FULL RECOMMENDATION
PARTIES : AIB BANK DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00015999 CA-00020805-001 The Complainant commenced employment with the Respondent on the 3rdJune 2014 having worked there previously in 2010. His employment came to an end by way of dismissal in February 2018. The Complainant submits that he was unfairly dismissed. The Respondent denies the Complainant was unfairly dismissed. As dismissal is not in dispute it is for the Respondent to show that in all the circumstances of this case dismissal was the appropriate sanction. An issue arose in respect of the Adjudication Officers decision as it stated that the complaint was received on the 26thJuly 2016 when in fact it was received on the 26thJuly 2018. The Respondent provided the Court with a copy of the application form that it had received from the WRC, and it showed the form was received by the WRC on 26thJuly 2018. On that basis the Court decided that it was not necessary for the parties to return to the WRC to request a correction order and that the correct date of receipt by the WRC was 26th July 2018. The Complainant was dismissed following a full and fair disciplinary process in circumstances where the Respondent concluded it had lost trust and confidence in him as a result of the Complainant making false declarations in relation to financial probity. When the Complainant was appointed in 2010 the role, he was appointed to was a non- impacted role and did not require a specific declaration under the Central Bank Reform Act 2010. However, in accordance with the Bank’s standard procedure the Complainant was required to sign a pre-employment declaration confirming that his financial affairs were in order. The Complainant signed the form confirming that his financial affairs were in order when in fact he was in significant arrears with his mortgage which he failed to declare. When the Complainant commenced employment, his contract contained a clause which again set out the requirements in respect of Fitness and Probity Standards and he again failed to declare the fact that he was in significant arrears with his mortgage. In and around April 2016 he applied for and was promoted to a permanent role which was an impacted role which required that he sign a Probity Questionnaire as required under the Central Bank’s Fitness and Probity Regime. The Complainant again completed the form and failed to declare that he was in significant arrears with his mortgage. At this time, he also received a letter from the Respondent appointing him to the role and advising that he must notify the Respondent if there were any changes to his financial circumstances. In February 2017 the Complainant completed his annual certification under Fitness and Probity and again he failed to disclose that he had personal financial issues. On the 26thJuly 2017 the Complainant spoke with his manager Ms Moore with a view to making an application to the Respondent for a mortgage. During that conversation the Complainant stated that he had significant financial difficulties and confirmed that he had not previously disclosed this because he was in talks with his financial provider. Ms Moore reported the issue to HR who advised that the Complainant would have to fill out a form setting out the extent of his financial difficulties. Once the Complainant completed the form a meeting was arranged. In attendance at the meeting were Ms Moore and her line manager Ms Murphy and the Complainant. During the meeting the Complainant explained that his debt was circa €407,000 and that it was the subject of legal proceedings. The seriousness of the situation was explained to the Complainant at that meeting. A further meeting was held with the Complainant and his representative on the 22ndAugust 2017 where he was advised that he was being moved to a temporary vacancy in a non-impacted role and that due to the untruthful declarations on the Fitness and Probity Declarations there would be a separate disciplinary process. The Complainant unsuccessfully appealed the decision that his declarations were untruthful. By letter of the 20thSeptember 2017 the Complainant was invited to attend a disciplinary hearing. The letter set out that there were five allegations against the Complainant, that the allegations were serious in nature and that he could face sanctions up to and including summary dismissal for gross misconduct. The Complainant was also advised that he was entitled to be represented at the disciplinary hearing by a Trade Union Official or a colleague. The disciplinary hearing took place on the 3rdOctober 2017 and was chaired by Mr Eddie Buckley. Mr Buckley in his evidence to the Court confirmed that he was appointed to carry out the disciplinary hearing. The Complainant was accompanied by his Union representative. Minutes of the meeting were sent to the Complainant who approved same. By letter of 15thNovember 2017 the Complainant was advised that the five allegations against him had been upheld and were considered to be gross misconduct. The letter stated that he was to be dismissed with immediate effect and that he would be paid two months salary in lieu of notice. He was also advised of the right to appeal the decision and who the appeal should be made to. Mr Buckley stated that in coming to the decision that dismissal was the appropriate sanction he took into consideration that there was a pattern of deliberate wrong answers provided by the Complainant. As someone who had worked in the industry for a number of years the Complainant would have been aware of the importance of financial probity and the requirement to bring any issues in respect of same to the attention of the Respondent. Mr Buckley stated that he believed the repeated behaviour of the Complainant meant that the Respondent could not have trust and confidence in the Complainant and therefore the employment relationship could not continue. The next witness for the Respondent was Ms Joan O’ Sullivan who was appointed to hear the appeal. The appeal was heard on the 9thJanuary 2018 and the Complainant was accompanied by his Union representative. By letter of the 2ndFebruary 2018 the Complainant was advised that his appeal was not upheld. Ms O’ Sullivan stated to the Court that having heard the appeal she decided to uphold the decision to dismiss because the Complainant had failed on numerous occasions to disclose his true financial position. She believed that the fact that it happened more than once showed an intent not to disclose the information. Ms O’ Sullivan stated that the Complainant had knowingly operated in an impacted role while failing to correctly disclose his financial status knowing this could leave the Respondent exposed to significant sanctions from the Central Bank. Ms O’ Sullivan stated that she believed that there was a complete breakdown of trust and therefore his remaining in employment with the Respondent was untenable and that dismissal was the appropriate sanction. Mr Kitson BL submitted that the Complainant had indicated that he had no complaints about the process. There was no real dispute about the underlying facts in this case. The Complainant on a number of occasions had made false declarations in respect of his financial status and had failed to inform his employer of the correct position in respect of his financial status contrary to the Respondent’s policies and legal requirements. It is clear that this was a deliberate action on behalf of the Complainant which led to a complete breakdown in trust. The Complainants submission is that the decision to dismiss was disproportionate. Sanctions short of dismissal were considered but it was concluded that they were not appropriate as the Complainant had made a deliberate decision to mislead the Respondent by making false declarations Mr Kitson BL opened up a number of cases to the Court that he intended to rely on and in particularBank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned” Mr Kitson submitted that in this case the decision to dismiss fell within the band of reasonableness. The Complainant submitted that he does not dispute that proper procedure was followed and, on that basis, that he would proceed at the hearing by way of submission rather than sworn evidence. The Complainant stated that his argument was that firing him was not a proportionate response to what he had done. The questionnaire had a list of options, and he ticked the box that stated he was financially sound. This raises the question of what is financially sound. He believed that because he was in restructuring talks with his lender that he met the criteria of financially sound and therefore he ticked that box. The Complainant submitted that in respect of a previous employment in a financial institution he had declared his financial situation and there had not been an issue. He therefore felt that declaring himself to be financially sound was not a problem. The Complainant submitted that the Respondent had gone for the nuclear option of dismissal and that he felt on a human level that this was a harsh decision. The Complainant stated that he was not disputing what he had done he was disputing the seriousness of what he had done and the fact that in his opinion the Respondent had opted for the nuclear option of dismissal which he felt was disproportionate. The Complainant submitted that he got on well with his colleagues and with the Respondent’s clients and felt that in the circumstances the decision to dismiss was unfair and unjust.
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: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. In this case it is accepted that that the alleged incidents occurred and what is in dispute is whether in all the circumstances of this case dismissal was a proportionate and appropriate sanction. As set out above inBank of Ireland v Reilly[2015] IEHC 241, it is not for this Court to substitute its own judgment as to whether the dismissal was reasonable, the question the Court must answer is whether the decision falls within a range of reasonable responses of a reasonable employer. In this case based on the facts before it, the Court finds that decision to dismiss was within the range of a reasonable response. The Court comes to this decision based on the fact that it was not disputed that the Complainant had worked in this industry for a significant period of time. It was not disputed that he was aware of the importance of Fitness and Probity, and it was not disputed that he had on more than one occasion declared that he was financially sound when he in fact had significant debt. The Court finds that the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and therefore, the Court determines that the decision to dismiss was fair. The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is upheld. The Court so determines.
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