Labour Court Database __________________________________________________________________________________ File Number: AEE906 Case Number: DEE913 Section / Act: S21EE Parties: AER LINGUS TEORANTA - and - NINE FEMALE CABIN CREW;O'MARA & COMPANY, SOLICITORS |
Appeal by Nine(9) Female Cabin Crew against Equality Officers Recommendation EE8/1990 concerning a complaint by the nine(9) female cabin crew that the Company discriminated against them contrary to the provisions of the Employment Equality Act, 1977, by not recognising their service prior to 1980 when selecting cabin crew from lease duty with Quantas Airlines.
Recommendation:
The issue between the parties having been determined by the
Supreme Court this Court rejects this appeal and holds that Aer
Lingus has not discriminated against the Appellants.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
AEE906 DETERMINATION NO. DEE391
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21(1)
PARTIES: AER LINGUS TEORANTA
(Represented by McCann, Fitzgerald Solicitors)
and
NINE FEMALE CABIN CREW
(REPRESENTED BY O'MARA & COMPANY, SOLICITORS)
SUBJECT:
1. Appeal by Nine(9) Female Cabin Crew against Equality Officers
Recommendation EE8/1990 concerning a complaint by the nine(9)
female cabin crew that the Company discriminated against them
contrary to the provisions of the Employment Equality Act, 1977,
by not recognising their service prior to 1980 when selecting
cabin crew from lease duty with Quantas Airlines.
BACKGROUND:
2. The background to this case is set out in Equality Officers
Recommendation No. EE8/1990 which is attached as Appendix 1 to
this Determination.
3. The workers by letter dated 18th July, 1990 advised the Court
of its intention to appeal against the Equality Officers
Recommendation that the complaints before her were res judicata.
4. The Court heard the appeal on 10th December, 1990.
FINDINGS:
5. The appeal before the Court was submitted under Section 19 of
the Employment Equality Act, 1977 ('the 1977 Act') on the grounds
that the Equality Officer in her Recommendation No. EE8/1990 erred
in holding that the complaints before her were res judicata.
The specific matter referred to the Equality Officer for
investigation was that Aer Lingus, in failing to recognise the
service of the Appellants prior to 1980 when selecting cabin crew
for the Quantas venture, acted unlawfully in that such conduct was
contrary to
(a) the provisions of the Act of 1977, and in particular
section 3 thereof, and
(b) the provisions of the E.C. Directive 76/207 and in
particular Arts. 2 to 7 thereof.
The Appellants argue that the doctrine of res judicata is not
applicable, if the conduct of Aer Lingus was in breach of the
Directive 76/207. They suggest that if the Labour Court were
satisfied that the conduct of Aer Lingus was a breach of the
Directive, then it could ask the European Court for its direction
on the matter, notwithstanding that the Supreme Court has given
its judgement on facts which have the same origins as the facts in
this case.
Such argument might have been pertinent if this Court were dealing
with a different set of facts from those already considered by the
Supreme Court. But it is not. It is agreed and conceded by the
parties that the origins of the dispute in the case Aer Lingus
Teo. v. The Labour Court & Ors. and this dispute are the same.
Therefore, the failure of Aer Lingus to recognise the employment
service of the Appellants prior to 1980 is res judicata and the
appellants cannot have further litigation on the issue before this
Court. If the Appellants failed to argue the direct applicability
of the Directive in the Supreme Court, or if the Supreme Court
'failed to concentrate on the question' of whether there was a
breach of the Directive (as is argued by the Appellants), it is
not for this Court to pave the way to further litigation of the
issue.
In any event, as far as this Court is concerned, the Supreme Court
did in fact consider the applicability of the Directive,
specifically by acknowledging the fact that the Act of 1977 should
be construed 'in the light of the Directive' and by holding that
the evidence in the case did not sustain a breach of the Act.
Two further matters were argued in support of the Appellants'
contention that this Court should refer certain questions to the
European Court of Justice: (a) that Aer Lingus is an emanation of
the State and that therefore the Directive has direct application,
and (b) that the Act of 1977 did not fully implement the terms of
the Directive.
With regard to (a), this Court is satisfied that Aer Lingus is not
an emanation of the State. It is a Public Limited Company whose
sole shareholder is the Minister for Tourism and Transport,
expected to be operated by its Board on a commercial basis and
controlled as to the extent of its powers by its Memorandum and
Articles of Association. It is not excluded from complying with
the various Companies Acts which apply to commercial enterprises
nor does it possess any special powers as a result of the State
being its sole shareholder.
As to (b), this Court would simply refer to the unambiguous
finding of the Supreme Court in Aer Lingus Teo. v The Labour Court
& Ors. that 'In view of the breadth of the Act of 1977 no question
arises as to the interpretation of the Directive'. It is not open
to the Labour Court to question such a finding by a superior
court, when that finding was directed to the same dispute as the
dispute now before the Court.
DETERMINATION
The issue between the parties having been determined by the
Supreme Court this Court rejects this appeal and holds that Aer
Lingus has not discriminated against the Appellants.
~
Signed on behalf of the Labour Court
Evelyn Owens
20th May, 1991 -------------
M.D/U.S. Deputy Chairman
APPENDICES
1. Equality Officers Recommendation No. EE8/1990.
2. Submission of Appellants.
3. Further submission of Appellants.
4. Submission of Respondents.
5. Further submission of Respondent.