WRC finds Serious Breach of Fitness and Probity Standards No Grounds for Fair Dismissal
Intro for news and insights – WRC finds in favour of a Bank Official's claim that he was unfairly dismissed despite concluding that his actions constituted serious misconduct and breached the Bank's policies relating to Cash Handling and Cashing, Fraud Prevention and its Code of Ethics.

 

In the recent Workplace Relations Commission ("WRC") case of Bank Official v Bank ADJ-00014020, a WRC Adjudication Officer (the "AO") found that a Bank Official was unfairly dismissed despite concluding that the Bank Official's actions constituted serious misconduct and breached the Bank's policies relating to Cash Handling and Cashing, Fraud Prevention and its Code of Ethics. 

Background 

A claim for unfair dismissal was brought by a Senior Customer Advisor employed by a Bank from 1 July 2007 to 21 February 2018. At the time of his dismissal the Claimant was employed in a 'Control Function' role under the Central Bank Fitness and Probity requirements and therefore had to abide by the Fitness and Probity standards set out by the Central Bank of Ireland ("CBI").

In September 2016, the Claimant disclosed to his manager that he "may have advised a customer to sign her former husband's name on the back of a bank draft, made payable to the customer and her former husband to facilitate the lodging of the bank draft into the customer's account". The disclosure resulted in a disciplinary investigation as the Bank's policies required that a draft payable to two persons must either be lodged into a joint account or, if lodged to a sole account, the other party must endorse their name on the back of the draft. The Claimant admitted that he was fully aware of the company policy on Cheque Handling and Cashing at the time he advised the customer, but he was unaware that the other person was in fact the customer's former husband. A disciplinary hearing held in November 2017 found that the Claimant had breached the Bank's policies and his actions amounted to instructing a customer to commit fraud. The actions were deemed to be gross misconduct and a sanction of immediate dismissal was imposed. 

In the WRC, the Bank argued that the decision to dismiss the Claimant was reasonable and not unfair. The Bank stated the Claimant breached numerous Bank policies and that it operates a zero-tolerance approach to deliberate conduct of this nature. The Bank further stated that the entire banking sector is moving to rebuild trust in the industry and such deliberate actions and conduct cannot be tolerated. In response to the Bank's argument relating to rebuilding trust in the industry, the Claimant contended that the Bank allowed him to continue to work for two months after the allegation came to light. The Claimant argued that the sanction imposed was too severe and disproportionate as he otherwise had a clean and unblemished record. The Claimant further stated that he acknowledged his actions were a serious breach of the Bank's policies, he admitted his error in judgement and had apologised for his mistake. 

Decision of the WRC 

While finding that the Claimant's actions compromised the Bank's reputation and constituted "serious misconduct" warranting "serious disciplinary action", the AO ultimately decided that the dismissal was unfair. The AO found that the actions "did not constitute gross misconduct". The AO decided that the dismissal was substantively unfair, but the Claimant contributed substantially to his dismissal. The AO's finding was partly based on the fact that the Claimant was allowed to continue working in a position of trust for a period of two months after the incident came to light rather than suspending him with pay pending the investigation. The AO stated that the quantum of the award must reflect the substantial contribution the Claimant contributed to his dismissal and awarded €10,000 in compensation. 

Lesson for Employers 

The finding of the AO is somewhat surprising given the admitted wrongdoing by the Claimant and the serious consequences of his actions. The distinction between "serious" and "gross" misconduct in the decision is rather unclear, as is the weighting given to the decision not to suspend the employee when case law clearly states that suspension should be the exception rather than the norm. Furthermore, the decision has been made at a time where the CBI is calling for more individual accountability from senior executives in the banking sector. The AO found that the Claimant's conduct fell short of "gross misconduct". It remains to be seen if it will be appealed but it is a reminder of the extremely high bar that the WRC gives to summary dismissals without notice.

 

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