EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Lisa McCaffrey, UD1668/2011, MN1725/2011
WT662/2011
against
Telefónica Ireland Limited,
Under
ORGANISATION OF WORKING TIME ACT, 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr W. O'Carroll
Mr D. McEvoy
heard this claim at Limerick on 3rd April 2014
Representation:
Claimant: Ms Michelle O'Riordan, Holmes O'Malley Sexton, Solicitors,
Bishopsgate, Henry Street, Limerick
Respondent: Ms Muireann Mc Enery, IBEC, Gardner House, Bank Place,
Charlotte Quay, Limerick
The appeal under the Organisation of Working Time Act, 1997 was withdrawn at the outset of this hearing.
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is a large multinational organisation that provides mobile, fixed and broadband services to its various customers. In this jurisdiction it trades under the name of O2 and the events in this case took place at its customer call centrelocated in the Limerick region. By 2010 the claimant was working as a customer service agent in a department called Reach Out. That department’s main role was to contact customers whose contacts were close to expiring and to try to persuade them to renew those contracts. In-house practices called Line hanging and voice mail manipulations were explained to the Tribunal. Those activities involved sales agents behaving in a certain way while undertaking and receiving calls from customers. The department and its agents were subjected to targets which were in turn were regularly audited.
As a result of such an audit a number of team members of the department including the claimant were investigated on certain aspects of their work. The claimant’s call report from 12 June 2010 to 10 February 2011 came under review as the respondent considered the frequency and duration of her line hanging and voicemail manipulation records for that period. According to documents presented to the Tribunal the time spent on those activities by her was labelled unproductive. The respondent’s first witness who was a human resource consultant attended a disciplinary hearing 0n 24 April 2011 in the presence of her departmental team leader and a representative for the claimant. At the conclusion of that hearing the team leader decided to dismiss the claimant.
This team leader told the Tribunal that her decision to dismiss the claimant was taken following consultations with other entities. In reaching that decision this witness took into consideration the claimant recent bereavement and other factors. She described the claimant as a great employee who was well liked. She did not avoid work and always reached her targets. The witness was surprised to see the claimant’s name on a list linked to a reported abuse of line hanging and voice mail manipulation. An email issued to some staff on 5 October 2009 on those issues but it probably was not sent to the claimant as she was employed in another department at that time. In her letter of dismissal the witness concluded that the claimant did manipulate customer voice mails and left customer lines open to avoid making calls. Effectively the respondent found that the claimant was avoiding work and not doing her job. The claimant’s actions also exposed the company to breaches of data protection legislation. However, no actual breach took place.
Gross misconducted was mentioned twice in the dismissal letter. The witness justified that finding in that in breaching certain procedures the claimant behaved in a dishonest way. In addition the respondent’s trust and confidence in her as an employee had been undermined. The team leader said it was not easy to dismiss the claimant.
The head of customer care heard the claimant’s appeal and upheld it. In doing so she told the Tribunal that it was against her personal and emotional feelings but when she objectively weighed the situation she endorsed and supported the original sanction. Prior to this event the claimant had been a model employee but her avoidance of work and the broken trust it entailed were decisive factors in this case.
Claimant’s Case
The claimant commenced employment with the respondent as a customer care executive in February 2007. Subsequent to that appointment the claimant became a member of the Reach Out department. While there she went on secondment to the Fraud and security team from august 2009 to January 2010. As a consequence she did not receive an in-house email on line hanging and voice mail procedures. The claimant told the Tribunal that she loved her job as a sales agent with Reach Out and found it initially easy to reach her targets. However, over time and changed circumstances it had become more difficult to retain and incentivise customers. That scenario together with a serious family illness and bereavement combined to deflate and demotivate her at work. By that time the pressure to reach targets became so intense that she had no time to give to personal needs at work.
The witness was surprised and shocked to learn that she was a subject for investigation relating to line hanging and voice mail manipulation. While she understood that line hanging was unacceptable she did not accept it was wrong. Besides this activity was common practice among her colleagues. Referring to voicemail manipulation the claimant said that this gave the appearance she was still on the phone but the reality was she was actually working taking notes and updating information. While engaged in those practices the claimant never breached data protection legislation. She pointed out that the list from June 2010 to February 2011 represented a tiny proportion of the calls she was involved in during that period. At no time did she avoid work.
Determination
When an employer dismisses an employee on the grounds of gross misconduct it needs to be able to defend and justify that sanction. Having heard and considered the evidence in this case the Tribunal finds that the respondent has not done this. While the claimant may have been amiss at times she certainly was not deviant or dishonest as an employee of the respondent. On the contrary her work rate and contribution to her employer was well regarded and constructive. The respondent overreacted to her alleged shortcomings and was far too fast to subject her to a disciplinary process. The sanction of dismissal was highly disproportionate, undeserved and unreasonable.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €35,000.00 as compensation to the claimant under those Acts.
The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is allowed and the appellant is awarded €1342.61 as compensation, that amount being the equivalent of two weeks’ notice entitlement.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)