11 Jun Reinstatement For Banker Unfairly Dismissed for Gross Misconduct
In a recent decision of the WRC, a bank has been ordered to re-instate a dismissed employee where it was found that the bank had insufficient grounds to uphold the allegations for which the complainant was summarily dismissed (ADJ-00001266).
The complainant commenced in the Bank in January 2003, before being dismissed in December 2015 for gross misconduct in respect of the fraudulent application of market interest rate to his parents’ deposit account. A spreadsheet was submitted in evidence by the Bank showing a sample of 55 transactions on the account between 2008 and 2015, with the difference between the interest rates applied by the complainant on his parents’ account and the market rate being €10,487.60.
The complainant submitted that his line manager knew of the familial relationship, and as such there was no breach of the Bank’s Conflicts of interest Policy. The complainant applied above-market interest on the account several times when it reached maturity or “rolled over”, as did a number of other employees, who were not investigated or interviewed as part of the investigation. It was also established that following the complainant’s promotion in 2011, he was no longer able to set interest rates and he did not have access to the IT system for the account after 2013. The Complainant strongly relied on the fact that for the period he was actively managing the account, there had been no cover-up in that he had flagged his name on entries on the account, and that every rollover of an account was recorded in a daily report sent to managers, so there was transparency at all times as to his dealings.
In carrying out its investigation, the Bank informally discussed the allegations with witnesses prior to meeting with the complainant, but failed to record the minutes of all meetings with witnesses. In addition some witnesses were not referenced in the investigation report which was relied on by the disciplinary decision-maker. The complainant had no opportunity to cross-examine relevant witnesses at the disciplinary hearing. When he failed to attend a second disciplinary hearing, the decision-maker proceeded in his absence and imposed a sanction of dismissal. The Bank’s evidence was that it considered the complainant’s actions to amount to gross misconduct on the basis of what it perceived as the employee dishonestly performing a concealed role in breach of it’s Policy on Conflicts of Interest.
The Adjudication Officer concluded that the Bank had not demonstrated that anyone was deceived or that the complainant had breached any policy or mandate. The Adjudication Officer also highlighted a number of procedural flaws in the Bank’s disciplinary process, including their informal undocumented discussions with witnesses and a failure to produce reports from the IT system which would have corroborated the complainant’s assertions that line managers were aware of a practice of above-market interest rates being applied to deposit accounts.
Whilst the Bank submitted that re-instatement as requested by the Complainant was not an appropriate remedy given the relationship of mutual trust and confidence had broken down, and would lead to a difficult future relationship, the Adjudication Officer stated that as there was no reasonable basis upon which to uphold the allegations against the complainant, re-instatement was a legitimate form of redress. The evidence was that the complainant was a successful and popular team player who had progressed well in his career at the bank. The Adjudication Officer further considered that because he performed a regulated function for the purpose of the Central Bank of Ireland’s ‘Fit and Proper’ regime, dismissal would have a negative if not terminal impact on his career prospects in the financially regulated sector.
This decision once again highlights the need for correctly applied and legally robust investigation and disciplinary procedures.