Accountant suspended for tender discussion loses case

An accountant who was suspended after being accused of “naively” breaching her employer’s anti-bribery and corruption policy by discussing a tender process directly with an employee of the contracting firm has lost a claim for constructive dismissal.

Her request was rejected by the Workplace Relations Commission (WRC), although it concluded that her suspension was “inappropriate” because she had been “actively encouraged” to discuss work matters with this person.

However, in a decision published today, the Employment Tribunal concluded that employee Cliona Holt had also acted inappropriately before resigning from her position as group accountant at Veolia Energy Services Ireland Ltd.

For this reason, according to the court’s ruling, she had not met the legal requirements to prove that her dismissal was a constructive decision, as she had claimed in a claim under the Unfair Dismissals Act 1977.

The WRC was informed that in April 2023, Ms Holt circulated an email within the company stating that she had spoken to an employee of the contracting company about a tender – and mentioned that that company had indicated Veolia as its preferred contractor.

Veolia, represented in the case by Judy McNamara of the Irish Business and Employers Confederation (IBEC), argued that the email raised “concerns” and “reflected inappropriate discussions between an employee and a client during the tendering phase of a contract”.

The plaintiff’s lawyer, Terence O’Sullivan, explained that there was also an “ironic” remark that “a trip to Poland would be welcome as a member of the client’s team has relatives in Poland”.

Ms Holt was suspended the same day. She was served with a suspension letter alleging that she had “breached the anti-bribery and corruption policy,” disclosed “confidential information” and “potentially taken actions that could cause litigation for the company,” the letter said.

Ms Holt told the court she was “surprised to receive this letter as she had previously discussed similar matters with (the individual) and had been actively encouraged to do so by Veolia”.

Mr O’Sullivan explained that his client had received correspondence indicating that Veolia had brought the email to the client company’s attention and that its management had “made it clear that they had no problem with it and considered the matter closed”.

Veolia told the WRC that its operations manager, Declan White, discussed the matter with a project manager from the client company and ultimately concluded that the client was satisfied that its tender process had “not been compromised” as Ms Holt’s contact person “would have no decision-making authority in the tender process”.

However, it was argued that Veolia could have been asked to withdraw from the tender process.

“The complainant’s actions demonstrated a degree of naivety and poor judgement and may have been in breach of a number of company policies. They required action on the part of the respondent to ensure that the company would not be placed in a similar potentially precarious position again,” the statement said.

Ms Holt’s suspension continued as Veolia wanted to treat the email as a disciplinary measure, but the meetings were postponed until April 2023. The plaintiff was subsequently given sick leave due to “work-related stress” – a statement confirmed by the company’s company doctor in June, the court heard.

The company doctor wanted to arrange a follow-up appointment in July, but Ms Holt replied: “I will not attend such an examination at any time, at least not until my health allows it. This is my final word on the matter.”

Two days later, on July 28, 2023, she filed a formal complaint, but the company did not pursue it further. Human Resources Manager Donnamarie Masterson took the position that the complaint could not be heard until Ms. Holt was deemed fit, the WRC learned. The complainant resigned on August 23.

Judge Breifni O’Neill wrote in his decision that the move to suspend Ms Holt in the first place was “unreasonable”, pointing to her “undisputed” evidence that she had previously been “encouraged” by the company to discuss such matters with her contact.

However, he concluded that the company’s handling of the matter had otherwise been “entirely reasonable”.

“While I acknowledge that the decision to suspend the claimant understandably caused her considerable stress, resulting in her being on sick leave, her subsequent conduct towards the defendant was entirely unreasonable,” he added.

Mr O’Neill highlighted Ms Holt’s “refusal” to see the company doctor after her first appointment; her “demands” that Veolia address her complaint before she was medically cleared to take part in the process; and her “hasty resignation”.

Mr O’Neill dismissed the claim for constructive dismissal and dismissed Ms Holt’s statutory complaint