Complainant

Respondent

Anonymised Parties

A recruiter

A recruitment firm

Representatives

Ken Stafford Management Consultancy Services

Tiernan Lowey BL instructed by CC Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00039542-001

02/09/2020

The complainant asserts that she was unfairly dismissed by the respondent, which denies the claim.

Evidence of the HR Director

The HR Director outlined that the respondent is the employer of all ‘internal’ staff. The complainant was a recruiter and recruited agency staff to be deployed by a related company to clients. The complainant commenced in 2014 and was well liked and trusted. The complainant played a key role in initiatives as the Great Place to Work and the respondent’s support of a named centre for people with intellectual disabilities. In 2018, the complainant proposed and actioned a staff discount card.

The respondent would also recruit agency staff to be posted to administration and reception roles within its two offices. They would be sourced through the related company. The HR Director said that there was agreement across the director team that she would have a ‘line of sight’ over such appointments, albeit there was no formal process.

The HR Director said that she never agreed that the complainant could recruit temporary agency staff other than for reception. There were about 3 to 5 internal temporary agency workers. Such staff are on the pay roll of the related company and their details entered on the database used to manage the thousands of temporary employees. Their details are added to the time recording system. The HR Director said that an access request is generated by the appointment of an internal temporary agency worker. They are given the required security and IT clearances and an email address is generated for them. All employees have a laptop and equipment is recorded on an asset register.

The recruiter sets the internal temporary agency worker up on the systems and their billable time is usually entered by someone else, for example the manager of reception.

The HR Director said that on the 26th February 2020 she was reviewing the budget and was concerned that the internal administration and reception costs were running at €40,000 and this would hit €60,000 that year. This was high for reception cover. There were 12 to 14 names on the list. One person had been misassigned to this list and this account for €20,000.

The HR Director raised the relative with the complainant, who said that the relative was working on the discount card. The complainant said that the relative was her aunt. The HR Director said that it was not unusual for relatives to be employed as temporary agency workers. The HR Director said that she was looking for evidence of what work the complainant’s relative was doing on the discount card. She was disappointed with the information supplied by the complainant and the lists were not sufficient.

The complainant was suspended by letter of the 26th March 2020. The HR Director said that the original intention was that she would do the investigation, but the complainant objected to this. She identified the investigator, who was a director with audit and IT experience. The HR Director denied that she had exerted influence over the entire process. She accepted that she was sent the investigator’s draft fact-finding report and made comments. She did not make changes to the draft. The HR Director said that there was no attempt to get the complainant and no hidden agenda. The HR Director was upset as the complainant was a valued employee.

In cross-examination, the HR Director said that ‘line of sight’ consisted of a one-line email. The HR Director had raised the issue of the relative working from home as the respondent, then, did not facilitate working from home. At that stage, the respondent only had one employee working from home, in particular family circumstances. She said that the complainant was not dismissed for not onboarding the relative. She said that the complainant was trusted to source internal temporary workers. The HR Director said that she did not try to contact the relative and nor was it her role to. She denied that another, named internal temporary worker was hired without authorisation and said that this hire had been authorised.

The HR Director said that the cover letter with the terms of the investigation included whether the complainant had directed and controlled the relative, and this was related to the failure to supervise finding of the investigator. The HR Director was interviewed as part of the investigation and emailed the investigator. She did not accept that the email was an ‘appalling interference’ in the investigation. She accepted that there was no mention of the email exchange in the investigation report. The HR Director said that there was now a documented procedure for internal temporary hires.

Evidence of the investigator

The investigator said that he had worked with the complainant in a previous role and had a good working relationship with her. He had operational experience to carry out the investigation. This was based on the questions asked by the HR Director of the 10th March 2020. The investigation was broader than the issue of an overspend and direction and control. He asked the complainant for any emails, WhatsApps or text messages the relative sent and this was not supplied to him. A laptop supplied by the respondent would have been backed up. He concluded that the complainant failed to supervise the relative and ensure that work of sufficient quality was done in return for the spend of €5,397. He said that his recommendation of disciplinary action was not the right word, and the conclusion was that the matter moved to the next stage in the process. He accepted some of the changes to the draft report suggested by the HR Director. The investigator said that the ‘manipulation’ of the timesheet process was significant, where the complainant both entered and approved the billable hours.

In cross-examination, the investigator said that it was not necessary for him to interview other internal temporary workers. He did not agree that it was obvious that the complainant had inputted and then approved the hours. He said that this was his first workplace investigation. He did not accept that sending the draft to the HR Director was bad practice. In respect of the four points listed in his report, the least important was the finding that the complainant had closed off the relative on pay roll on the 26th February 2020.

In re-examination, the investigator said that the four points were a list of aggravating factors, and the important factors were the lack of outputs and the timesheets.

Evidence of the disciplinary manager

The disciplinary manager said that she was the respondent Chief Financial Officer and had no previous interactions with the complainant. She had not carried out a disciplinary hearing into the ‘misappropriation’ of funds but into the management of funds. With regard to the Revenue information, she said that any lower figure would not have made a difference to her decision. The disciplinary manager said that she was shocked that the complainant had challenged her independence. She received the complainant’s response to the investigation by email on the 8th May.

After receiving the documents, the disciplinary hearing proceeded on the 13th May. The complainant told her that the discount card role was refilled with no forms and the relative was not provided with a laptop or email address. There is a starter form for new entrants, and this tracks HR information, bank details and IT access. The relative was provided with an obsolete laptop and the disciplinary manager enquired into the work she was doing. The complainant said that the relative was developing the discount card and they discussed the white folder. This was important in the review of the 400 hours of work billed by the relative. The disciplinary manager said that the contents of the white folder would only have taken 20 minutes to put together and they were rudimentary. The disciplinary manager reviewed the portal about the discount card and concluded that the information in the white folder was already there. No new work had been carried out.

The disciplinary manager said that it was incredulous that someone would input hours and then approve them. The complainant was experienced and knew how to bill and manage the process. The disciplinary manager said that the scope of her role was very clear, and it was the unauthorised use of the relative and not the misappropriation of funds. The disciplinary manager said that at the follow-up meeting they discussed the white folder, and she asked the complainant several times whether this was the total output and what period it covered. The complainant was deflecting and would not give a straight answer.

No onboarding process was completed by the relative and people are not hired without contracts and job specs. At the time, no or very few staff worked from home. The IT department informed her that an old laptop had been given to the complainant on the understanding that it was for a project. The disciplinary manager said that the respondent had a strict IT policy, and its platforms could not be accessed from non-respondent laptops.

The disciplinary manager said that the launch of the discount card was very good, and it was not updated after that date. There was no evidence of new work. It was outside the realm of reasonableness that the complainant had obtained three laptops without any evidence of work. The respondent had disabled all USB cards so any information could not have been transported by USB.

The disciplinary manager concluded that trust and confidence were broken. The complainant was experienced and had been showed massive trust. The unauthorised use of a temporary worker was a huge trust issue. She would not countenance a lesser sanction or a transfer. She was not able to get credible answers from the complainant and there was deflection. The disciplinary manager concluded that the complainant intended to keep this under the radar and had exploited her position. It was unacceptable to submit and then approve the timesheets. The complainant was informed that a HR advisor could attend the meeting and she was given every opportunity to produce documentation.

Cross-examination of the disciplinary manager

The disciplinary manager said that the process had given the complainant every opportunity to have a full and fair hearing. She said that the role of the HR advisor would have been to support but not represent. She investigated the output issue and could not ignore the issue. She accepted that the discount role was outside of the complainant’s core duties, and she did not receive commission for it. She said that the allegation was that the hiring of the relative was potentially unauthorised and she concluded that it was unauthorised. She outlined that pay roll is managed by a specialist team. It is an automated process on the basis of submitted and approved time sheets. She would have liked to have spoken to the relative about the nature of her onboarding and her output. She did not accept that she had made an unwarranted inference. She had hoped that the relative would have stepped in to help her niece given the grave potential consequences. She did not write or phone the relative and expected the relative to engage in the process. She said that the investigator had recommended a disciplinary process, and this was what she was doing. It was put to the disciplinary manager that the complainant was found guilty on the revised charge.

The disciplinary manager said that she was surprised there was no information about the relative’s output or how she shared the information with the complainant. The laptops came from a stock of wiped computers normally given to schools and charities. It was put to the disciplinary manager that the wrong income figure was relied on and the €5,397 figure included the relative’s time on reception. She accepted that there was no figure for the relative’s work on reception.

In re-examination, the disciplinary manager said that people do not submit and approve their own time sheet. She did not have access to this platform, and it was a matter of trust. She expected the relative to participate in the process.

Evidence of the appeal manager

The appeal manager said that he knew the complainant and she was a good employee. The respondent had developed the automated systems to appoint temporary workers. The complainant was the ‘go-to’ person for internal temporary workers and there were about 4 to 5. The complainant had six grounds of appeal and he knew that he could not leave any stone unturned. He knew he could overturn the decision to dismiss or impose an alternative course or a transfer. He spoke with the people mentioned in the investigation and spoke with additional witnesses. He wanted to cover all bases and the complainant did not object to this process.

The appeal manager said that the relative was an important witness and he was shocked that she would not participate. The complainant said that while the relative would not speak with him, she offered to send a written statement. The appeal manager replied that this was not acceptable as the statement could not be verified. The appeal manager was trying to understand the work associated with the white folder. He became aware that the relative had previously been an internal temporary worker, working 68 hours at reception in October and November 2018. The complainant knew that if a placement was put up, you can log in and out and the person would be paid. This showed a high level of culpability.

The appeal manager said that he was trying to establish the relative’s role in the respondent and the discount card and who knew her. It did not add up that the complainant did not mention getting help from the relative in the conversation about extricating herself from the sports and social club. Key to his findings that there was no request to hire the relative and no authorised pay rate. No member of management had confirmed the relative’s employment and work on the discount card. The rule of thumb that the same person never submitted and approved timesheets. The relative working from home without approvement was total concealment. He concluded that trust and confidence was broken and there was no way back. He considered the complainant’s unblemished record and upheld the dismissal.

Cross-examination of the appeal manager

The appeal manager was asked if he had considered a verified statement from a commissioner of oaths to confirm a statement from the relative. He replied that he had not and could have. He said that he wanted to get to the truth, and this was an examination of the facts. It was the complainant’s placement after the reception role ended in December 2018 that she was culpable of as the business had no knowledge of this. They placed full trust in the complainant to gain approval for a placement and she had not done so. The other temporary workers had worked in the office and their duties included the discount card.

The appeal manager denied that he had carried out a new disciplinary hearing. He said that he was entitled to interview people not interviewed before. He accepted that the 11 weeks to hear the appeal was unfortunate. He had not written to the relative and would have expected her to attend as an ex-employee.

In re-examination, the appeal manager that the complainant definitely knew how to use the platform. The complainant had agreed to his methodology in running the process.

Closing of the respondent

The respondent submitted that the evidence did not support the complainant’s theme that she was forced out by the HR Director, who had been clear about the information she was looking for. The complainant was provided with the opportunity to account for the engagement of the relative whose onboarding department from every norm. The HR director had not amended the drafted investigation and only made cosmetic suggestions. The HR Director had not exerted undue influence on the process. The respondent stated that the complainant’s second theme did not hold up, that this was a system failure. It beggared belief that the complainant would not be aware of the fundamental separation required of the worker submitted their time sheet and approved by someone else. The complainant had done both tasks 56 times. The laptop was obtained outside the usual process. The respondent would not sanction work being done on a non-respondent computer. No contract of employment was generated for the relative. This was an issue of trust and not a systems issue. The complainant had completely undermined trust and the dismissal was reasonable where the complainant had engaged a relative in a way that was not at all visible. There was no infirmity that would imperil the fairness of the process.

Evidence of the complainant

The complainant said there was no formal on-boarding process and no process for recording the work of internal temporary workers. She had informed the respondent that she was not the person responsible for issuing contracts to internal temporary workers. She said that another, named temporary worker had worked remotely. She had recorded the hours of other temporary workers who were family members of senior management.

The complainant said that the HR Director was very rude in the first phone call and kept and kept talking about budgets. She told her to close the temps immediately. The HR Director was aggressive and angry and giving the complainant directions. The complainant could see that the HR Director was under stress and kept repeating ‘40k’. The complainant tried to calm the situation. The correct figure was about 5k.

The complainant said that the whole atmosphere changed towards her, and she was excluded from the Great Place to Work Scheme. She went through the figures and saw that other recruiters had also made mistakes. There was a system of cloning a placement. Cloning was the cutting and pasting of placements, but the cost centres should have changed.  She pointed to the example of a salary of a named temporary worker of €17,000 wrongly allocated to the cost centre of the HR Director. Not changing cost centres had caused €35,000 of error.

The complainant said that she needed a basic computer and obtained this from IT. She was never aware of the asset register. A named staff member said that he did not expect the computer back. Laptops were as rare as hen’s teeth. The complainant kept a white folder for everything related to the discount card. She was never asked for records for any of the temporary workers. It was only when something went wrong that the respondent wanted records. She said that it was like shouting into a wind tunnel in dealing with this process.

The complainant said that in addition to her normal role, she organised cover for reception. The CEO had commented that there were always different faces on reception. She arranged for the relative to work in reception. The HR Director was aware of the other temporary workers who worked on the discount card. It had not suited the relative to commute to the office from where she lived. The complainant moved the relative to work on the discount card and cut her hours.

The complainant said that working on the discount card cost her income as it was not a commission earning role. No explanation was given for her suspension, and she objected to the HR Director doing the investigation. The HR Director had said that the complainant was a liar, and that the complainant did not understand the magnitude of what she had done. The complainant wanted to get fair eyes on this.

During the process, the complainant had tried to engage with the respondent, and it felt like being in whack-a-mole with the allegations changing every time she said something. The investigator was working his notice and admitted that he had never done this before, and this is why he had to go to HR Director all the time. The complainant had tried to hand back sports and social a number of times. She felt that things became more personal when she objected to the HR Director and that she was going to be ousted.

The complainant said that hers was the only story that had not changed. She was wrongly accused of not checking her email when she had no access to the email so missed the meeting with the investigator. She mentioned the other temporary workers, but the investigator did not speak with them. They did not interview the people on reception. The HR Director thought that the costing was going to be €40,000 and was determined that it was not going to land with her, but with the complainant.

The complainant said that she was on the phone every week to the relative and the other temporary workers. She asked the respondent to speak with a named former temporary worker who was now a permanent member of staff. The complainant arranged for the relative to work on lists on wider county Dublin and in other cities and using the same format as the three predecessors. The complainant also wanted to develop sports and social champions.

The complainant said that submitting and approving timesheets was a feature of the system and not a bug. She did this for multiple temporary workers. She was fully aware that her logins would be tracked. She did this regularly and it was not something she was trying to hide.

In respect of mitigation, there was the 11-week period of the appeal. This was at the time of the lockdowns. She set up her own company in July 2021. The complainant said that she tried to contact the relative, who refused to speak to the respondent because of her anxiety. The respondent never wrote to the relative and the complainant would not push her as the buck stopped with her and the HR Director. The complainant said that the work in the white folder was only four days of work.

Cross-examination of the complainant

The complainant said that she had a good relationship with HR Director, and she did not think that she had attacked her. The complainant said that her saying that the HR Director had influenced the investigation, the disciplinary and appeal manager were matters of fact and not an attack. The complainant said that she deserved and had earned the trust of the respondent. She was surprised that the HR Director was shocked that the relative had been employed for the discount card. The HR Director was not aware that the named, other temporary worker had also been employed. She had not informed the HR Director of any of the workers who had worked on the discount card.

It was put to the complainant that she had not referred to the relative in any email over 58 weeks at a time the complainant was saying she was overworked. She accepted that the HR Director was shocked, but the temps were on the system. She thought that the HR Director had full access to a named platform. She did not believe what the HR Director had said about the complainant being a valued employee. No one had reached out to the complainant, and she could have been ‘swinging in her sitting room’. The complainant did not believe that the HR Director was upset that she was dismissed. The complainant disagreed that there was any fundamental breach of trust. The complainant said that the early conversations were about the €40,000 overspend and not about the relative. She said that the ‘the toothpaste was already out of the tube’ by the time that clarity had been brought to the coding errors. The complainant said that she was brilliant at the job and was interested in developing employee retention. She was doing more non core roles for which she was not paid for, for example sports and social and the discount card.

The complainant did not accept that it was ‘curious’ that she had not mentioned the relative working on the discount card. It was not curious that the relative was working from home. She said that it was not correct that new internal temporary workers got new laptops. The complainant did not agree that a temporary worker would use a non-respondent laptop for a non system role. The complainant did not accept that the contents of the white folder took 20 minutes to compile.  

The complainant accepted that she had not provided the messages and emails from the relative. She was open and transparent with the investigator until she received the report. She said that a named predecessor had also worked from home, and she was asking for help with the discount card. This was like shouting down a wind tunnel. The investigator report was wrong to say that she had ended sports and social in September 2019 as she had organised works after that.

The complainant said that others had done the support role on the discount role, and this was an approved role, as confirmed by the HR Director and a named colleague. It was put to the complainant that there was no authorisation to employ a temp off site with no shred of evidence of output; she replied that the other temps were never considered during the process. In respect of the timesheets, the complainant said that it was a feature that you log into the platform as the temp and then approve them as the manager. It was put to the complainant that the relative never inputted her own time sheets. The complainant said she was not sure the records were accurate and that she had also inputted the relative’s hours when she worked in reception.

The complainant said that the platform literally has a button ‘sign in as user’ allowing her to log in as any worker. No one ever said that this was not appropriate. This was a feature of the system, and she inputted the hours of other temps too. It was ridiculous to say that it was inappropriate for her to put in hours and approve hours when she had so many conversations with managers about this and she refuted the line of questioning. The complainant did not accept that someone else should have approved the timesheets for the relative.

The complainant said that the HR Director had initially alleged a €40,000 overspend and the atmosphere changed, and she was suspended. The HR Director could not be independent. The complainant said that the HR Director had edited the investigation report. It was put to the complainant that if the HR Director was in charge of the investigation report, why did she not remove the criticism of her ‘loose recruiting practices’. The complainant replied that the HR Director had acknowledged previously knowing a named predecessor and the HR Director never corrected this.

The complainant said that the contents of the white folder was the output from December only. She worked for the respondent for 5.5 years and no one cared when everything was going right. She billed €1.5 million of the company and was not given a fair chance to defend herself and they looked for negative things. The respondent placed ‘great trust’ in her because she delivered so much but they then automatically believed the worst. It was put to the complainant that her case depended on a number of people doing bad things and she criticised every step of the investigation; she replied that the disciplinary report did not follow up on the points she made.

The complainant said that she had hired four people for the discount card role and the card was created for the benefit of employees. It was put to the complainant that the respondent had acted reasonably as she had not engaged the relative in a transparent and authorised way and there was no evidence of output, and no reasonable person could have continued. The complainant replied that you can put ‘lipstick on a pig and it is still a pig’. The respondent had never talked to people she recommended. The processes were wrong and the substance of it was wrong, and they never looked at the three other interns. She wanted them to go forensic and they did not go forensic. If it was fair and independent, she would still be there.

In re-examination, the complainant said that the HR Director had initially thought that the overspend was €40,000 but this was weeded down to €5,000. The complainant lost commission by doing the discount card role. She said that the respondent was contradictory about terminating a named temp and the relative on the day of the phone call. There is a sign in as user, and this is a feature of the system. There was no warning about using this feature.

Closing of the complainant

The complainant outlined that the investigator made a disciplinary recommendation beyond the scope of his terms of his reference. The allegation was changed as the initial allegation did not stand up and the investigator switched the allegation. There was untoward communication with the HR Director who had decided on the complainant’s guilt from the outset. There was no interest in the other interns or how their time and outputs were measured. The respondent did not bother about previous incumbents. The complainant did her best to get the relative to appear and she had no responsibility to get the relative to appear at all. The respondent never wrote to the relative and it was all loaded on the complainant. There was no allegation of wrongdoing and only a ‘potential wrongdoing’.

The complainant outlined that the respondent witnesses were not spontaneous in their answers, and they obfuscated and were evasive. The appeal manager denied that he had carried out an investigation but had interviewed new people and not related to the facts around the dismissal. The complainant did not have the chance to assess the evidence of the new witnesses. The complainant’s points should have been addressed fully in the investigation and the disciplinary process. The complainant asked how could somebody be paid in a big company if they are not an authorised employee? She said that the systems are not fit for purpose.

The complainant submitted that the HR Director had a controlling interest in the process and hid this. The adjudication officer had to ask for an unredacted version of the emails. This showed the extent of the HR Manager’s interference in the investigation process.  The HR Director did a secret review of the investigation and this of itself means that the dismissal was unfair.

Until the end, the complainant was a very successful employee of the respondent and took on many non-commission earning roles within the company. This included the recruitment of internal temps. The issue that led to her dismissal was the hiring of a particular temp, who is a relative of the complainant’s. The respondent’s allegation is that the relative was taken on without the approval of the respondent and was paid by the respondent but did not do the work claimed.

This started when the HR Director was alarmed by the administrative spend in 2020. As it happens, temps had been misassigned by various recruiters to this cost centre. The HR Director learnt of the relative’s involvement on the discount card, which she said she did not have line of sight of. There was discussion of the HR Director meeting the relative.

The complainant was suspended, and the matter referred to investigation. It is true that there are frailties with the investigation. It got some facts wrong, for example an inference from the summary termination of the relative. It was not entirely focused, no doubt caused by the lack of any terms of reference. A recommendation went beyond the scope of the investigation mandate.

These frailties could contribute to a finding of unfair dismissal, were it not for the robustness of both the disciplinary process and the appeal. The investigation was right in its key finding, that this matter should go forward. What followed was a comprehensive and fair assessment of the relevant facts of the case. The disciplinary finding was within the band of reasonable responses and the appeal left no stone unturned.

I agree with the complainant that the respondent overegged the significance of her filling in and approving the timesheets. The complainant would have been aware that this was easily traceable to her.

The key issue during the whole disciplinary process was the lack of participation of the relative. This is Hamlet without the Prince.

The respondent was correct to draw inferences from the fact the complainant did not raise the relative’s role in 2019. The complainant was raising how demanding the non-core roles were and that she wished to step back. Why did she not refer to having taken on a temp to help with these roles and could they not increase the temp’s hours?

At each stage, there is discussion about the relative participating in the process, for example to meet the HR Director or to speak with the investigator. Later, she is said to offer a statement. The relative was recently an employee of the respondent. Her niece is in the firing line. One would expect the relative to participate fully in such a process. The issue was not the relative being an aunt, but whether her employment was bona fide. It is not credible that a relative in such a scenario would not readily participate in the disciplinary process, involving their former employer and on behalf of their family member. There is reference to anxiety, but there is no medical evidence of this and the relative had previously worked in reception of the respondent.

Taken together, I find that the respondent has met the onus in the Unfair Dismissals Act regarding the fairness of the dismissal. It made sound findings of fact at the disciplinary and appeal stages. While another employer might have considered a final warning or other sanction, dismissal was within the band of reasonable responses. In conclusion, I dismiss the complaint of unfair dismissal.

CA-00039542-001

For the above reasons, I dismiss the complaint pursuant to the Unfair Dismissals Act.

Unfair Dismissals Act / band of reasonable responses