Complainant

Respondent

Parties

Denise  Caulfield

ARYZTA Food Solutions Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

Michelle Quinn Damien Tansey Solicitors

Susan O’Riordan, Ibec

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-00041117-001

18/11/2020

The complainant was employed as a tele-sales representative by the respondent and commenced on 04/04/2006.  She was paid €850.08 gross per fortnight and worked a 37.5 week.  Arising from the results of an internal audit the complainant was placed on paid suspension pending the outcome of an investigation.  Following this a disciplinary process resulted in her dismissal, on the grounds of gross misconduct, on 08/07/2020.  The fact of dismissal is not in dispute.  The complainant submits that she was unfairly dismissed while the respondent refutes this.  The complainant submitted her complaint to the Workplace Relations Commission on 18/11/2020.

The complainant worked as a tele-sales representative for the respondent.  She had a 14-year unblemished employment record with the respondent.  She commenced on 04/04/2006.  The complainant was places on suspension on 23/01/2020 and on 01/05/2020 she was requested to attend an investigation meeting.  The purpose of this investigation was to consider a number of instances during the period from August 2019 to January 2020 where a number of products which were associated with commission payments were recorded on the system as sold and the respondent alleges that there were subsequently cancelled by the complainant after the commission payment date.

Following this investigation, a disciplinary hearing took place and the complainant was dismissed.  This decision was upheld on appeal.

It was submitted on behalf of the complainant that that she was prejudiced at all stages of the investigation, disciplinary and appeal meetings. The reasons for this were that she was not able to prepare a response to the allegations as she was not given access to her call logs and e mails despite being assured that she would receive those. 

There were further submissions on behalf of the complainant in support of the complaint that she was unfairly dismissed:

1.        The complainant was scapegoated.  There were other employees identified as being responsible for instances whereby products which were associated with commission payments were recorded as sold and then subsequently cancelled after the commission period.  These employees admitted placing orders for the purpose of financial gain and were not dismissed.  The complainant did not carry out the orders for the products either deliberately or financial gain and therefore could not accept the assertion that she had done so.  The respondent placed a reliance on the complainant’s colleagues’ admissions and so had predetermined the complainant’s case on the mistaken assumption that she also placed the orders for financial gain and that this was part of a scheme being engaged in by some of its employees.  By taking this course of action the complainant was not afforded a fair hearing in accordance with the principles of natural justice and in particular the failure to adhere to the principle of Audi alteram partem.  The respondent ignored the complainant’s explanations and had predetermined wrongdoing on her part by having regard to the admissions made by other colleagues.

2.       The respondent made assumptions in relation to the alleged misconduct before taking disciplinary action.  The respondent has a duty to consider alternative explanations given in a case of misconduct.  It was predetermined that the complainant was guilty of conduct that others had admitted to.  The complainant received no financial gain on over half of the instances noted and therefore there was no basis, either objective or subjective, for the complainant to make the orders for the products.  There was no evidence that the complainant had input the orders or cancelled the orders.  The explanations advanced by the complainant were ignored by the respondent and there was no reasoned explanation for doing so.  As the decision to dismiss the complainant had a bearing on her fundamental right to earn a livelihood, this was unfair both procedurally and substantively.

3.       The complainant had worked for the respondent and had a 14-year unblemished record of employment.  This was not taken into account.  The complainant maintained her own commission record and she highlighted to the respondent that these showed that she had already achieved her commission targets when the orders that were the subject of the investigation were made.  Therefore, there was no financial gain possible for the complainant.  All of the correspondence to the complainant stated that the orders were recorder for her own personal financial gain.  The complainant’s records show that there was no additional financial gain from six out of ten incorrect orders.  One of the other four were accepted as a keying error.

4.       The complainant would have made errors in the previous 14 years.  However, on this occasion it was the coincidence of other parties admitting to a scheme of financial gain that gave rise to the respondent’s presumption that the complainant was also involved in this scheme.

5.       The complainant offered a number of reasonable explanations which were not seriously considered by the respondent.  One such was that the computer system dropped calls and orders on a daily basis which caused issued with orders and on occasions a colleague would pass on an order or cancel an order.  These were not considered.  The respondent did not consider why the complainant would purposely pursue orders where there was no financial gain for her.  It was also not unusual for a customer or sales representative to cancel an order previously made. This often happened when the complainant was encouraged to promote a particular product and when doing so with a customer it was often the case that a customer would call later to cancel such orders.  This explanation was not accepted by the respondent.  On other occasions sales representatives wold delete a product from an order originally placed by the complainant.  The respondent’s system, known as CRM, does not actually record who deleted an order.  The respondent did not accept this potential explanation.  On other occasions a sales representative could attend with the complainant and place a pre order for a certain product.  That product is then put on the system as an order and may be subsequently deleted.  Again, the respondent did not accept this a potential explanation.  There is also the human error factor, and, in this case, there were but 30 errors out of a total of 11,000 calls.  The complainant has regularly highlighted concerns in relation to the IT issues and the respondent did not take this into account.  There are also issues in relation to how different sales representatives can receive an order or a cancellation on the original order which was placed by the complainant and this was usually written on a “Post-It” and passed to the complainant.  The respondent did not accept that as a potential explanation.

6.       There is a discrepancy between some of the stances adopted at the investigation and disciplinary stage than that adopted at the appeal hearing.  The example of the non-trading account was cited, and the complainant placed an order and it was not until the appeal hearing that this was eventually accepted as a keying error.

7.       When the complainant submitted the sales sheets, which corroborated the absence of any financial gain, these were not considered despite the fact that there was no evidence to determine otherwise.

8.       The complainant is aware that other employees placed orders which were associated with commission payments on the system for financial gain and then deleting them.  These employees made admissions in relation to this matter.  However, only the complainant was dismissed from her employment with the respondent.  The complainant denies any such wrongdoing and was not prepared to accept that she did so.  Even if the findings against the complainant were upheld as being reasoned and not tainted by predetermination, it would be disproportionate to dismiss her in circumstances where her colleagues were not dismissed.  The basis for the distinction between the complainant and her colleagues appears to be related to a grievance she raised against a former manager Mr X.  It is submitted that this was a factor in the decision to dismiss.  There is no evidence that the respondent considered any alternatives to a dismissal.

The complainant is seeking compensation for the severe effect of the unfair dismissal.  This had a devastating impact on her health and career and the hearing was provided with a medical report.  She has been in receipt of social welfare since her dismissal.

The complainant in her direct evidence outlined her employment history with the respondent and details of her roles.  She gave an account of the first meeting on 22/01/2020 where she was told by Mr X that there were ten discrepancies.  She also outlined her concerns about the manner in which she and her colleague were suspended at a meeting on 23/01/2020.    She received a letter on 30/01/2020 which gave details of the ten anomalies.  She said that for the dates in question she could not have put up these orders in order to gain commission.  She kept her own records and provided details of these to the hearing.  For the weeks in question she outlined her commission targets:

Week 2: she was over her commission targets by 9 products

Week 10: she was over her commission targets by 14 cases

Week 11: she was over her commission targets by 12 cases

Week 13: she was over her commission targets by 3 cases

Week 16: she was over her commission targets by 8 cases.

The complainant used what she described as “NPD” sheets and printed these off to have her own records due to discrepancies in the commission payments.  Orders were placed on the “CRM” system and if an order changed or was cancelled it could be cancelled by anyone on the CRM system.  There were previous examples of where the CRM system could not be relied on.  It was not unusual that there would be no calls for some of the orders.  This could be because there were on-going issues with calls being dropped.  The complainant outlined that she had issued 24 “IT Tickets” in relation to issues with her computer.  The complainant submitted that she felt that none of her explanations were acceptable merely because of the complaint she submitted against her former manager. 

The complainant gave details of the meeting on 26/08/2020 where she was facilitated with access to calls.  Mr A had a laptop and TV screen and she listened to two calls as this was all they could find.

The complainant confirmed that she was not part if any scheme in relation to commission payments.

The complainant gave details of her attempts to obtain work since her dismissal.  She started doing some work as a special need’s assistance after Christmas 2022 on a locum basis.  She ceased getting social welfare payments on 17/01/22.

Under cross examination the complainant again confirmed her employment details with the respondent and gave an outline of her role.  She was employed for 14 years and was involved in tele sales.  She had a good understanding of the order system and used in on a daily basis.  The complainant said that she was made aware of the issues on 22/01/2020, placed on paid suspension on 23/01/2020.  She confirmed that she received the notes of this meeting in April 2020.  The complainant also confirmed that her manager, Mr X, left the company in March 2020.  It was this manager who placed her on paid suspension.  The complainant confirmed her belief that it was her complaint about this manager that led to her dismissal.  There were ten issues highlighted from August 2019 and these were raised three weeks after she had a meeting in HR with her manager.  The complainant confirmed details of her attendance at the investigation meeting, disciplinary meting and subsequent appeal hearing.

The complainant was asked under affirmation if she deliberately or intentionally keyed in and deleted orders.  The complainant confirmed that she did not do so and explained that she always deleted an order under instruction.   The respondent could not find these calls and did not acknowledge her IT and phone issues.  The complainant was asked if she blamed anyone else for these errors.  The complainant said that she still believes that her former manager, Mr X, was behind this.  The complainant was asked if she had previously raised a grievance in relation to her former manager prior to 20/3/2020.  She confirmed that she raised this informally with her team leader and member of the HR team, Mr Y,  who is not longer with the respondent.  The complainant was asked if she accepted the evidence of the respondent’s witnesses in relation to the differences between “deleting” and “archiving”.  The complainant said that she had never heard of archiving previously and it was never used in the Tele Sales team.

The complainant was asked when she first requested the call and e mail logs.  She confirmed that she had requested those from the beginning of this process and specifically at the meeting on 22/01/2020.  The complainant also confirmed that she asked for the logs at the investigation meeting and the appeal meeting.

It was submitted on behalf of the complainant that the decision of Martin v Coca Cola Hbc Ireland Ltd, ADJ-00022037 was relevant after a manager was ordered to be reengaged after dismissal for gross misconduct was found to be flawed and disproportionate and his 14-year record was not taken into account.  IT was submitted on behalf of the complainant that as the dismissal has had a devastating impact on the complainant she should receive compensation and the medical report confirms that. The case of Lis Allen v Independent Newspapers (Ireland) Limited, UD 64/2000 is relevant in that context.

The respondent is a global food production company.  They employ approximately 500 employees.  The complainant has worked for the respondent since 04/04/2006 as a Telesales Executive.  The employment was terminated on 08/07/2020 by reason of gross misconduct.

The sequence of events that led to the dismissal by reason of gross misconduct is as follows:

1.       On 22/02/2020 the complainant was advised that following an internal audit there were concerns highlighted in relation to how the New Product Development (NPD) process was being conducted and the possibility of false activity being recorded on the system.  The complainant denied that she had falsified sales and that she never heard of anyone doing this.  She was advised that the matter would be further reviewed and could involve HR.

2.       On 23/01/2020 the complainant was advised that there were discrepancies in relation to sales and cancellations on the system and the subsequent commission payments received by the complainant.  She was advised that she was being placed on paid suspension pending an investigation.  There were five employees being investigated and put on paid suspension.  Three of the five accepted wrong-doing and received a final written warning.

3.       This meeting was followed with an invitation to an investigation meeting on 31/01/2020.  This invitation also contained details of the allegation and supporting documents. The complainant was advised of her right to representation and the potential seriousness should the allegations be upheld.  The specific allegation was that “10 instances during the period Week 1 – Week 23 (August 2019 – October 2019, November 2019 and January 2020) in which products associated with a commission payment were recorded as sold and subsequently cancelled by you at a later stage, post the commission payment period”.

4.       There were difficulties contacting the complainant and she was in sick leave from early February 2020.  She was sent to the company doctor to determine her fitness to engage with the investigation process.  As the complainant did not attend this appointment and along with delays in receiving her metical certificates she was placed on unpaid leave.  The appointment with the company doctor took place on 10/02/2020 and it was determined that the complainant was fit to participate in the investigation process.

5.       The complainant’s legal representative contacted the respondent on 12/02/2020 and advised that she was certified unfit to work by her GP and consequently would not be in a position to attend the investigation meeting.  The respondent advised the complainant’s legal representative that this was an internal matter between the complainant and her employer and in that context, they would continue to liaise with the complainant.  The complainant was advised of this position and also advised that the respondent was exercising its discretion in relation to the payment of sick leave and that as from 17/02/2020 her salary was suspended until such time as she was deemed fit to participate in the investigation.

6.       The complainant was deemed fit to engage in the investigation process on 01/05/2020 and a meeting for that purpose was held on 07/05/2020.  She received a copy of the minutes and the investigation report was issued on 11/06/2020.  A disciplinary meeting was arranged for 24/06/2020 and the complainant attended along with a colleague.  The complainant was afforded the opportunity to respond to the investigation report and present any other evidence relevant to this process.  The outcome of the disciplinary process was issued on 08/07/2020 and the complainant was advised that the conduct was seen “as gross misconduct and a significant breach of trust”.  The decision was made to dismiss the complainant with immediate effect.  She availed of her right to appeal and the appeal hearing took place on 07/08/2020.  The complainant was accompanied by her legal representative.  Following the appeal hearing the complainant was facilitated with an opportunity to attend the respondent’s premises in order to access phone calls and e mails that she deemed relevant to the process as part of her grounds of appeal.  A further opportunity was facilitated on 07/09/2020 to access e mails and additional calls.  Following this the complainant did not submit any further in support of her defence.  The outcome of the appeal process was issued on 11/09/2020 and contained detailed findings in relation to each ground of appeal and the appeal upheld decision to dismiss the complainant.

The respondent provided a number of witness at the hearing.  Mr A was the chair of the investigation.  He outlined details of his employment with the respondent and his familiarity with the respondent’s disciplinary procedures.  He had no previous dealings with the complainant and no day-to-day involvement with her role.  Mr A confirmed that the audit which gave rise to this matter was standard practice. He was familiar with the system from a managerial perspective.  Mr A outlined his understanding of the alleged misconduct which was that in order to reach a specific target a number of orders were placed on the system and these were subsequently deleted when that target was achieved. During the investigation process they looked at the orders which were deleted on the IT system and they also checked with their IT department in relation to the workings of the system.  The conclusion of the investigation was that there seemed to be a pattern in relation to the deletion of certain orders.  Mr A explained the difference between “deleting” an order and “archiving” and order.  Essentially if an order is deleted it can be seen on the system but if it is archived it cannot be seen.  The process for archiving was described as “easy” and it required one press of a button.  Mr A confirmed that in relation to the orders under investigation all were archived after deletion.  Mr A also disagreed that there would be no financial gain to the complainant in relation to this matter.  There were twelve payments made to the value of €200.  Mr A outlined some of the follow up matters he was involved in such as obtaining copies of phone calls and e mails.  Mr A was asked if, in his opinion, there was a predetermined outcome.  He denied this and confirmed that three of the five individuals involved are still working for the respondent.

Under cross examination Mr A confirmed that he had no awareness in relation to the other employees.  He was not in the department until March 2020.  Mr A confirmed that the documentation he was provided with was a copy of the audit report and a list of 10 transactions.  Mr A was asked to explain why the complainant was not given an opportunity to listen to the calls linked to the orders at the outset of the investigation process.  He confirmed that there were calls and some orders had no calls associated with them.  The complainant requested access to these calls at the end of August and was given an opportunity to listen to them.  In relation to the IT issues on what was referred to as the “CRM” system and the “ECC” system Mr A outlined his understanding that the system logs the name of the person who deletes an order.

The Chair of the disciplinary process, Ms B explained her role with the respondent and confirmed that she had no reporting relationship or day-to-day involvement with the complainant.  She was asked by the HR department to chair the disciplinary hearing.  She was provided with all relevant documentation and as she was not familiar with the ordering system she got advice in relation to how this works in practice.  The complainant was accompanied by a work colleague at the meeting and the complainant outlined that the creation of the orders was an error.  She explained how orders are created and how they can be deleted and archived.  The complainant outlined that there was no benefit to her from these orders as she was already over her sales target.  The complainant said that she did not delete these orders.  She was asked how and why an order would be deleted and the complainant said that if a customer rang to cancel an order then this order would be deleted from the system.  Ms B said that she took the complainant’s explanation into consideration. She reached her decision based on the investigation findings and the explanations proffered by the complainant.  It was her conclusion that complainant deliberately engaged in the behaviour involving the deletion of orders post commission payment.

Ms B also outlined the alternatives to dismissal which she considered.  She did consider a lesser sanction but having decided that the trust and confidence in the complainant was lost and the complainant took no responsibility for the errors and she showed no remorse for what happened.  In those circumstances she concluded that dismissal was the appropriate sanction.  Ms B confirmed that she had no further involvement in the process after that.

Under cross examination it was put to Ms B that it made no rational sense to put an order on the system for a non-trading account.  This could only be a keying error.  Ms B said that this was not raised with her and she had no knowledge of this.  It was put to Ms B that the complainant would have no way of knowing when she reached her target by looking at the system.  Ms B said that the complainant kept her own records on a sheet.  Ms B was asked if she could explain why other employees who admitted to placing and deleting orders in order to obtain commission payments were not dismissed.  Ms B confirmed that she had no knowledge or involvement in any process relation to other employees in relation to this matter.

Mr C was the chair of the appeal process and he outlined his role and employment details with the respondent.  He confirmed that the complainant had no reporting relationship to him and was not involved with her on a day-today basis. He was asked by the HR department to hear the appeal and he was provided with all relevant documentation.  Mr C was asked about his knowledge of the system for placing orders.  He confirmed that he had a manager’s knowledge of the system and when the complainant raised an issue in relation to it he got clarification.  Mr C summarised his understanding of how the system works.  In relation to the appeal hearing Mr C confirmed that this took place on 07/08/2020 and the complainant was accompanied by her solicitor, but he was not notified in advance that she would be in attendance.  Mr C confirmed that the grounds of appeal were the severity of the sanction and that the grievance and disciplinary policy was not followed.  He allowed the complainant to outline her points in relation to this.  Mr C outlined that he did not feel that the complainant had given a satisfactory response to explain the entries and subsequent deletion of those entries.   She did admit to deleting some orders.  Overall, he found it difficult to believe that this was due to coincidence.  Mr C was asked about the complainant’s access to phone calls and e mails and he confirmed that she was facilitated with two meetings after the initial hearing to do so.  Mr C confirmed that there was nothing further received from the complainant after those meetings.  Mr C confirmed that he accepted the explanation in relation to the non-trading account that this was a keying error.  Mr C confirmed that the complainant provided a manual paper log of her commission targets at the appeal.  Mr C also confirmed that the deletion of “NPD Products” was “robustly investigated” and there is a log.  Mr C found it difficult to believe that issues with the computer could be a plausible explanation for all these matters.  Mr C said in his evidence that he found the sanction to be appropriate and believed that there was a significant breach of trust.  There was no new evidence offered by the complainant and he did not think that any lesser sanction was appropriate.  He had no further involvement in this matter.

Under cross examination Mr C was asked if he considered it fair that the complainant had no access to calls and e mails throughout the process.  She was required to continually look for these.  Mr C said that when this was raised at the appeal there were two subsequent meetings where the complainant was given access to call and e mails that were available.  Mr C was asked why the complainant’s explanations were not acceptable.  He outlined that he did not consider that they could be explained by IT errors or incorrect errors.  The system was checked and investigated by IT and there were no issues found.  Mr C was asked if he saw a link between the audit, which resulted in these matters being highlights occurring, and the complainant making a complaint about her then manager, Mr X,  three weeks earlier, Mr C said that he would not agree with that proposition.

A number of legal arguments were submitted on behalf of the respondent.  Section 6(4) of the Unfair Dismissals Acts 1977 states:

“(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 of more of the following:

[…]

b. the conduct of the employee”.

The respondent acted in accordance with Section 6(4) and terminated the complainant’s employment as result of gross misconduct.  The respondent also submits that in the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 the Tribunal set out the requisite remit of the Tribunal and the burden which is placed on the respondent:

“The Tribunal is not required to determine where the Complainant did or did not carry out the alleged act […].  The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1977 to 2001.  For this to be established the Tribunal must be satisfied that the alleged act […] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the Complainant, that the conclusion that the offending act has been perpetrated by the Complainant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer”.

It was submitted on behalf of the respondent that the matter was “fully and fairly investigated” and the complainant’s rights were upheld at all times and consistent with the principles outlined in SI 146/2000.  The respondent also submits that it was reasonable to conclude on the balance of probabilities that the complainant had carried out an act of gross misconduct.  The complainant failed to provide a reasonable or sufficient explanation at any stage in the process for the discrepancies which were the subject of this matter.  The pattern and timeframe that the orders were entered and deleted is an indication of intentional behaviour to obtain the commission associated with such orders.  The respondent also submits that sanction of dismissal was proportionate in light of the severity of the matter.  Any reasonable employer could not be expected to trust an employee who carried out acts like this.  This incident has irrevocably broken down the trust and confidence that the respondent had in the complainant.  The respondent is clear that the complainant’s actions were an act which amounted to gross misconduct.

The respondent submitted a number of cases where it was found that a breach of trust and confidence which resulted in a sanction of dismissal was found to be fair.   In particular the following cases were opened at the hearing:  Moore v Knox Hotel and Resort Ltd, UD 27/2004; O’Callaghan v Dunnes Stores, UD 54/2012, Looney & Co Ltd v Looney, UD 843/1984 and Murray v Meath County Council, UD 43/1978.

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

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.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require 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 case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer 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.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  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.”

The issue of fair procedures requires examination.  It is clear that the investigation, disciplinary and appeals processes were conducted by persons with the relevant expertise.  The respondent believes that these processes were conducted in accordance with the provisions of S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures, and that it adhered to the principles of natural justice and fairness. 

In the within case there are clearly issues which the respondent was required to address.  An audit had identified discrepancies in relation to order transactions that appeared to be manipulated in order to obtain commission.  There were five employees identified as having a case to answer.

In a case where an employer believes that an employee may be guilty of gross misconduct they must exercise the utmost case to ensure that they follow the correct procedure by collating all the evidence, reviewing documentation, speaking with the employee concerned and speaking to potential witnesses.  Overall, an employer is required to undertake a reasonable investigation into the alleged misconduct.

In this case the complainant did not have access to all relevant material until after the appeal hearing on 07/08/2020.  She was facilitated with at a meeting to review those some 31 weeks after her initial request at which time the investigation and disciplinary process had concluded and appeal hearing outcome was delayed until she had an opportunity to review those calls and e mails.  The respondent was unable to provide all the material either in advance of or at those meetings.  While the complainant did not make any submissions to the appeal process after those access meetings I find that it was incumbent on the respondent to provide this material in advance of any process.  No explanation was forthcoming for the delay in providing these materials to the complainant.  Given the potential for a serious outcome for the complainant the respondent should have investigated the call logs and e mails as part of the process. 

A right to fair procedures and natural justice in implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment. 

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

The respondent did not consider any mitigating circumstances it seems to me that there was no weight given to the complainant’s previous record of just over 14 years.  There were a range of options in the respondent’s disciplinary policy which, at a minimum, deserved some deliberation.  There is a serious inconsistency in that three other employees who admitted being involved in a scheme to maximise commission payments were issued with a final written warning. 

The respondent stated that “It is the respondent’s responsibility to its employees that they employ trustworthy staff, who follow procedures and who would not carry out acts of misconduct as serious as this.  This incident has irrevocably broken down the relationship between the respondent and the employee.  This was a serious breach of the trust and confidence that the respondent had in the complainant to carry out her role.  It is the respondent’s position that any lesser sanction would not be appropriate for an incident as severe as this”.  The respondent further stated: “the complainant’s actions amounted to gross misconduct, and they would not be in a position to trust the complainant to continue to work for them”. 

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the complainant in the circumstances. In the light of same, I find that the dismissal of the complainant was procedurally unfair for the purposes of the Acts and the complainant’s claim is well founded.

I must now look at the matter of redress and mitigation of loss by the complainant

Section 7 (2) of the Act deals with compensation and mitigation of loss.

(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 said financial loss was attributable to an action, 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 by the Minister,

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

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

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

The complainant submitted that she is seeking compensation” for the severe effects of the act of unfair dismissal”. It is incumbent upon the complainant to give plausible evidence on mitigation of loss. She confirmed that she has been in receipt of a payment from the Department of Social Protection up to 17/01/2022.

While I accept that the complainant was limited due to illness in her attempts to mitigate her loss I am not satisfied that she approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: “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.” 

Having taken all matters into account I find that the complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.  Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is well founded and I aware her compensation of €5,525.

I find that the complainant’s claim under the Unfair Dismissals Act is well founded and I aware her compensation of €5,525.

Unfair dismissal. Code of Practice on Grievance and Disciplinary Procedures