Case Number: ADJ-00001266. Workplace Relations Commission
|01 March 2018
|Workplace Relations Commission
|A Banker V A Bank
Adjudication Reference: ADJ-00001266Parties:
Tom Mallon, BL instructed by Daniel Spring & Co Solicitors
Claire Bruton, BL, instructed by Mason Hayes & Curran Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Workplace Relations Commission Adjudication Officer: Kevin BanehamProcedure:
On the 23rd December 2015, the complainant submitted a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on various dates and, for various reasons, was not able to proceed on several scheduled days. The complaint proceeded to adjudication on the 11th January, the 22nd and 23rd March, the 21st and 27th July 2017, following which the parties made post-hearing written submissions. The respondent made submissions on the 3rd August 2017 and the complainant made submissions on the 2nd and 30th August 2017.
Three witnesses gave evidence on the complainant’s side. Apart from the complainant, the Former Manager and the Branch Manager gave evidence. The report extensively refers to the complainant’s sibling, who was also employed by the respondent. Two witnesses gave evidence for the respondent. They are referred to in the report as the investigator and the disciplinary manager. Other employees of the respondent play a prominent role in the evidence. They are referred to in this report as the Sponsor, the Sponsor executive, the Head of Service & Execution, the Operations Manager, the Colleague (DH), the Trader (DT) and the former trader (MR). I have included initials where it may not be immediately obvious to the parties who I am referring to.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.Background:
The complainant, a banker, worked for the respondent between the 2nd January 2003 and the 17th December 2015. His gross monthly remuneration was €5,833. The respondent dismissed the complainant on grounds of gross misconduct, namely dishonesty and theft as well as the serious and persistent neglect of respondent instructions. The complainant claims unfair dismissal and seeks re-instatement. The respondent denies the claim.
In opening submissions, the respondent outlined that the investigation had been a fact finding process, which was outside of the disciplinary process. While the minutes of the fact find meeting had been amended, they had not been signed off. The complainant was suspended in May 2015 and remained on suspension until the end of his employment. The first disciplinary meeting occurred on the 3rd November 2015, at which the complainant was permitted legal representation. There followed correspondence and the minutes of this meeting were not agreed. The complainant did not attend the second disciplinary meeting and it proceeded in his absence. The respondent issued the letter of dismissal of the 17th December 2015.
The respondent submitted that the adjudication was the first time the complainant had raised the significance of the monthly sign-off of accounts. He had been afforded the opportunity to provide documentation to the disciplinary process. The note of the 5th November 2015 gives the input of the Sponsor and the Colleague into the investigation. The complainant could have invited witnesses to the disciplinary hearing. The complainant’s submission ignores the significant effort that went into the investigation. This process had been fact finding and was not final; it did not, therefore, attract the same level of rights and fair procedures.
The evidence of the investigator
The investigator gave evidence. He had investigated potential staff misconduct since 2006. He was a specialist resource and an independent party. He had carried out a couple of hundred investigations. He was approached by the Sponsor, the complainant’s line manager and the head of the Capital Markets Division. He said that in an email of the 5th March 2015, he was sent details of the higher interest rate being applied to the deposit account. He was also sent details of the relationships involved in this case. He made numerous phone calls to the office to find out how it operated, in particular regarding process. He interviewed witnesses on an informal basis. He took a note of whatever was said if it was something he could rely on, for example to quote back or if it was absolutely material. He met the complainant on the 18th May 2015. He took the complainant’s account and so did not put to him his conversations with the Sponsor or others. The investigator stated that the complainant worked in the dealing room and in the day-to-day operations at the time of the transactions. He acted on the instructions of the relationship manager. The rate of interest on a deposit was determined by how long it was to be held by the bank, i.e. the maturity date. At the maturity date, the relationship manager needed fresh instructions from the client.
The investigator outlined that he had gone through the terms of reference and wanted to ensure that there were no surprises in the investigation. This was not part of the disciplinary process and was evidence-based. It sought to establish facts. He carried out the investigation in accordance with the section of the disciplinary process that provides for investigations. While this is contained in the disciplinary policy, it is separate. The investigator referred to the letter of invitation of the 11th May 2015 to the fact find meeting and the minutes of the meeting. The notetaker took handwritten notes during the meeting. Later, he and the notetaker agreed the minutes between themselves. They were forwarded to the complainant, who was asked to come back with changes. While the complainant’s amendments were incorporated into the notes, they could not be agreed.
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