Case Number: ADJ-00000155-A. Workplace Relations Commission

• Judgment Date: 01 August 2016
• Year: 2016
• Docket Number: ADJ-00000155-A
• Court: Workplace Relations Commission
• Parties: An Accountant v A Financial Services Provider

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000155-A

Complaint(s)/Dispute(s) for Resolution:

An Accountant

versus

A Financial Services Provider

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- 2007	CA-00000221-001	13/10/2015

Date of Adjudication Hearing: 25th May 2016 and 13th June 2016

Workplace Relations Commission Adjudication Officer: Orlaith Mannion

Decision:

File reference: CA-00001088 / AdJ-00000155

Keywords: Unfair Dismissals Acts, Insubordination, Competence, Conduct, Substantial reasons

Dispute

1.1. Pursuant to the Unfair Dismissals Acts 1977-2007 and the Workplace Relations Act 2015 (as amended), following the referral to me by the Director General of this complaint of Unfair Dismissal contrary to Section 8 of the Unfair Dismissals Act 1977, I inquired into the complaint and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaint. I proceeded to hearing on 25^th May and 13^th June. Submissions and supporting documentation from both Parties were received before, during and after the hearing and all oral evidence, submissions and documentation have been taken into consideration.

Summary of the employer’s case

2.1 The respondent is a corporate services provider and manages structured finance transactions on behalf of its clients. The respondent has a number of offices across Europe. At the time of the complainant’s dismissal there were 17 employees in the Dublin office, with six of these comprising the Accounting team including the complainant.

2.2 The complainant commenced employment with the respondent on 6th August 2008. The respondent submits that during the course of 2013, 2014 and 2015 difficulties arose with the complainant. Informal coaching sessions were initially held with the complainant to support him. In line with company procedure he was sent his appraisal form on 26th November 2014. He was requested to insert his year-end comment for discussion prior to his annual appraisal meeting. He refused to provide his comments. His appraisal meeting was held on 4th December 2014 where the complainant was advised that the respondent would be commencing a Performance Improvement Process (PIP). The complainant was resistant to this.

2.3 On 12th January 2015 his line manager asked him client-specific questions and asked for an update on the completion of certain tasks. He refused to answer the questions and the respondent submits that he was uncooperative and aggressive during the discussion. The complainant refused to participate in a PIP meeting on 2nd March 2014. He ultimately walked out of this meeting. The respondent submits it felt obliged to instigate a disciplinary process in respect of allegations of repeated instances of insubordination by the complainant. The disciplinary meeting was conducted by a Director of the company and the minutes of this meeting as well as the meeting with his line manager and her manager were recorded by a Stenographer. A copy of these transcripts was given to the complainant. This process resulted in a final written warning being imposed on 27th April 2015. The complainant was given the right of appeal. During the appeal process the Managing Director (who heard the appeal) saw how difficult the complainant was. He invited him to engage in workplace mediation but the complainant refused. The MD saw the adverse effect the complainant’s conduct was having on the morale and operations of a small office. Therefore the Managing Director made the decision not merely uphold the final written warning but to actually dismiss the complainant due to a breakdown in the trust and confidence between the parties. The Managing Director gave direct evidence that he thought the employment relationship had irretrievably broken down. The complainant was paid in lieu of his notice and his last day of employment was 26th May 2015.

2.4 The respondent submits that the complainant’s dismissal was justified on the basis of the complaint’s conduct under Section 6(4)(b) of the Unfair Dismissal Acts 1977-2007 or in the alternative on the ground of section 6(6) of the Acts there were substantial grounds justifying the dismissal.

2.5 Regarding legal submissions, Laffoy J in Cronin v Eircom Ltd [2006] IEHC 380 held:

‘I do consider that as a matter of principle a contractual term of mutual trust and confidence was recognised by the House of Lords in the Malkik and Mahmood case should be implied into each contract of employment in this jurisdiction by operation of law’.

2.6 In A Worker v A Company [2004]15 ELR 258 the claimant made spurious complaints of sexual harassment and victimisation against two supervisors.The employer carried out an investigation and the allegations were not upheld. Disciplinary proceedings were commenced against the claimant (employee) for making spurious allegations and the complainant was ultimately dismissed on the basis that...