Labour Court Database __________________________________________________________________________________ File Number: EED9212 Case Number: EEO933 Section / Act: S27EE Parties: IONA NATIONAL AIRWAYS LIMITED - and - EMPLOYMENT EQUALITY AGENCY;IRISH AIRLINE PILOTS' ASSOCIATION |
Claim by a worker that she was unfairly dismissed in contravention of Section 3(4) of the Employment Equality Act, 1977.
Recommendation:
The Full Document of this Document can found in the Database.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
EED9212 ORDER NO. EEO393
THE LABOUR COURT
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: IONA NATIONAL AIRWAYS LIMITED
(REPRESENTED BY GORE AND GRIMES, SOLICITORS)
and
EMPLOYMENT EQUALITY AGENCY
IRISH AIRLINE PILOTS' ASSOCIATION
SUBJECT:
1. Claim by a worker that she was unfairly dismissed in
contravention of Section 3(4) of the Employment Equality Act,
1977.
BACKGROUND:
2. The Company is a commercial airline based at Cloghrane, Co.
Dublin. It operates a flying school, air-taxi, and night-freight
business.
3. The Company opened a subsidiary flying school in Cork to cater
for the demand for professional pilots due to a rapid expansion in
the airline industry. However, the airline industry went into
recession and the Company cut back on its operations. In May,
1992 five workers were made redundant, including two instructors,
two administration personnel and a mechanic.
4. The worker concerned, an instructor, was one of the people
made redundant. She was initially employed as an instructor in
May, 1991 on a salary of #15,000 p.a. The worker claimed that she
was unfairly selected for redundancy on grounds of sex because two
male colleagues, with less experience and qualifications were
retained. The Company rejected the claim and the worker referred
the dispute to the Labour Court under Section 26 and 27 of the
Employment Equality Act, 1977. A Labour Court hearing was held on
10th December, 1992. The parties submitted written submissions
which were expanded on orally at the hearing.
AGENCY'S ARGUMENTS:
5. 1. The worker, on enquiring why she was being made redundant,
was informed that a number of students had refused to fly with
her and that she was too expensive. She offered to take a
reduction in her wage to enable the Company to employ her, if
cashflow was the problem. The Company rejected this offer.
2. Four of the five workers made redundant in May, 1992 were
female.
3. Two male workers with less service and qualifications were
retained instead of the worker (details supplied to the
Court).
4. The workplace was characterised by an anti-woman bias
(details supplied to the Court).
5. The worker is a highly qualified and experienced flying
instructor. She carried out her duties in an efficient manner
and never had any complaints about her work. The manner of
her dismissal has adversely affected her chances of employment
as a flying instructor (details supplied to the Court).
COMPANY'S ARGUMENTS:
6. 1. The worker was selected for redundancy because she was
being paid a higher salary than other instructors. The
Company could therefore obtain greater economies.
2. A number of student pilots had refused to fly with the
worker.
3. The other instructors were more flexible than the worker
(details supplied to the Court).
4. The worker adopted a generally uncooperative attitude to
tasks to be carried out in the course of her employment, in
marked contrast to other instructors.
*ORDER:
7. The Court has examined the details of this claim made by the
Complainant pursuant to Section 26 and 27 of the Employment
Equality Act, 1977 (the Act). The Court received detailed written
submissions from the parties to the claim and in addition heard
oral evidence at a hearing held at the Labour Court on 10th
December, 1992.
The Court was asked to find that the complainant was unfairly
selected for redundancy by the Company, the reason submitted being
that she was female, and that accordingly the Company acted in
breach of Section 27 of the Act.
The dispute, therefore, was that the complainant had been
dismissed in contravention of Section 3(4) of the Act. Section
3(4) provides that a person shall be taken to discriminate against
an employee if (inter alia) he does not provide the same treatment
in relation to redundancies as he affords to another person, where
the circumstances in which both persons are employed are not
materially different.
It was common case that a redundancy situation existed in the
Company at the time in question. Five persons were in fact made
redundant. Two female Instructors (including the claimant), two
female administrative personnel, and one male trainee mechanic.
The relevant posts in this case are those of instructor. Of the
two female instructors made redundant in May, 1992 the complainant
had higher qualifications and longer service than the other. From
details submitted by the Company subsequent to the hearing the
following staff profile as of May '92 and following the
termination of the employment of the above two instructors was:-
(1) One female and four male instructors
(2) Chief Flight Instructor (male)
and
(3) General Manager - Chief Flight Instructor (male).
Again the employees at (1) above are relevant to the case. The
female had lesser qualifications and shorter service than the
complainant (O'B).
Of the four males
Two had higher qualifications (S&H)
One had the same qualifications (McG) and less service.
One male had lesser qualification (M) than the complainant) and
less service
(McG &M referred to above were made redundant in
October and July, 1992 respectively)
As the complaint before the Court is selection for redundancy
based unfairly on sex, the fact that the Company retained one
female instructor who was less qualified and had shorter service
does not need to be considered. Obviously if the Company operated
a last in first out policy it would have relevance, as it might
well do if the claim fell to be dealt with as a matter of
Industrial Relations.
The Court then proceeded to examine the complainant's selection
for redundancy vis a vis her male colleagues with the relevant
qualifications. One male had the same qualifications and less
service (McG) EPL-IR-L2. One male had lesser qualification and
less service (M). EPL/L2.
Evidence was submitted that the complainant had been selected
because there had been complaints from students about her.
However, the Court rejects this evidence as unsustainable.
There were further submissions that the complainant did not
perform her duties adequately and had an inflexible attitude.
However, the Court notes that on no occasion was she reprimanded
or given any indication that she was less than satisfactory.
There was evidence from both sides on these points; the Court was
more impressed by the evidence given on behalf of the claimant.
A further argument was made to the effect that the complainant was
selected because she was more expensive to retain than other
instructors. This "economic reason" might have been accepted as
valid had the complainant not offered to take a reduction in pay,
which offer did not seem to have been seriously considered by the
Company.
In all the circumstances the Court has come to the conclusion that
the Company's justifications for the dismissal as presented in
this case do not add up to adequate reasons for choosing to make
the complainant redundant rather than either of her male
colleagues referred to above.
The Court has therefore concluded that the complainant was not
treated the same in relation to selection for redundancy as her
male colleague and that her selection was made on the basis of her
sex. The Court accordingly finds that the complainant was
discriminated against in contravention of Section 3(4) of the Act,
and that her complaint is well-founded.
In examining the issue of the remedy sought, the Court, in view of
the trading position of the Company does not consider
re-instatement a realistic proposition.
The Court was aware that the two male instructors were
subsequently made redundant and it is reasonable to assume that
the complainant would also have been let go at the latest in
October, 1992.
The Court for the above reasons determines that the complainant
should be paid a sum equal to the amount she would have been paid
had she been employed from the date she was made redundant to a
date not later than October, 92 when McG was declared redundant.
ORDER:
The Full Document of this Document can found in the Database.
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Signed on behalf of the Labour Court
Evelyn Owens
__________________
2nd April, 1993. Deputy Chairman
M.D./J.C.