FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER LINGUS (REPRESENTED BY TOM MALLON B.L. AND INSTRUCTED BY ARTHUR COX SOLICITORS) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal Of Recommendation Of A Rights Commissioner R-071448-Ir-09/Jc
BACKGROUND:
2. The worker was one of eight employees appealing against a Rights Commissioner's recommendation. The basic case for each of the workers is the same and is as follows: the worker was a member of the Cabin Crew on a flight to Boston on the 11th June, 2008. On arrival in Boston, Custom Border Control (CBP) officers conducted inspections of all crew. Later that afternoon the CBP contacted Aer Lingus management with a complaint that, following a search, some crew members were not completing their CBP forms properly by failing to declare items they removed from the aircraft and did not possess receipts for their duty-free goods. The complaint went on to say"Further violations may result in the issuance of penalties against the crewmembers and/or the carrier...". TheCompany decided to carry out an investigation into the events and the result was that the worker was suspended (on full pay) pending an outcome. An investigation took place on the 20th of June, 2008, and the suspension was lifted on 26th June, 2008, and the worker was advised that a disciplinary hearing would not take place. The Union's case is that the workers were all very upset by the incident and it also believes that Company management had gone to Boston before the flight in question in order to initiate the searches.
The Union lodged a grievance/complaint against the Company on behalf of the eight workers on the 8th July, 2008. The Company appointed an investigator who concluded, the Company claims, that its actions had been appropriate and that no evidence of negligence with regard to ensuring confidentiality was evident. The Union then referred its case to a Rights Commissioner and her recommendation was as follows:
"Having considered in detail all of the submissions made in respect of this matter and taking into account the claimant's long service, I recommend the following terms to the parties based strictly on the specific circumstances in this case, and without precedent for any other case/s:
- That in full and final settlement of all matters related to the complaint herein and without admission of liability the Company confirm in writing to the claimant that:
- (a) she has been cleared of any wrong doing warranting disciplinary action;
b) any reference to this incident has been removed from her personnel file and does not form any part of her personnel record;
(c)these events will have no impact whatsoever on her career in Aer Lingus including future promotional prospects;
(d) any loss of credits in respect of the period of suspension will be restored to her in full;
(e) the Company give the claimant four weeks additional paid leave (payment to be calculated on the same basis as her paid annual leave) as an expression of regret for any distress or upset that may have been caused to her".
The Union appealed the recommendation to the Labour Court on the 7th August, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 3rd June, 2010, the earliest date suitable to the parties.
- (a) she has been cleared of any wrong doing warranting disciplinary action;
3. 1. The worker believe that the Company failed her in every way. She was seriously hurt and damaged by the case and has not been able to bring closure to the events. Some of the workers became ill and needed counselling.
2. The Company did not issue receipts to the Cabin Crew for purchases they made on board and, therefore, they could note show receipts to the CBP in Boston. In fact, the Company commenced issuing receipts only after the workers were suspended.
3. The Union believes that the Rights Commissioner's award is not adequate considering the seriousness of the allegations made against the worker and is seeking significantly greater compensation.
COMPANY'S ARGUMENTS:
4. 1. The Company regarded the CBP report as an initial report that required investigation. Based on the initial information the Company deemed it appropriate to suspend all the workers and then conduct individual investigations.
2. The Company rejects the Union's allegation that it did not take adequate steps to ensure confidentiality. The Company did not in any way contribute to or cause rumours or speculation. It also vehemently denies that it acted in concert with US Customs in instigating the searches.
3. Suspension is not a disciplinary. No sanction whatsoever was taken against the workers and they did not lose privileges during their suspension.
DECISION:
While eight individual appeals were received the same points arose in all cases.
The recommendation of the Rights Commissioner in this case contains a comprehensive and balanced evaluation of all the relevant factors in this dispute.
It is clear from the Rights Commissioner’s analysis and conclusions that no basis exists which could justify any imputation of wrongdoing on the part of the Cabin Crew concerned. It is equally clear from the Rights Commissioner’s recommendation that she came firmly (and in the Court’s view correctly) to the conclusion that the Company’s response in suspending those concerned was unreasonable. This should now be clearly acknowledged by all concerned.
Having regard to the points made by the Union in the appeal the Court accepts that any individual who suffered any financial loss by having taken sick leave in consequence of the events giving rise to this case should have that loss restored. The Court further accepts that those who attended at various meetings and hearings, including the hearings before the Rights Commissioner and this Court should not suffer any loss in consequence of so doing. These points were not before the Rights Commissioner and it is noted that the Company have no substantial objection to what the Union is seeking.
It is also noted that the Company is agreeable to having the additional annual leave recommended by the Rights Commissioner converted to cash payments where this is the preference of the individuals concerned.
With the riders referred to in this Decision the recommendation of the Rights Commissioner is affirmed.
Finally, the Court wishes to express the hope that the recommendation of the Rights Commissioner and this Decision of the Court will bring finality to this unfortunate episode and be accepted as a vindication of the standing and reputation of the staff concerned.
Signed on behalf of the Labour Court
Kevin Duffy
14th June, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.