EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Audrey Keohane, UD943/12 - claimant
against
Key Answering Systems Limited T/A Call Management,
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. L. O Catháin
Members: Mr. D. Hegarty
Mr. D. McEvoy
heard this claim in Cork on 21st November 2013 and 5th March 2014
Representation:
Claimant: Mr. Eamon Shanahan BL instructed by
Mr. Frank Nyhan, Frank Nyhan & Associates, Solicitors,
11 Market Square, Mallow, Co. Cork
On 21st November 2013
Mr. Eamon Shanahan BL instructed by
Ms Helena Hickey, Frank Nyhan & Associates, Solicitors,
11 Market Square, Mallow, Co. Cork
On 5th March 2014
Respondent: Mr. Dermot Conway, Conways, Solicitors, 35 South Terrace, Cork
As this being a case of constructive dismissal it fell to the claimant to give evidence first.
The determination of the Tribunal was as follows:-
Claimant’s Case:
The respondent is a call centre engaged by several companies. The claimant was employed as a Customer Service Agent and commenced employment on 23rd July 2010. She worked alongside other customer service agents. She reported to SH, her line manager. PK is Managing Director of the company.
On 5th April 2012 a colleague of the claimant (KP) asked the claimant to send an email to property management companies to enquire if they were working the following day which was Good Friday. As the claimant did not ordinarily carry out this task she rechecked with both KP and S the details of the email she had typed before issuing the email to the four property management companies. She lacked training in emailing clients. She copied this email to SH.
She subsequently received a telephone call from PK. PK then subjected her to verbal abuse. PK was most annoyed and asked if she was stupid and did she know the trouble she had caused and that the customers she had emailed were competitors. She was very upset.
The claimant then asked to meet SH that morning. They discussed the verbal abuse she had been subjected to by PK. SH told her that she had breached confidentiality and that he was suspending her that day on full pay pending an investigation. The claimant was very upset and visited her doctor. She was certified unfit for work.
She received a phone call asking her to attend a disciplinary meeting on 11th April 2012. MH attended as her witness. SH chaired the meeting. The breach of the confidentiality policy was discussed. SH spoke about the email that she had issued to the property management companies. This email permitted each company to see the names of their competitors. While the claimant said that it had been a genuine mistake on her part to send the email to all the companies and was not intentional. The e-mail should have been sent individually to each company instead. It questioned the integrity of the MD. The claimant accepted an error had occurred but she advised that she had not been properly trained on the issuing of emails.
The claimant’s attitude towards her fellow colleagues was also discussed at that meeting together with her general behaviour and demeanour. She was not informed as to who had complained about her. The meeting lasted about an hour.
By letter dated 13th April 2012 the claimant was issued with a final written warning. This greatly upset her. She was offered a right of appeal within seven days. In the claimant’s letter of appeal dated 16th April she sought guidance on how to proceed with her appeal.
She subsequently sought legal advice on the matter. The claimant was unhappy that PK would be conducting her appeal and considered it to be unfair as she had been subjected to verbal abuse by PK on 5th April 2012. She had expected a phone call from PK apologising for his behaviour on 5th April 2012 but no call was received. She also felt that SH did not like her and she had felt isolated in the office.
The claimant’s health continued to deteriorate and by letter dated 28th May 2012, her solicitors, acting on her behalf wrote to the respondent and advised the company that the claimant was terminating her employment
The claimant has not secured alternative employment and returned to college in September 2013.
Respondent’s Case:
PK is Managing Director of the respondent company. It employs 35/40 staff. His role entails sales, financial projections and strategic marketing.
On 5th April 2012 he received an email from a property management company who told him they had received a generic email from the respondent and to ensure that it did not happy again. The email had been sent to four property management companies. PK rang the office and was informed that the claimant had sent the email.
He subsequently spoke to the claimant about the email. PK accepted that everybody can make a mistake. He did not lose his temper with the claimant during the phone call.
MK is a customer service agent who sat beside the claimant in the workplace. On 5th April 2012 she had noticed that the claimant had been upset following a phone call. The claimant told her that she was really angry at what had been said to her in the telephone call.
MK was asked to attend a meeting on 11th April 2012. She was a witness for the claimant. SH chaired that meeting. She was not prepared for the meeting. She felt uncomfortable at the meeting. The claimant’s behaviour was discussed and SH went through a number of issues in a professional manner. Clearly, there appeared to be an issue with training.
KS is Accounts Manager for the company. She conducts training on a one to one basis. She ensures calls are logged correctly. If a call is logged incorrectly she sits down with the agent and discusses the issue. She had occasions to sit down with the claimant and discuss mistakes that had been made. She had felt intimidated by the claimant. She had discussed this with SH but did not wish it to be taken any further but subsequently asked SH to move forward with the issue.
KP is key account manager for the property side of the business. She is responsible for daily and weekly reports which are furnished to client companies. She is also responsible for emailing clients. All emails are individually sent to companies. She contended that the claimant was aware that all companies are individually sent emails.
PM is a customer service consultant and works for the respondent on a consultancy basis. Her ethic is to improve quality customer service. Her role is to listen to phone calls and then advise service agents of their strengths and weaknesses. She gives general feedback to both PK and SH and furnishes a report. She met the claimant on two occasions during her tenure. The call centre role is very challenging. Staff had always expressed that they were happy to work there. She was approached by PK to check her records on any issues the claimant might have brought up with her.
SH is Operations Manager and is in this role for three and half years. He had twenty years experience in call centres and had received both positive and constructive feedback. He is the first point of contact with staff. He has responsibility for hiring staff; IT functions and oversees the running of the business. He oversees training and monitors staff. Every employee is provided with a training folder at the beginning of their employment and a fairly intense property manual is also provided to staff. It is extremely important that all information is logged correctly. Each employee is trained on sending emails to individual companies as it can be a very sensitive area. The claimant had been a valued member of staff.
On 5th April 2012 he received an email from the claimant who had asked to meet him. In the meantime he became aware that the claimant had sent a generic email to four client companies. He had been copied with this email. He knew that the generic email was a breach of the confidentiality policy that existed in the company. He instils in each employee on commencement of employment that each company is individual.
After he met the claimant on 5th April 2012 and discussed the issues at hand he took the decision to suspend the claimant on full pay. He wanted to protect both the claimant and the company. He felt it was the best course of action to take. He spoke to KM in relation to the email. He then invited the claimant to a disciplinary meeting on 11th April. At that meeting SH discussed the confidentiality breach and also discussed other complaints he had received from other members of staff. The claimant said it had been a genuine mistake.
SH issued the claimant with a final written warning on 13th April 2012 as there had been a breach of confidentiality which was considered to be gross misconduct. SH believed the sending of the generic email could have had severe repercussions for the respondent and the company could have lost business as a result of the issuing of the email. The claimant was expected to return to work on 17th April 2012. However, she never returned to work.
Determination:
Having heard evidence from both parties in this case the Tribunal is satisfied that the claimant did not discharge the burden of proof in circumstances where she terminated her employment.
It is regrettable that the claimant did not furnish any medical evidence to support the contention in her solicitor’s letter of termination dated 28th May 2012.
The Tribunal notes that the disciplinary and grievance procedures of the respondent company may be in need of review.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)