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Fair Dismissal for Breach of Trust and Confidence

Many of the decisions reported by the Employment Appeals Tribunal result in findings of unfair dismissal and we thought for a change we would post a decision which found in favour of the employer.In the case of Willie Callaghan v Enable Ireland Disability Services Limited UD 355/2012 the claimant was dismissed as a fundraiser with the respondent in April 2011. The claimant contended that the respondent’s procedures were flawed and findings of fact did not warrant the ultimate sanction of gross misconduct. The respondent contended the decision to dismiss was reasonable, fair and appropriate in the circumstances.BackgroundThe claimant commenced employment with the respondent on 16th September 2002 and performed the job to the best of his ability and raised funds in excess of €1.4m. The respondent placed the highest level of trust and confidence in the claimant who was often solely responsible for gathering in of funds raised, counting same and ultimately lodgement with the bank. Both parties accepted that funds could build up and be lodged together once or twice a week. Both parties also accepted that the use of secure safe facilities on premises was expected between bank runs. The Tribunal noted that neither party operated universal best practice and stated that there should always be at least two people counting monies and funds raised with amounts signed and co-signed with safe lodgment noting the date, time and the name of the person who lodged and who witnessed same.In December 2010 a robbery occurred at the premises. In the course of the investigation, initiated by the claimant, it became apparent that there was a significant amount of cash being kept in the claimant’s fling cabinet. In particular the cash involved concerned two categories:(1) the sum of €4150 raised from three different charities held in a cabinet drawer(2) the sum of €5280 held in the respondent’s petty cash box marked with a card distinguishing it as the claimant’s own money.Access to the cabinet was obtained by way of cabinet key secreted on the claimant’s desk. The Tribunal accepted the respondent’s concern that nearly €9,500 was unaccounted for in the claimant’s filing cabinet and stated:(1) Money was never considered to be safe in a filing cabinet where the key to same was likely to be hidden within a few feet of the cabinet.(2) How did money come to be held in a filing cabinet and no person had knowledge of this aside from the claimant?The Tribunal acknowledged that the respondent was obliged to conduct an investigation to determine if disciplinary action was needed. The Tribunal also noted that the company’s procedures were carefully documented and given to the claimant before the investigation commenced along with terms of reference which had been drawn up. The purpose of the investigation was to establish how funds were bring handled and administered by the claimant and whether errors in the management and accounting of funds had been made. A thorough investigation had been conducted however the claimant felt more effort should have been expended examining systemic failures within the organisation which resulted in the claimant being solely responsible for large sums of money. The claimant consistently stated that he had made an error in allowing the funds to build up in the bottom of the drawer and accepted he had deviated from usual practices. The Tribunal noted that the claimant’s biggest mistake was not placing money in a secure safe a few feet away. The claimant did not explain why funds were allowed to remain in the filing cabinet when other funds were placed in the organisation’s bank account during this time. The Tribunal heard evidence that the claimant had an opportunity on three occasions to lodge monies and also convert €3,000 worth of coins into bank notes.The claimant also accepted that keeping his own money in the respondent’s petty cash box could be seen to be concerning.The claimand was suspended with pay pending the outcome of the disciplinary process. At the disciplinary hearing in April 2011, the claimant was given the opportunity to give a response to the investigation report. The claimant was subsequently informed that the sanction of dismissal applied as the respondent could not have trust and confidence in the claimant by reason of safeguarding of funds, collection and handling and accounting for funds generally. The claimant’s appeal was ultimately unsuccessful.DecisionThe Tribunal firmly accepted that claimant, as an experienced person in a senior position, knew or ought to have known that the thrust of the investigation was serious. The investigation team concluded that there were serious issues of trust and confidence. On balance the Tribunal accepted the finding of dismissal in light of all circumstances, facts and explanations offered.The Tribunal concluded that the claimant was a pre-eminent fundraiser for the respondent in a particular area and there was a high expectation on him to act in a transparent and fair manner. The claimant failed to act in a manner expected of him and left himself exposed. The respondent had every entitlement to lose confidence and trust in the claimant and given his position did not act unreasonably in dismissing him.

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