UD953/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                             CASE NO.

Justin Vesey    -           claimant                                                                                   UD953/2012

against

MBNA Limited          -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr. A. Courell B.L.

Members:     Mr. D. Morrison

                     Mr T. Gill

heard this claim at Carrick-On-Shannon on 6th September 2013 and 6^th February 2014.

Representation:

Claimant:         Mr John Duggan, Callan Tansey, Crescent House, Boyle, Co

                        Roscommon

Respondent:    Ms. Sheila Treacy, IBEC, Confederation House, 84-86 Lower

                        Baggot Street, Dublin 2

                        On 6^th September 2013

                        Ms Fiona Higgins, IBEC, Confederation House, 84-86 Lower

                        Baggot Street, Dublin 2

                        On 6^th February 2014

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is a credit card company. The company is heavily regulated and regularly audited. Its parent company is US based. A Consumer Protection Code was updated in 2012. This code ensures that customers are dealt with fairly and in their best interest. Compliance is a key factor in the banking sector. Strict regulations attach to the inputting of correct action codes. Training (education) is provided to all staff on commencement of employment and is ongoing within the company with all staff. The claimant was employed as a customer specialist and worked in the collections department. He was a very experienced employee and had been an exceptional performer. Initially he worked in the back line and then moved to the front line (the dialler). Monthly meetings are held with managers. MMcT is Risk Operations Manager and has worked in the Collections Department for ten years, the last four of these he managed teams and drove performance.

After accessing a customer’s account an action code followed by a notation should be inputted on the account. The incorrect inputting of an action code could lose credibility with a customer. Following a review of a number of customer accounts accessed by the claimant it became apparent that the claimant had inputted incorrect action codes and incorrectly notated customers’ accounts.

The claimant’s manager met him on 3 February 2012 to discuss the inputting of incorrect action codes. The respondent took the view that claimant’s responses were unsatisfactory. The claimant was suspended pending an investigation into the allegations.

The claimant attended a disciplinary meeting on 13 February. The claimant contended that there must have been errors and that he had not received sufficient training. MMcT did not doubt the claimant had been properly trained. Accounts were opened to the claimant and numerous recorded telephone calls were played back to the claimant. The claimant said that his work was different in the front line. The claimant said no malice was intended. Another action code should have been inputted in several accounts instead of the view code.

The claimant was dismissed by letter dated 13 February 2012. The respondent did not find his explanations to be satisfactory. The claimant offered no mitigating circumstances. He appealed the decision to dismiss him.

The appeal hearing took place on 21 March 2012. LD Chaired the meeting, YG, Employee Relations took the minutes; DC Customer Assistance Team Manager and the claimant were in attendance. Prior to that meeting LD and YG reviewed the claimant’s file. It was evident that the claimant had received significant training on an ongoing basis. When the claimant’s file was reviewed it was apparent that customers’ accounts were not appropriately notated or action coded. While the claimant had applied the view code in a small number of accounts while working in the backline, the number of accounts he had applied the view code while working in the front line had increased significantly. The claimant was trying to maintain his level of performance. The company had been exposed to regulatory and compliance risks. YG contended that there were question marks around the claimant’s dishonesty throughout the process. She believed that the actions the claimant had taken were dishonest as it was evident that he knew how to perform his job. Both YG and LD made the decision to uphold the claimant’s appeal.

Claimant’s Case:

The claimant gave evidence that he had worked for the respondent for eight years. He worked in the backline of the collections department until May 2011 when he was moved to the front line. The front line role was a different role. In the front line he dealt with outgoing calls and the quality of the calls was different. He received about 20 minutes training in on his new role. He worked to the best of his capabilities.

On 1^st February 2012 he was invited to an investigatory meeting with his manager. He was presented with a list of accounts which were action coded incorrectly. He went through each account and explained his reasons for action coding and notating them. He also explained that when he had doubts concerning accounts he would raise the issues with his manager in the first instance. He could use the view code several times a day. He contended that he was a steady performer. He was suspended following this meeting.

During the disciplinary meeting he attended on 13 February 2012 he was continuously questioned on the action codes. The meeting lasted five hours. He explained his reasons for notating these selected accounts. If there was a system issue he could not notate correctly as was the case in a few of these accounts.

The claimant appealed his dismissal. His dismissal was upheld.

The claimant secured employment some five months after the termination of his employment on a fixed term basis.

Dissenting Opinion (in relation to quantum)

The following is Mr. Morrison’s dissenting opinion relating to quantum of compensation.

While I find that the dismissal was disproportionate or the company went one step too far I do find that the claimant did contribute to his dismissal in my opinion because the incorrect notation codes did inflate his monthly incentives.   If proper training was not given to the claimant then the incorrect action codes would not be all in favour of the claimant’s incentives i.e. they would be plus + minus of incentives.  

Taking all of the evidence and the level of contribution of the dismissal into account, I believe the correct level of compensation to be awarded to the claimant is €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Majority Determination:

The Tribunal has carefully considered the evidence adduced during the course of this two day hearing. The issue of the unfairness, or otherwise, of the dismissal was a matter which had to be determined by the Tribunal. The law requires the Tribunal to determine whether, or not, the respondent’s decision to dismiss was reasonable having regard to the nature and extent of the enquiry which was carried out by the respondent, and the conclusion which was reached by the respondent following this enquiry. While, it could well be the case that the Tribunal may have come to a different conclusion, this is not the issue. The matter for the Tribunal to decide is whether, or not, the decision to dismiss could be labelled as an unreasonable one in light of the facts gathered.

Having carefully considered the contested evidence, together with the submissions advanced by each of the legal representatives, the Tribunal finds in favour of the claimant. During the disciplinary process the claimant faced allegations of having submitted incorrect action codes, potentially inflating his monthly incentives and breaching trust and integrity. Before the Tribunal, the respondent further accused the respondent of having acted “dishonestly”. It was common case that the claimant submitted incorrect action codes. However, the claimant consistently maintained that no malice was intended and pointed to the fact that his monthly incentives had not in fact been inflated. The claimant also produced documentary evidence of an e-mail which established that he had already voiced concern about the way in which some of his colleagues were operating the action code system and were persistently incorrectly directing accounts back into the dialler. In all of the circumstances of this case, the Tribunal determines that the finding of dishonesty against the claimant was unreasonable and was not supported by evidence. The Tribunal has come to the conclusion that the claimant was transferred to a new position within the company and he experienced teething problems. While it was open to the respondent to conclude that the claimant had submitted incorrect action codes, the respondent went beyond this allegation during the course of the hearing and accused the claimant of “dishonesty”. That being so the Tribunal finds that this conclusion was unreasonable. Such a finding went beyond the allegations which were put to the claimant in the context of the disciplinary process. Accordingly, the sanction of dismissal was unfair and disproportionate.  

The Tribunal finds that the claimant was unfairly dismissed and that compensation is the appropriate remedy. In determining the quantum of compensation, the Tribunal has considered the evidence of loss, the question of contribution and the issue of mitigation. In light of the Tribunal’s findings that the respondent acted unreasonably in dismissing the claimant on the grounds of dishonesty, it is difficult to see how the claimant’s actions could have contributed to his dismissal. The claimant gave evidence that he had secured employment in Dublin approximately five months after the date of his dismissal. He now commutes from his family home in County Leitrim to Dublin. In relation to the amount of compensation to be awarded, the Tribunal by a majority awards the claimant €25,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

             (CHAIRMAN)