Frizelle v New Ross Credit Union Ltd

 
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[1997] IEHC 137

THE HIGH COURT

(ON CIRCUIT)

SOUTHERN EASTERN CIRCUIT

COUNTY WEXFORD

FRIZELLE v. NEW ROSS CREDIT UNION LTD.
UNFAIR DISMISSALS ACT,1977, SECTION 10(4)

BETWEEN

SAMUEL J. FRIZELLE
PLAINTIFF

AND

NEW ROSS CREDIT UNION LIMITED
DEFENDANT

Citations:

UNFAIR DISMISSALS ACT 1977

Synopsis:

Employment

Unfair dismissal; alleged misconduct; grounds for dismissal; manager of credit union; mortgage re-payments on own house; whether engaged in dishonest transactions; whether substantial ground to justify dismissal; appropriate remedy; Unfair Dismissals Act, 1977 Held: No substantial ground to justify dismissal; compensation awarded High Court: Flood J. 30/07/1997

Frizelle v. New Ross Credit Ltd.

Mr. Justice Feargus M. Flood
1

Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

2

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

3

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

4

3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

5

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

6

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

7

Put very simply, principles of natural justice must be unequivocally applied.

8

This is a claim for relief for unfair dismissal by the Plaintiff against the Defendant in which the said principles are germain.

9

In 1974 the Plaintiff was employed as a Manager of the Defendant Credit Union.

10

The Defendant Credit Union were, a participant in a block fidelity and indemnity bond which had been negotiated by the Irish League of Credit Unions with an American Insurance Company called"Cumis". The Plaintiff as such Manager was bonded under the said policy.

11

The Plaintiff has held the said post since 1974 and was, inter alia, a loans officer appointed by the Defendant. As such loans officer he worked under the supervision of the Credit Committee and had delegated to him the power to approve loans that are fully secured by shares or other adequate collateral or loans which qualify as emergency loans within the definition and limitation as to amounts and terms of repayment and security required by such loans. As such loans officer he could approve or refuse, secured loans up to the sum of £3,000 and, unsecured to the sum of £1,000. He was obliged to furnish the Credit Committee with a record of each such loan approved or not approved by him within seven days of the application therefore. The said Credit Committee was obliged to report in writing to the Board of Directors at least once in every month in relation to the functions delegated to it by the Board of Directors.

12

The Plaintiff remained in the Defendant's employment until his employment was terminated on August 20th, 1993, in manner hereinafter appearing.

13

The Plaintiff had obtained a mortgage from the Defendants to purchase his dwelling house in or about 1988. The said loan was duly secured. In 1992 the Plaintiff decided to change his house and bought another one. Again appropriate mortgage facilities were arranged with the Defendants. Unfortunately the sale of his original house failed as the purchaser withdrew from the contract. The necessity for bridging finance therefore arose and it was agreed by the Defendants on November 2nd, 1992 that such facility would be afforded to him. Repayment to be paid by weekly instalments of both capital and interest in the sum of £269 per week. It should be noted that this was in fact the first occasion on which the Defendants had granted such a facility, though arrangements for the granting of such facilities had been put in train.

14

In January, 1993 the Plaintiffs first house having remained unsold, he found he could not keep up the said weekly payments. On January 7th, 1993 the Plaintiff "re-phased" repayments of his account on the computer down to £165 per week. This prevented his account appearing "delinquent" on the computer. This action he took, without informing anyone on either the Credit Committee or the Chairman or any members of the Board. The said sum of £165 paid all interest accruing due and reduced the principal sum by £70 per week. While the Plaintiff undoubtedly had certain discretionary authority in relation to the issue of secured and unsecured loans and in practice in relation to limited defaults this action by him was a non-authorised action. It did not of course in any way affect or reduce his financial liability to the Defendants. It had the effect of reducing the capital repayments which would be made before the loan was redeemed on the...

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