Complainant

Respondent

Parties

Alan Ecock

Allied Irish Banks Public Limited Company

Representatives

Setanta Landers, Setanta Solicitors

Roland Rowan, B.L. instructed by Mark Kelly, AIB Legal

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-00063470-001

14/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00063470-002

14/05/2024

The Complainant was employed by the Respondent on 01/06/1998.  He was dismissed on 07/02/2024.  He was paid an annual salary of €63,000.  The Complainant was dismissed following an investigation in relation to secondary employment and his unauthorised access of an internal bank system to check his account information and credit status.  The Complainant submitted his complaint to the WRC on 06/06/2024.

The Respondent raised a number of preliminary matters:

1)     The submission from the Complainant was only received on the morning of the hearing (24/09/2024) and the Respondent’s representative wished to proceed but may require opportunities during the hearing to review and take instructions in relation to matters contained in the Complainant’s submission.

2)     To avoid any potential conflict of interest and considering the ruling of Mr Justice Hogan, the Adjudication Officer should confirm or clarify and dealings with the Respondent.

3)     Due to the public nature of the hearing details of the Complainant’s banking relationship may be referred to.

4)     The complaint under the redundancy act does not arise.  There is no dispute in relation to a dismissal but there is no question of a redundancy situation.  The Respondent’s representative noted the decision of Mr Justice Ferriter and stated that this complaint should be considered frivolous.

It was submitted on behalf of the Respondent that the Complainant was an employee for many years.  A disciplinary issue arose in relation to him having a second employment and this was dealt with by way of a Final Written Warning in August 2023.  After this the Complainant’s Head of Department, Mr Owen Murtagh, became aware of a media article following a WRC hearing about the Complainant’s second employment.    Mr Murtagh met with the Complainant and was told that the Complainant’s solicitor had done a solo run without any instruction.  At that meeting the Complainant denied everything, deflected, and lied to his employer.  Later, when faced with the evidence, he recanted.   During this meeting the Complainant made a reference to his credit rating, which he noted was recorded as 2B, with the bank.  This information is only accessible in the Respondent’s internal system and which cannot ever be used for personal use. This matter was reviewed, and it was confirmed that he had utilised the internal system on 11 occasions to examine his banking profile with the bank.  A formal disciplinary process followed, and he was accompanied by a fellow employee.  The disciplinary decision maker, Ms Mary McHale, considered various options and decided that the appropriate sanction was dismissal.  The Complainant sought an appeal, and this was facilitated, and the appeal was heard by an independent third party.  The outcome of the appeal was that there was no basis to interfere with the decision to dismiss the Complainant.

It was submitted on behalf of the Respondent that the Complainant is attempting to conflate the two disciplinary processes.  The first, August 2023, was completed and a line drawn in the sand.  The second process began when it emerged that the Complainant had lied in his previous statements and during these proceedings a further issue arose when he disclosed that he had accessed the internal system to review his own banking profile with the Respondent.

The Respondent takes the view that the “Bank – Employee” relationship and the “Bank – Customer” relationship are two very unique and distinct relationships.  As an example of that if an employee is seeking a loan or other service from the bank, they are not permitted to use their bank email for this purpose. They are required to use their personal email.  The two relationships – employee & customer – are absolutely distinct and there is no cross over.  The Respondent’s policies in relation security and conflict of interest are clear and the Complainant has confirmed he updated his familiarity with these on an annual basis.

In relation to the Complainant’s complaint in relation to redundancy, Section 39 does not apply as there is no redundancy and this complaint is misconceived.

Evidence of Mr Owen Murtagh, Head of Mortgage Lending Unit, Credit Risk:

Mr Murtagh gave evidence on oath on behalf of the Respondent.   He outlined that he is working for the Respondent since 2003 and is currently head of the Mortgage Lending Unit.  Mr Murtagh confirmed that he became aware of the Complainant’s other employment in May 2023.  As a result of this the Complainant’s manager had a meeting with the Complainant.  The Complainant denied that he had another job.  The outcome of this process was that the Complainant was issued with a Final Written Warning in August 2023.  He had a meeting with the Complainant about a week after this and advised him to keep his head down. 

Mr Murtagh outlined that the Respondent required a level of trust in the employee/employer relationship.  The Complainant had discretion to approve mortgages up to €1 million.  Mr Murtagh clarified that the Complainant primary role was to assess mortgage applications.

Mr Murtagh also gave evidence in relation to training and, in particular,  conflict of interest training.  There are a variety of courses which deal with conflict of interest and outside employment.  Employees are required to sign a declaration that they have completed this training, and the completion of this training is a requirement in relation to the Respondent’s annual performance review process.  Mr Murtagh confirmed that the Respondent has submitted confirmation of the Complainant’s training records up to the year 2023.

Mr Murtagh outlined that there is an approval process in place in circumstances where a potential conflict of interest or secondary employment arises.

Mr Murtagh gave evidence that in August 2023 some articles was published in the media about a bank member working in a public house and the Complainant’s name was mentioned.  Mr Murtagh confirmed that the articles which were included as part of the Respondent’s submission were the articles he was referring to.  Mr Murtagh outlined that he was concerned about the contents of these articles as it contradicted the Complainant’s previous version of events.  At that time he stated that he was only collecting rent for the Peacock Group.

Mr Murtagh confirmed that he received an email from the Complainant on 19/10/2023 in which he confirmed that everything that was discussed on 23/06/2023 was an accurate reflection of his involvement with the Peacock Group.  Mr Murtagh gave evidence that this confirmed the Complainant’s previous answers and he felt that the Complainant had an opportunity to rectify his previous version at that time.  Mr Murtagh confirmed that the Complainant was not suspended at that time but there was a lot of talk about it in the office.  It was for this reason that he advised the Complainant to work from home the following day.

Mr Murtagh outlined that he then wrote to the Complainant on 23/10/2023 and invited him to a meeting on 25/10/2023 to discuss the recent news articles.  He included a copy of the article and a copy of his file note of 18/10/2023.  The Complainant was also provided with details of the Respondent’s EAP service.  Mr Murtagh confirmed that the EAP is provided to support employees.

Mr Murtagh confirmed details of the meeting on 25/10/2023.  Mr Murtagh stated that the Complainant was very clear that the news article was incorrect, and his solicitor had done a solo run in relation to the WRC case.  The Complainant continued to state his original version of events.  Mr Murtagh gave evidence that the Complainant was given multiple opportunities at the meeting to clarify his position.  The Complainant also had opportunities over the previous five months to correct his story.

Mr Murtagh explained that during the meeting the Complainant stated that he had significant debt and that his credit rating was classed  as a “Grade 2b” customer.  Mr Murtagh gave evidence that a regular bank customer would not know this information as it could only be accessed through the bank’s internal system.  The bank did not permit employees to look up their own rating or account information by using this system.  An employee could only access a customer rating profile if there was a business case to do so. A note of this meeting was provided to the Complainant who confirmed that it was an accurate record. 

Mr Murtagh gave evidence that after this meeting and the Complainant’s confirmation that the record was correct, he wrote to the Complainant on 06/11/2023 to advise that he was escalating the matter to the Respondent’s Workforce Performance Team and that disciplinary action, up to and including dismissal, could be considered.

Mr Murtagh confirmed that this was not a reopening of the previous case.  That was a separate matter.  Mr Murtagh explained that because of the Complainant stating what his customer profile was he then asked the Respondent’s internal investigations unit to check the Complainant’s log in relation to his accessing his CIF Profile.  Mr Murtagh confirmed that he asked for this information, and he was sent an email on 09/11/2023 which confirmed that the Complainant had accessed his CIF profile on 11 different occasions between 01/09/2023 and 31/11/2023.

Mr Murtagh gave evidence that an employee would never have to use this system to access their own record.  Mr Murtagh confirmed that there is an annual performance process in which an employee’s training is reviewed to ensure it is completed.  Mr Murtagh confirmed that he compiled a file note after his meeting with the Complainant on 10/11/2023 in relation to this matter.  Mr Murtagh explained that the Complainant denied using the banks system to access his account information and stated that he had 24-hour banking to look at his accounts.  The Complainant confirmed that he was aware that he should not use the banks system for personal use.  Mr Murtagh stated that he explained the context of the meeting and confirmed details of the meeting in a letter dated 16/11/2023 and that he would be referring the matter to the Respondent’s Workforce Performance Team for consideration under the Disciplinary Policy.  He advised the Complainant that the outcome of this review could result in disciplinary action up to and including dismissal.

Mr Murtagh confirmed that that was the end of his involvement in this matter.

Cross Examination – Mr Owen Murtagh:

Mr Murtagh was cross examined on behalf of the Complainant by Mr Landers.   Mr Murtagh clarified that Mr Leon Duignan was the Complainant’s line manager and it was him who met with the Complainant on 08/05/2023.   He also confirmed that this was a formal meeting.  Mr Murtagh was asked if the Complainant was provided with any documentation in advance of this meeting and he noted that the Complainant had a meeting previously with his line manager, so he was aware of what the two issues that were to be discussed at the meeting.  It was put to Mr Murtagh that the Complainant used the term “witch hunt” in relation to the approach taken to him.  Mr Murtagh stated that he was trying to establish the facts.

It was put to Mr Murtagh that the Complainant stated at the meeting that he had not read the article about the WRC case and he confirmed that was correct.  The Complainant was given an opportunity to do so.

It was put to Mr Murtagh that at the meeting the Complainant made a full admission.  Mr Murtagh stated that it took 3 ½ pages of notes before the Complainant told the truth.  It was put to Mr Murtagh that ultimately the Complainant told the truth.  Mr Murtagh agreed that was so but only after five months of not telling the truth and 50 minutes into the one-hour meeting before he told the truth.

Mr Murtagh was asked what the purpose of the letter of 06/11/2023 was and he confirmed that it was to escalate the matter to the Respondent’s Workforce Performance Team.

It was put to Mr Murtagh that the email dated 09/11/2023 from the investigations unit  did not specify all the accounts that could have been accessed by the Complainant.  Mr Murtagh stated that he asked the Investigations Unit to check if the Complainant had accessed his own account profile.

It was put to Mr Murtagh that the Complainant was not given a copy of the report from the Investigations Unit or provided with a copy of the questions he would be asked to respond to at the meeting.  Mr Murtagh confirmed that was correct.

Mr Murtagh was asked if the Respondent had dismissed any other employee because they accessed their own CIF profile.  Mr Murtagh confirmed that he was not aware of any.  Mr Murtagh was asked if the Respondent’s IT system could block an employee from accessing their own profile and he stated that was not in place.  Employees must undergo annual training, and this is confirmed.

It was put to Mr Murtagh that he was aggrieved after the Complainant did not make admissions to him.  Mr Murtagh confirmed that was not the case.  

Re-Direction: Mr Owen Murtagh:      

Under redirection Mr Murtagh confirmed that he received the email from the Investigations Unit at 13.38 and he sent it to Ms A M Brady at 14.45.

It was put to Mr Murtagh that during cross examination it was put to him that he did not give the Complainant all the information.  Mr Murtagh was asked who the Facebook post about the Complainant’s other job was and he confirmed that it was the Complainant’s Facebook account.  

Mr Murtagh was asked about the suggestion that the Complainant felt that this was a witch hunt and to outline what his role was.  Mr Murtagh stated that he is the head of the department and he had limited contact with the Complainant.  He was informed about the issues by the Complainant’s line manager.

Mr Murtagh was asked if he took it upon himself to investigate after the article naming the Complainant was published.     Mr Murtagh stated that he did not.  The reason for the follow up was because this article completely contradicted the Complainant’s previous version of events.  Mr Murtagh stated that he could not simply ignore this fact and the issues arising from it.

Mr Murtagh was asked to clarify that when a CIF is looked up can this also allow access to other account details.  He confirmed that was not the case and you only view the CIF profile.    

Evidence of Ms Mary McHale - Head of Financial Crime:

Ms McHale gave her evidence on oath.  She outlined details of her career with the Respondent which span over 30 years.  She commenced in retail banking and then in several other areas and is currently Head of Financial Crime, Fraud and Anti Money Laundering.  She confirmed that she was the decision maker in relation to the Complainant’s dismissal.  She had no previous dealings with the Complainant.  Ms McHale outlined the process for her appointment as the decision maker and confirmed that she is on a list of people on the Respondent’s disciplinary hearing panel.  She was asked about her availability and willingness to undertake this and she did so  having confirmed that no conflict of interest arose.  Ms McHale confirmed that she received copies of all documentation.  Ms McHale confirmed that she had no dealings with the Complainant in relation to a previous disciplinary process. Ms McHale also confirmed that she was not asked to revisit the previous disciplinary process. She also confirmed that all staff are aware of the Code of Conduct and there is an annual training module that must be completed.

Ms McHale outlined that the fundamental issue was that the Complainant had lied during the disciplinary process. The Complainant denied that he had a job that he was paid for and he denied working in a pub.  Ms McHale confirmed that she reviewed all the documentation and confirmed that the offer of the EAP service applies to all employees.

Ms McHale gave an overview of the Respondent’s disciplinary process and she confirmed that she reviewed this and familiarised herself with the policy again prior to the disciplinary hearing.  She outlined the various stages of the formal process and noted that it may not be progressive.  Ms McHale confirmed that Section 8 of the policy deals with gross misconduct and she had regard to this.  The policy states that theft, fraud or acts of dishonesty constitute gross misconduct.  The Complainant’s behaviour was an act of dishonesty.

Ms McHale also gave evidence that she had regard to the Code of Conduct and stated that this is a very important document in relation to the Respondent’s business.  She stated that it is “not just the code but the spirit of the code” that employees are expected to adhere to.  The code obliges employees to act honestly, ethically and with integrity.  Ms McHale confirmed that the code states that these are “the core elements in generating trustworthiness”.

Ms McHale also gave evidence in relation to the Respondent’s Conflict of Interest Policy and confirmed that she also had regard to this in her deliberations.  This policy is clear in relation to defining what a conflict is interest is and in relation to personal dealing in relation to an employee’s personal account.  Ms McHale gave evidence that the reason the Respondent’s policy deals with having another employment is that it could give rise to a conflict of interest.  There is an approval process and some types of additional employment would never receive approval.  Ms McHale stated that approval is required in advance before taking up any other employment and there is a clear pathway outlined in the policy.  An employee would be aware from their annual training in relation to the code what would be deemed unacceptable.

Ms McHale confirmed that she was provided with additional documentation in relation to another issue which had emerged.  This was related to the Complainant using an internal system to look up details in relation to his own account which was prohibited by the Respondent.  Ms McHale clarified that there are two distinct relationships that an employee can have with the Respondent.  There is an employer/employee relationship and a customer/bank relationship.  There is no interaction or cross over between these two.

Ms McHale confirmed that she made findings of fact in at the disciplinary hearing on 20/11/2023 and these were that the Complainant was given opportunities to provide accurate information in relation to his outside employment but failed to do so.  The Complainant also denied that he had submitted a complaint and attended a remote WRC hearing in relation to his outside employment.  The Complainant provided false and misleading information to the Respondent on several occasions in relation to this matter.  The Complainant also confirmed that he used the internal system to access his personal bank details despite being aware that this was a prohibited action.

Ms McHale confirmed that having taken all factors into account she arrived at the decision that the Complainant should be dismissed on the grounds of misconduct with immediate effect.

Ms McHale stated that she outlined that there was a breach of trust on the part of the Complainant and she stated that her reasoning was that it’s a fundamental principle of the bank that you must believe an employee and you can’t have someone working in a banking environment if you cannot trust them.

 Ms McHale also confirmed that this was the end of her involvement in this matter.

Cross examination – Ms Mary McHale:

Ms McHale was cross-examined by Mr Landers on behalf of the Complainant.  It was put to Ms McHale that the Respondent’s disciplinary policy states that “we will make sure that an appropriate investigation is carried out before any disciplinary sanction is applied”.  In that context Ms McHale was asked to confirm what her role was and she confirmed that she was a decision maker.  Ms McHale was asked if there was any investigation report in the documentation she received.  Ms McHale stated that the meeting notes were details of what was investigated.  Ms McHale was asked who made the findings of fact that were outlined in the notes of the disciplinary meeting and she confirmed that she did.  It was put to Ms McHale that she was then the investigator and she did not agree.  It was put to Ms McHale that the findings of fact should have been made prior to any disciplinary hearing.  Ms McHale stated that she confirmed the facts with the Complainant and she based her decision on the facts.  Ms McHale stated that she was trying to establish what the facts were.

Ms McHale was asked if there was a very clear distinction between the employer/employee and customer/bank relationship and what the process was.  She confirmed that it is absolutely clear that no customer information should ever be accessed unless there is a clear business case to do so.  It was put to Ms McHale that if that was correct then an email from a manager in the Special Investigations Unit on 09/11/2023 is unusual in that there was no process to request this information in relation to the Complainant accessing the system.  Ms McHale stated that the Special Investigations Unit would only look up this information if they were requested to do so.  Ms McHale was asked if she considered this email appropriate and she said that it was as the manager requested the Special Investigations Unit to compile the information.  Ms McHale was asked if this was done informally and habitually and she confirmed that it was not.

Ms McHale was asked to explain the Respondent’s protocol or procedure which should apply in such situations.  She outlined that normally someone of a particular rank or grade would request this information.  This rank would be from Level 4 and upwards.  Ms McHale clarified that a Level 4 employee would be a senior manager.  A head of a department could also request this information if there was a reason to do so.  Ms McHale was asked what the purpose of the Respondent’s internal audit function is. She stated that this function provides assurance to the bank in relation to how things are done.

Ms McHale was asked how the Complainant’s accessing the banks system to access his own information could be considered different from a manager requesting the same or similar information without going through a proper process.  Ms McHale said that they were two totally different scenarios.  The Complainant had no business case to access the information.  It was put to the witness that the manager who requested the information for business reasons done so through a phone call and she confirmed that was the case.

Ms McHale was asked if she reviewed the notes of previous meetings where the Complainant stated that he was being ambushed and she confirmed that she received and read those notes.  Ms McHale was asked if she thought it was appropriate to meet the Complainant without giving him notice and copies of the documentations. She stated that he had documentation.

Ms McHale was asked what factors she weighed up in coming to the decision to dismiss the Complainant.  She stated that she looked at all the factors in the round.  The Complainant had previously lied and when he realised that he could not lie anymore he admitted what he had done.  The Complainant also knew that when accessing his own account information he was aware this was wrong.

Ms McHale was asked if she would accept that the Complainant made full admission at the disciplinary meeting.  Ms McHale confirmed that the “made some admissions”.   Ms McHale was also asked if she would accept that the Complainant was contrite at the meeting.  She confirmed that he did say he was sorry.

It was put to Ms McHale that in her direct evidence she noted three things from the list of gross misconduct:

 a) Theft, fraud, or other acts of dishonesty.

 b) Breach of confidence, including accessing, using, or disseminating confidential information relating to the Bank’s business, customers, or employees other than in the course of your legitimate duties and

 c) Serious breaches of the Bank’s Code of Conduct or UK Conduct Rules.

and she was asked if these were mentioned in her letter confirming the Complainant’s dismissal.  She stated that her letter referred to the policy and the code.  Ms McHale said that while she did not refer to specific breaches of the Code of Conduct she did make a clear reference to a Breach of the Code of Conduct by having outside employment and that that the Conflict-of-Interest policy was also breached by the Complainant’s regular use of the system to access his own details.

Ms McHale was asked if she saw the previous disciplinary process as a separate process and she confirmed that she did.  Ms McHale noted that the Complainant lied at that time and that the ongoing telling of lies by the Complainant was a major factor in her decision.  Ms McHale also confirmed that the fact that the Complainant was accessing his personal details using the internal system while in the knowledge that he should not do so was also a factor.

It was put to Ms McHale that if the telling of lies were such a critical factor the Complainant should have been informed that these allegations were going to be put to him so that he would not feel ambushed.  Ms McHale stated that it only when the Complainant was presented with the facts that he told the truth.

Ms McHale confirmed that she is familiar with the policy and that she understands the concept of fair procedures.  She was asked if it was fair that information is not put to the Complainant in advance of a meeting and she stated that the information was that the Complainant told lies.

Redirection – Ms Mary McHale:

Ms McHale confirmed that the notice of the meeting issued to the Complainant on 23/10/2023 outlined that the purpose of the meeting was to discuss the news article which were published about him.

Ms McHale also confirmed that the Code of Conduct provides details in relation to acting honestly, ethically and with integrity and Disciplinary Procedures in Section 8 deals with gross misconduct.

It was put to Ms McHale that it was being suggested on behalf of the Complainant that her letter of 13/12/2023 confirming the Complainant’s dismissal noted “Findings of Fact” and that a separate investigation should have taken place.  Ms McHale was asked if she applied her mind to all the various documents when making her decision and she confirmed that she did and that included the Complainant’s meeting with Mr Owen Murtagh.

Ms McHale was asked if she provided justification for her decision and she confirmed that she did and there were linked to Section 8 of the Disciplinary Policy which deals with gross misconduct.  These were the three key questions which she had to consider.

Ms McHale was asked to clarify the grading in relation to herself, Mr Owen Murtagh.  Ms McHale stated that she is at Level 6  and Mr Murtagh is at Level 5.

It was put to Ms McHale that during her cross examination it was put to her that the Bank was accessing the Complainant’s bank details as part of the disciplinary process.  Ms McHale stated that was incorrect.  The Bank were looking at the Complainant’s access log in relation to his own account and this did not involve any access to his actual bank account.  Ms McHale confirmed that this log would only be used if there was a customer complaint or other concern about any inappropriate access to an account.

Ms McHale confirmed that the letter confirming the decision to dismiss the Complainant contains all the details of what she looked at and took into consideration before arriving at the decision.  

Closing Submission:

In a closing submission on behalf of the Respondent Mr Rowan submitted that what the Complainant was trying to do was to conflate two processes.  The allegations in that regard are erroneous and could give rise to data protection issues.    There were two processes and the Complainant was given details of what was at issue and provided with notes of meetings which he reviewed and agreed.

When the process started in October 2023 it began with a phone call to have an informal talk and then a follow up meeting after which the Complainant was given notes of the outcome.

In relation to the disciplinary meeting the Complainant confirmed that he was given advance notice of the meeting and that HR would be in attendance.  He was also informed that the EAP service was available.

This is a case that comes down to very simple evidence.  Mr Murtagh gave evidence that he read the newspaper articles and he contacted the Complainant as it was in direct conflict with what the Complainant had previously told Mr Murtagh.  The Complainant felt that he could continue to deny that he had a second employment.  During the meeting on 25/10/2023 the Complainant was advised that there was information that he was accessing his own account details.  He initially denied this.

The Complainant later admitted to doing it and to suggest that this was a clandestine or some other attempt to go after the Complainant is wrong.

There are three things which are relevant:

1)     The Complainant lied pre-August 2023

2)     The Complainant lied post August 2023

3)     The Complainant accessed his own account details when he should not have done so.   

In relation to the question if the Complainant was given a fair and reasonable process the answer is: “yes”

-        He was contacted about the published article

-        He was invited to a meeting in relation to this

-        He was afforded an opportunity to state his version of events

-        He finally broke down and told the truth

-        He was given copies of notes and a letter confirming that Mr Murtagh was now escalating the matter

-        He was invited to a disciplinary meeting

-        HR is not a prosecutor – HR is not a court presenter in the manner suggested by the Complainant

-        What happened was that HR introduced everyone and then handed the meeting over to the decision maker.  HR was also present as a note taker at that meeting.

In November 2023 the Complainant was asked about accessing his own information on the bank system and he said that he was not doing so.  The bank is entitled to conduct an inquiry into unauthorised access if they have concerns in relation to this.   The Complainant’s manager made an enquiry based on something said by the Complainant in a formal meeting.     

The disciplinary hearing was conducted by Ms McHale.    The Complainant was given the same documentation as Ms McHale.  The Complainant was made aware of the allegations, his right to representation and an opportunity to respond to the allegations.  This was a fair and impartial hearing and Ms McHale did not know the Complainant and the Complainant raised no issues in relation to her appointment as decision maker.

It is important to note that once the Complainant comes clean in relation to the allegations he no longer makes the witch hunt allegation.     

The Complainant was advised of his right to appeal the decision to dismiss him and he exercised that right.

It is the Respondent’s position that a fair process was conducted and the Adjudication Officer has to look at the evidence in its totality and assess if a fair process too place.

It must also be taken into account that it was the Complainant who lied and it was the Complainant who feels it is acceptable to access his own account details and he confirmed at the hearing that he still believes that is the case.  The Complainant’s view that he is old school is not an acceptable position.

In relation to the suggestion by Mr Landers that more information was required and how it should have worked and that it was Ms McHale who should have made that decision.  Ms McHale was not a rubber stamp for someone else’s decision.  The letter of dismissal issued by Ms McHale outlines the reasons for the decision to dismiss and there is no doubt that the Complainant knew what he had done wrong.  The fact is that he admitted it. Mr Rowan stated that while a disciplinary process may never be perfect the key is that it must be fair.

The appeal process was also afforded to the Complainant and he was advised that this should outline the specific areas of dissatisfaction with the disciplinary hearing.  Any suggestion of a delay is not what occurred.  An adjournment was requested and granted.

It is clear from the Complainant’s evidence that he knew exactly what policies he had breached.  If specific details were not included the fact is that the Complainant was dismissed for gross misconduct and as a matter of law dishonesty is gross misconduct as noted in Ryan in Redmond on Dismissal Law, (Bloomsbury Professional, 3rd Ed., 2017) where it is noted “[A]n act of dishonesty ruptures trust”.   This can cover a multitude of activities ranging from wrongs which might be criminal in character to wrongs such as untruths and misleading statements. 

It has been consistently found in the WRC and Courts that dishonesty can cause a fundamental breakdown in the trust between employer and employee and the breach of trust fractures that relationship.  The case of Israr Ahmed v Bidvest Noonan Services Group Limited (ADJ-00030617) noted that when the Complainant in that case stole ten bottles of hand sanitiser from his employer the Adjudication Officer found that “he fundamentally breached his contract of employment and the trust placed in him”.          

The Complainant changed his story and the evidence is that he knew what he was doing was a disciplinary matter.  The Complainant believes that he did not contribute to his dismissal. This shows that there is no self-reflection.  The Complainant could not have been issued with any other sanction when there was such a fundamental breach of trust.

The Complainant provided limited notification of his loss and no evidence of his attempts to mitigate his loss.  The information provided is for selective dates and no meaningful evidence was provided.  In some cases the Complainant is applying for jobs that he has no relevant experience for.  As an example, the Complainant only applied for two jobs in November 2024.     

It was submitted on behalf of the Complainant that he was employed by the Respondent for 26 years and is now 47 years of age.  The remedy sought is reinstatement.  The Complainant was called to a meeting in May 2023 to discuss a Facebook post.  There was no details provided to him in advance and this was a characteristic of most meetings the Complainant attended.  The focus is on the procedures and the Respondent did not use fair procedures.  The Complainant was ambushed, and he responded accordingly.

The Complainant had a part-time job in a pub and there was no secret about this.  This in itself was not an express breach of his contract of employment with the Respondent and was not the reason his employment was terminated.  The Complainant’s employment was terminated because he did not tell the truth.  This sanction was not proportionate.  The Complainant had three mortgages with this Respondent, and he disclosed his earnings in the applications.  The Respondent issued a Final Written Warning in August 2023.  The Complainant took a successful unfair dismissal case against the pub.  After this he had a meeting in October 2023 and he told the truth.  The Respondent conducted an exercise and there is limited detail about this.  The email of 09/11/2023 represents the totality of the Respondent’s investigation and in the notice of the meeting the Complainant was not on notice of this element.  This is critical as the Respondent relies on this information in reaching its decision to dismiss the Complainant.  There were no terms of reference for this investigation and there was no communication with the Complainant in relation to this.  As the Complainant was again ambushed the following day in relation to this matter this was a breach of fair procedures.

It is acknowledged that the Complainant was less than forthright as he was ambushed.  He came clean in October in relation to this matter and received no credit for this.  He received no information in relation to what was the actual breach of policy.  The Respondent did not apply the facts to their policy.

In relation to the redundancy complaint the Complainant’s representative confirmed that this was withdrawn.

Evidence – Mr Alan Ecock (Complainant):

The Complainant gave evidence on oath.  He provided evidence of his education and work history with the Respondent.  He was an employee since 1998 and he does not have a contract of employment despite requesting this.  The Complainant gave evidence that he reported directly to Mr Owen Murtagh.

The Complainant stated that he was asked to attend a meeting with Mr Leon Duignan in May 2023 after he saw a post on Facebook in relation to the Complainant working with the Peacock Group for 32 years.  The Complainant confirmed that he was given no notice of the meeting.  He also confirmed that the file note in relation to this meeting on 08/05/2023 was accurate.

The Complainant outlined that he attended a meeting on 23/06/2023 with Mr Murtagh and the purpose of this meeting was to clarify his relationship with the Peacock Group. The Complainant confirmed that he was given no notice of this meeting.  He confirmed that the note of the meeting was accurate.  The Complainant was asked to explain his comment which was recorded in note stating that “He said it feels like a witch hunt”.  The Complainant stated that he felt that they had set out to get him to come clear and it became too much for him.  Everything just got to him and the selective and direct nature of the questioning led him to that conclusion.

The Complainant confirmed that he was not advised of his right to representation when he was asked  to the meeting and he was given no notice.

The Complainant explained that he thought the phrase in relation to “next steps” meant that they were going to consider it.  The Complainant confirmed that the follow up email exchange was because of the additional questions he was asked.  The Complainant confirmed that the file note of a meeting on 13/07/2023 was accurate.  The Complainant explained that there was no conflict of interest as any rent he collected on behalf of the Peacock Group as these were not lodged to an AIB account.  The Complainant confirmed that he was not involved in any investigation and that he was informally told about the meeting.

The Complainant stated that the letter of 02/08/2023 was the outcome of his disciplinary meeting.  He was not given any opportunity to consider the report and he was issued with a copy by email.  The Complainant confirmed that he had reviewed the findings contained in the letter which issued a final written warning.  The Complainant stated that he did not appeal as he just wanted this whole situation to go away and he “took it on the chin”. 

The Complainant was asked what his understanding was of the letter dated 23/10/2023 inviting him to a meeting on 25/10/2023 was.  The Complainant stated that “I was under the impression it was another stick to beat me with”.  The Complainant stated that the letter did not outline what the meeting was about but he could see it was a formal meeting.   The Complainant confirmed that the two people attending this meeting were involved in his previous disciplinary process.

The Complainant was asked what information he provided to the bank when he took out mortgages.  He explained that he always wrote an analysis in submitting his application. No one focussed on what he was doing outside of his work.  The Complainant stated that 26 years ago you just had to do your job.  The Complainant confirmed that when the Conflict-of-Interest policy came into being he did not disclose his outside work and no one ever raised any issue with him.

The Complainant was asked if the letter of 06/11/2023 in relation to his meeting on 23/10/2023 gave any information in relation to the character of the letter.  He confirmed that it did not and he believed that it was going to lead to something.  He was given no opportunity to appeal the findings contained in that letter.  The Complainant stated that he felt that this letter was a continuation of his final written warning.  The Complainant confirmed that there was no investigation held prior to this disciplinary hearing.  The Complainant also gave evidence that he was not informed by Mr Murtagh that he was looking into his log on history.  The Complainant also outlined that he was not given advance notice of any questions that might be put to him.  The Complainant stated that his understanding of the meeting on 10/11/2023 was that it was in relation to a throw-away comment he made at a previous meeting.  The Complainant stated that he received a revised letter dated 16/11/2023 inviting him to a meeting on 20/11/2023.  His understanding was that the Respondent was asking someone impartial to make the ultimate decision. The Complainant stated that this was the only meeting he took someone with him.  The Complainant confirmed that the note of the meeting was accurate and that he did apologise.

In relation to a previous WRC hearing the Complainant stated that he had no idea what relevance this had to the Respondent.  This was something he was involved in outside of work and he believes that this was used as a means to get him into a meeting.  The Complainant believes that he made a full and frank admission.  He acknowledges that he did lie and stated that he was a proud person who wanted to keep under the radar so that his children would have a better start in life than he had.  During this time he did not feel supported by the Respondent and felt isolated.

The Complainant stated that at no stage in the process did anyone specify exactly what he had done that would breach the code of conduct or constitute gross misconduct.

The Complainant gave evidence in relation to the meeting which took place on 13/12/2023.  Ms McHale read the letter of dismissal and he was then outside the door in 5 minutes minus his laptop and I.D.   This was what happened after 25 years  working for the Respondent and he was walked out and not given any opportunity to collect his personal belongings or say goodbye to his colleagues.

The Complainant confirmed that he appealed the decision to dismiss him and this was delayed.  He had no access to the system and he required documents to prepare his appeal.  The appeal was heard on 23/04/2024 and the outcome was issued on 19/05/2024.  His appeal was not upheld and the decision to dismiss him stood.

The Complainant gave evidence in relation to his attempts to mitigate his loss.  He stated that he had a health issue about four years prior to his dismissal and he was on medication due to this.  When he returned from sick leave he was welcomed back and was under no pressure to perform.

The Complainant stated that he was looking for work and wanted something regular and he provided the hearing with details of his loss and current earnings.

The Complainant stated that the Respondent’s attitude to him changed because of his other WRC hearing and he considered the Respondent’s approach to be a witch hunt.

In response to a question from the Adjudication Officer the Complainant stated that he did not believe he made any contribution to his dismissal.

Cross examination – Mr Alan Ecock (Complainant):

The Complainant was cross examined by Mr Rowan on behalf of the Respondent.  He was asked if it was his position that the first disciplinary process and the second disciplinary process were being conflated into a single process.  He confirmed that was his case.  The Complainant accepted that he told lies.  The Complainant confirmed that he did not appeal the decision of 03/08/2023.  The Complainant confirmed that he was advised that he was in receipt of a final written warning and he understood what this meant.

It was put to the Complainant that when he attended the June meeting he did not come clean and he accepted that was correct.  It was put to the Complainant that on 18/10/2023, which was the day after his WRC hearing,  the bank was pulled into this matter by virtue of the published article.  The Complainant did not accept that was the case.   It was put to the Complainant that because of this article Mr Murtagh asked him about it.  The Complainant confirmed that he had not read the article and accepted that Mr Murtagh had sent him an email link to the article. The Complainant was asked if he accepted that he sent Mr Murtagh an email on 19/10/2023 confirming that the notes of the meeting was an accurate reflection of his involvement with the Peacock Group and that he no longer had any dealings with them.  The Complainant stated that was “the state of play at that time”.

It was put to the Complainant that he was asked about this article in May, June, July and August 2023 and he did not come clean.  The Complainant stated that he had hoped it would go away but it didn’t go away and as a result he lost his job after 25 years’ service.  The Complainant confirmed that he lied, he was proud and he was trying to protect his job and his family.

It was put to the Complainant that he gave evidence that he came clear at the earliest opportunity.  The complaint stated that he was trying to do his best and better himself.  It was put to the Complainant that the letter of 23/10/2023 made it clear that the meeting on 25/10/2023 was in relation to the previous matter and he confirmed that it was and he described the letter as “wishy-washy”.  It was put to the Complainant that this letter made it clear that this meeting was taking place with a HR presence and he had the right to be accompanied by a representative.  The Complainant stated that he never knew what the purpose was and assumed it was a follow up discussion from the previous meeting about this matter.  The Complainant stated that he was naive and took this invitation innocently.  The Complainant also said that he felt the line at the end of the letter in relation to the EAP service was a standard catchline that is included in those letters.  He confirmed that he did not seek representation as he is a proud man.

It was put to the Complainant that the meeting took place on 25/10/2023 and he gave evidence that he told the truth at that meeting.  The Complainant stated that he did.  It was put to the Complainant that he only told the truth after 50 minutes into a 60-minute meeting after he was presented with the facts.  The Complainant stated that he had enough at that stage and he imploded and told the truth.  He confirmed that he had being hiding the truth for a long time.  It was put to the Complainant that he was hiding the truth for 25 years.  The Complainant stated that the people in the bank who lent him the money for his loans knew but his colleagues did not know.  The Complainant was asked if he read the article that was published and given to him in advance of the meeting and he confirmed that he did not due to his pride.

The Complainant was asked to review the letter dated 07/11/2023 and 16/11/2023 which stated that “As you are aware, we previously met with you on several occasions earlier this year in respect of alleged employment outside AIB. You maintained, on several occasions, that you did not have any employment outside AIB, but later admitted and confirmed that you were a “rent collector” on behalf of the Peacock Group….”  It was put to the Complainant that by virtue of that letter he was on notice of a serious matter and potential disciplinary action and he was but he “thought the Bank would put an arm around you after 25 years”.

The Complainant stated that he accepted that the letter dated 07/11/2023 contained details of the allegations against him.  The Complainant also confirmed that he was familiar with the Code of Conduct and disciplinary policy.  It was also put to the Complainant the EAP service is not a tag line but is putting an arm around you but he did not avail of this service.

The Complainant confirmed that he was provided with a copy of the disciplinary policy in advance of the disciplinary hearing and he also confirmed that he was given an opportunity to outline his version of events at this meeting.  The Complainant stated that he was not always told what the purpose of some of those meetings was.

The Complainant was asked to review the Respondent’s disciplinary policy and in particular the section  which outlines “A clear set of principles ensures a fair process”.  He confirmed that he was aware of this.  It was put to the Complainant that section 8 of the disciplinary policy deals with gross misconduct and the policy outlines a number of examples such as theft , fraud or other acts of dishonesty.  The Complainant stated that it was debatable if his actions could be seen as gross misconduct.

The Complainant was asked if accessing a computer system without authorisation is a breach of confidence and he confirmed that he did not think so. It was put to the Complainant that a regular customer of the bank could not access this information and he confirmed that was correct.  The Complainant confirmed that he was advised of his right to appeal and he did submit an appeal.

It put to the Complainant that the disciplinary policy outlines the roles and responsibilities of the various participants in the process and in relation to the Complainant it was put to him that by not telling the truth he impeded the first disciplinary process.  He agreed that was correct.

It was put to the Complainant that the Respondent’s Code of Conduct has a clear message from the CEO which states: “Every employee, regardless of location or role within the Group, has an obligation to read our Code, understand it, and follow it every day”.  The Complainant accepted that was correct and he also accepted that the code sets out the standards  for all staff.  It was put to the Complainant that Section 1 deals with the Core Conduct Standards and Section 2 deals with trustworthiness while Section 3 deals with conflict of interests. The Complainant accepted that was what the code outlined and clarified that apart from not obtaining prior approval the rest of the conflict of interests section was not applicable to his situation.  The Complainant accepted that the code refers to “actual or perceived” conflicts of interest. 

It was put to the Complainant that the reason he lied was because he knew that there was a perceived conflict of interest and if he told the truth there would be a problem.  The Complainant stated that he did not agree with this.

The Complainant was asked if the file note of the meeting on 10/11/2023 in relation to DoD flags if it was correct that he admitted and accepted that he had accessed the system and he confirmed that was the way that he done it.

It was put to the Complainant that there was no way the bank could continue to trust him if he thought it was ok to access the system in the way he did.  The Complainant said that it was a regular practice to look up the system and he confirmed that he still believed that it was ok to do so.

The Complainant confirmed that the letter of 16/11/2023 was an invitation to a disciplinary meeting.  The Complainant also accepted that conflict of interests policy had a very clear approval process.

It was put to the Complainant that there were three things which were core to this matter:

1.      He admitted to giving false and misleading information prior to October 2023

2.      He continued to mislead the Respondent in relation to this matter

3.      He used an internal bank system to gain access to information he was not entitled to and knowing that he should not do so.

The Complainant said that he accepted that those were the issues and he was aware that dismissal was a risk in the proceedings.

The Complainant was asked if he accepted that the bank would have a concern about him accessing the NBP system to look up his own information.  The Complainant said that he did not and that this arose from a throw away comment he made and the Respondent added this in.

The Complainant was asked to clarify his evidence that a script was read out to him after the disciplinary meeting and he confirmed that this was the letter of dismissal.  He also confirmed that he was told of his right to appeal and clarified that the delay in hearing the appeal was due to his health issue.  The Complainant agreed that all documentation was issued to him in January 2024 although he had to request this on a few occasions.  The Complainant confirmed that he had all documentation prior to the appeal hearing.  The Complainant was asked how he could be prejudiced in terms of the appeal and he said that there was a five-day window between the dismissal and appeal.

The Complainant confirmed that the training records (Comet Reports) show details of his training in relation to the code of conduct and conflict of interest policy and that it was a necessity to complete this training.

The Complainant confirmed that in relation to his attempts to mitigate his loss his training was in the area of credit and he applied to various credit unions.  He confirmed that his applications are ongoing.  It was put to him that there was an absence of applications from February to July and the Complainant stated that he had some part-time work available then.

Closing Submission:

In a closing submission on behalf of the Complainant Mr Landers stated that the Complainant was dismissed on 13/12/2023.  The starting point in relation to this dismissal in the Respondent’s disciplinary policy.  This policy should be compliant with the Code of Practice on Grievance and Disciplinary procedures, (S.I. 146 of 2000).  The policy outlines that the employee will be made aware of the allegations made against them.  All members of management are required to be aware and adhere to the provisions of the policy.

The evidence of the various witnesses was that Mr Murtagh said that he was not aware of the process and Ms McHale seems to believe that an employee must be at a level 5 or above to utilise the internal audit function to carry out an investigation. 

Mr Landers stated that by accepting that the first disciplinary process was not appealed this in no way insulates the Respondent.  The evidence was gathered in a clandestine manner and the Complainant felt blindsided.  In the process the HR process was dysfunctional – HR became the case presenter. This case has a fundamental lack of fairness and fair procedures.  The Complainant was not told what the specific allegations are and how these breached the code of practice and conflict of interest policy.  The Respondents disciplinary policy is a binding obligation on the Respondent to carry out any disciplinary action in line with its provisions.  There was no investigation and no terms of reference were provided.  This occurred on both occasions.  Both occasions also lacked specificity in relation to what the actual allegations were and what the breaches were.  In the second disciplinary hearing the investigation and disciplinary process are one and the same process.

The Respondent has acknowledged that certain information was not provided in advance to the Complainant.  These processes are supposed to be impersonal and provide a fair and transparent process.  The Complainant was prejudiced.  Mr Murtagh collected evidence and then made a decision about that evidence.

When you examine the totality of the process, including the Facebook post and newspaper articles, it was not made clear how these were obtained.  These were put to the Complainant in meetings.  The two disciplinary processes were linked up and the Complainant did not get an opportunity to review the information in advance and defend his position.  As the matter progressed the lie grew to larger proportions.

Mr Murtagh engaged  the internal audit function to obtain certain information and this is indefensible as it flies in the face of natural justice and is a clear breach of procedures.

The decision maker introduced new findings as is evidenced in the letter confirming the dismissal dated 13/12/2023.  The views held by the decision maker were not objective. 

The three allegations outlined in the letter of 16/12/2023 are that the Complainant provided false, misleading, and incorrect information in relation to his outside employment and that he provided false, misleading, and incorrect information at a disciplinary hearing and that he accessed the internal system to view his own account details.  The Complainant had 25 years employment with the Respondent and it should be the case that the longer the service an employee has the greater the care that must be taken in matters like dismissal.  This is critical in relation to the decision to dismiss the Complainant.  There is an inconsistency in that the Complainant had the ability to access his own account details and senior managers can direct internal audit to accounts without a formal process.  There was further inconsistencies when no regard was had to the Complainant’s 25-year record of employment.

Mr Landers outlined that the Complainant’s written submission makes several references to case law.  The case of Keoghan v Linlathen Limited (ADJ-00044239) noted that there were three tests that should be looked and two thirds of these relate to a fair investigation.  The fact is that no investigation took place in this case.

In relation to the proportionality the disciplinary decision maker failed to look at the specificity of the breaches.  It is not sufficient to say that a policy was breached.  It is not acceptable to hang a hook on one clause – the entire policy needs to be examined and gone through to ensure fair procedures.

Mr Landers submitted that there were no issues in relation to the Complainant’s work performance.  The bank is relying on an external matter which caused them no reputational damage.  There remains a lack of clarity in relation to what the Complainant done wrong.  

Comprehensive submissions were received from the Respondent and the Complainant in relation to this case.

This is a complaint pursuant to the Unfair Dismissals Act.  The Complainant commenced employment on 01/06/1999 and ended on 13/12/2023 

The fact of dismissal is not in dispute. The legal onus is on the Respondent to show that the dismissal was not unfair.  In this case, the dismissal arose from as a result of the Complainant’s gross misconduct.  At the time of his dismissal the Complainant was paid a salary of €63,000.  His complaint was received by the WRC on 06/06/2024

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 requires 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.  As part of exercising the 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 wrongdoing.  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.”

As outlined above it is also the function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done. 

Factual Matrix:

§  23 June 2023:  The Respondent became aware that the Complainant may have secondary employment.  Complainant denied this was the case.

§  2 August 2023:  Disciplinary action – Final written warning issued to Complainant.  Complainant did not appeal.

§  19 October 2023:  Complainant’s manager became aware of an article in relation to a WRC case involving the Complainant.  The Complainant stated the article was incorrect and that his response to the Respondent in June 2023 were accurate.

§  25 October 2023:  Formal meeting with the Complainant in relation to WRC article.  Complainant confirmed that he was not present at WRC hearing.  Eventually the Complainant confirmed that he had misled the Respondent.  At this meeting the Complainant mentioned that he had accessed his account information.

§  16 November 2023:  Complainant advised that the accessing account issue would also be the subject of the disciplinary process.

§  20  November 2023: Disciplinary hearing held.

§  13 December 2023:  Complainant advised of outcome.  Dismissal by reason of gross misconduct.

§  19 December 2023:  Complainant lodged an appeal.

§  23 April 2024: Appeal hearing.

§  19 May 2024:  Appeal outcome delivered.  Appeal not upheld.

§  6 June 2024:  Complaint submitted to WRC.

It was submitted on behalf of the Complainant that there were a number of deficiencies which constitute unfair procedures.  The deficiencies which were identified include the failure to provide the Complainant with information in advance of meetings, meetings expressed as informal and not provided with any information in relation to the purpose of the meeting,  denied the right to representation, the failure to particularise the alleged breaches and carrying out an investigation without informing the Complainant.  The Respondent is required to conduct themselves reasonably and ensure that fair procedures are applied.  

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.”

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.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.

The decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives clear guidance on the precise employee rights when an employee is faced with allegations of gross misconduct.  Mr McKelvey had been accused of fraudulently using a fuel card.  Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:

(i)               “His right to know the nature of the complaint/allegation against him.

(ii)              His right to know the procedure to be followed in the course of the investigation.

(iii)            His right to know the potential implications of the complaint/allegation should it be established, i.e., the sanction/sanctions that might be imposed.

(iv)            His right to be heard in relation to the complaint/allegation and to make representations in relation thereto.

(v)              His right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses.

(vi)            His right to call witnesses in support of his stated position.”

The Complainant in this case was entitled to the same rights.  The Complainant was aware from 23/06/2023 that the Respondent had a concern about the likelihood of him having secondary employment.  The precise nature of this was not clear to the Respondent and the Complainant provided no clarity when he denied having secondary employment.   The Respondent had a further concern when the outcome of a WRC hearing involving the Complainant was published in the public domain.   The Complainant denied that he was involved in secondary employment and classified the article as inaccurate. The Complainant, when confronted with the facts,  eventually admitted that he had been concealing the truth from the Respondent.  The Respondent, having become aware of the Complainant’s secondary employment could not ignore the matter and the Respondent was entitled to a full and proper explanation from the Complainant.  The Respondent did not receive any such explanation from the Complainant despite his obligations to do so.   At a meeting the Complainant also, and perhaps inadvertently, mentioned that he had accessed his personal bank account background information.  The Respondent became concerned about this serious breach of its policy and included this as part of the disciplinary process.

At all stages the Complainant was provided with written notes of all meetings and was given an opportunity to provide any amendments. 

A disciplinary hearing, conducted by Ms Mary McHale on 20/11/2023 resulted in the Complainant’s dismissal for reasons of gross misconduct.

In the letter confirming the Complainant’s dismissal Ms McHale outlined and explained her reasoning which led to this decision. While further details in relation to the specific breaches of the Respondent’s policies should have been outlined I do not consider that this created any uncertainty in relation to the reasons for the Complainant’s dismissal. However, the evidence is clear that the Complainant was no stranger to the Respondent’s Conflicts of Interest Policy and Code Of Conduct as there was a requirement to review, update and become familiar with these as part of the Respondent’s annual performance review process.  The Complainant also confirmed that he was familiar with the Respondent’s Disciplinary Policy. The Complainant appealed the decision to dismiss him, and this was heard 23/04/2024.  The outcome, which was delivered on 19/05/2024, was that the appeal was not upheld.

The Complainant confirmed at the disciplinary hearing that he understood what the process was about.  The note of that meeting includes the following:

“MMH asked AE (the Complainant) if he understood why he’s here today.  AE said yes, and that he had made a lot of stupid decisions, that he wasn’t trying to be untruthful and that he wanted to keep his head down working to ensure a better future for his wife and children and that he wasn’t doing anything untoward.  AE said that he knows that the truth has caught up with him and that it wasn’t a nice place to be.  He said he feels that he has let a lot of people down as well as the Bank.  AE apologised for what he has done and said it was for the betterment of his wife and children.”

At the same meeting the Complainant confirmed that he understood what his obligations were under the Code of Conduct policy.

In considering if the Respondent acted in a fair manner and if the decision to dismiss the Complainant was proportionate to the alleged misconduct and fell within the range of reasonable responses there are three tests which can be applied as per Noritake (Ireland) Ltd v Kenna (UD/88/1983):

a) Did the Respondent in this case believe that the Complainant misconducted himself as was alleged. 

b) If the answer is in the affirmative then did the respondent have reasonable grounds to sustain that belief and

c) if so was the penalty of dismissal proportionate to the alleged misconduct of the Complainant.  

The Respondent believed that the Complainant misconducted himself by failing to tell the truth when presented with the details of his second employment were printed and circulated in the public domain.  The Respondent also believed that by accessing the internal system to view details of his own account and credit status despite the very clear policy in relation to this, that this also amounted to gross misconduct.  There is no ambiguity that the Respondent had more than reasonable grounds to sustain the belief that the Complainant had misconducted himself over a period of time.  Given the continued failure of the Complaint to provide an honest explanation to the Respondent I find that the sanction of dismissal was proportionate in the circumstances.

I find that the Complainant’s contribution to his dismissal was enormous. Despite the Respondent’s inquiries, he failed to provide any constructive input, which only exacerbated the issues and further strained the employment relationship. With 25 years of experience and direct involvement in the mortgage approval process, it is implausible that he believed the details of his other employment, as noted in his own mortgage applications, would automatically transfer to his employee record with the Respondent. Given his extensive tenure, it is remarkable that he continued to deny the facts regarding his other employment and his access to the internal system. Given his knowledge of the respondent’s disciplinary process the Complainant could not have been unaware that the continuation of such actions could lead to proceedings which, potentially, could have severe consequences for his employment.

Arising from the foregoing I find that the Respondent has dislodged the presumption that the dismissal was unfair.

Having found that the Complainant was not unfairly dismissed, I do not need to consider any remedy.

CA-00063470-001: Complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  I decide that this complaint is not well founded.

CA-00063470-002: Complaint seeking adjudication by the WRC under Section 39 of the Redundancy Payments Act, 1967.  This complaint was withdrawn at the hearing on 10/12/2024.

Unfair dismissal.  Gross misconduct.