EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1293/2013
CLAIM OF:
Samantha Marshall
against
Conduit Enterprises Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Letterkenny on 12th February 2015 and 28th May 2015
Representation:
_______________
Claimant: Ms. Bláithín Gallagher BL instructed by Mr Edmund Henry, Edmund Henry Solictor, 14 Lord Edward Street, Sligo
Respondent: Mr. Declan Thomas for Mr. Peter Flood, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Background:
The respondent in this case is a company that provides call centre facilities providing services for other entities. In this case they provide the emergency call answering service for 999 in locations, Dublin, Navan and Ballyshannon.
Respondent’s case:
A HR co-ordinator PW told the Tribunal that the claimant was a customer sales representative (CSR) based in a call centre answering emergency 999 calls. Calls are answered within a standard 5 second duration but normally a call is answered within one second. Three weeks’ training is provided and a shift pattern is worked.
The claimant was working a night shift 8pm to 8am on the night of 12th June 2013. PW said that she received a telephone call from CC the front line manger to say the claimant had called him regarding an incident at approx. 7am. PC sent an e-mail regarding the incident to PW and CC at 6.57am.
PW telephoned the claimant and asked what had happened. She told PW that she had fallen asleep, PC had woken her up, she was upset/distressed. PW told her to go home and ring her later. On 14th June notice of an investigative meeting was sent to the claimant, she was suspended on full pay and a meeting was arranged for Monday 17th June. The claimant was also sent a copy of an e-mail from PC and details of a represented call with a duration of 19.38 minutes. She was given the right to be represented.
Notes of the meeting were read to the Tribunal. The claimant maintained that she did not willingly fall asleep. She sat away from colleagues on the night in question, everything was fine but it was very hot on the night in question and she took a Piriton (antihistamine) around 5pm.
The next thing PC was shaking her shoulder. She also said that she was on other medication and her doctor advised her (after the event) of the consequences of taking the Piriton. A final meeting was scheduled for 18th June. The claimant’s employment was terminated due to a breach of trust and confidence.
Giving sworn testimony, PMcC said that he was a lead operator and had been taking calls on the night in question. The claimant was on a twelve-hour shift from 8.00 p.m. to 8.00 a.m.. All was fine until 6.19 a.m. when he saw the claimant had her eyes closed. He called her twice and then had to give her a nudge. The claimant was startled. He told her to get some fresh air. There was discussion with CC (front line manager).
PMcC told the Tribunal that he had not been told that the claimant had been on medication at the time. He logged what he had observed. He had no contact with the claimant after that.
Asked about the air conditioning, PMcC could not recall if it had been turned up or down at the time.
PMcC said that he had worked with the claimant for some three years and said that he thought her to have been “a brilliant operator”. He said that the claimant’s line had been open for nineteen minutes on the night in question and that this would cause concern. He was not really surprised that the claimant was dismissed. He felt sorry for her. He had got on well with her. There had been no previous issue.
Giving sworn testimony, the claimant said that in her three years with the respondent she had received very favourable recognition. She felt that she was good at her work and took it very seriously. Previous to her dismissal issue she had never had any disciplinary or corrective action against her either with the respondent or before that. With the respondent she was assessed continually and scored very high.
On the night in question the air conditioning was turned off. She suffered from hay fever. She took Piriton. She had raised with the respondent the issue of the optimum temperature and the opening and closing of windows.
The claimant was already on medication for other reasons. Eight hours into the material shift she took Piriton. She had been taking calls as normal. Then the lead operator was calling her and she came to. She was advised to get fresh air. She was in a panic that she had fainted. She had fainted once years previously.
Asked why she had fainted as distinct from falling asleep, the claimant said that she had thought herself ill and had contacted a doctor. She had not felt safe to drive. She believed that what had happened had been due to the combination of medications that she had taken.
When told that she could have someone with her when meeting with the respondent, the claimant had wanted CC but was told that CC would be with the respondent side, She felt “hamstrung” and did not know who else to bring. She felt bewildered. She had no experience of investigative meetings. The respondent said that she had fallen asleep. She denied to the Tribunal that she had admitted this. She said that it had been a health issue and said that the respondent should contact her doctor. This did not happen. PW had accepted that it was all just because of medication taken.
Questioned by the Tribunal, the claimant said that she had passed out. She felt helpless and “completely in the dark”. She had been told to go home and keep her mouth shut. Asked about sitting away from people, the claimant said that one could sit where one liked and that she had sat away from others to focus on her job but that she had fainted. Asked if any sanction other than dismissal had been discussed with her, the claimant said that she was just told that she was dismissed for gross misconduct.
The claimant told the Tribunal that she had endeavoured to upskill herself during academic terms in her post-dismissal years.
Under cross-examination, the claimant said that she had worked many twelve-hour shifts and had been in the last three hours of such a shift at the time in question (when she had fainted). She did not describe hay fever as an illness and had not considered it a health issue. PW had spoken her about the heating and the use of layers of clothing to address temperature issues.
It was put to the claimant that it was only to the Tribunal that she had described herself as having fainted. She said that she had had a loss of consciousness (due to a combination of medications) but denied having fallen asleep. She regretted not having received back-up more quickly.
Determination:
The Tribunal decides by a majority, Mr. D. Morrison dissenting, that the claimant was unfairly dismissed.
Dissenting opinion of Mr. D. Morrison:
The taking of 999 calls is a very serious matter which calls for a zero-tolerance approach to anything like the leaving of a line open for as much as nineteen minutes.
Majority determination:
The Tribunal majority was not satisfied that the claimant had been guilty of a culpable act.
While the Tribunal appreciates that the breach was a serious one and one that could potentially result in an emergency call not being dealt with, the sanction of dismissal for gross misconduct of an employee who had been described as “a brilliant operator” for a single incident, which was inadvertently caused, is disproportionate. The Tribunal also takes into account the candour displayed by the Claimant in dealing with the allegation.
In all the circumstances of the case, the Tribunal, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, considers compensation to be the appropriate redress and awards the claimant the sum of €9,750.00 under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)