Case Number: ADJ-00020660. Workplace Relations Commission

• Docket Number: ADJ-00020660
• Date: 29 May 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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:

This case concerns a claim for Unfair Dismissal on grounds of gross misconduct on 29 November 2018. The claim was rebutted by the Respondent. The hearing took place across four days and both parties were legally represented: the complainant by Nikki O Sullivan, BL instructed by, Frank Buttimers Office and the respondent by Rachel O Flynn BL instructed by Lillian O Sullivan Solicitors. The Respondent presented 5 witnesses and the complainant was the sole witness in her case. Both parties made extensive oral and written submissions and relied on case law. The complainant expressed a preference for all 3 remedies as redress.

Summary of Respondent’s Case:

Counsel for the Respondent provided an outline of the case. The complainant had commenced work as an Organisation and Development Training lead on a full-time basis on 28 October 2014. She had left for a period of 4 months but resumed in July 2016. The Respondent denied that the complainant had been unfairly dismissed and submitted that she had been dismissed in accordance with section 6(4)(b) of the Act on conduct. The Respondent operates a practice where the company pays 2/3 salary during protective leave and the recipient sanctions a redirection of her maternity benefit to the company by completion of a form. This form is populated by administrative details of the leave dates and bank account details. Employee A had a recorded Maternity Leave from August 2017 to April 2018. On 13 February 2018, the complainant approached Ms HRM, Head of People Operations and expressed concern regarding maternity benefit payments for Employee A. The complainant told Ms A that she had made an error and had mistakenly entered her personal banking details onto the employee’s form. She had received these DSP (Department of Social Protection) payments. The Complainant reimbursed the money. The Respondent suspended the complainant on full pay pending an investigation “into the irregularity in the manner whereby payment of another employees maternity benefit was paid to her bank account “ An Investigation took place on 23 February,9 March 2019. A draft Investigative report issued on 26 April 2019. The complainant made replying submissions and following a period where the complainant was unwell, the respondent allowed time for her recovery and issued the Final Investigation Report to the complainant on 31 July 2019. The Company determined that further action was needed. The Respondent commenced the Disciplinary procedure and two senior Managers, Mr Z and Mr Z two were appointed to meet with the complainant on 14 august 2019. She attended alone. Having considered the conclusions of the Investigative report, and hearing from the complainant, the respondent terminated the complainant’s employment on grounds of gross misconduct without notice on 16 August 2018. The complainant forwarded her grounds of appeal on 20 August 2019 and the Appeal hearing by Ms AB and Mr AB was scheduled for September 3, 2019. The complainant attended alone. The Respondent wrote to the complainant by letter of 29 November and did not uphold her appeal. They indicated that they took the view that the decision to terminate the complainant’s employment for gross misconduct was both warranted and appropriate as the company could no longer have trust and confidence in her. They did not accuse the complainant of fraud or theft. The Respondent came to hear to defend this decision. They relied on Section 6(4) (b) on conduct and added that natural justice and fair procedures had prevailed from the first expression of concern at the company. The complainant was offered representation and had a partial presence of representation during the investigation alone. The respondent accommodated the complainant in recovering from illness during the process. The respondent had engaged in a very thorough consideration of the facts raised and stood over the decision taken to dismiss the complainant and were opposed to all her expressed remedies. Evidence of Ms HRM, Head of Human Resources Ms HRM had been in her role for 14 years in this fast-growing company bilocated between Ireland and the United States. Her Team consisted of: The Complainant, most senior and experienced Ms M, a junior colleague The office was open plan and both the complainant and Ms M sat at accompanying desks. Ms HRM outlined the Company Maternity Leave arrangements. The company paid the employee 66% of salary after two years’ service. The value of the maternity benefit was then aligned to the company bank account. 1. Employee fills out the details of leave on a company form. 2. The company fills in the bank details, signs and stamps the form. The completed form is scanned and ultimately placed in a folder. On the cusp of her return from a business trip to the states, Ms HRM had been contacted by Ms M to raise an awareness of some irregularity in relation to the receipt of maternity benefit. On her return to work the next day on 13 February 2018, Ms HRM was informed by Finance that an anticipated €3,760 in maternity benefit for employee A had “gone somewhere else “Finance was dissatisfied. The issue became a top priority for Ms HRM as she contended that it was her responsibility to understand. Later that morning. she had a scheduled catch up with the complainant, as she had concerns regarding her recent presentation at work. Just before the meeting was due to start, she observed slightly raised voices between the complainant and Ms M. The Complainant presented as animated holding an old colourful notebook and told her that she had made a terrible mistake. Employee as Maternity Benefit Payment had entered her personal bank account. She had just realised this as she opened her notebook in conversation with a colleague. Ms HRM was crystal clear in her recall that the complainant told her that she had filled in this form. Ms HRM thought it odd that she then linked this occurrence to an unresolved issue of an outstanding referral fee. she had been disappointed not to receive this payment in October 2017. She explained that the personal bank account was a saver for her sons’ education. Ms HRM told her that she had not judged her and advised her to go home and check her bank balance. The complainant became very animated and her voice became louder. The complainant left the office and raised her voice saying “I’m suspended pending investigation “ Later that day, the complainant returned to the business and handed a bank draft for €3760 to the Chief Financial Officer. She did not address Ms HRM on the matter. Ms HRM made the CEO aware and an investigation was planned. The Complainant was suspended by Ms HRM on full pay the next day by phone. The Complainant was assigned a Coach to assist her welfare. Ms HRM met with the Investigators Mr X and Mr Y and a formal investigation followed from which Ms HRM stood back. Ms HRM submitted that prior to her trip to the US Ms M had raised issues regarding the complainant. She had highlighted concerns that she was not coping at work. Ms HRM had formulated a plan to address this. The circumstances of the maternity benefit form played on her mind and she recalled that she had been in the building when employee A had filled in the form and recalled that she had been sitting next to the complainant. She recalled thinking that it would have been more appropriate to have hosted this in a room. Ms HRM recounted that she was the single point of contact for the Investigation and the construct for the correspondence. The investigation was paused in March as the complainant was unwell. Ms HRM presented as a witness to the investigation but had no role in any decision. The complainant was permitted representation and brought a colleague to the first meeting. During cross examination, Ms HRM confirmed that the complainant had brought the money to the attention of the company at their meeting of 13 February. This followed Ms Ms stated concern that she was being blamed. The Respondent issued notebooks to the HR staff The form had not been retained. Only 2 pages had been salvaged from DSP by Employee A. Ms HRM...