| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant summarily dismissed for multiple breaches of various aspects of respondent’s code of conduct over long period of time, in relation to member of public (“X”) who laid complaint about applicant – Respondent considered applicant seriously breached policies over not giving investment advice unrelated to respondent’s products, contrary to employment agreement – Investment and Savings Ombudsman received formal complaint from X who believed respondent, through applicant, failed to invest X’s savings wisely – Respondent investigated complaint and reached settlement with X – Respondent then investigated applicant’s conduct in allegedly giving investment advice about non-respondent products, with X being non-customer – Respondent gave applicant benefit of doubt and concluded any breach of media policy merely injudicious passing comment – Respondent concluded contacts with X constituted serious misconduct warranting summary dismissal – Authority found first issue whether regional manager (“M”) had proper delegated authority to dismiss applicant – Respondent’s policies clear that person with authority to dismiss applicant was relevant general manager (“P”), unless someone else did so as P’s deputy or appointed to act in P’s position – Authority satisfied P nominated M as deputy for limited purpose of conducting disciplinary process with applicant, which could always have resulted in dismissal - Second issue whether M was real decision-maker – Authority found M investigated and determined disciplinary issues, conducted interviews and informed applicant of decision to dismiss – Found M took extensive advice from P, human resources and chief executive – Found wide consultation, but M still decision-maker - Third issue whether ulterior motives in dismissal – Authority found P and M sincere in beliefs applicant dismissed for serious breach of respondent’s policies, exposing it to financial and reputational risk, rather than as scapegoat for respondent’s settlement with X – Found insufficient evidence to support argument respondent wished to save on redundancy costs - Fourth issue whether applicant had fair opportunity to make submissions on factors considered by respondent, such as former regional manager’s file note, subsequent interview with share broker, and prior employment incidents held against applicant – Authority found overall, respondent’s process fair, applicant had majority if not all relevant documentation, and relevant issues discussed with applicant – Found applicant had opportunities throughout process to make submissions on all matters, including penalty, and did so - Fifth issue whether applicant’s belief actions not wrong was properly taken into account – Applicant sent on training course and refresher course to ensure aware of responsibilities – Authority found respondent entitled to expect applicant to meet contractual obligation to comply with responsibilities as investment adviser – Found issues for respondent were seriousness of breach, fundamental failure to follow rules and its long duration – Found open to respondent to conclude applicant in breach of obligation to follow investment advice policy – Found respondent considered applicant’s belief actions not wrong – Found breaches of sufficient seriousness and duration for respondent to conclude serious misconduct justifying summary dismissal – Sixth issue whether applicant’s length of service and other mitigating factors meant proper sanction was warning – Authority found had respondent had another meeting with applicant to set out preliminary view of summary dismissal, applicant may have had better opportunity to make plea in mitigation – However, found applicant’s advocate had done so beforehand, and respondent considered submissions – Found respondent entitled to conclude applicant should have known better given length of service – Found applicant continued to argue had done nothing seriously wrong – Found respondent considered applicant’s work record, which was not clear and included current warning – Found open for respondent to conclude dismissal appropriate sanction – Dismissal justified - Estate manager |