FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : IRISH AVIATION AUTHORITY - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. (i) Applicability of Continuity of Service Agreement to Student Air Traffic Controllers (ii) Termination of Contract of Student Air Traffic Controller
BACKGROUND:
2. The Authority's Student Controller Programme (SCP) was established in 1997. To date six classes totalling 134 students have undergone the training programme with 109 graduating as licensed Air Traffic Controllers.
The worker concerned began employment as a Student Controller in March, 2008. He was due to sit his interim progress exams on the 29th and 30th of April, and 1st May, 2008 (Tuesday to Thursday). On the morning of 29th April, 2008, he phoned the Authority to see if he could postpone the first exam as his wife, who was pregnant, had gone into hospital to give birth. The Authority agreed and the exam was rescheduled to the 2nd May, 2008 (Friday). He sat the other two exams on Wednesday and Thursday but failed them with marks of 60% and 65% respectively; the pass mark is 70%. He passed the exam on Friday with marks of 88% but failed overall as students must pass two of the three exams. According to the Union he was advised that he could appeal the exam results to the Head of Training with a further appeal to the Director of Technology. The worker requested Union representation but this was denied to him. He was unsuccessful in both appeals and his employment was terminated on 5th June, 2008. The Union requested that the matter be dealt with under the Authority's Grievance Procedure. The Authority refused, stating that separate procedures applied to Students and that these had already been exhausted.
The dispute was referred to the Labour Relations Commissions and a conciliation conference took place. As the parties did not reach agreement the dispute was referred to the Labour Court on the 30th July, 2008, in accordance with Section 26(1) of the Industrial Relation Act, 1990. A Labour Court hearing took place on the 23rd September, 2008.
UNION'S ARGUMENTS:
3. 1. The Union believes that there are exceptional circumstances as to why the worker failed to pass the exams. His wife had a difficult birth and the worker spent a lot of time with her at the hospital, including the night of the 29th May, 2008. He had very little sleep and was physically and emotionally tired. The worker had flagged the circumstances well in advance.
2. The internal appeal process is totally inadequate to deal with exceptional circumstances. The Grievance Procedure is part of the Continuity of Service Agreement. It applies to every member of the staff of the Authority and there can be no doubt the Student Controllers are employees in every sense of the term.
AUTHORITY'S ARGUMENTS:
4. 1. The Authority is committed and responsible for ensuring the safety and integrity of the Air Traffic Management System. Safety is the number one priority at all times and the Air Traffic Controller is a critical part of that system. The worker concerned did not meet the required safety standard by failing the written technical examinations. It is not a matter for compromise.
2. The worker did not make his Instructors or training centre management aware of any unusual circumstances in relations to his wife's pregnancy. He only raised issues after receiving his exam results.
3. The Authority emphatically rejects the Union claim that it did not provide an appropriate appeals mechanism to the worker. Section 7.0 of the SCP deals with Student appeals. Students on the SCP are clear from the outset that they must comply with all criteria to graduate as licensed Air Traffic Controllers.
RECOMMENDATION:
The matter before the Court concerns the Union’s claims (i) on behalf of a Student Air Traffic Controller to be allowed re-enter the Student Controller Programme to re-sit examinations and proceed with the remainder of the Programme, and (ii) access for Student Controllers to the Authority’s Grievance Procedure.
(i) Claim on behalf of a Student Air Traffic Controller to be allowed re-enter the Student Controller Programme to re-sit examinations and proceed with the remainder of the ProgrammeThe Union claimed that the Student Controller in question had exceptional extenuating circumstances which should have been taken into account when he failed to meet the required technical safety standard in the written examinations as part of the Theory Part 1 Module. This failure led to his dismissal from the Programme.
Management stated that his circumstances were given careful consideration in line with both stages of the Appeals process, however, his appeal was not successful. Management also stressed the importance of the Authority’s necessity to strictly adhere to the required technical safety standards regulated by the National Supervisory Authority (NSA) on behalf of the European Air Safety Agency (EASA) and in line with international safety standards as laid down by the International Civil Aviation Organisation (ICAO) and the European Commission.
The Court notes that the Student Controller sought special arrangements in respect of the first day of the examinations due to his exceptional circumstances and this was granted to him, however, he did not seek similar special arrangements for all three days of the examinations. Management made it clear to the Court that had he sought such special arrangements in advance of the examinations, his case would have been given favourable consideration. However, it was not feasible to provide such arrangements after the examinations results were made known.
Having given careful consideration to the submissions of both parties, the Court accepts that the circumstances surrounding the claimant at the time were exceptional, however, the Court does not recommend in favour of the Union’s claim that he should be allowed to re-sit the failed examinations and continue on to the next phase of the Programme. In all the circumstances of this case, the Court recommends that the claimant should be allowed entry into the next available Student Controller Programme, without having to undergo a selection process and allowed progress through that Programme in the normal way, as laid down in the“Student Controller Programme, Technology and Training Directorate”.
(ii) access for Student Controller’s to the Authority’s Grievance ProcedureThe Court accepts that the Appeals Process outlined at clause 1.1.6 of the “Student Controller Programme, Technology and Training Directorate”is appropriate for its purpose, and does not find in favour of the Union’s claim to allow applicability of the“Continuity of Service Agreement”to Student Air Traffic Controllers. However, the Court recommends that Students should be allowed trade union representations at Appeal hearings under clause 1.1.6, if so requested.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th October, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.