Complainant

Respondent

Parties

Bridget  Clarke

Paul Connolly

Complainant

Respondent

Anonymised Parties

Representatives

Annemarie Donohoe, North Connacht & Ulster Citizens Information Service

Shane Kelly, John V. Kelly & Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045455-001

29/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045455-002

29/07/2021

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

CA-00045455-003

29/07/2021

The Complainant commenced her employment as a Bookkeeper/ Receptionist with the Respondent on 6 August 1985 and her rate of pay was €15.50 per hour. She was dismissed on the grounds of gross misconduct on 9 February 2021.

The Complainant commenced employment as a Receptionist/Book-Keeper on 6 August 1985. When she started, she was working a 5-day week, but this was reduced to a 4-day week in or around 1995. In or around 2008, she was in a job-sharing role with another member of staff, working 9.30am to 3pm over a 4-day week. There was also a separate agreement and payment arrangement for work carried out between 9am and 9.30am. Her role involved wages, purchases, paying accounts, book keeping, telephone including appointments, dealing with HSE/Social Welfare documentation, pricing, stock control, dealing with customers when her employer was busy and training new staff/work experience/students. She stated that her rate of pay was always set by Mr Connolly and communicated to her verbally.

The Complainant retained a copy of the rates of pay for each member of staff so that she would have it to hand when calculating the weekly wages and each time Mr Connolly increased or decreased the rates of pay, she would note it in the file and he would check it. This document was kept with the wages and accessible to both her and Mr Connolly. She stated that she was provided with an hourly rate of pay for the period 9.30am to 5.30pm. The business was open from Tuesday to Saturday. There was no overtime rate for working Saturdays. The Complainant was paid for lunch breaks by Mr Connolly as the business remained open during lunchtime and she ate at her desk when time allowed. The business was often used for customers’ private appointments with

specialists/consultants and these would normally occur on a Monday. For this part of her job, she was paid time and a half for 5 hours regardless of how many hours she spent overseeing these appointments.

The Complainant stated that sometime in or around 2006 her employer noticed that she was always in work and at her desk at 9am and he advised her that she should be paid for that half hour every morning and he stipulated that it should be at a rate of time and a half. The Complainant also stated that she was asked by Mr Connolly, in or around 2014, if she would be willing to return to working 4 full days per week, as the other employee had retired, and she agreed to do so. She stated that when she asked Mr Connolly what her rate of pay would be, she was informed that as she would be working 4 full days she should be paid for 4 full days. At that time, she was receiving €14.32 per hour. Pay increases occurred as follows. 08/04/2015 = 3% 15/01/2016 = 3% 19/01/2018 = 2% 02/01/2020 = 3%. In June 2020, following the COVID pandemic emergency lock-down, the Complainant returned to work and was paid under the Temporary Wage Subsidy Scheme and this was processed by Mr Connolly’s accountant for a period of approximately 22 weeks. When the business returned to normal trading, the Complainant returned to computing the wages. She stated that she was informed by Mr Connolly at the time that she should not be working lunch breaks and that, with immediate effect, she must take a lunch break and reduce her wages by 4 hours, which she agreed to. Mr Connolly also stated that she could continue to receive the time and a half rate for the 9am to 9.30am period.

Just before the Christmas break 2020, Mr Connolly asked to see the folder which contained the notes for all of the wages and stated he was carrying out a wage review. The Complainant did not return to work directly after Christmas as she had travelled out of the country and remained in isolation for the required 10 days. She returned to work on 14 January 2021. On 19 January 2021, Mr Connolly presented her with an envelope as she was leaving work and the Complainant read it when she arrived home. The letter stated that he had carried out a review of her pay over the period 2016 to 2020 and in it he provided details of the rates of pay that the Complainant had received and rates that he had calculated that she should have been paid. Mr Connolly asked that she respond in writing within 7 days, providing an explanation for the discrepancy in the payment of wages. The Complainant stated that she was completely shaken by this letter and could not believe that she would have overpaid herself but took Mr Connolly’s word and presumed that she had erred in her calculations. She responded to Mr Connolly in a letter dated 23 January 2021 stating that she understood that she should have reminded him of the different rates of pay when she changed from working 4 shorter days to working 4 full days. At that time, she believed that this was the reason for the error in her wages. She sincerely apologised and offered to borrow the money to cover the amount owed and would have it paid back by the end of March 2021, if Mr Connolly would allow her to continue to work. Using the information provided by her employer, the Complainant calculated that she was overpaid by €7,388.50.

The Complainant stated that she did not see Mr Connolly until 26 January 2021 and this is when she handed him her response to the allegations. There was no further communication about the matter until she was handed a letter at her desk on 9 February 2021 at approximately 9.20am. This letter stated that Mr Connolly had concluded his investigation into the overpayment of wages and terminated her employment with immediate effect. The Complainant stated that she was in a state of shock and quickly left the office. She asserted that she was never invited by Mr Connolly to discuss the matter and the written notice of termination did not provide an option to appeal his decision.

Following a subsequent examination of the wage payments, it was discovered that the Complainant had in fact paid herself an extra 2 hours each week that she should not have been paid. This had occurred when she had calculated her daily wages from 9am to 5.30pm and then applied time and a half for the 9.00am to 9.30am period on top of this. The Complainant admitted that this was a genuine error on her behalf and one she did not realise until she took the time to investigate the matter following her dismissal.

The Complainant was responsible for numerous tasks within the Respondent organisation which included inter alia bookkeeping and paying staff wages. In December 2020, the Respondent took it upon himself to update the practices in the business and specifically to ensure all employees were given written terms of employment.

During the course of preparing the terms of employment for the Complainant, it came to the Respondent’s attention that the Complainant appeared to be paying herself more than the agreed salary. Specifically, it was alleged that the Complainant had changed her hourly rate from €15.50 to €17.05 in the period from June to December 2020, from €15.50 to €16.38 per hour from January 2020 to June 2020, from €15.05 to € 15.90 per hour in 2018 and 2019 as well as €14.75 to €15.59 per hour in 2016 and 2017. It was asserted that if the miscalculation was a genuine mistake, it would have been obvious to the Complainant every time that the wages were re-calculated.

On 14 January 2021, the Respondent spoke to the Complainant and notified her that he wished to have a meeting with her on 15 January 2021 to discuss and investigate a potential issue regarding the overpayment of the wages. At the meeting, the Respondent asked the Complainant to explain the figure of €17.05 per hour and the overpayment of the wages over the years. After initially stating that the this was her rate because she had not been paid for keeping the office door open during the lunch breaks, the Complainant, after further questioning from the Respondent, stated that she did not know how the figure of €17.05 had been arrived at and the meeting concluded with the Respondent saying that this would have to be looked into.

Following the meeting, the Respondent investigated the figures further and on 19 January 2021 gave a letter to the Complainant clearly setting out the anomalies in the payments as he saw them. The Complainant was asked to explain in writing the reasons for these. In a letter dated 23 January 2021, the Complainant provided a reply to the Respondent’s correspondence of 19 January 2021 where she acknowledged overpaying herself and stated that she should have reminded him of the different rates of pay when she changed from working 4 shorter days to working 4 full days. By her calculations, the overpayments to herself amounted to €7,388.50 and she offered to pay back this money over time.

Given the inconsistent and implausible explanations presented by the Complainant at the 15 January meeting and in the 23 January letter, the Respondent concluded that the Complainant knowingly and deliberately overpaid herself more than she was entitled to and abused her position of trust to take money from his business, actions that in his opinion amounted to gross misconduct. Accordingly, he informed her in writing on 9 February 2021 that she was being dismissed on the grounds of gross misconduct.   

CA-00045455-003:

The Law

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Analysis and Findings

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

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

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. Specifically, in this case, it is not my role to make a decision on whether or not the Complainant committed a low-level fraud, as the Respondent suggested, but to examine whether it was reasonable of Mr Connolly both to believe that she did and for him terminate the Complainant’s employment on the basis of the evidence available to him at the time of the dismissal.

It is accepted by both sides that the Complainant overpaid herself. The exact circumstances of this overpayment are in dispute however. The Complainant claimed that she made a genuine error in calculating the wages while the Respondent stated that it was deliberate. The Respondent stated in evidence that despite the fact that her agreed wage rate was €15.50 per hour, the Complainant had crossed this out in the company’s records and replaced it with an hourly rate of €17.05. At the meeting on 15 January 2021, the Complainant asserted that the €17.05 was her correct rate of pay as the €15.50 hourly rate did not reflect that the fact that she kept the office door open during her lunch break. This assertion was disputed by the Respondent on 19 January 2021 in a written response to the Complainant wherein he highlighted that if the Complainant was not paid for her lunch time as she asserted, her hourly rate would have been even higher than the erroneous rate of €17.05 per hour. In her written response dated 23 January 2021, the Complainant stated that she should have reminded Mr Connolly of the different rates of pay when she changed from working 4 shorter days to working 4 full days and stated that she would refund him the amount she had overpaid herself, namely €7,388.50. Given the implausible explanations provided by the Complainant as well as the seriousness of the allegations, the Respondent decided to terminate her employment. In making a decision on the reasonableness of the decision, I believe that no third party could conclude other than that the dismissal was within a band of reasonable responses, given both that the Respondent allowed the Complainant seven days to respond to the allegations set out in his letter of 19 January 2021 and the evidence that was available to him at the time of the dismissal.

As I have found that the dismissal was both reasonable in the circumstances and substantively fair, I must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

In making a finding on its procedural fairness, an obligation rested upon the Respondent to ensure that the dismissal was effected with full regard to the requirements of natural justice and fair procedure. In the first instance, I find that in determining the actions of the Complainant were gross misconduct, Mr Connolly over-stepped his role as the Investigator which was to establish facts. Moreover, I find that, following the investigation, the Complainant should have been afforded both an independent disciplinary hearing as well as an appeal, which should have been conducted by another independent person.

The application of the right to such fair procedures was highlighted by the Supreme Court in the matter of Glover v BLN Ltd [1973] IR 388 where, like the instant case, the question arose as to whether the plaintiff’s dismissal was rendered wrongful at common law by the defendant’s failure to afford him a fair opportunity to defend himself against charges of gross misconduct. In that case, notwithstanding the assertion by the defence that the evidence of wrongdoing on the part of Mr Glover was so overwhelming that the absence of a fair hearing on the charges against him made no practical difference to the result, Walsh J stated:

“The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent”

Another much quoted case on the importance of observing the rules of natural justice in all circumstances in which misconduct is alleged, is that of Megarry J in John v Rees [ 1969] 2 WLR 1298 whicharose from a serious dispute within a constituency association of the British Labour Party. A number of individuals had been expelled from the party, including a Member of Parliament, following an outbreak of violent disorder at a meeting of the Party. The case concerned, inter alia, the obligation on the National Executive of the Party to apply fair procedures before expelling members of the Party. The Judge said:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

It is clear from these authorities that, in law, there is no such thing as an open and shut case. No matter how inadequate her explanations were during the investigation or how sure Mr Connolly was of the Complainant’s fraud, a person accused of wrongdoing is entitled to a fair hearing in accordance with the rules of natural justice. What is even more concerning is that the Complainant was never afforded the opportunity to make her case in person before a decision was made on her dismissal to safeguard her rights in natural justice. The written request made by Mr Connolly on 19 January 2021 to provide information, further to the explanation given by the Complainant at the investigation meeting of 15 January 2021, does not meet that right, even though I recognise that the period of seven days outlined in the letter was a reasonable amount of time. The Complainant was entitled to be heard in person and to be afforded the opportunity to make arguments, answer questions and debate points, before any decision was taken.

While Mr Connolly also asserted in evidence that he was a sole trader and that there was simply no one else capable or indeed available to conduct the disciplinary hearing or to hear an appeal, there are no exceptions to the rules of natural justice in respect of a company’s size and fair procedures should have been afforded to the Complainant, prior to making the decision to dismiss her. Specifically, in this instance, two outside consultants should have been engaged by the Respondent, one to conduct the disciplinary hearing and another to hear any appeal, given that Mr Connolly had himself carried out the investigation.

While I find that the dismissal was substantively fair, I am satisfied, in light of the foregoing points, that the procedures used by the Respondent were flawed and inadequate and must therefore find that the Complainant was unfairly dismissed.

CA-00045455-001

This complaint was withdrawn.

CA-00045455-002:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states: 

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. 

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks 

c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

As I have found that the Complainant was unfairly dismissed, it follows that her complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 must succeed and is well founded. Given that she had more than 15 years’ service, she is entitled to eight weeks’ pay.

Given that she earned €15.50 per hour and worked 30 hours per week, I make an award of €3,720 in respect of this complaint.

CA-00045455-003:

I have found that the Complainant was unfairly dismissed for the reasons set out above.

The Law

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Analysis and Findings

Notwithstanding the significant flaws in the procedures afforded to the Complainant, as set out above, I cannot direct the Respondent to re-instate or re-engage her given the reasons behind her dismissal and the fact that the relationship between the parties has irretrievably broken down. Accordingly, compensation is the only other option available.

In deciding what level of compensation to award, I must have regard in the first instance to actual losses and any attempts made to mitigate same in accordance with the Act above. I note firstly that the Complainant has been on disability benefit since October 2021 and has not been available for work since then. Accordingly, I must confine my calculation of financial loss to the period between her dismissal in February 2021 and October 2021, namely the period she was available for work. In this regard, I note that little evidence was presented to suggest that the Complainant was actively seeking work in the period that she was fit to do so and that she fell well short of the test set out in Sheehan v Continental Administration Co Ltd (UD 858/1999) where it was held as follows: -

"a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In addition, the Act requires, in determining the amount of compensation payable, that I consider the extent to which the conduct of the Complainant contributed to her dismissal. In this regard, I find that the conduct of the Complainant contributed to the extent of 100% to her dismissal, that she acknowledged overpaying herself, albeit allegedly in error, and that no evidence was presented to suggest that these overpayments were refunded to the Respondent either at the time of her dismissal or subsequently.

Considering all of the foregoing points, I find that the amount of compensation which is just and equitable having regard to all of the circumstances is nil.