Newspaper had taken the post and published it. The Complainant maintains he removed the post when requested.

On 22nd September 2019 at 19.58 the President sent an email to the Complainant stating the following –

“You are not permitted to publish any written media communications without the approval of the Executive Committee to the Board. Business Awards communications require the approval of the Awards Committee Chair, Ms Laura Jones or Ms Sinead O’Dwyer.”

Notwithstanding the above, the Complainant proceeded to send a communication to members of the Respondent regarding the upcoming business awards.

Moreover, on preparing for an upcoming audit, the Treasurer of the Respondent Company, Mr Tom Gleeson, found discrepancies with expenses on the Respondent’s credit card that were reconciled with receipts and appeared to be personal expenses. The Complainant’s contract of employment includes the Respondent’s policy on expenses. The Complainant signed this contract of employment on 29th  March 2019.

Disciplinary Procedure – Investigatory Stage

The Complainant was suspended on full pay pending an investigation. This decision was made by the Board of Members and a letter to that effect issued by the President of the Respondent on 25th September 2019. The letter outlined the allegations as follow –

·        Alleged theft or unauthorised possession of any property or facilities of the company or of any employee of the company through use of the company credit card.

·        Alleged failure to conduct yourself in a professional manner when you allegedly disclosed information as a press release and on social media causing possible negative representation of the Clonmel Chamber of Commerce CLG, trading as County Tipperary Chamber of Commerce.

·        Alleged serious breach of trust namely between January 2019 and July 2019 when allegedly used the company credit card to purchase items for personal use and to withdraw cash advancement of salary.

On 15th October 2019, Ms Kelleher of Graphite HRM was appointed as Investigation Officer and wrote to the Complainant inviting him to attend an investigation meeting on 21st October 2019.  The Complainant was provided with supporting documentation.

Initially, the Complainant refused to engage with the process, greatly contributing to the length of the investigation. The Complainant did not attend an investigation meeting until 21st November 2019 when the following allegations were put to him:

·        It is alleged that on 17th September 2019, you posted an unauthorised statement on the County Tipperary Chamber of Commerce LinkedIn account and provided a press statement on behalf of the County Tipperary Chamber to the Nationalist Newspaper, relaying a personal and political opinion.

·        Alleged insubordination, namely on 23rd September 2019, it is alleged that you ignored management instruction by sending out a communication following Paula Carney-Hoffler’s request sent to you on the 22nd September that you refrain from sending communications on the Business Awards without approval.

·        It is alleged that on multiple occasions between January 2018 and July 2019, you used a company credit card to purchase unapproved and personal items and to withdraw money for personal use.

The investigation took 26 weeks and four days, during which time the Investigation Officer met with the Complainant and five witnesses and received evidence by email from a sixth witness, previous Treasurer, Mr Julian Smith. The investigation allowed for the cross examination of all five witnesses on 20th March 2020.

The Investigation Officer considered the evidence gathered and issued her report on 30th April 2020. The Complainant was provided with the opportunity to comment on all witness statements. During the investigation, prior to any findings of the Investigation Officer, the Respondent was unfortunate to be affected by the impact of the Covid-19 pandemic and restrictions placed on its members thereafter, affecting its income and workload. The Complainant and his colleagues were placed on lay-off and advised to avail of the Pandemic Unemployment Payment. The Complainant has declared he availed of the payment to the amount of €350.00 per week.

In her report, the Investigation Officer found there was a case to answer to in respect of the three allegations considered, as follows –

1. With regard to allegation one, the Investigation Officer found that the statement issued by the Complainant was political in nature in accordance with the Oxford definition of the word. In the absence of a social media policy, the Investigation Officer reviewed statements provided by the Respondent over a number of years but was unable to find a statement where it took the side of one group over another. Thus, finding a further case to answer to in the issuance of a political opinion but found there to be insufficient evidence to support that this was a personal opinion.

2. In respect of allegation two, the President’s email was reviewed and analysed and the investigation found that the Complainant defied instructions and sent out an email to all members, thus there was a further case to answer.

3. In respect of allegation three, the investigation found it disappointing that the Complainant’s expenditure had not been addressed until this point but had found that personal expenditure such as dry-cleaning, lunches, and other personal items and cash advancements were not satisfactorily explained in terms of permissions for same and no evidence was provided as such. Thus, finding a further case to answer.

Disciplinary Procedure – Disciplinary Stage

In light of the Covid-19 pandemic and the lay-off of staff including the Complainant, the disciplinary process failed to progress until the Respondent was in a position to pay the Complainant’s salary and until a point where staff had returned from lay-off.

The Complainant was advised by letter dated 17th May 2020, that his period of lay-off would cease as of 18th May 2020 at which point the Complainant would then continue his period of suspension on full pay whilst the Company applied the Temporary Wage Subsidy Scheme. However, due to insufficient funding to appoint a third party and the delay in finding members available to conduct the disciplinary hearing, the disciplinary hearing did not take place until August 2020.

The Complainant was subsequently requested to attend a disciplinary hearing on 10th August 2020 via Microsoft Teams, and a further disciplinary hearing was arranged on the receipt of further documentation and was held on 8th September 2020 with Paul Berrigan acting as disciplinary officer. Subsequently Mr Berrigan issued his outcome on 18th September 2020, within which he listed his findings as follows;-

1.      On 17th September 2019, you posted an unauthorised statement on the County Tipperary Chamber of Commerce LinkedIn account and provided a press statement on behalf of the County Tipperary Chamber to the Nationalist Newspaper, relaying a political opinion.

2.      Insubordination, namely on 23rd September 2019, it is alleged you ignored management instruction by sending out a communication following Paula Carney-Hoffler’ request sent to you on the 22nd September that you refrain from sending communications on the Business Awards without approval.

3.      On 112 occasions between January 2019 and August 2019, you used a company credit card to purchase unapproved and personal items.

4.      Theft of monies namely when on 24th June 2019 it is alleged you charged €20 using the company credit card of which there is no record of it being returned.

5.      Theft of monies namely when on the 25th of July 2019 it is alleged you withdrew €40 cash with a €1.90 cash advance fee using the company credit card of which there is no record of it being returned.

6.      Breach of trust in relation to the above allegations.

The Complainant stated that there was no procedure in place regarding the release of statements, and that the Complainant had done so before with no issue taken by the board. Regardless, the Complainant did not believe that the statement was political. However, the Respondent maintains that this statement was political in nature.

In respect of allegation two, the Complainant stated that the instructions of Ms Carney-Hoffler were unclear and that historically the Complainant had sent out correspondence. The Respondent submits that the instructions of Ms Carney-Hoffler’s email of 22nd September 2019 at 19.58 were absent of any ambiguity. “You are not permitted to publish any written media communications without the approval of theExecutive Committee to the Board. Business Awards communications require the approval of the Awards Committee Chair, Ms Laura Jones or Ms Sinead O’Dwyer.”

In respect of allegation three, the Complainant stated that there was no credit card policy and, as CEO of the Chamber, he was required to have a presence “downtown”. The Complainant admitted to using the credit card for dry cleaning and single lunches, which he deemed to be business related expenses. The Respondent partially upheld this allegation on the basis that there was no clear policy on the use of the credit card. However, the Respondent maintains that expenditure was concerning, and the Complainant ought to have known the difference between business related and personal expenses such as dry cleaning, screen wash and single lunches.

In relation to allegation four, the Complainant admitted to making a cash withdrawal of €20 on 24th June 2019, for diesel. The Complainant stated that he had sought approval from Mr Smith, previous Treasurer of the Respondent in the past for a withdrawal of €500. Thus, it is reasonably inferred that the Complainant was aware that approval for such withdrawals were required. Moreover, the Complainant was allowed to claim mileage and thus, there was no requirement for this withdrawal to be made. The Respondent maintains the act of such unauthorised withdrawal constitutes theft.

In respect of allegation five, the Complainant has no recollection of the withdrawal of €40.00, nor does the Complainant have any recollection of returning the money. This withdrawal was without approval, as required as per the above. Mr Berrigan found that this constituted theft.

Lastly, Mr Berrigan found that the increase in expenditure, the insubordination and withdrawals without approval constituted a breach of trust, considering the position of the Complainant as CEO. Mr Berrigan decided that the Complainant be summarily dismissed for gross misconduct.

The Respondent makes reference to the case of Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189 where Linnane J. reinforced the above stating: “…it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The Respondent submits that Mr Berrigan found that on the balance of probabilities the Complainant had misconducted himself as alleged, and thus, Mr Berrigan on behalf of the Respondent acted as any reasonable employer would in the circumstances.

Disciplinary Procedure – Appeal

The Complainant was entitled to appeal this decision. The Complainant proceeded to appeal to Mr Paul Blanche, Director of the Respondent, on 23rd September 2020. The Complainant’s grounds of appeal read as follows –

1.      There was no media policy or procedure in place and no previous history of any problems with press releases. It follows that there can be no offence, and none was committed.

2.      In relation to the alleged insubordination, the messaging on this was communicated by the President in a confusing manner, leaving me with more questions than answers.

3.      There was no policy or procedure on credit card usage. Therefore, there was no breach of policy or procedure. In addition, up to 2018 credit card usage was closely monitored by the then treasurer and no issues were ever raised. In 2019, with the appointment of a new treasurer, there was no supervision of any credit card activity. If anyone was unhappy with any usage, no issue was ever raised. It follows that there was no opportunity to change behaviours since no problem was ever raised.

4.      Following on from the fact that that there was no policy or procedure in place for credit card usage, on the two occasions that the card was used for personal use the money was repaid immediately through petty cash. This can be evidenced by employee AMC who was solely in charge of petty cash.

5.      What is breach of trust? It is impossible to answer an allegation that is not specific.

The appeal hearing proceeded on 30th September 2020. Mr Blanche decided to uphold the decision of Mr Berrigan to dismiss the Complainant, this was confirmed in his letter dated 7th October 2020 and addressed the grounds of appeal as follows –

1.      Mr Blanche was of the opinion that the post shared on LinkedIn on behalf of the Chamber was political by nature. Mr Blanche stated that “A statement of this nature has the potential to cause damage to the reputation of the Chamber considering the need for the Chamber to remove itself from being aligned with political opinions.”

2.      The instruction of the President was reasonable and clear, and the Complainant has failed to show otherwise.

3.      While acknowledging that no procedure for credit card usage was in effect at the time, the Complainant ought to have known, in his position as CEO and given his experience in various positions and industries, that the credit card given to him was for business usage alone. However, there are 112 expenses that have no clear and direct business link.

4.      It was found that the Complainant did not seek approval from the Treasurer to withdraw the cash, although in the past approval was sought from the previous Treasurer in advance of a cash withdrawal. The Complainant was also aware that diesel can be claimed through mileage and is a personal expense when withdrawn without approval. In respect of a €40.00 cash withdrawal, the Complainant admitted to this cash withdrawal and could not recall if or when this was repaid, nor the purpose of such withdrawal. Again, no approval was sought in respect of this. Mr Blanche found this unacceptable.

5.      The breach of trust was upheld, where in a position of trust, the Complainant made cash withdrawals of monies without authorisation. When considered in line with theft of monies, the breach of trust was upheld.

The Complainant submitted a claim to the Workplace Relations Commission on 2nd February 2021, pursuant to the Unfair Dismissals Act 1977, in which the Complainant outlines  that he was dismissed unfairly for gross misconduct.

The Respondent wholly refutes the above and maintains the Complainant’s dismissal was fair and proportionate with regard to all the circumstances, including his position and the actions committed by him and found through the investigation and disciplinary hearings conducted.

Mitigation of loss

At the point of lodging his complaint, the Complainant did not declare that he had found any alternative work. It should be noted that correspondence was sent to the Complainant’s Representative on 6th July 2021, requesting details of the Complainant’s losses this far. However, such details have not been returned to date.

It is well established that the Complainant must demonstrate that he is applying reasonable steps and time in order to mitigate his losses. In this regard the Respondent refers to Sheehan v Continental Administration Co Ltd UD 858/1999.

The Respondent submits that the Complainant’s CV outlines significant work experience over various industries and roles, in particular, essential retail, and experience and a qualification as a health and safety representative, both of which roles saw a surge in demand during the Covid-19 pandemic. The Respondent respectfully submits that the Complainant with such experience ought to have secured alternative employment.

Evidence and cross-examination of Ms Paula Carney-Hoffler, the President of the Respondent

The President said that the Complainant was reporting to her. As she arranged the initial suspension, she felt it would be unfair to be involved in other stages of the disciplinary process. The President said that she got a phone call from one of the Directors about the comment the Complainant put on LinkedIn. She said that it was disparaging, not fitting the Chamber, and political in nature. She said that she rang the Complainant straight away and asked him to take the post down, and he said he would. When she checked that afternoon, around 2pm the post was still there. She contacted the Complainant and he said that he thought he had the post removed. At this stage the post was “liked” by someone. She said that she was terrified. The Complainant never said that he had shared the post with media but exactly the same statement appeared in the Nationalist. The President said that she asked the Complainant not to communicate with members, etc. without approval. The Complainant then sent a communication to the members in relation to the business awards event. She said that her instructions were unambiguous and clear.

The President said that then the incident in relation to the credit card was brought to her attention by the Treasurer. 

She believed that because of the Complainant’s behaviours, not following instructions, not doing what he was asked to do, it was better for the business to suspend the Complainant. She said that an independent investigator was appointed to ensure impartiality. She said that the Respondent tried to expedite the matter, but a lot of delays and frustration came from the Complainant’s side. The Respondent had no problem with the Complainant’s counsel attending.

In respect of the suspension meeting, the President said that she sent an invitation and text to the Complainant to cancel his meeting in Dublin and attend a meeting with her in the office. When the Complainant went to Dublin, she rang him, and he said he did not see her invitation. The Complainant said that he would leave Dublin, have a bite to eat and meet her. She said that at the meeting she explained that suspension is a holding measure.

The President said that, if a credit card is not used for business purpose, a transaction has to be approved by her or the Treasurer. She was never asked about the Complainant’s transactions. She said that the Complainant asked the previous Treasurer to approve cash withdrawals.

The President said that the Complainant was updating the Handbook at the time, he would be very much involved.

In cross-examination, the President said that the Board would have 10-11 members at time, including the President. She said that it depends on a decision to be made but the Respondent tries to have full board, so everyone has an opportunity to express an opinion. The CEO would attend meetings but is not a member of the Board. She said that any emergency meetings are arranged when issues arise. She would have to check if the full Board attended on 23rd September 2020 when the issue of the credit card was brought up by the Treasurer. She said that nothing had been brought to her attention in relation to issues with expenses before. However, the Treasurer said that he had been told by the previous Treasurer to keep an eye on the Complainant’s credit card spending. When she was made aware of the issues, she rang the former Treasurer to check whether the Complainant was allowed previously to buy lunches. She said she wasn’t expecting this to arise, she was dealing with issues at hand. These two matters had nothing to do with each other, they just happened at the same time.

In relation to the suspension, the President said that they acted as a Board, she listens to the advice of the Board and then makes a decision on the advice. It was a very difficult decision to make. The Respondent had to look at the behaviour and what would happen if the Complainant were not on suspension.

The President confirmed that the Respondent obtained advice from Peninsula as, at this stage, it knew that there was going to be investigation.

In relation to the description of the Complainant as “opinionated”, she said that it was with reference to the Complainant’s behaviour, not following instructions, etc. and that it was not obvious before the issue arose.

In relation to the suspension and lay-off, the President said that the Respondent had absolutely no money, members had no money to pay membership. The Complainant was an employee, and he was put on lay-off as were other employees. In May 2020 people were brought back to work and the Complainant was brought back from the lay-off and put back on paid suspension. The President said that there was no money, and she could not see how the suspension and lay-off could be seen as punitive.

The President confirmed that she made the decision to suspend the Complainant after talking to the Board and handed him the letter on the next day. She said that the Complainant was upset, and it was explained to him that he was suspended with pay so the Respondent can investigate the matter. At this stage, she said, the Respondent did not know if the Complainant’s job was at risk. The Respondent engaged an external consultant, Ms Kelleher of Graphite to conduct the investigation. The President confirmed that Graphite established the Terms of Reference, she did not have any issue with them.  The Complainant did not raise any issues with them. A number of questions were put to the President in respect of the TOR and the President noted that she could not speak for Graphite who drafted them.

The President confirmed that she attended the Board meeting when Mr Berrigan delivered his decision, the Board concurred. She thought that there was no vote.

The President said that she was not aware of the Complainant taking sides previously in his social media statements or media interviews.

In relation to expenses, the President said that there was an expense sheet, expenses must be vouched for, but she was never presented with them. As the Complainant would have done it with previous Treasurer, she assumed he would have done the same with the new one.

Evidence and cross-examination of Mr Paul Berrigan, Chairman

Mr Berrigan conducted the disciplinary hearing. He said that he would not have known the Complainant at the time, there was no relationship.

Mr Berrigan said that the Complainant was offered to have a colleague with him, but he decided not to do so. Mr Berrigan said that he went through each allegation and posed a number of questions in respect of each allegation separately. Mr Berrigan said that the Handbook was in place at the time. He believed that the Complainant understood the allegations. He said that the Complainant led him to believe that, if he knew the requirements, he would not have used the card.

Mr Berrigan said that he arranged a second meeting on 10th August 2020 as there was a lot of information and he wanted to clarify issues.  He also sent an email on 19th August 2020 to seek further clarification, he offered the Complainant an opportunity for further explanation. He was not sure if there was a Board meeting between these two meetings with the Complainant but, if there was, this topic was not discussed. He said he reviewed all the Complainant’s statements before making a decision. Mr Berrigan said that he would not expect his own employer to pay for his dry cleaning or coffees. He further said that he found it alarming that the Complainant had no recollection of the withdrawal and repayment of €40.

Mr Berrigan said that in his letter of 18th September 2020 he included three allegations but divided the one in respect of the credit card use and gave reasons why the Complainant’s explanations are not reasonable.

Mr Berrigan said that the political statement was against how the Chamber conducts its business. The withdrawal of cash was considered to be theft and gross misconduct as the Complainant had no recollection and no evidence of repayment. Mr Berrigan confirmed that gross misconduct calls for instant dismissal.

Mr Berrigan said that he brought his decision to the Board, nobody opposed his decision. The Complainant was given the right to appeal. 

In cross-examination, Mr Berrigan said that the Complainant did not ask for the former Treasurer and former Director who participated in the investigation to be called, he asked if they would be at the hearing. When it was put to Mr Berrigan that the Complainant asked for their attendance during the investigation, Mr Berrigan said that he was not conducting the investigation. Mr Berrigan said that the Complainant asked if they would be available and he replied that if he wanted to cross-examine them, it was his responsibility, he had right to call them. In his view, the investigation was closed.

Mr Berrigan said that he looked at the expenditure from January 2019 as he thought it was going out of control in 2019.

Mr Berrigan confirmed that the disciplinary decision was made by him. He denied introducing new allegations, he said that he broke down allegation number 3 to sub bullets 3-6. He said that the Complainant was aware of the allegations, all correspondence said what would be addressed. He conceded that the allegation of theft was not called out.

It was put to the Mr Berrigan that he inquired about the Complainant’s performance, standard of work, abilities to do the Chamber’s business, etc. which had nothing to do with the allegations. Mr Berrigan asserted that he was asking in the context of the standard in which the credit card was used.

Mr Berrigan said that there was no record of cash being returned and Ms AMC said that “I think”… it was returned. She was not 100% sure, she did not provide the Complainant or the Chamber with any evidence.  He confirmed that he did not speak with Ms AMC, but the Complainant could have brought her to the meeting if he wanted to.

Mr Berrigan was asked to clarify what is “major misconduct” as the definition was not in the Handbook, and he said it would be going against the instructions of the President.

He could not recall considering any other disciplinary sanction other than dismissal. He said that the Complainant made some 112 personal transactions, and €20 and €40 withdrawals. He also said that the former Treasurer advised the Respondent to watch the spend on the credit card.

Mr Berrigan noted that the Complainant did not raise any concerns that he was not aware of any of the allegations.

Evidence and cross-examination of Mr Paul Blanche, the Director

Mr Blanche confirmed that he was appointed by the Board to conduct the appeal hearing. He said that the Complainant raised six grounds for his appeal. The Complainant did not ask for Ms AMC to give evidence.  The Complainant did not raise any issue with the Terms of Reference, his understanding of the allegations, etc.

Mr Blanche said that it was a straightforward appeal, he went through each allegation and offered the Complainant a chance to address them. He said that nothing new arose, the Complainant gave the same answers as before. The Complainant had a witness who read a statement in support of the Complainant’s character.

Mr Blanche said that he took a few days off work to consider the matter and he confirmed the Complainant’s dismissal.

Mr Blanche confirmed that his main focus was the allegations not the procedure, but he took into account that the investigation was conducted by Graphite. In respect of the cross-examination of witnesses, he said that the former Treasure was abroad, and the former Director was not brought by the Complainant to the meeting.

Mr Blanche confirmed that he did not consider other sanctions.

The Complainant’s representative submits as follows.

The Complainant has worked with the Respondent for a number of years and on 23rd March 2017 he was appointed Chief Executive Officer (CEO). His contract was renewed on a permanent basis with a basic salary of €35,000 per annum plus an annual incentive payment scheme. The Complainant remained in that post until his employment was terminated on 18th September 2020. The Complainant was notified that his appeal was refused on 7th October 2020.

The Complainant was originally suspended on pay from 25th September 2019.

The Complainant worked an average 37.5 hours per week and earned €673.60 gross per week at the time of his dismissal (excluding annual incentive payment scheme).

Following his termination, the Complainant set up and registered his own company on 28th September 2020 and works in the capacity of Head of Sales.

GROUNDS OF UNFAIR DISMISSAL

The terms and conditions of employment provide that only the Managing Director has authority to terminate the Complainant: "In all cases of dismissal… -the managing director will be considered as the final arbitrator". The decision and notification of the Complainant's dismissal was made by Paul Berrigan, Director of Partnership / Chairperson. Consequently, he did not have the authority to terminate the Complainant and the Complainant's dismissal is void and invalid.

Similarly, the decision and notification of the appeal was made by Paul Blanche, Director and Chief of Staff. Similarly, he did not have the authority to terminate the Complainant and the Complainant’s dismissal is void and invalid.

Should the Adjudicator find that the conduct of the Complainant does not amount to gross misconduct, summary dismissal must be considered unjustified.

It is submitted that the summary dismissal of the Complainant was disproportionate to the alleged incidents which occurred. The Respondent failed to consider any lesser disciplinary sanction than summary dismissal and thereby failed to apply the band of reasonable responses test which a reasonable employer should consider.

The Respondent failed to issue a formal or informal warning prior to suspension and summary dismissal in breach of the Complainant's contract of employment.

Consequently, the Respondent failed to adhere to the terms and conditions of their own drafted contract of employment, their own Disciplinary Policy and Procedure and Code of Conduct on Grievance and Disciplinary Procedures S.l. No. 146 of 2000.

In the circumstances, the Respondent failed to apply fair procedure or natural justice in their dismissal of the Complainant.

LACK OF FAIR PROCEDURE

SUSPENSION WITHOUT REASONABLE CAUSE

By letter dated 25th September 2019, the Respondent stated as follows:-

"Further to our meeting of 25th September 2019, and in line with the Company's disciplinary procedure, I am suspending you on full pay to allow an investigation to take place..."

“..Suspension from duty, on full pay is not regarded as disciplinary action but merely a holding measure pending further investigation and for which it is clearly desirable for an individual to remain on duty"

However, the Respondent predetermined the decision to suspend the Complainant prior to the meeting and acknowledged this decision was made on 24th September @ 4.35pm and stated the reasoning as follows:-

"The Board had concerns in keeping the employee in their position whilst the formal investigation was completed as the employee can be quite opinionated and the Board felt this would be a further risk to the business."

It is clear that all documentary evidence supporting the Respondent's allegations were gathered prior to the commencement of the Complainant's suspension and therefore the Complainant's suspension was punitive and not a holding suspension, as alleged.

The Complainant’s representative relies on Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241. Mr. Justice Noonan held that a suspension should only be imposed "after full consideration of the necessity for it pending a full investigation" of the issues and identified four circumstances where it would be justified:

•   To prevent repetition of the conduct complained of;

•   To prevent interference with evidence;

•   To protect individuals at risk from such conduct; or

•   To protect the employer's business and reputation.

Noonan J. noted "The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters."

In that case, the Court held it was unnecessary to suspend Mr. Reilly as the bank had safeguarded the evidence, the allegations were so serious that it was improbable that Mr. Reilly would transgress again, and knowledge of the allegations was not widespread so there was no danger of reputational damage.

The Complainant’s representative relied further on TE Labourites Limited —v- Mikolajczyk (2019) 30 ELR 198.

It is submitted that that the Respondent had safeguarded the evidence prior to the suspension, the Complainant had agreed not to make any further public statements, the credit card had been returned to the Respondent and knowledge of the allegations remained internal and no risk to the business could arise. The sole reason for the Complainant's suspension would seem to be the opinion that he was "opinionated".

The Complainant submits that the suspension was punitive, a clear unfair procedural deficiency, no alternatives to suspension were considered and the Complainant has a legitimate claim for unfair dismissal on this ground alone.

UNPAID SUSPENSION

The Complainant maintains that after a number of months of being suspended on full pay, with effect from March 2020 the Respondent unilaterally ceased payment of wages to the Complainant.

The Complainant maintains that the Respondent repudiated the contract of employment in ceasing pay and this ground alone constitutes unfair dismissal.

ADDITIONAL AND CHANGING ALLEGATIONS THROUGHOUT THE INVESTIGATION AND DISCIPLINARY PROCESS

At the outset on 25th September 2019, there were three allegations made against the Complainant:

1.      Alleged theft or unauthorised possession of any property or facilities of the company or of any employee of the company through use of the company credit card;

2.      Alleged failure to conduct yourself in a professional manner when you allegedly disclosed information as a press release and on social media causing possible negative representation of the Clonmel Chamber of Commerce;

3.      Alleged serious breach of trust namely between January 2019 and July 2019 when allegedly used the company credit card to purchase items for person use and to withdraw cash advancement of salary.

Following an initial informal disciplinary meeting with the Complainant, the Respondent assigned Graphite to undertake an investigation and the allegations were significantly altered within the Terms of Reference received on 7th October 2019 as follows:

1.      It Is alleged that on 17th September 2019, you posted an unauthorised statement on the County Tipperary Chamber of Commerce Linkedln Account and provided a press statement on behalf of the County Tipperary Chamber to the Nationalist Newspaper, relaying a personal and political opinion;

2.      Alleged insubordination, namely on 23rd September 2019, it is alleged you ignored management instruction by sending out a communication following Paula Carey-Hoffer's request sent to you on 22nd of September that you refrain from sending communications on the Business Awards without approval;

3.      It is alleged that on multiple occasions between January 2018 and July 2019, you used a company credit card to purchase unapproved and personal items and to withdraw money for personal use.

By report dated 30th April 2020, Graphite concluded that the Complainant had a case to answer in relation to the three allegations and the matter was referred back to Paula Carey-Hoffler, the President of the Respondent.

By e-mail dated 7th August 2020 Mr. Paul Berrigan, Director issued an invitation to a disciplinary hearing listing the same three allegation. The first disciplinary meeting was held on 10th August 2020 and a further meeting was held on 8th September 2020.

Prior to the second disciplinary meeting, on 4th September 2020 the Complainant was instructed to attend a further disciplinary hearing. Mr. Berrigan unilaterally added new and additional allegations against the Complainant, which had not previously been put to the Complainant:-

·        It is alleged that on 112 occasions between January 2019 and August 2019, you used a company credit card to purchase unapproved and personal items;

·        Alleged theft of monies namely when on 24th June 2019 it is alleged you withdrew €20 using the company credit card of which there is no record of it being returned;

·        Alleged theft of monies namely when on the 25th July 2019 it is alleged you withdrew €40 cash with a €1.90 cash advance fee using the company credit card of which there is no record of it being returned;

·        Alleged breach of trust in relation to the above allegations.

The appeal considered the six allegations introduced in the middle of a part-heard disciplinary hearings and after a lengthy investigation process. This was in breach of page 27 of the Staff Handbook which provides:

"Where the decision is taken to invoke the disciplinary procedure then the employee will be informed of the case against them, so they can respond in an informed manner at a disciplinary hearing. "

The Complainant relies on RCI Call Centre -v- Ibrahim Salah (UDD202) and A General Operative -v- A Manufacturing Company (ADJ-00023478) where the Adjudicator set out that there are certain fundamental requirements of fair procedures as outlined in Glover v BLN Ltd [19731 IR 388 (and referenced in Kilsaran Concrete Kilsaran International Ltd v Vitalie Vet [2016] E.L.R. 237)

RIGHT TO CROSS EXAMINE & CALL WITNESSES

(a)           Investigation Stage

During the course of the investigation, the Complainant requested that he be afforded his right to cross examine the Respondent's witnesses. The investigator originally wrote on 3rd March 2020 arranged a meeting for the witnesses to be cross examined on 9th March 2020, albeit unusually sought that "the questions to be put to each individual at these meetings" to be furnished by 10a.m. on 5th March 2020.

The Complainant cross examined the witnesses made available. Two key witnesses were not made available. The Complainant requested that the former President of the Chamber, T.J. Kinsella be provided as a witness and the Complainant requested to cross-examine the former Director and Chief Financial Officer, Julian Smith.

The Complainant provided his reasoning for the inclusion of T.J. Kinsella, as follows:

“What should happen is that T.J. Kinsella, Chamber President, September 2016 to November 2018, and the person that I reported to, should be asked to give a statement/take part in an interview, to corroborate the fact that my conduct as an employee of the Chamber was good in that period. I was never reprimanded by T.J. Kinsella for abuse of the chamber credit card or any interaction with the media. This would be a fair process in my opinion".

By e-mail dated 16th April 2020 the investigator confirmed she do "not consider T.J. Kinsella a relevant witness to these allegations" and declined to have him called as a witness.       

The Complainant was not given the option to cross-examine Julian Smith, stating inter alia as follows:-

"Julian Smith's email evidence cannot be taken seriously, as part of the investigation, particularly as he states in an email to you (2/1/2020 attached) that:

a. He has decided not to get involved in your enquiries

b. On the other hand, he still wants to have his damning opinion considered regarding the use of the credit card with[out] giving a proper statement or appearing at an investigation meet... "

The uncontested evidence of Julian Smith was heavily and wrongfully relied upon by the investigator in reaching her conclusions, and consequently accepted as evidence of fact at the disciplinary stage.

(b) Disciplinary Stage

At the outset of the disciplinary process, the Complainant wrote to Paul Berrigan requesting that T.J. Kinsella and Julian Smith be part of the process, stating:

"Will Julian Smith and T.J. Kinsella be available to give evidence on the running of the Chamber in 2018 specifically about the use of the credit card in Julian's case and the issuance of Press Releases in the case of T.J. ?"

Mr. Berrigan responded on 9th August 2020 declining to permit Julian Smith to attend on the basis that “the investigation has already been conducted and as Julian was part of that investigation, he cannot be in attendance at the disciplinary hearing..." Thereby no opportunity to cross-examine was afforded to the Complainant throughout the process.

S.l. No. 146/2000 -- Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 provide that an employee concerned be allowed to confront or question witnesses. At both investigation and disciplinary stage, the Respondent relied on the unopposed statements made by Julian Smith in reaching the decision to terminate the Complainant. At no time was the Complainant permitted or provided with an opportunity to confront or question these statements, either during the disciplinary hearing or at all.

In this case, the Respondent failed to interview T.J7. Kinsella and placed the responsibility on the Complainant to make such arrangements, "since TJ is a former Director and if you wish to exercise this right, then it will be your responsibility to make the arrangement". This demonstrated an unwillingness to engage with the Complainant's defence and an unwillingness to ensure full transparency and a fair hearing.

The Complainant cited Roger Martin -v- Coca Cola Hbc Ireland Ltd (ADJ-00022037) and A Customer Agent v An Outsourced Contact Centre Company (ADJ-00008083) in support.

DISCIPLINARY DECISION

The decision of Mr. Paul Berrigan, Director of Partnership dated 18th September 2020 is significantly flawed, unfair and lacking in fair procedure in the following regards:-

Mr. Berrigan considered that allegation 1, 2 and 3 amounted to "major misconduct" and allegations 4, 5 and 6 amounted to "gross misconduct". There is no definition of "major” misconduct within the disciplinary procedure and as the Director concluded that allegation 3 was "only partially upheld", it would seem, although lacking any clarity, that allegation 1, 2 and 3 have been deemed misconduct falling short of gross misconduct.

Mr. Berrigan concluded that "as your actions amount to gross misconduct you are summarily dismissed". It is unclear whether his decision to summarily dismiss the Complainant was based upon allegation 4, 5 and 6 only.

Allegation 4 and 5 alleged thefts of €20 and €40 "of which there is no record of it being returned". These new allegations were unfair and were introduced almost nine months followed an investigation process with Graphite HRM wherein the acknowledgement of monies being returned was made by Ms. AMC, on 18th December 2019:

Graphite: part of the allegations and Mr. Shanahan's statement was with regard to a number of cash withdrawals from the card. And Mr. Shanahan has stated that these were paid back into petty cash then, yeah

AMS: There was I remember one incident alright, there was an amount, I think it was for €40, I think. But the money came back into petty cash then, yeah.

Despite this evidence, Mr. Berrigan disregarded AMC evidence, during his cross-examination of the Complainant:

PB: So who would have given that money to, who would you have returned the money to?

DS: To [AMC].

PB: But you don't have any recollection of that either?

DS: Not of that one. But I mean, it would have been recorded in petty cash, by [AMC], as far as I know, you know. And the reconciliation, you know.

PB: But again, there was no record of that found

With regard to allegation 4 Mr. Berrigan wrongfully and unfairly relies on the fact that "there is no record of the withdrawal amount being returned" contrary to the earlier evidence of AMC.

In relation to allegation 5, Mr. Berrigan disregarded any reference to monies being returned and rather 'focusing on the act' considered it theft. Mr. Berrigan disregarded part of the allegations made against the Complainant, failed to give the Complainant' the benefit of the doubt, failed to consider the matter on the balance of probabilities and failed to consider the evidence of AMC which assisted the Complainant.

The Respondent unfairly added a new allegation of breach of trust to bolster the allegations against the Complainant. It is submitted this is not a cause of action, rather a potential effect. Mr. Berrigan merely repeated his conclusions on the other allegations to ground a further conclusion of gross misconduct for allegation 6. In fact, Berrigan relies on allegations 1, 2 and 3 which did not amount to gross misconduct, to support an additional finding of gross misconduct for allegation 6.

Mr. Berrigan concluded that trust is heightened in the Complainant's case as CEO and while it may be a cause for concern in any role, "the breach of trust is higher in consideration of your role". The Complainant will maintain that to dismiss an employee by placing them at a higher level of trust than other employees is unfair and not an appropriate test. This was recently considered in A Sales Supervisor -v- A Car Retailer (ADJ-00024334) where the Adjudication Officer stated:-

"Trust must be regarded as integral to all employer / employee relationships, sometimes an employee is described as belonging to a high trust' category. However, 'high trust 'should be expected from all employees: one cannot differentiate between degrees of trust, "

Mr. Berrigan interrogated and aggressively cross-examined the Complainant on the matter of his work performance, a matter that was never previously raised or at issue in any of the allegations raised against the Complainant:

·        So do you believe that standard of work is acceptable?

·        Would you consider the actions we were discussing to be a failure to devote all of your time, attention and business to our business?

·        So do you believe your standard of work was acceptable so?

·        In terms of the standard of your work as CEO in the chamber, like over...over the years, like, do you feel in 2019 that your standard of work or the expectation of your own standard within work would have dropped in any way?

Mr. Berrigan did not consider any mitigating factors in reaching his conclusion.

It is submitted that Mr. Berrigan's decision was not reasonable on the balance of probabilities and that dismissal was a disproportionate response.

Mr. Berrigan dismissed each and every explanation offered by the Complainant.

Mr. Berrigan did not consider any sanction short of dismissal.

APPEAL

The appeal was heard by Mr. Paul Blanche, Director on 30th September 2020 and by letter dated 7th October 2020 affirmed the original decision of Mr. Berrigan.

In An Employee -v- An Employer (ADJ-00000381) the Adjudication Officer stated

"An appeal is not just an afterthought or a procedure that must be completed as a matter of course, It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection of all procedures or disproportionality of sanction "

Mr. Blanche did not consider whether fair procedure or natural justice was applied in the original hearing and decision-making process and merely affirmed the earlier decision of Mr. Berrigan and the shortcomings set out above equally apply to the appeal stage.

The Complainant’s representative submits that inference should be drawn from the fact that the former President was not there to give evidence. Furthermore, it was asserted that the decision to dismiss was ratified by the Board which includes both the President and the Treasurer leading to lack of independence.

MITIGATION OF LOSS

The Complainant's employment with the Respondent was terminated on 18th September 2020. The Complainant set up a computer consultancy business immediately following his termination and registered for business on 28th September 2020.

The business is at its infant stage and is currently loss making.

Evidence and cross-examination of the Complainant

The Complainant said that he was a Board member from 2015 to 2016. He was then an acting CEO and became a permanent employee in March 2019. He believed that he would work in the Respondent organisation until retirement as he was happy with the job and the Respondent was happy with him.

The Complainant said that he was at a meeting in Dublin at 10am on 25th September 2019 which the President was aware of. He said that he was not aware of the meeting scheduled by the President. He checked his phone around midday and rang the President  explaining that he did not know anything about the 11am meeting with her. She said she put it in his meetings. The Complainant said that he didn’t know what it was about. The President said that the Treasurer might attend as well. The Complainant said that when he returned to the office, the meeting showed on his PC but not on the phone.

He said that he went to the meeting at which he was suspended. He was not aware that this was a disciplinary meeting, he did not get the right to representation. He was just handed the letter and there was a brief chat about what was in the letter. He said that he was shocked. He was asked for the credit card and keys to the office. He gave the items asked for and said that he would update them on the Respondent’s business. The President took notes.

In relation to the allegation of theft, the Complainant said that he did not know that he was doing something wrong with the credit card, he was never pulled up on that. The credit card statements were coming every month and the Treasurer saw them. The Complainant and the Treasurer had to authorise the payment of each of the credit card bill. He said that, in his experience, someone who authorises the payment would have read the statement. He said that he always operated the same procedure and was never told he was doing something wrong, he was never told to stop doing it. He said that on 24th September 2020 the Treasurer spent some time with Ms AMC and then a few hours with the Complainant. They went through the credit card statements and the Complainant explained every line. The Complainant asked if everything was ok, and the Treasurer said it was. The Complainant said that the previous Treasurer was hands on, they went through everything on a weekly basis.

The Complainant said that he had years of experience with audits, accounting, etc. He was previously responsible for millions of euro worth of stock, he was very used to dealing with accounting matters. He had no experience of a treasurer not looking at expenses and then starting from the scratch.  The Treasurer did not seem to be aware of what was going on. The Treasurer did not seem to be often in the Respondent organisation and then suddenly he was there two days in a row.

The Complainant said that he repaid €20 and €40 to Ms AMC, he assumed that the Treasurer and Ms AMC reconciled petty cash.

With respect to the loss mitigation, the Complainant said that he registered with a recruitment agency but was unsuccessful. He also sent his CV to two HR managers / head-hunters. He decided to set up his own business prior to the dismissal as he knew that “the writing was on the wall” in respect of his dismissal. The Complainant said that the business generated losses in 2020 and some minimal earning in 2021. The Complainant said that it is difficult in the pandemic as he cannot meet people, he was trying to go back to the customers he had prior to joining the Respondent. He confirmed that he did not contact any recruitment agency after he set up the business.

The Complainant said that he was, at some stage involved in politics but he was not elected and left politics.

In relation to the Respondent’s submission that the Complainant held a position in a named company, the Complainant said that it was his brother’s company that is based in Portugal. His brother asked him on 16th October 2020 would he become their Head of Sales for Ireland. It was a commission-based position and the Complainant said that he had no income as he had no sales.

The Complainant said that he does not qualify for any of the Department of Employment Affairs and Social Protection benefits.

The Complainant said that psychologically losing a job in this manner was not a very good thing, he had never been subjected to a disciplinary action before, he got no references. His reputation which he had built over 20 years was severely impacted.

In cross-examination, the Complainant outlined his career.

He said that his role with the Respondent involved sales, website, PR, being the face of the Chamber, involvement with media. He said that when he joined the organisation as the CEO, it was in deep financial trouble. The Complainant brought it up to profit within 2 years.

The Complainant said that he did not identify the three allegations put to him as a reasonable cause for suspension.

The Complainant confirmed that he was informed that Graphite would conduct an investigation and that Graphite contacted him, but he didn’t attend the meeting until November. He received Terms of Reference. The Complainant was asked if he raised any issues with the Terms of Reference at the time to which he replied that maybe his solicitor did. It was put to the Complainant that he was offered representation and his counsel was there to which he replied, “if you say so”.  

The Complainant said that there was delay in the post being taken down by the social media platform. He asked the Nationalist not to print the first press release but the second one. In their error they printed the first one. It was put to the Complainant that he did not show that he attempted to rectify the matter. He said that it was all on the Respondent’s PC and he no longer had access to it, he confirmed that he did not ask for access.

The Complainant said that he did not consider the email he sent to all members (including the local radio station) a press release. It was an email in relation to advertising. He did not understand the “any written statement” expression used by the President and did not ask for clarification. He said that he did not think that sending an email looking for advertising was breaching that request, it was not that serious. He said that there was no attempt from the Respondent to follow up the President’s email with a phone call or a meeting to clarify the request. The Complainant did not know if the President should know that he did not understand her instruction.

In relation to the allegation in respect of the credit card, the Complainant said that there was never any procedure in that regard. He believed that expenses such as dry cleaning should be paid by the Respondent. He said that nobody told him it was not, and no corrective action was taken. The Complainant disagreed with the assertion that he did not raise the matter of cash withdrawal with anyone as he knew it was wrong. It was put to the Complainant that a CEO should know not to spend €300 on company credit card on coffees, the Complainant said he did not know. He said that he wanted to be more visible, improve the profile and sales but confirmed that the expenses were only incurred in Clonmel, and he did not provide information as to who was he meeting, in relation to what matter, etc.

It was put to the Complainant that he should have followed up on the repayment of money to petty cash, request a receipt. The Complainant said that he assumed it would be recorded. He said that it is another procedure that was not there. He said that he got the Respondent to join Peninsula to help with HR problems, he was in the middle of the process of updating the Handbook, he was on a good trajectory to resolve a lot of problems. He said that he did not include the procedure for credit card use in the matters to be addressed with Peninsula as he didn’t see an issue with credit card use. He denied that he did not include this procedure as it would affect his spending.

The Complainant said that he felt that, once he was suspended, there was an expectation that he would resign and the Respondent would appoint “their own person”, he had the impression that it was all prejudged. He said that he went through the procedure that was offered to him but because of the way it was carried out, he felt it was prejudged. He said that he thought that the allegations were made up, whatever issue the Respondent had it did not justify the course of action. He did not attempt to hide anything, gave a statement to the best of his recollection. He said that he was not instructed by the President or by the Treasurer not to use the credit card for dry cleaning or coffees. The Complainant denied that he took advantage when he stopped being micromanaged. He said that it was the Treasurer’s fault as he should have exercised more control.

The Law

Section 6 of the Unfair Dismissal Act stipulates as follows:-

6. Unfair dismissal

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, 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 for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) 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 (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(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 by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

The combined effect of the above provisions of the Act requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have done so. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland v O’Reilly [2015] 26 E.L.R. 229 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: 

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

In Panasov v Pottle Pig Farm UDD1735 the Labour Court outlined the importance of applying fair procedures in relation to the investigation of allegations of misconduct where it held that: “The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

In Dunne v Harrington UD166/1979 the EAT provided guidance in relation to the approach that should be applied by an employer when conducting an investigation into a case of dishonesty which may lead to dismissal. The EAT held that:

“(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e. the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.”

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (SI No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. 

There was no dispute that on the morning of 17th September 2019 it was brought to the Respondent‘s attention that a post had been put up by the Complainant on the Respondent’s social media account. The post was deemed to be political in nature and not appropriate. The President contacted the Complainant and instructed him to remove the post immediately. While the Complainant agreed to remove the post, it remained on site until approximately 2pm when the President again instructed the Complainant to remove it. The details contained in the post were printed in the Nationalist Newspaper on 20th September 2019.

On 22nd September 2019, the President of the Respondent issued the following instruction to the Complainant:-

“You are not permitted to publish any written media communications without the approval of the Executive Committee to the Board. Business Awards communications require the approval of the Awards Committee Chair…

You are also not permitted to participate in the Business Update on Tipp FM until further notice as the Board need to meet and discuss the issue. Please ensure you cancel your attendance this week and make your apologies.”

There was no dispute that after receiving the instruction, the Complainant issued an email to the members in relation to the Business Awards. 

I note that the Respondent did not have a press policy in place at the material time and that, prior to the events of 17th September 2019, the Complainant was not required to seek authorisation for a press release or social media posts. However, I find that it would not be unreasonable on the part of Respondent to expect that any social media posts and/or press releases would be professional and appropriate. Even if the issuance of the post and press release on 17th September 2019 was to be considered a genuine misunderstanding or a mistake on part of the Complainant, the issuance of the email to the members some one hour later after the Complainant had received the above instruction from the President requires further examination. I note that the Respondent’s email refers to “any media(my emphasis) communication” and further to “Business Awards communication”. The text of the email, perhaps inadvertently, could be read as referring to media communication, including media communication in respect of Business Awards, and Tipp FM appearance. I find the Complainant’s explanation that he did not understand the President’s instruction implausible. If the Complainant did not understand the President’s instruction, it was open to him to contact the President and seek clarification. However, I accept that the Complainant could have misunderstood the instruction as relating to media communication only. It appears that the Complainant did not, at the time, comprehend the gravity of the situation he found himself in. This might be, to some extent be explained by the level of liberty the Complainant was afforded in terms of his communication with media and the Respondent’s members prior to the events of 17th September 2019.

In relation to the credit card expenditure, there was no dispute that the Complainant used the Respondent’s business credit card to pay for expenses such as coffees, lunches, and dry-cleaning. There was also no dispute that he made two cash withdrawals.

I note the Respondent’s reliance on the clause within the Complainant’s which states:

“The Company will reimburse you monthly for all agreed expenses properly and wholly, exclusively and necessarily incurred by you in the proper performance of your duties, subject to the production of evidence of expenditure satisfactory to the Company and approved for payment by the President. Where the Company issues a company credit card or charge card to the Employee you shall use the card only for expenses reimbursable and shall return it to the Company on the termination of your employment”.

Notwithstanding the above clause, it appears that the arrangements within the organisation were somewhat flexible. I note that it was acknowledged by the Respondent that there was no clear policy on the use of the credit card in place and “no set procedure to seek approval”. Furthermore, the documentary evidence provided by the Respondent shows that the previous Treasurer who was contacted by the President confirmed to her that “we let a few coffees go, but never lunches and the only reason we allowed coffee is that he was only on about 30k of a salary”.

While it would not be unreasonable for the Respondent to expect the Complainant to be prudent in terms of the credit card expenses, I am of the view that the Respondent knowingly allowed for a situation to develop whereby informal approval was given for some expenses. It is, therefore, unreasonable on the part of the Respondent to rely on the provision of the contract when it passively agreed over the years for the flexibility and liberty to be afforded to the Complainant. Having said that, I find the Complainant’s explanation that “it is absolutely [the Treasurer’s] fault” quite concerning. The Complainant, as per his own evidence has had a successful career in a variety of responsible and high-profile roles. By his own evidence he was familiar with matters of accountancy and audit. It is therefore concerning that he believes that a CEO would require supervision in respect of their beverages and meals expenditure.

In relation to the credit card expenditure, I am also concerned that, while the Respondent relied heavily on the statement of the former Treasurer who advised the Respondent “that the employee was to be watched as was fond of spending monies”, it appeared to disregard the statement of AMC which would support the Complainant’s case.

Finally, it appears that despite the absence of a credit card usage policy and press / media release policy, certain allegation being “only partially upheld”, and a lack of clarity as to what constitutes “major” misconduct,neither at the disciplinary stage, nor at the appeal stage any other sanction was considered.

Taking all of the circumstances of this case into consideration, I find that the decision to dismiss the Complainant was not within the range of reasonable responses of a reasonable employer.

I have carefully considered the manner in which the investigation and disciplinary procedures were applied in the present case, and I am satisfied that there were a number of fundamental aspects of the process which did not meet the required standards of procedural fairness.  

One of the areas of procedural unfairness that I have found in relation to the process relates to the suspension. I note that the Complainant was not informed of the purpose of the meeting in advance, he was not informed of his right to representation. The decision to suspend the Complainant had already been made prior to the meeting on 25th September 2019.  

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

I find the Respondent’s decision to suspend the Complainant on the basis that he “can be quite opinionated and the Board felt this could be a further risk to the business” was not satisfactory.

In relation to the allegations against the Complainant, I note that the suspension letter refers to the following;-

1.      Alleged theft or unauthorised possession of any property or facilities of the company or of any employee of the company through use of the company credit card;

2.      Alleged failure to conduct yourself in a professional manner when you allegedly disclosed information as a press release and on social media causing possible negative representation of the Clonmel Chamber of Commerce;

3.      Alleged serious breach of trust namely between January 2019 and July 2019 when allegedly used the company credit card to purchase items for person use and to withdraw cash advancement of salary.

The Terms of Reference issued by the Investigation Officer and the invitation to the disciplinary hearing list the following;-

1.      It Is alleged that on 17th September 2019, you posted an unauthorised statement on the County Tipperary Chamber of Commerce Linkedln Account and provided a press statement on behalf of the County Tipperary Chamber to the Nationalist Newspaper, relaying a personal and political opinion;

2.      Alleged insubordination, namely on 23rd September 2019, it is alleged you ignored management instruction by sending out a communication following Paula Carey-Hoffer's request sent to you on 22nd of September that you refrain from sending communications on the Business Awards without approval;

3.      It is alleged that on multiple occasions between January 2018 and July 2019, you used a company credit card to purchase unapproved and personal items and to withdraw money for personal use.

However, as the disciplinary hearing was adjourned, Mr Berrigan invited the Complainant to another hearing by letter dated 4th September 2020 outlining the allegations against him as follows;-

1.      It is alleged that on 17th September 2019, you posted an unauthorised statement on the County Tipperary Chamber of Commerce LinkedIn Account and provided a press statement on behalf of the County Tipperary Chamber to the Nationalist Newspaper, relaying a political opinion;

2.      Alleged insubordination, namely on 23rd September 2019, it is alleged you ignored management instruction by sending out a communication following Paula Carney-Hoffler's request sent to you on the 22nd of September that you refrain from sending communications on the Business Awards without approval;

3.      It is alleged that on 112 occasions between January 2019 and August 2019, you used a company credit card to purchase unapproved and personal items.

4.      Alleged theft of monies namely when on 24th June 2019 it is alleged you withdrew €20 using the company credit card of which there is no record of it being returned.

5.      Alleged theft of monies namely when on the 25th July 2019 it is alleged you withdrew €40 cash with a €1.90 cash advance fee using the company credit card of which there is no record of it being returned.

6.      Alleged breach of trust in relation  to the above allegations.

I have serious concerns about the allegations being altered subsequent to the disciplinary process having commenced.

With respect to the witnesses, it appears that the Respondent made a unilateral decision as to which witnesses’ evidence is of less or more importance. It appears that the former Treasurer’s statement was given great weight in the process and contributed significantly to the decision in respect of the Complainant’s dismissal. I have serious concerns in relation to the Respondent’s reliance on the statements made by the former Treasurer particularly in light of his decision communicated to the Respondent on 2nd January 2020 that he has “decided not to get involved in your enquires”.

I am also concerned of the approach taken in relation to Ms AMC’s statement that she recalled money being returned to petty cash. The Respondent chose to disregard Ms AMC’s statement and instead required the Complainant to provide evidence of the monies being returned to petty cash. The Respondent did not find it appropriate to address these shortcomings throughout the process and, instead required the Complainant to make arrangements for the witnesses’ attendance. I find that whatever flaws were in the investigation, they could and should have been remedied at the disciplinary stage.

Taking these findings together, I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair. In the circumstances, I find that the complaint is well founded and that the dismissal was substantially and procedurally unfair and the sanction of dismissal was disproportionate.

I am satisfied that the appropriate form of redress, having regard to all the circumstances, is that of compensation. Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered.

In assessing the level of compensation to be awarded I note that the Complainant was paid a gross weekly wage of approximately €673 by the Respondent at the time of his dismissal. I have received submissions from the parties in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation. I note that prior to his employment with the Respondent, the Complainant had his own business which he decided to re-start following his dismissal and registered the company on 28th September 2020. The business, as per the Complainant’s submission is “at its infant stage and is currently loss making”. The Complainant made very limited attempts to mitigate his losses after he set up the business. 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded. I deem that an award of €20,000 to be the appropriate award in the circumstances of this case.

Unfair dismissal – flawed procedures