EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Janet Mooney – Claimant UD1525/2012, MN866/2012
Oxigen Environmental - Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr J. Goulding
Ms M. Maher
heard this claim at Dublin on 20th January and 7th May 2014
Claimant : Ms Claire McQuillian, MacGuill & Company, Solicitors,
5 Seatown, Dundalk, Co Louth
Respondent : Ms. Mairead Crosby, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
The respondent operates a household bin collection and recycling service and the claimant worked for them as a Customer Service Representative from 27th March 2007 until her dismissal on 19th April 2012 for gross misconduct.
The reason for dismissing the claimant was her inappropriate language in phone conversations along with poor handling of a customer phone call. It was alleged that the claimant used bad language during phone conversations with colleagues and that she kept one customer on hold for 5 minutes while talking to a colleague partly about the customers issue but also in a flirtatious manner with her colleague.
The claimant was given written notice of a meeting but was not told the purpose of this meeting. During the meeting audio recordings of some of her phone conversations were played back to the claimant and based on her unapologetic admittance of potential damage and the unacceptable language used the respondent concluded that the only option was to dismiss the claimant. A letter of dismissal followed and the claimant was informed of her right to appeal. Notwithstanding the claimant’s submission that she lodged a written appeal with the respondent it was the respondent’s position that no such appeal was ever received by them.
The claimant commenced employment with the respondent in March 2007. She was employed in a call centre as a customer service agent and worked in an open plan office. During her initial and ongoing training for that role she did not receive any specific instructions on her use of language with the customers and in the workplace. Up to July 2012 the claimant had not been the recipient of any reprimands or sanctions from her employer. Due to the nature and design of the open plan office she was able to hear, at times, some or all of the conversations taking place in that office.
The claimant told the Tribunal that she got less than forty-eight hours’ notice to attend a formal meeting with some management from the respondent. No details were given to her about this meeting and she was not offered to have a representative/witness present on her behalf. That meeting which took place on 18 July 2012 was adjourned for approximately an hour. When the claimant returned she was shocked to be informed of the respondent’s decision to dismiss her. The witness had no recall of receiving a dismissal letter and her appeal letter against that decision was not responded to.
In denying she used bad and offensive language the claimant accepted that on occasions her language and choice of words to colleagues were of a colourful nature. When dismissed the claimant thought the reason for that sanction was due to her stated refusal to accept further pay cuts.
There is no doubt that the claimant in verbally expressing herself at work used expletives and offensive language which was unacceptable to some of her listeners. This scenario cannot be condoned.
An employer is obliged to apply fair procedures and act reasonably when sanctioning an employee for any misdemeanour. In this case the claimant had an unblemished record. There was no evidence that there was an investigation or a suspension in this matter. The notice and nature of the meeting of 18 July 2012 was too short and brief. A clear warning would have sufficed for this first offence and on the face of it the sanction of dismissal was disproportionate.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €12,500.00 as compensation under those Acts.
It was common case that the claimant had received four weeks’ notice pay. Accordingly, the appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 must fall.
Sealed with the Seal of the
Employment Appeals Tribunal