Complainant

Respondent

Anonymised Parties

A Staff Officer

A County Council

Representatives

Fórsa Trade Union

LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032134-001

12/11/2019

This is an unfair dismissal complaint in respect of a dismissal based on gross misconduct.

Following an investigation and disciplinary process the Respondent found that the Complainant had either misappropriated Respondent funds or permitted and/or facilitated the misappropriation of Respondent funds and was dismissed for gross misconduct on 1 November 2019.

The Respondent is a County Council Library in a county in which there are five county libraries. The Complainant worked in the head branch as a staff officer.

Cash that was received by the four other branch libraries was transferred to and contained within a safe in head branch until it was lodged in the Respondent’s bank account.

From 2017 on it was the duty of the Complainant to lodge this cash in the bank.

Cash receipt to bank lodgement: the process.

Cash payments were received by four individual library branches (in respect of book fines, photocopying and other library services/events.) This cash was then transferred to a central safe in the head branch where the Complainant worked. The safe was a small 35 x 24 cm mobile safe and was kept in an office within which the Complainant worked with other members of staff.

The cash was collected from the different library branches by a delivery driver, an employee of the Respondent. His main duties were to collect and deliver library books and other interlibrary loan items between the five branches but alongside these duties, he also collected cash which the staff of the five branches had already put into envelopes.

Each envelope contained cash – coins and/or paper – together with a white A4 transfer sheet (which identified the date, the branch from which the cash was being transferred and the amount of cash that was contained in the envelope.) The driver collected these envelopes, brought them to head branch where he deposited them in the safe.

The Complainant then had the sole responsibility to take the cash from the safe and lodge it into the Respondent’s bank account. She was given this duty by the County Librarian – in addition to her other duties - in early 2017, having done it previously in 2013.

The lodgement process was as follows:  envelopes would be taken from the safe, the cash would be removed from each envelope, the money would be counted and put into plastic coin/cash bags.  The sums to be lodged were then recorded on computer software system, the lodgement maker would attend the Credit Union with the money bags, where it would be recounted by Credit Union staff and exchanged for a credit note. The lodgement maker would then go to the bank and lodge the credit notes in the Respondent bank account.

Discovery of missing funds

In mid-March 2019 arising from an internal audit, the auditor noticed that from early 2018 onwards, bank lodgements had been repeatedly delayed from receipt of cash to lodgement and the lodgements that were made did not appear to reconcile with the records of cash transfers received from the other county library branches.

Following this, the auditor informed the County Librarian. On 19 March 2019 the auditor and County Librarian attended head office and opened the safe to inspect its contents. They had expected to find that the safe would contain envelopes with un-lodged cash and the cash and records would then reconcile, ie that the problem was only that lodgements had been late over a protracted period of time.

Instead they discovered that many of the envelopes had been opened, the A4 transfer sheets were missing from some envelopes and cash that was supposed to be in the envelopes was also missing. There were also a number of envelopes which, along with their cash and transfer sheets, were missing entirely. Seventy transfer sheets were missing.

Following this discovery, a more detailed comparison was done between the transfer logs of the four county branches and the bank lodgements that had been made by the Complainant. When this comparison was done and the money remaining in the safe was counted, there was a discrepancy of nearly € 9500.00

The Complainant was asked to attend the office on 22 March 2019. She was informed by the County Librarian that an audit had revealed discrepancies in the cash lodgements. She was asked if she had any response to this which she did not. She was instructed to go home and that she would be contacted.

Following this the Complainant’s desk was searched by the County Librarian along with two other staff members and the County Librarian found a large number of the missing transfer sheets under the Complainant’s desk amongst her belongings.

The Investigation

In accordance with the Respondent disciplinary procedures an investigation into the theft was commenced. An Investigator was appointed on 27 March 2019 (a Financial Accountant with the Respondent.)

The terms of reference of the investigation was:

“To carry out an investigation to examine issues that have come to light that may involve [The Complainant], Staff Officer, County Library Headquarters, [County X, Employee Number XXX] in relation to the lodgement of monies from County  X County Council’s Libraries. The purpose of this investigation is to find the facts of the matter.”

The Investigation then commenced and its process was as follows:

The Investigator complied a spreadsheet of all bank lodgements that had been made by the Complainant (and dates) together with records of cash transfers (and dates) that were obtained from the 4 other library branches. These details were then cross checked against records contained on Agresso – the financial management system used by the Respondent.

Arising from this the Investigator interviewed the Complainant, the delivery driver, the County Librarian and the Complainant again.

The Investigator then viewed the safe.

The Investigator issued a report dated 10 July 2019. In her report she found that there were several inconsistencies in the evidence of the Complainant and her explanations did not make sense.

The Investigator found that while the Complainant’s main defence was that - any number of people had access to the safe – that this was not an adequate explanation for (a) the delays in her making lodgements and (b) the pattern of delayed accounting that accompanied these late lodgements.  Overall, the Investigator found that the Complainant’s evidence to be not credible.

Her explanation for late lodgements was that lodgements took up a lot of time, she was busy and she had not been given a LVP card. The Investigator accepted that she was busy but found that the Complainant’s explanation for how she prepared the lodgements was both peculiar and inefficient. The Investigator accepted that the Complainant did not receive an LVP card until June 2018 however the late lodgements and delayed accounting continued after that time.

The Complainant’s explanation for the delayed accounting was a peculiar pre-lodgement preparation process. By the Complainant’s account, when she made a lodgement she would take all the envelopes out of the safe. She would then separate a small number of older envelopes for lodgement and count the contents of these envelopes only. In respect of the more recently received envelopes - having ordered them chronologically - she then would put them all back into the safe, in a way that the Investigator found made no sense because it meant she would have to re-order all envelopes chronologically again the next time she was lodging money. If time was tight and the Complainant busy, this was not an efficient way to do the job.

By way of example, on 18 July 2018, the Complainant made a lodgement to the bank of €2730.29 in respect of cash received a year and a half earlier (over October, November and December 2017). On 18  July 2018 she lodged cash from only 13 of the 81 envelopes that were available to her to lodge.

The Investigator found that if the Complainant’s account was correct,  in respect of the July 2018 lodgement she would have organised all the envelopes chronologically (all 81 envelopes) She then would have taken the cash from the 13 oldest ones only and lodged this and then put 68 of the (Dec 2017-July 2018) envelopes all back into the safe, to become chronologically disordered again.

The Investigator found that the Complainant’s explanation for the delayed accounting lacked credibility and a more likely explanation was that this was evidence of borrowing and matching later (otherwise known as teeming and lading.) Her reason for this was because when the safe was opened the missing cash was a slice of recently received cash and not cash that had been received some time before.

 “Teeming and lading” is a form of book keeping fraud which is also known as short banking or delayed accounting. It involves the use of one recently received payment (in this case a bank lodgement) in respect of another (payment that was received some time ago) in order to make books balance and to hide a shortfall, theft or borrowing. The evidence of it in this investigation was:  missing money, delays in lodgements being made by the Complainant, delayed accounting resulting in a pattern of gaps/ missing funds (that pertained to recent receipts). Late lodgements combined with delayed accounting can evidence a once-off theft or multiple thefts that build up over time. Essentially it is a practice of robbing Peter to pay Paul, in the hope that Paul will be paid off at some point and the practice can stop before anyone finds out. 

The Investigator found that of the 70 transfer sheets that should have been in the safe – to match the records of what had been sent by the other branches (and on 19 March 2019 all were missing) 53 were found beside the Complainant’s desk and the Complainant accepted that transfer sheets may have been at her desk, albeit because  - she said  - they had become torn – not because they were a record of what had been taken.

The investigator found the Complainant’s lack of awareness of what was in the safe at any one time to be implausible seeing as she was the person with sole responsibility to do the lodgements.

Therefore the Investigator found that even it were accepted that other staff had access to the safe (which was accepted) the discovery of the transfer sheets, the fact that  no-one other  the Complainant did the bank lodgements, the fact that there were repeated delays by her in making the lodgements and that  the lodgements (in a repeated pattern) were in respect of cash that had been received from months earlier but  not recently received (delayed accounting) all pointed to a likelihood that the Complainant either misappropriated the cash sums herself or had facilitated someone else doing it.

In the opinion of the Investigator the Complainant’s actions constituted gross misconduct.

The Investigators report was issued dated 10 July 2019.

At the Adjudication hearing the Investigator described her Investigation process, set out her analysis and reasoning and explained her findings.

Disciplinary Hearing

Arising from the findings of the Investigator, the Director of Services was appointed by the Respondent to conduct a disciplinary hearing into the matter which took place on 1 August 2019.

The Disciplinary process included a disciplinary hearing with the Complainant and her union representative; interviews with some other staff and co-workers of the Complainant and an interview with the County Librarian.

Following this the Director of Services issued her decision which was set out in a report dated 30 August 2019.

In her decision the Director found that the Investigation had produced evidence which implicated the Complainant and the explanations provided by the Complainant to both the Investigator and during the Disciplinary hearing was unsatisfactory, implausible and in some cases untrue.

The spreadsheet evidence showed that cash receipts were missing, the bank lodgements by the Complainant were late, the Complainant provided implausible reasons for the delayed accounting, the missing cash pertained to a recent time period and the transfer sheets that were found within the Complainant’s belongings corresponded to the cash that was missing.

With regard to the evidence of the transfer sheets being found at the Complainant’s desk, the Complainant’s explanation that these sheets were taken from the safe because the safe was full and also because when she and the County Librarian had to upturn the safe to take all the envelopes out, many of the envelopes were torn so the Complainant took them out of the safe. The Director found that this evidence was not corroborated by the County Librarian and was not a credible explanation for 53 transfer sheets being found under the Complainant’s desk. The Director found the evidence of the Complainant to be not credible.

The Director found, on the balance of probabilities, that the Complainant was involved in the misappropriation of Respondent funds. She found that this constituted gross misconduct and she decided that the appropriate sanction was dismissal.

The Complainant was offered a right of Appeal, which she availed of.

At the Adjudication hearing on behalf of the Respondent the Director gave evidence and described the disciplinary process (in accordance with disciplinary procedures.) She set out her analysis and reasoning and explained the basis for her findings. She was cross examined. The County Librarian then gave evidence and was cross examined.

The Appeal Process

The Appeal was conducted by the Chief Executive of the Respondent.

The Appeal process included an Appeal hearing on 4 October 2019, a consideration of the Investigation report and attachments, a consideration of the Disciplinary report and attachments and a consideration of the Council’s disciplinary policies and procedures.

The Appeal outcome was issued by letter dated 1 November 2019.

The Appeal report synopsises the points raised by the Complainant, which were:

 That delays in making lodgements were because the Complainant had not been provided with a lodgement (LVP card);

That all the problems arose from the lack of financial oversight by the County Librarian and

That in her belief she had been framed and there was no openness to the possibility of this in either the Investigation or the Disciplinary process. In short, the outcome was pre-judged from the start.

In respect of these points the Chief Executive noted that the LVP card was provided in mid-2018 so the delayed accounting or late lodgements from then on (for which there was evidence) – could not be explained by the lack of a lodgement card. A lack of financial oversight did not cause the money to be taken. Theft which is based on an opportunity to do so, is still theft and constitutes an act of serious misconduct. The Complainant’s attempts to blame others was not a valid explanation for the evidence that lay against her. Lastly the Complainant could not point to any evidence to support her proposition that she had been framed.

The Chief Executive upheld the findings of the investigation and the disciplinary process.

The Chief Executive upheld the decision to dismiss the Complainant

The Chief Executive did not attend the Adjudication hearing.

Conclusion

The Respondents case is that fair procedures were adhered to during all stages of the disciplinary process and the decision to dismiss the Complainant was fair, reasonable and justified.

The Complainant case is that the investigation was fatally flawed because wrong assumptions were made at the start and conclusions that were drawn subsequently by the Respondent should not have been.

The Complainant contends that a number of staff within the county branches had access to the cash before it ever travelled to the safe in head branch so there was no way of knowing if what the four other branches informed head office had been transferred, was in fact ever transferred.

The Complainant contends a number of staff had access to the safe (the code for the safe was widely known) and this was accepted by other staff during the investigation.

The Complainant contends that there was no CCTV in the room containing the safe

The Complainant contends that on 22 March 2019 when she was informed that of the cash discrepancies this resulted in her being asked to leave her workplace, even though many others could have been responsible for this.  This was a pre-judgement, one that was never reversed by an open consideration of her version of events.

The terms of reference of the investigation concerned solely the Complainant and no other member of staff.

The Complainant contends that the weekly cash deliveries by the driver took place on a Thursday afternoon. The Complainant did not work in head office on Thursdays. She cannot tell if the deliveries were made by him or whether the cash that the other branches said were being transferred happened.

The Complainant contends that the duty to make cash lodgements to the bank was a responsibility that should have lain with the Complainant’s line manager, not her. She had not sought these additional tasks and the tasks were delegated to her by the person whose responsibility it was.

The Complainant contends that there was no receipts system in place. Indeed, the Complainant’s uncontested evidence was that she suggested to the County Librarian that such a system be put in place however this did not happen and making such a suggestion, is hardly evidence of guilt. 

The Complainant contends that any time she made a lodgement to the bank account, she emailed the County Librarian the details of the lodgement together with an Excel sheet but there was no oversight by the County Librarian of the lodgements made by the Complainant or when they were made.

The Complainant contends that there was no time requirement for her to lodge the sums in the bank within a specified time period of being received by head branch. Lateness was never raised as a problem. She accepted that she was told by the County Librarian to make lodgements, once or twice, but she was never warned about this or told that she should give priority to lodgements, over her other duties.

The Complainant contends that until June 2018 the main reason that the lodgements were delayed was that she was unable to lodge them because she had not been provided with a LVP lodgement card and because of this the contents of the safe built up during this period.

Her duties included making lodgements. It was not her duty to maintain security over the contents of the safe, which any number of staff had access to. She accepts that there were periods of months that no lodgements were made but that was because she was very busy doing her other duties.

She contends that she was on a reduced working week, a four-day week albeit spread over five days (3 full and 2 half days) and that lodging cash was an additional role, was not one of her primary duties as staff officer. It was one that she had to fit in around her main duties and she didn’t prioritise it, because management had not.

Her main duties were many. She was a staff officer. She was always under pressure to pay invoices and accession books that the other branches were waiting for.

The Complainant contends that it was the failure by the Respondent to implement a cash handling system that led to this money disappearing, for which, she had been cast as the scapegoat

She could not provide an explanation for the missing sums. She was not working in the head branch on the day the missing cash was discovered.

The Complainant accepted that there may have been transfer sheets at her desk.  However, the questions that were put to her about the transfer sheets during the investigation were unfair and confusing. She asked about a red folder containing transfer sheets which she accepted, however it transpired that the transfer sheets were found - not in a red folder - but under her desk. The fact that transfer sheets were found under her desk was never ever put to her during the investigation, nor was the fact that these transfer sheets corresponded to the missing cash. So, when she accepted during the investigation that there was red folder at her desk (which may have contained torn transfer sheets) it was incorrect for the Investigator to find that this was a concession by her that the transfer sheets, in respect of missing money, was within her belongings. Her explanation for having some transfer sheets was that the safe was so full at times that she removed transfer sheets if the envelopes had ripped. During the disciplinary process however she accepted that transfer sheets may have been at her desk.

Her explanation for the delayed lodgements was that her practice was not to do all the lodgements at once, if she did not have the time. Instead, she took all the cash out of the safe. She put aside the oldest cash receipts for lodgement and she put the others back into the safe to lodge at a later time. She accepted that the lodgements that she did were in respect of receipts from several months earlier nut this was because she did not have time to do all the lodgements in one go.

The Complainant contends that the Investigation was pre-judged from the start, the findings of the Investigator were flawed, the disciplinary process was flawed, the Appeal process was flawed and the decision to dismiss her was not justified.

At the Adjudication, the Complainant gave evidence and was cross-examined. He evidence was that she did not know who took the cash but that it was not her and the Director’s finding that it was her,  was not adequately evidenced. 

Preliminary Observation

Evidence under Oath

This adjudication hearing commenced on 11 February 2020 at which part-evidence was heard on behalf of the Respondent and, in accordance with the procedures that were then in place, that evidence was not given under Oath.  The matter was then relisted for hearing on 3 November 2021, following the Supreme Court decision in Zalewski v An Adjudication Officer, WRC and Ors 2021 IESC 24 which required, inter alia, that the evidence in a WRC Adjudication be given under oath. As the part heard evidence in the adjudication had been limited (opening statements were made and the first Respondent witness had commenced her evidence) the Adjudication Officer wrote to the representatives by letter dated 5 October 2021 requesting whether, as the evidence on the first day was not heard under oath and the remaining evidence would be required to be heard under oath, whether they wished the matter to be relisted before a fresh Adjudication Officer so that the evidence could be recommenced under oath to ensure an equality of evidence, or would they prefer for the hearing to continue before the same Adjudication Officer. Both parties replied by letters dated 13.10.21 (Respondent’s representative) and 18.10.21 (Complainant’s representative) and both gave their consent for the hearing to continue before the same Adjudication Officer [being received prior to the High Court decision of Burke v WRC and Arthur Cox Solicitors 2021 IEHC.] Following receipt of the consents, the Adjudication hearing was resumed on 3 November 2021, on which date the evidence, under oath, was given and the hearing was concluded.

Preliminary Determination

Anonymisation of the parties

I have considered section 4 (c) of the Workplace Relations (Miscellaneous Provisions) Act 2021. I determine that due to the existence of special circumstances, information that would identify the parties in relation to whom this decision pertains, should not be published by the Commission and the parties in this decision will be anonymised.

This decision upholds the Respondent’s decision to dismiss the Complainant and finds that the dismissal of the Complainant was fair.

However, should this decision be revisited by the Labour Court on appeal, it would be open for that Court to take an alternative view. In such circumstances, given the seriousness of the offences involved and given that the publication of the Complainant’s identity in this decision would cause damage to her reputation permanently and would likely impact on her ability to obtain work in the future, which could not be reversed even if she were to be subsequently vindicated, I do not intend to publish the identity of the Complainant, nor the Respondent, as identifying one would be likely to identity the other. It is my view that maintaining the anonymity of the parties in these circumstances is correct and proportionate, in order to protect the interests of the parties and maintain the status quo, pending any appeal that may be brought.

The Basis of the Dismissal Decision

This is a case in which the Respondent seeks to justify the dismissal of the Complainant on grounds of gross misconduct arising from its finding that the Complainant either misappropriated Respondent funds or facilitated the misappropriation of Respondent funds.

The decision to dismiss the complainant was taken by the Director of Services (Director) of the Respondent following an investigation and disciplinary process. In reaching her decision the Director relied on the fact that money was missing (which was not in dispute) together with three findings of fact namely that:

1.       The Complainant’s lodgement practice.

Having taken on lodgement duties in 2017 the Complainant’s lodgement practice was normal and regular. From mid-2017 onward, these lodgements became late and involved a pattern of delayed accounting. In addition to this spread sheet evidence of the cash which was missing from the safe on 19 March 2019 was not missing randomly in time but rather it was a glut of missing cash which mainly pertained to cash that Head Office received in the time-period May to November 2018, which was immediately followed by a lodgement being made by the Complainant, following which there was a glut of cash that was present in the safe when it was opened.  This evidence pointed to a practice of “teeming and lading” over a protracted period of time, whereby cash which was recently received by Head branch was used by the Complainant as a lodgement in respect of cash that had been delivered to the safe months earlier but not lodged then. As the Complainant had sole responsibility for making bank lodgements she had to be either the author, co-author of the misappropriation or at least she had to have known about the misappropriation.

2.       The Complainant was unaware of several discrepancies in relation to the safe over a long period of time and this evidence was not credible.

3.       Fifty-three of the 70 A4 transfer sheets that were missing from the safe were found within the Complainant’s belongings at her desk, after she was sent home.

Arising from these findings together with a lack of adequate and or consistent explanations being provided by the Complainant, the Director found that on the balance of probabilities that the Complainant either misappropriated funds or facilitated the misappropriation of funds and dismissed the Complainant for gross misconduct.

It is this decision that is the subject of this WRC complaint and the correctness of which is contested by the Complainant. The legal tests for a dismissal based on gross are set out in legislation authorities. 

The Legislation: Unfair Dismissals Act 1977-15

Section 6 of the Unfair Dismissals Act 1977-15 states:

6.—(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:...

 (b) the conduct of the employee…

     (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.

Burden of Proof

The above legislative sections, underline that the burden of proof in a gross misconduct/ unfair dismissal case lies with the Employer to show that the employee’s conduct justified the decision to dismiss and that having regard to all the circumstances that there were substantial grounds to justify the dismissal.

Gross Misconduct Unfair Dismissal Authorities

The Superior Court authorities have interpreted the legislation as requiring that where an employee’s conduct or misconduct is being relied on to justify a dismissal,  the applicable tests for the WRC Adjudicator to decide is whether the employer’s finding that an employee’s conduct amounted to gross misconduct was reasonable and whether the decision to dismiss was one within a range of responses that a reasonable employer could adopt (Governor and the Company of the Bank of Ireland v. Reilly [2015] IEHC 241.)

A finding of misconduct is reasonable if it is based on established facts based on a fair and impartial investigation and disciplinary process in accordance with fair procedure and rules of natural justice. An investigation and disciplinary process is not required to be perfect, but any defects must not render a finding of fact, upon which the dismissal decision is based, to be fragile or unreliable.

The Complainant’s arguments

The Complainant does not contend that the sanction of dismissal for proven theft is inappropriate. Her complaint is rather that the Investigator’s findings of fact were improperly reached - through prejudgement and through an incorrect weighing of evidence - and because of that the disciplinary process was flawed and the decision to dismiss was also flawed.

Alleged defects in the investigation

As already stated above the Complainant contends that the investigation was defective for the following reasons:

-          The Complainant was the sole subject of the investigation despite the fact that a number of staff had access to the safe

-          The duty to make cash lodgements to the bank was a responsibility that lay with the County Librarian and not the Complainant. This duty was delegated to her by the County Librarian.

-          There was no cash receipts system in place and the Complainant had suggested that one be introduced, but the County Librarian declined to act on this

-          There was no financial oversight of the lodgements that were made by the Complainant

-          That there was no requirement for her to lodge cash in the bank within a specified time frame

-          That main reason that the lodgements were delayed was because she was not provided with a bankcard (LVP card) until June 2018

-          There was CCTV of the safe

-          She was on a reduced 4 day working week (3 full and 2 half days) and was over-worked

-          If her lodgement process was delayed this was because she prioritised her primary duties as staff officer over an additional and ancillary duty – which was to lodge cash receipt.

-          The Investigator’s questions to the Complainant over the discovery of transfer sheets were factually inaccurate and confusing

-          The Investigator failed to be open to the idea that someone else might have taken the money

-          The Investigator expected her to have a knowledge of what was in the safe at any one time. Given her workload and reduced working week, she did not look at the contents of the safe with any degree of regularity and in any event her obligation was not as custodian of the safe, it was to make lodgements

-          Late lodgements are not proof of theft

Analysis of Adjudicator

The Complainants arguments to support her complaint that the dismissal was unfair can be broken down into two categories:

1.       That her guilt was pre-judged by her being sent home on the 22 March 2019 and by the narrow terms of reference of the investigation and

2.       That the Respondent - throughout the investigation and disciplinary process - gave insufficient weight to the evidence which exonerated the Complainant and gave too much weight to the evidence that favoured her involvement in the theft.

I will now address these categories in turn.

1.       Pre-judgment

In respect of the assertion of pre-judgement, that the Complainant should not have been sent home on 22 March 2019 and should not have been the only suspect in the investigation which was commenced on 27 March 2019, I am not satisfied that this contention has been satisfactorily proven by the Complainant.

One needs to look at what was known by the Respondent on 22 March 2019, in order to determine whether its actions on 22 March were reasonable. One also need to consider what was known by the Respondent when the terms of reference of the investigation was being drawn up, in order to determine whether the directed nature of that investigation was reasonable or not.

The discovery that cash was missing from the safe was on 19 March 2019. On 22 March 2019, when the Complainant was sent home under suspicion of being involved with the missing funds, the Respondent had the following evidence in its possession: cash was missing, the Complainant had access to the safe (albeit not the only person), the Complainant was the only person who made bank lodgements and the Complainant had developed practice of making lodgements late.

Given these objective facts, in my view it was reasonable for the Respondent to consider that the Complainant was at least possibly involved in theft and for this reason - given the gravity of the offence – it was reasonable to exclude her from the workplace, if only to allow an inspection of her desk and belongings to take place.  This was a type of holding (as opposed to punitive) suspension, akin to that envisaged in Morgan v Trinity College [2003 3 IR] 157, in which a suspension was held as reasonable and proportionate to prevent a risk of evidence interference.

For this reason, in my view, the Respondent’s decision to send the Complainant home on 22 March 2019 was reasonable and did not constitute pre-judgement.

Having sent the Complainant home, her desk was examined by the County librarian with two others at which point fifty-three transfer sheets were discovered under the Complainant’s desk.

From that discovery onwards it was reasonable, in my view, for the Respondent to consider the Complainant as the main suspect in the investigation.

When drafting the terms of reference of the investigation, given the evidence that the Respondent already had (missing cash, the Complainant had access to the safe, the Complainant being the only person who lodged cash, the Complainant had a practice of late lodgements and 53 transfer sheets being discovered at her desk) in my view,  it would not have made sense to start an investigation which ignored this evidence, which on its face, indicated that the Complainant was possibly implicated in a theft and that her actions were required to be investigated. Suspicion is not the same as guilt and I am not satisfied that the Complainant’s contention that her guilt was predetermined prior to the commencement of the investigation has been proven.

Had the facts been otherwise and the evidence other than what it was, the Respondent would have been obliged to throw a wider investigation net, but as it stood, I am satisfied that the evidence that was available to the Respondent, permitted its investigation to be directed to the Complainant’s actions and the purpose of the investigation was whether the Complainant was responsible for the missing cash or was she not.

I consider that it was reasonable for the Respondent to proceed to an investigation on the basis of the terms of reference.

2.       2. That the Respondent gave unbalanced weight to the evidence during the investigation/disciplinary process

Overall it is my view that even if the Complainant’s alleged defects in the investigation/disciplinary process were to be accepted:  lack of financial oversight, access of others to the safe, no CCTV, weighted interview questions etc.  these are still not capable of undermining the evidence upon which the 3 findings of fact upon were made.

I accept that there were flaws in the investigation and disciplinary processes but that these were minor and did not undermine the findings of fact reached by the Investigator. I will briefly deal with these here. 

During the investigation the Complainant was asked about missing transfer sheets that the County Librarian reported found at the Complainant’s desk. I accept the Complainant’s point that this issue was not clearly or properly put to her during the investigation. The Complainant was asked by the Investigator about a red folder at her desk which contained transfer sheets. What was not properly put to her was 1. That many of the discovered transfer sheets corresponded with cash that was missing from the safe and 2. That the sheets were found in within paperwork under her desk.

However, given that later during the disciplinary hearing, the Complainant accepted that transfer sheets were her desk (because she had taken transfer sheets out of the safe  and whether in a red folder or somewhere else in the vicinity of her desk is immaterial.) This in my mind, cures any defect in terms of the questions that were put to her on this point by the Investigator.

The second flaw relates to the disciplinary process but also pertains to the discovery of the transfer sheets. The evidence of the County Librarian during the Adjudication was that 53 missing transfer sheets were discovered by her under the Complainant’s desk. The County Librarian said that two witnesses also witnessed this discovery however these witnesses were not asked by the Director if they agreed with the County Librarian’s evidence.  This is surprising, given that so much turned on this discovery and given that the person who the Complainant alleged that overall responsibility to make lodgements lay with, was the County Librarian.

However, again, if the evidence of the Complainant had been a denial that the transfer sheets were at her desk or if she suggested during the disciplinary process that the sheets could have been planted there by a third party (which she did not) then corroboration would have been required. But the Complainant did not contest that she had kept transfer sheets at her desk, regardless of her reason for them being there, her explanation for them being there is less material than the fact that she admitted their presence there and - as the investigation revealed the transfer sheets found at the Complainant’s desk corresponded to cash that was missing from the safe.

So insofar as there were flaws in the way that the investigation and the disciplinary process dealt with this evidence, in my mind, these do not alter the fact that missing transfer sheets for cash that was missing from the safe were found in the close vicinity of her desk and the Complainant accepts that they were there.

The evidence upon which the decision to dismiss was taken

The Director’s decision to dismiss the Complainant was based on an accumulation of 3 findings.  While individually these may not have proven guilt, but taken altogether (and in the absence of any adequate explanation being provided by the Complainant) in my view, it was reasonable for the Director to find on the balance of probabilities that the Complainant was implicated– either directly or through her knowledge -  in the misappropriation.

A scrutiny of the 3 findings of fact upon which the decision to dismiss was based

1.       The Complainant was the only person who did the lodgements

This is undisputed. 

2.       Late lodgements.

In my view, this alone could not be proof of guilt. It could have been proof that the Complainant was over-worked or proof simply that the lodgement task was not a priority for her. The fact that the County Librarian did not prioritise the making or timing of lodgements and had no cash handling protocol in place or no cross check of cash receipts could have supported such a de-prioritisation of the task. I find these to be valid explanations as to why the Complainant may have been late in making the lodgements.

Delayed Accounting

No adequate explanation was provided by the Complainant for the delayed accounting and I find this evidence is persuasive because while late lodgements by themselves were not compelling evidence, late lodgements combined with delayed accounting and an analysis of what remained in the safe was strong evidence of teeming and lading. This is particularly given that missing funds were mainly in respect of cash that was received in May to November 2018 and not earlier, so this was not random theft and it put the late lodging in a different light.  No plausible explanation was given by the Complainant for lodging cash months after it was received while at the same time not lodging cash receipts that had been received more recently. The lateness of lodgement plus this pattern of delayed accounting pointed to a practice of teeming and lading.

During the investigation when the May-November 2018 gap of missing cash, was discovered no explanation was provided by the Complainant as to why these receipts had not been lodged by her on the four different occasions that she had the opportunity to and did make lodgements namely on 18 July 2018, on 23 August 2018, on 15 November 2018 and 16 November 2018, other than the Complainant was over-worked and didn’t have enough time to do the lodgements.

The Complainant’s other explanation was the lack of an LVP card. However, the evidence showed that late lodgements and delayed accounting also continued from June 2018 onwards after she was issued with the LVP lodgement card. By way of example, cash receipts from December 2017 to February 2018 were not lodged by the Complainant until the 23rd of August 2018, despite her making lodgements in January 2018 and July 2018. And if the lack of an LVP card was the reason for the late lodgements one would have thought that once she received the card she could have – as she said she had – caught up with the payments in July and August 2018. But despite what she said at interview, this catch-up never occurred.

The snapshot evidence of was what was found when the safe was opened on 19 March 2019 which together with the spreadsheet evidence was consistent with a pattern of late lodgements, but most importantly, it showed that the missing cash was not randomly missing. It was missing for the period May to November 2018 which was followed by a lodgement and then there was a build-up of funds from more recently received cash. In other words, the missing funds were not randomised. This indicated a plan and late lodgements was a feature of that plan, the most likely explanation for which was the removal and replacement of cash from the safe over a protracted period of time.

Combined with this, and significantly,  the evidence also showed that cash receipts from January 2018 and June 2018 which were lodged by the Complainant in November 2018 had been available to be lodged when she did the July and August 2018 bank lodgements and yet Complainant could not explain why she did not lodge all the receipts in July and August. These sums were never missing and ultimately were lodged by the Complainant and therefore could not have been taken by someone else. 

No explanation either was given for why she said in her interview that she had “caught up” in the July and August 2018 lodgements, when that was patently not the case.

By way of explanation for the late lodgements and delayed accounting, the Complainant described a complicated pre-lodgement process - of chronologically ordering all the envelopes in the safe, removing the cash from a small number of envelopes for lodgement, and returning the majority back into the disorder of the safe. This evidence was not credible. The Complainant was a highly efficient employee who, by her own account was very busy. She was working a four-day week, her working time was tight and she had significant experience of financial oversight-roles within organisations outside of her work. It made no logical sense to do lodgements in the way she described, which served no purpose and made the lodgement task more laborious. 

The Complainant’s secondary explanation for this was that the credit union did not accept large quantities of mixed coins and this was why she put the majority of the money back into the safe. However, there was no evidence that she returned envelopes to the safe on the basis that they contained coinage. Rather her evidence was that her choice was to lodge older cash receipts, to maintain a chronological order (even though no chronological order was maintained when the cash was returned to the safe.)

I do not find that the explanations provided by the Complainant were convincing and I found her evidence to be credible in part only. I am satisfied that the late lodgements, delayed accounting and the fact that missing cash was not randomly missing but was missing for a specific time period which was then followed by a lodgement, this pattern - in the absence of any other explanation (and none was given)  pointed to a practice of teeming and lading and which must have involved the active participation of or the knowledge of the Complainant.

3.       Transfer Sheets

Fifty-three transfer sheets were found by the County Librarian. The sheets were found by the County Librarian underneath the Complainant’s desk amongst other material belonging to her and the Complainant accepted that transfer sheets may have been at her desk. She explained this as being because sometimes the safe got full and the envelopes tore so she took them out for safe keeping. The Respondents contention was that the Complainant was kept the transfer sheets as a record of the cash which had been taken and would later be replaced. However, the Complainant’s explanation would have meant that the transfer sheets would have been deliberately separated from their envelopes and cash, which would have created a whole new layer of chaos that the Complainant would have needed to sort out later, which seems unlikely

The fact that transfer sheets were found in the belongings of the Complainant, a fact which she did not deny. These transfer sheets were 53 of the 70 that should have been in the safe but were missing, and the 53 transfer sheets corresponded with cash that was missing.  This, unlike some of the other evidence, is not circumstantial and for that reason, is very significant.

The proposition that the Complainant was framed.

The Complainant claimed in the Appeal that she had been framed by a third party.  The Chief Executive dismissed this as there was no evidence to support it.

To determine whether it was reasonable for him to dismiss this without further evidence being provided by the Complaniant, I turn to the proposition that she was framed to determine whether this possibility was adequately considered.

If the Complainant had been framed it would mean that a third party had access the safe and took the cash, or it was taken before it reached the safe. In my view both were clearly possible.

In addition it would also mean that a third party deliberately placed the transfer sheets at the Complainants desk, to make it look like it was her. In my view this was also possible.

In addition, it would also have meant that a third party knew that the Complainant was unaware of what was in the safe at any one (that she would not have ever noticed if money was missing or transfer sheets were missing.) This is possible, but not likely given the protracted period of time that the misappropriation occurred.

However what makes this proposition least likely is that in addition to the above that the accumulation of evidence, both circumstantial and direct : late lodgements; delayed accounting, the Complainant being the only lodgement maker, the catch up nature of her lodgements, what was found in the safe (a gap of missing cash,  followed by a lodgement and recommenced build-up of cash)  the fact that the transfer sheets corresponded to the cash that was missing, the Complainant’s inexplicable lodgement process, her failure to provide a credible explaination for returning more envelopes to the disordered safe than she lodged (despite having just ordered them all chronologically) the fact that she said she had caught up with lodgements when she had not, that this was all coincidental to a third party or third parties,  taking money from the safe – and not randomly in time but slip-streaming with the lodgements made by the Complainant -  and that the Complainant had no knowledge of this. I consider this coincidence to be unlikely.

I am satisfied therefore that that the decision by the Appeal Officer to dismiss the proposition that the Complainant had been framed, because the Complainant had provided no evidence to support this proposition, was reasonable.

Was it reasonable for the Respondent to find that the Complainant either misappropriated its funds or engaged with others to cover up the misappropriation of Respondent funds?

In cases of misconduct, the Unfair Dismissals Act 1977-2015 places the onus of proof on an Employer to justify its decision to dismiss an employee by requiring that the misconduct be proven (using the civil standard of proof – on the balance of probabilities) and ensuring that fair procedures are applied throughout the investigation and disciplinary process.   If an Employer does not shift this burden of proof, a dismissal is presumed to be unfair.

In this complaint, I find that the procedures that were applied by the Respondent in the investigation and disciplinary process were fair and any that any flaws therein did not impair the investigation/disciplinary processes or the findings that were made.

I find there was adequate evidence for the Respondent to decide that, on the balance of probabilities, the Complainant either misappropriated Respondent funds or engaged with others in the misappropriation of Respondent funds.

I observe that there can be little doubt that a lack of financial oversight of a cash handling process created an opportunity for funds to be misappropriated, but the misappropriation was not caused by the lack of oversight or failure to have adequate checks in place. It was caused because some person or persons, misappropriated the funds.

Having regard to all the circumstances, I find that there were substantial grounds to justify the dismissal and that dismissal fell within a band of reasonable sanctions that was available to the Respondent make.

I find this complaint to be not well founded and I find that the Respondent has discharged the onus to justify the dismissal of the Complainant.

For reasons outlined, I find that the Complainant was not unfairly dismissed.

Unfair Dismissal – Gross Misconduct – Misappropriation of funds