EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD696/2014
CLAIM(S) OF:
Brid O'Brien - claimant
Against
Aviva Direct Ireland Limited - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr T. Gill
Mr T. John Gill
heard this claim at Galway on 31st August 2015
Representation:
Claimant(s) :
Mr Michael O’Connor B.L. instructed by Mr. Aaron McKenna, Aaron McKenna Solicitors, Berkeley House, Ballybin Road, Ashbourne, Co Meath
Respondent(s) :
Mr. John Brennan, IBEC, West Regional Office, Ross House, Victoria Place, Galway
Summary of Evidence
The respondent’s former call centre manager (CS) outlined the claimant’s role which included taking telephone calls from existing customers and customers wishing to purchase services. The role required keyboard data entry. In September 2010 the claimant was injured in a motor accident and a period of sporadic absences followed. CS wrote to the claimant on the 11 November 2013 inviting her to attend a formal absence management meeting on the 19 November. The claimant was advised that her contract of employment could be ended at the meeting. The claimant was given a copy of the long term sickness absence management procedure in advance of the meeting. The Tribunal heard that several attempts to get the claimant back to work were made including the offer of flexible hours outside core shift patterns. The HR adviser wrote to the claimant on the 26 November 2013 confirming the outcome of the formal meeting and advised the claimant that her employment contract was ending with her final day of employment being 19 December 2013. The claimant was given four weeks’ notice and as there was no change during that period in the claimant’s condition her employment ended. CS denied that any pressure was put on the claimant regarding her productivity and that she had not raised any grievance in relation to this issue. No alternative shorter working hours were available. CS did not undertake any ergonomic assessment as he believed the company doctor had provided medical opinion and the company doctor had a good knowledge of the working area.
The HR business partner (RC) gave evidence of his correspondence and contact with the claimant between late 2012 to November 2013. He had arranged doctor’s appointments for the claimant. Prior to the claimant’s accident in August 2010, the claimant had reduced her hours from thirty five per week to twenty eight. Following the claimant’s accident, a phased return to work commenced in May 2011. RC attended the formal meeting held with the claimant and agreed that it’s duration was in or around fifteen minutes. The witness accepted that the letter dated the 9 December 2013, arranging the claimant’s appeal of her dismissal for the 16 December 2013 in Dublin, was not posted until the 11 December 2013. The meeting took place on the Monday, the 16 December 2013.
The claimant gave evidence of commencing employment with the respondent company in late 2003 in the role of telephone sales and customer services. She sought a reduction in hours to twenty eight hours per week in August 2010. In September 2010 following a serious traffic accident she underwent surgery. At a meeting with her employer in December 2010 it was agreed she would provide regular updates on her injury. The claimant’s main injury preventing her return to work was her right wrist which was in a locked position and she did not have full rotation. The claimant returned to work in May 2011, working from 9am to 11am initially, and increasing from 9am to 1pm. The claimant became concerned about not meeting her “not ready” targets long term and the respondent had failed to address those concerns. Over the course of each day the claimant stated that she suffered excruciating wrist pain. The company doctor had recommended the claimant should return to full time hours. The claimant believed that the company doctor (SO’B) was not accepting that the wrist pain was so severe that it prevented her from working full time hours. In or around late January 2012 the claimant raised the issue with the respondent in writing, which was opened to the Tribunal. In the written communication the claimant queried why she was not assessed by an ergonomist.
The claimant gave evidence of each day having to seek approval from her manager to leave due to the pain she was experiencing. This process she claimed “wore her down”. In October 2013 the respondent arranged an appointment for the claimant with a different doctor (TD). She did not receive a copy of TD’s assessment report. The claimant told the Tribunal that she was informed by her union representative prior to the meeting on the 19 November 2013 that the respondent had indicated to a senior union official the previous day that the decision to dismiss her was made. The claimant’s dismissal was confirmed by letter dated 26 November 2013 which she appealed by letter dated the 2 December 2013. Although she had received short notice of her appeal meeting she did not defer it as she had no direct contact details for the appeals officer (MW).
Determination
The Tribunal considered all of the evidence adduced by both parties at the hearing. The Tribunal considered the respondents failure to engage with the claimant and address her concerns with regard to meeting her targets as a significant factor in this case. No meetings were held with the claimant during the period March 2012 to November 2013. The respondent emailed the claimant regarding her absences on the 1 November 2013.
Of some concern to the Tribunal was the absence of medical reports for the two visits by the claimant to a second doctor arranged by the respondent. Furthermore, the claimant had not received the medical assessment reports.
The Tribunal noted that the claimant’s suggestion that an assessment of her work area be carried out was dismissed by the respondent on the grounds that the company doctor had not recommended the assessment.
The respondent did not consider an ergonomical assessment, which might have led to the provision of appropriate aids or adaptions to the claimant’s work area.
In all the circumstances the Tribunal finds that the claimant’s dismissal was unfair. The Tribunal awards the maximum compensation open to the Tribunal of €1,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)