This week, we look at an unfair dismissal case in which the Workplace Relations Commission (WRC) was required to consider action taken against a CEO arising from his use of a company credit card and social media activity. Our Adrian Twomey highlights the key points to note in the case of Shanahan v Clonmel Chamber of Commerce Limited t/a County Tipperary Chamber, ADJ-00031796.
The Complainant, Mr. David Shanahan, commenced his employment as a CEO with Tipperary Chamber on 23 March 2017. In September 2019, the Chamber President, a Ms Carney-Hoffler, became aware that the CEO had uploaded a post to LinkedIn that she believed to have been "political" and "inappropriate". She asked that he remove it. However, the post was also noticed - and published - by The Nationalist newspaper. The President subsequently instructed the CEO in writing that he was not permitted to publish any media communications without prior approval.
It appears that in or around the same period of time, the Treasurer, a Mr. Gleeson, discovered what appeared to be personal expenses being charged by the Complainant to his company credit card.
The CEO was suspended on full pay by the Board pending an investigation. The President wrote to him, stating that three allegations were to be investigated. The first and third allegations related to the use of the company credit card and were effectively allegations of theft and breach of trust. The second allegation was of unprofessional conduct in relation to the publication of the post on LinkedIn.
The Chamber appointed external consultants to conduct the investigation which appears to have commenced in October 2019. The investigation report was issued at the end of April 2020 and appears to have concluded that the CEO had a case to answer. For reasons related to COVID-19 or otherwise, the subsequent disciplinary process did not commence until August 2020. That disciplinary process resulted in findings of theft, insubordination and breach of trust against the CEO. He was summarily dismissed for alleged gross misconduct. The CEO availed of an internal appeals process but his dismissal was upheld. He subsequently filed an unfair dismissal complaint with the WRC.
The Adjudication Officer highlighted the following points in her decision:
1. The Chamber did not have clear policies on credit card usage and media releases.
2. The Chamber did not consider any sanction other than dismissal.
3. The Chamber's suspension of the CEO was "not satisfactory" as it was based on the belief that he was "quite opinionated" and "this could be a further risk to the business" .
4. The allegations against the CEO were changed after the disciplinary process had commenced.
5. The weight attributed to the evidence of certain witnesses was of concern.
For these reasons, the Adjudication Officer concluded that the dismissal was substantively and procedurally flawed and unfair. In assessing compensation, she concluded that the Complainant had made "very limited attempts" to mitigate his losses after his dismissal. It can be assumed that the award of compensation was reduced for that reason. Ultimately, however, the Adjudication Officer awarded the CEO compensation of €20,000 which appears to have been the equivalent of 6-7 months pay.
The Shanahan decision underlines the importance of employers having solid contracts, policies and procedures in place and taking appropriate advice when dealing with investigations and disciplinary processes. Those requiring employment law advice or representation before the WRC can contact our Adrian Twomey.