01 Jul Disciplinary & Investigation Procedures Part 2

In the case of Ms Nic Aodha ( the Complainant) and AFS Wealth Management ( the Respondent) (Ref ADJ-00053216), it was determined that the Complainant was never given the chance to address claims that she had made inappropriate remarks at work, as well as demanding a loyalty payment of €25,000, which then appeared to have been relied on to dismiss her after a six month period of suspension.

The Complainant had worked with the Company from 01.10.2018 until her dismissal on 17.07.2024, and had been in discussions with management about promotion to a new role, after the Company was bought out in February 2022, but which ultimately had not resulted in agreement on a move to the Head of Compliance role.

The Complainant had arranged a meeting with HR on 21.01.2024 about filing a grievance concerning alleged bullying by the Office Manager, who was also the wife of the CEO, but on the day that the meeting was due to take place, she instead received an email at 8:59 am, which suspended her and locked her out of the Company’s systems a few minutes later.

The CEO gave evidence that an employee had reported that the Complainant was saying that the Company was going to go bust and that she had also made inappropriate remarks about a medical issue the employee had, which he believed was an instantly sackable offence.

The CEO’s wife then lodged a formal complaint against the Complainant, which alleged hostile and mimicking behaviour, as well as citing a demand from the Complainant for a loyalty payment of €25,000 by the end of the week.

The Respondent outlined that in consultation with their HR Advisors, it was agreed that an independent HR Company would be undertaking an investigation. However, there was no evidence to support that this ever happened.

Following multiple attempts by the Complainant to engage with the Respondent and after six months on supension with no progress or updates, she sent an email on 17.07.2024 at 12:24 pm which stated:

“Next week will mark a full 6 months since Victor France suspended me from employment on an allegation of bullying.  Disciplinary proceedings – suspension followed.

I have made countless attempts to engage with Victor France during this time, for an update on the investigation.  To date, it is my understanding that the investigation is yet to commence.

I have spoken with Ms M from (the HR Company) today and two weeks ago.  Ms M is awaiting instruction.

Over the last few months, when I have called Victor France, he has been rude and abrupt and hung up the call usually within a short few seconds of the call commencing.

I called Victor today and he has said “I’m not in the mood for this” and hung up the call.  He advised (HR Company) are dealing with it and hung up.

Ms M – as I understand you are the person in (HR Company) dealing with this matter (or pending instruction on the matter) can you please provide a formal update.

Towards the end of June, Victor France emailed me 2 emails “without prejudice”!!!  I have sought to engage following these emails, however no communication seems possible, as I have not had replies to mails and call last less than 30 seconds as he hangs up on the call without giving notice the call is ending.

All above action cannot be considered even remotely professional conduct of a CEO.  I would like notice for the record, WITH PREJUDICE.

I look forward to formally hearing from you by close of business on Friday 19th July, as almost 6 months have now passed (I believe more than sufficient time to have disciplinary investigations concluded).

Regards“

The CEO replied less than 30 minutes later as follows:

“We have completed our internal review of your conduct while in your role prior to the reasons why you were suspended.  The decision is that you have committed gross misconduct and as such you will be dismissed immediately”.

It is also noted from the evidence provided that preceeding the emails exchanged on the 17.07.2024, that twice the Complainant was contacted about returrning to work, on 04/04/2024 and again 20.06.2024, and statements that the HR Company would be in touch to follow up on the investigation did not result in any follow up, nor was any clarification given on the status of any allegations.

It is therefore not surprising that the Adjudicator found that no reasonble employer would have dismissed the Complainant in the circumstances, with no evidence to support that any investigation or disciplinary process had taken place, or that the Complainant was aware that dismissal was a possibility at any stage or indeed that she had any involvement in the “process” thad led to her dismissal.

The Adjudicator on review of the Respondent’s Disciplinary Policy (which was only provided to the Complainant after her dismissal) also stated that it was impossible to reconcile their position that a fair dismissal had taken place, with what had actually happened, with a clear and complete disregard for their own policy evident , which on paper adhered to the necessary elements of fair process and natural justice, but in practice was not followed:

·       “In all cases of discipline, the employee will have the right to a fair hearing.

·       The matter(s) will be fully and fairly investigated; you will be informed of the reason for the discipline and have full right to reply.

·       The Company will always strive to be balanced, not to pre-judge and to apply discipline in a consistent and honest manner.

·       In cases of serious misconduct, management will carry out a full investigation.  You may be suspended with pay pending a full investigation.

·       At all times throughout the disciplinary procedure you will have the right to express your views and to have a work colleague of your choice present if you so wish.  The presence of your witness (outlined above) may aid you in airing your views, ensuring you get a fair hearing.

·       The investigation process is a three-step process and will be carried out by three separate people and it will be in accordance with the principles of Natural Justice”.

This case provides an excellent example of how NOT to handle issues of serious misconduct in the workplace, with €45,000 compensation awarded for the unfair dismissal and €3,450 for four weeks notice.

To finish off, a quick reminder on what the essential elements are to ensure fair process in a disciplinary situation and avoid the serious procedural flaws that were blatantly applied in this case and as quoted by the Adjudicator from the decision of the Court of Appeal in Iarnród Éireann v McKelvey [2018] IECA 346 

(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.”

If you would like more information on HR Solutions’s independent investigation and disciplinary hearing services, and how to avoid potentially costly compensation being awarded, please email carmel@hrsolutions.ie or Telephone (071) 9642748.