Gross misconduct case
Serious breach of Central Bank Standards not Gross Misconduct
The Workplace Relations Commission (WRC) in the case of ADJ-00014020, A Bank Official v A Bank the Adjudication Officer found that the dismissal was both substantively and procedurally unfair. This was in spite of a finding that the bank official’s actions breached the Bank’s policies in relation to cash handling and cashing, Fraud prevention, and its Code of Ethics, that it constituted serious misconduct warranting serious disciplinary action.
The complainant was a Senior Customer Advisor who had been employed by a Bank for ten years and six months approximately.
The Bank’s Case
At the time of dismissal the complainant was in a “Control Function” as defined by the Central Bank Fitness & Probity requirements. These standards require employees to be competent and capable; honest, ethical and to act with integrity; financially sound. There is an onus on the Bank as a regulated financial service provider to investigate any concerns over the fitness and probity of a person performing a Control Function role which may arise.
On 27th September 2017 the complainant advised 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 customer confirmed that the employee had advised her to do so. This was in clear breach of the Bank’s Cheque handling and cashing policy.
The matter went to a disciplinary investigation on 3rd October 2017.The complainant confirmed was fully aware of the policy and his duties under it. He admitted that he had instructed the customer to sign her husband’s name on the back of the draft. He was not aware that the other party was her former husband. The Bank adhered strictly to its disciplinary procedure. The disciplinary hearing took place on 7th November 2017. It decided that he had breached the Bank’s policies of Cheque Handling and Cashing Policy, Fraud Prevention Policy, Code of Ethics. His action amounted to advising a customer to commit a fraudulent act of forging a signature and as such it was deemed gross misconduct and a sanction of dismissal with immediate effect being applied. This decision was appealed on 2nd February 2018.The decision to dismiss was upheld and communicated to the Complainant on 20th February 2018.
The Bank argued that the decision to dismiss was reasonable and not unfair.
The Complainant’s Case
He argued that he had a clean and unblemished record for 10 years and 6 months. He admitted that his actions were a serious breach of the Bank’s policies. He realised his error and admitted his guilt.
He did not gain personally. He has never advised a customer in this way before. He was allowed to remain in his role for two months following this event. There were no repeat occurrences or any further breaches of policies or codes.
The Bank’s argument was that there had been a breach of trust, yet they allowed him to continue in his position for two months after they became aware of the allegations.
His attempts to mitigate his loss have been unsuccessful. He has applied for a number of jobs. It has been very difficult explaining why he left the Bank.
Among the many findings of the Adjudication Officer the following were the main ones:
His actions compromised the Bank’s reputation.
His actions constitute serious misconduct warranting serious disciplinary action, but his actions did not constitute gross misconduct.
The Respondent carried out the investigation and disciplinary investigation in accordance with the company’s procedures.
He was allowed to continue working in the same section, in a position of trust for a period of two months after the incident came to light.
The Respondent did not suspend him with pay pending the investigation and disciplinary investigation.
The Respondent considered alternatives to dismissal but did not choose any of them.
The punishment did not fit the crime.
If the Respondent could trust him for two months after this incident came to light then they could have extended this and apply any number of lesser sanctions, as suggested by the Complainant.
He made reasonable attempts to find alternative work but has been hampered by the dismissal.
The dismissal was rendered procedurally unfair.
The Adjudication Officer decided (a) that the dismissal was both substantively and procedurally unfair and (b) that the Complainant has contributed substantially to his dismissal and this must be reflected in the quantum of the award.
An award of €10,000 was made.
Take away for employers
When deciding to suspend or not, employers must consider the effects of that decision, particularly in relation to the breach of trust issue. There is a fine line between serious misconduct and gross misconduct and employers should consider taking outside advice from an experienced employment law professional before making what could be a potentially damaging decision. In short summary dismissal without notice is a very difficult mountain to climb . Be careful. Take advice.
See also Gross Misconduct
Where can I get help ?
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