High Court of Ireland Decisions

1. Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

2. Put very simply, principles of natural justice must be unequivocally applied.

3. This is a claim for relief for unfair dismissal by the Plaintiff against the Defendant in which the said principles are germain.

4. In 1974 the Plaintiff was employed as a Manager of the Defendant Credit Union.

5. The Defendant Credit Union were a participant in a block fidelity and indemnity bond which had been negotiated by the Irish League of Credit Unions with an American Insurance Company called "Cumis". The Plaintiff as such Manager was bonded under the said policy.

6. The Plaintiff has held the said post since 1974 and was, inter alia, a loans officer appointed by the Defendant. As such loans officer he worked under the supervision of the Credit Committee and had delegated to him the power to approve loans that are fully secured by shares or other adequate collateral or loans which qualify as emergency loans within the definition and limitation as to amounts and terms of repayment and security required by such loans. As such loans officer he could approve or refuse, secured loans up to the sum of £3,000 and, unsecured to the sum of £1,000. He was obliged to furnish the Credit Committee with a record of each such loan approved or not approved by him within seven days of the application therefore. The said Credit Committee was obliged to report in writing to the Board of Directors at least once in every month in relation to the functions delegated to it by the Board of Directors.

7. The Plaintiff remained in the Defendant's employment until his employment was terminated on August 20th, 1993, in manner hereinafter appearing.

8. The Plaintiff had obtained a mortgage from the Defendants to purchase his dwelling house in or about 1988. The said loan was duly secured. In 1992 the Plaintiff decided to change his house and bought another one. Again appropriate mortgage facilities were arranged with the Defendants. Unfortunately the sale of his original house failed as the purchaser withdrew from the contract. The necessity for bridging finance therefore arose and it was agreed by the Defendants on November 2nd, 1992 that such facility would be afforded to him. Repayment to be paid by weekly instalments of both capital and interest in the sum of £269 per week. It should be noted that this was in fact the first occasion on which the Defendants had granted such a facility, though arrangements for the granting of such facilities had been put in train.

9. In January, 1993 the Plaintiff's first house having remained unsold, he found he could not keep up the said weekly payments. On January 7th, 1993 the Plaintiff "re-phased" repayments of his account on the computer down to £165 per week. This prevented his account appearing "delinquent" on the computer. This action he took, without informing anyone on either the Credit Committee or the Chairman or any members of the Board. The said sum of £165 paid all interest accruing due and reduced the principal sum by £70 per week. While the Plaintiff undoubtedly had certain discretionary authority in relation to the issue of secured and unsecured loans and in practice in relation to limited defaults this action by him was a non-authorised action. It did not of course in any way affect or reduce his financial liability to the Defendants. It had the effect of reducing the capital repayments which would be made before the loan was redeemed on the sale of his house.

10. The Credit Committee on January, 8th 1993 on a random check from the accounts on the computer found out the said re-phasing. Five of the six members of the said Committee thereupon advised the Supervisory Committee and also the Chairman of the Board and requested a meeting of the Board.

11. In evidence Mr. Lyons, a member of the said Committee stated that the Committee felt that it was their duty to bring this irregularity to the attention of the Irish League of Credit Unions.

12. In my opinion they had no such duty to acquaint the Irish League of Credit Unions. Their duty was to bring the matter before the Board and to abide the decision of the Board.

13. A meeting of the Board was arranged for January, 18th 1993. A written memorandum was prepared by five members of the Finance Committee dealing with three topics.

14. The Chairman's conduct was criticised as also was that of the treasurer. It is quite clear from the first paragraph of the said memorandum that the Chairman and some members of the Board were at odds with some members of the Credit Committee.

15. Before the said Board Meeting the Credit Committee did not ask the Plaintiff for any explanation and at the said Board Meeting the Plaintiff was excluded from participation. The Board Meeting became manifestly acrimonious and the said five members of the Credit Committee resigned. The Board proceeded to pass a resolution of confidence in the Plaintiff as their Manager.

16. As a result of the said meeting, the said memorandum became part of the minutes of the meeting. At or about the same date or at the same meeting, it is not quite clear which, a representative of the Irish League of Credit Unions, a Mr. Tony Burke was making a regular inspection of the Defendants. He noted in the minutes the reference to unauthorised changes by the Plaintiff to his account. He considered that he should report this to the American Insurers, "Cumis".. As a result of that report Cumis removed bonding from the Plaintiff by endorsement of writing dated the 8th March, 1993.

17. In subsequent correspondence it emerges that the basis upon which the decision by "Cumis" was made was "it is clear that this is a case of pre-meditated dishonesty and Cumis are not willing to bond Mr. Frizelle".

18. In the hearing before me which is a full plenary hearing there was not one scintilla

19. This meant that the Plaintiff could no longer remain in the employment of the Defendants and as stated in the letter to him of June 25th, it was with regret that his employment had to be terminated.

20. That termination arose from the conduct of the five members of the Credit Committee. It is clear from the evidence of Mr. Lyons, who was one of the five that they considered that there was dishonesty involved and that that is were the concept of dishonesty comes from in the decision of the American Insurance Company. In my view it was not their function to make any decision or to draw any inference. Their function was to report to the Board of Directors. Further it was their function and their duty to ask the Plaintiff before they reported to the Board of Directors for his explanation and to report that explanation to the Board of Directors. This they did not do. Further in my view, their complaints to the Board of Directors about the Plaintiff was part and parcel of a much wider agenda and was tainted as a result. Finally at the point at which they were making their complaint, they were party to excluding the Plaintiff from the meeting and at the point at which their complaints became part and parcel of the record of that meeting, the Plaintiff had had no opportunity giving his version to the Board and accordingly when the record was inspected and reported to Cumis by Mr. Burke no such explanation was present, though in fact Mr. Burke did get a verbal explanation from the Plaintiff ex post facto.

21. In my opinion the whole procedure is so tainted with irregularity, impropriety, and other agendas, that this dismissal must be considered an unfair dismissal. In my view, having regard to all the circumstances, there was no substantial ground to justify dismissal.

22. Under the provisions of the Unfair Dismissals Act, 1977, the Court has power to order the re-instatement of an employee who has been unfairly dismissed. In this case to take that action would be unreal. This Court has no means by which it can compel Cumis, the American Insurance Company, to grant bonding to the Plaintiff. Without bonding it would be inequitable to require the Defendants to reinstate the Plaintiff. Accordingly, I am compelled to turn to the alternative statutory power of awarding the Plaintiff compensation in the form of a payment equalling 104 weeks of his remuneration at the date of dismissal. I also award him the costs of the proceedings in the Circuit Court and in this Court together with such other costs before the Employment Appeals Tribunal as he may be entitled to under statute. I certify for Senior Counsel in this Court.