UD231/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Ellenmarie Daly                                 - claimant

                                                                                                                                  UD231/2013

Against

RCI Call Centre (Ireland) Limited        - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms S.  McNally

Members:     Mr. P.  Casey

                     Mr D.  McEvoy

heard this claim at Cork on 23 September 2014 and 18 November 2014

Representation:

Claimant(s) : In person

Respondent(s) : Ms Michelle Ryan, Ronan Daly Jermyn Solicitors

                         2 Park Place, Citygate Park, Mahon Point, Cork

The determination of the Tribunal was as follows:-

Summary of Evidence

In circumstances where the dismissal was in dispute the Tribunal heard the claimant’s evidence first.  The claimant commenced employment with the respondent company in July 2005. The respondent operates a call centre for members, similar to a travel agent. Clients are members and the claimant renewed their memberships. She worked in the role of in-bound agent which involved taking calls from clients, arranging time share property exchanges for members and sales. She requested part time hours in 2008 due to her personal circumstances and this was granted. Approximately one year later she sought a shift change of three full days however the respondent refused this request.

At a company function in and around September / October 2011 she overheard a conversation between FB the accounts manager at the time and another manager. She heard FB ask “what are we doing with part-timers; they are a massive drain on the company”.

In December 2011 all staff received an email regarding a meeting in January 2012. At the meeting new shift patterns were announced and MT indicated that employees with family difficulties would get priority when allocating shifts; however, she was offered a shift pattern which she could not work. Her team leader and HR were fully aware of this due to her personal circumstances. The shift offered was 3pm to 8pm Monday to Friday and every second Saturday 9am to 3pm. Other employees with less service were offered Monday and Tuesday 9am to 6pm which would have suited her best. She offered to reduce her hours to fit into a workable shift pattern but was advised that she would loose her service and would start on a new contract of employment. She had meetings with HR during January and February and had sought details of all the shift patterns available but this request was turned down. The shift changes were effective from the 25 February 2012. After a period of three to four weeks out of work on certified sick leave she was asked to a meeting to resolve the matter but the same shift pattern was offered. On the 29 February the respondent scheduled a meeting to discuss the reason for her absence. The claimant submitted weekly medical certificates.

The respondent wrote to the claimant on the 12 March 2012 which referred to the absence policy and reference to unexplained absences deemed as gross misconduct. The letter also referenced disciplinary action. The company doctor deemed her unfit to work on the 14 March 2012. In April she received a letter regarding an overpayment of wages in March which they were requesting back. She was told the amount was in the region of €1600.00.

She attended a meeting on the 15 May 2012 with YK and MT. The meeting lasted ten to fifteen minutes. A letter dated the 17 May 2012 made reference to her acting aggressively at the meeting which she denied saying that she always conducted herself appropriately. She continued to attend the company doctor the last visit being on the 21 November 2012 the date she took the decision that she could no longer continue in her employment. 

The claimant submitted that the behaviour of the respondent was unreasonable. The shifts were distributed in an unfair manner. The respondent’s behaviour caused her great anxiety leading to her illness and a lack of confidence which has prevented her from seeking alternative employment.

The resource planning manager (SMcC) gave evidence on behalf of the respondent. In 2011 the company recognised that they were failing to meet service levels to customers and the witness led a project reviewing the part time shift patterns in the company. The shift patterns of the part time workers no longer met the business needs of the company. New shift patterns were worked out for the twenty two part time workers and presented to employees in January 2012. 

The claimant fell in to the category of 23 hours to less than 26 hours with six employees including the claimant in this category. Within that category the claimant was fifth in terms of tenure/service therefore four employees would get preference before her on shift patterns selected. The company did not wish for employees to reduce their hours and for this reason if an employee chooses to change hours they went to the bottom of the category they moved to. Had the claimant opted to reduce her hours to less than 20 there were eight employees in that category who would receive preference over her. The claimant made no written formal request to change her hours. The new rota and shift patterns were successful in the company with all employees except the claimant buying in to the changes.

A member of the HR team (MD) met with the claimant on one occasion. She responded to an email from the claimant dated the 17 January 2012. Although the project was led by YK the HR consultant she invited the claimant to drop in as YK was unavailable that day. The claimant expressed her concern about the shift options. She explained that the hours the claimant wanted was not possible. She believed the claimant understood this. The witness denied making any reference to loss of service should she opt to change her hours over the course of the conversation with the claimant. She explained that changing hours to a different bracket would result in the claimant going to the end of the list as regards preference for shift selection. No discussion on new contracts took place and had the claimant sought a full list of the shift patterns she would have contacted planning division. At the meeting she encouraged the claimant to select a shift pattern and she undertook to brief YK.

HR consultant YK has worked with the respondent for nine years with responsibility for the day to day HR issues. The claimant was employed as a UK flex guide and had a standard contract of employment. The respondent had facilitated the claimant in previous years when she requested a change to her hours and an addendum to the contract was issued. YK was unaware of the claimant’s personal circumstances throughout the shift change project but accepted that perhaps the line manager had some knowledge of the claimant’s circumstances.  The new shift patterns were communicated to employees on the 16 January 2012. The changes were implemented on the 5 March 2012. The claimant made no formal request to change her hours to her line manager (KP) and never tried out the new shift. The witness wrote to the claimant a number of times inviting her to attend meetings to deal with the claimant’s work related stress. The letters from the respondent starting with the letter dated the 17 February up to the dismissal were opened to the Tribunal. YK had referred the claimant to the company doctor in order to establish if she was fit to engage.

The meeting of the 15 May 2012 was described as a difficult meeting. A member of payroll attended the meeting as the claimant had received an over payment. SMcC attended the meeting in order to assist the claimant with queries around the new shift patterns. The claimant was not prepared to try the shift pattern offered and made no suggestion of changing her hours. The meeting ended without any resolution. Further attempts were made to contact the claimant during the period the 24 May to the 29 May 2012. A medical report from the company doctor dated the 8 June 2012 deemed the claimant unfit to engage with the employer.

YK was surprised by the claimant’s resignation letter dated the 23 November 2012. She believed she had made every attempt to engage with the claimant with a view to getting her back in to the work place. Following receipt of the claimant’s resignation the witness wrote to the claimant seeking further engagement and advising her of the company grievance procedure. The over payments made to the claimant during her sick leave was not returned to the company. 

Director and resource planning manager FB denied ever commenting on part time workers being a financial drain on the company.

Determination

The claim under theUnfair Dismissals Acts, 1977 to 2007 was one of constructive dismissal; accordingly it fell to the claimant to make her case.

The Tribunal having considered all of the evidence presented by both parties is satisfied that the respondent notified all part time employees including the claimant of the need to restructure the shift patterns. The Tribunal noted that the company found itself failing to meet the required service levels to customers.

The claimant fell within a category where because of tenure she was fifth in line to choose from the shift patterns allocated to that category.  The shift pattern offered to the claimant in her category did not suit her personal circumstances. The respondent could not acquiesce to the specific requirements of the claimant and the alternative proposal by the claimant to reduce her hours in order to move to an alternative category would result in the claimant ranking further down in priority in that category.

It is accepted by the Tribunal that the respondent continued to keep the lines of communication open with the claimant from February 2012 before the new shift pattern commenced up to July 2012 and thereafter following her resignation. The Tribunal noted that the respondent wrote to the claimant excessively over the period February 2012 to July 2012 during a time when the claimant was on certified stress related sick leave.

The Tribunal is of the considered opinion that the claimant has not met the burden of proof required in a constructive dismissal case. The Tribunal does not view a change in shift patterns that was applicable to all part time employees in the company and not specifically suited to the claimant as conduct of an employer which is such that it is reasonable for the employee to terminate her employment contract. 

The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore, must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)