EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD301/2013
MN154/2013
WT38/2013
CLAIMS OF:
Raymond Gould -claimant
Against
ICTS Ireland Limited / ICTS UK Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr. A. O'Mara
Mr. J. Dorney
heard this claim at Dublin on 24th March 2014
and 7th January 2015
and 8th January 2015
Representation:
_______________
Claimant: Mr Paul Henry, Siptu, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr Peter Redman, First Business Support Ltd T/A,
Northgatearinso Employer Services, Warwick House, Hollins Brook, Pilsworth, Bury, Lancashire, BL9 8RR
Background
The respondent company provided contract security services to airlines for transatlantic flights. The claimant was employed to conduct security searches on the aircraft. He was dismissed following an incident where he allegedly did not carry out the security search in accordance with the respondent’s policy. He was employed from the 6th of June 2010 to the 31st of August 2012.
Respondent’s Case
The assistant station manager (GC) gave evidence. The respondent is subject to both the security guidelines of the Department of Transport (DoT) and the guidelines of the airlines to which they are contracted. Extensive classroom and on-the-job training is provided to the security staff. There is an annual exam and recurrent training is provided. There is a specific protocol for searching an aircraft that is subject to inspection from the DoT. The claimant was fully aware and had up to date training on the search protocol.
On the 11th of July 2012 the aircraft the claimant was working on was subject to a DoT inspection. By letter of the 13th of July the DoT informed the airline that following the inspection it was found that they were not compliant with the search guidelines. The airline informed the respondent of the result and GC was asked to investigate.
The inspection failure concerned the search of life vests and the overhead bins; there was no specific detail or staff named in the inspection result. GC did not have sight of the inspection detail before or during the investigation. The life vests in economy class and 1st class require a different search procedure; as a result GC was able to tell from the three rostered staff that the complaint concerned the claimant’s actions as he was responsible for economy class. This view was confirmed during the investigation meeting.
An investigation meeting was held with the claimant on the 23rd of July 2012. A follow up investigation meeting was held on the 27th of July 2012 by another manager (PmcK) as GC was unavailable. Meetings were held and statements were also taken from the other staff on board. Officially the aircraft can only be searched after the cleaners have finished and left, but due to time constraints the claimant said the practice was for the cleaners to start at the back of the plane and the security search to be carried out behind them when the area was ‘sterile’ and the cleaners have moved forward. The cleaning and security search is staggered but simultaneous. (Extensive evidence was provided to the Tribunal on the method and manner in which these searches took place.) On instruction from the disciplinary officer, GC interviewed 14 supervisors who unanimously said that it is not the practice to simultaneously conduct the security search with the cleaners on board.
The conclusion of the investigation was that the claimant carried out the search but in the wrong sequential order therefore invalidating the security search. The claimant was suspended on the 27th of July 2012, the suspension letter contained the following allegations;
‘1. alleged failure to search the economy overhead bins on board *** on the 11th of July
2. alleged failure to search the life-vests in accordance with requirements'
The suspension letter informed the claimant how serious the allegations were and that if proved, could lead to dismissal. The claimant requested the initial complaint/inspection result and the flight log; GC did not provide these to the claimant.
The respondent’s Irish Manager (GoB) gave evidence. He received a phone call from the DoT inspector informing him of the inspection failings. The issue with the economy overhead bin search was mentioned but he does not recall any mention of the life vests. As a result of this phone call GoB instructed the Operations Manager to make enquiries in advance of the airline contacting the respondent. GoB had no further involvement in the process.
A station manager (FmcE) gave evidence that the claimant had a final written warning on his record. As she had been involved in that disciplinary process she was not involved in the disciplinary procedure that led to the claimant’s dismissal.
The station manager in Belfast (WmcC) conducted the disciplinary meeting. By letter of the 2nd of August 2012 she invited the claimant to a disciplinary meeting on the 16th of August. WmcC had the DoT inspection report and all the supporting documentation from the investigation. At this meeting the claimant admitted that he searched the overhead bins before the cleaners had come on board and that he was aware this was contrary to the procedure. WmcC did not ask if the claimant conducted a second search after the cleaners had left and the claimant did not say that he conducted a second search. The claimant, in his defence, said this was normal practice so before coming to a decision WmcC asked for this allegation to be investigated. This allegation was not proven. WmcC decided that the claimant had acted irresponsibly by not conducting the search after the cleaners had concluded. She considered the claimant’s actions as Gross Misconduct that warranted dismissal; no lesser sanction was considered. The claimant was informed of this decision by letter dated the 29th of August 2012.
The HR and Legal Director for the respondent (PH) gave evidence. PH compiled the training protocols for conducting the aircraft searches. The MD of the respondent delegated the appeal to PH, he received the claimant’s request to appeal the decision to dismiss him. The appeal meeting took place on the 26th of September 2012. During the appeal meeting the claimant openly admitted to searching the overhead bins first before the cleaners had finished and left the aircraft. This is contrary to the search protocol. PH upheld the decision to dismiss the claimant and informed him of this by letter dated the 8th of October 2012. No lesser sanction was considered as his only explanation was that although wrong, his search method was common practice; no evidence was found to suggest that his method was common practice. There was no need to reconvene the appeal meeting as the evidence and admission by the claimant was ‘overwhelming.’
At no point during the disciplinary process did the claimant say that he completed a second search after the cleaners had left the aircraft.
Claimant’s Case
The claimant disputes ever admitting to doing the search the wrong way, he said he did the search the way everyone did it. After his initial search the claimant did a second search after the cleaners that the DoT inspectors did not witness. He let the cleaners start and move ahead by 6-8 seats then followed them doing the search in the sterile area behind them. After he had completed his left side of the aircraft he helped the other staff member complete the right side. The DoT inspectors were in business class when the claimant completed his full search. He inspected the life jackets leaving one seat up as he needed to get a seal for it; the claimant got and placed the seal on the life jacket.
The claimant never mentioned that he did a full second search during the disciplinary process as “not one person ever asked me about a second search.” It became clear during the process that the accusation was that he didn’t complete a full search but as no one asked him he “didn’t tell any of them that I did the search.”
The claimant requested the documentation the respondent was relying on (the DoT report and flight log) but never received them. He was never given the minutes of the appeal meeting.
While on suspension the claimant was due to be on annual leave; as the suspension letter instructed him to be available at all times he did not take his holidays.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Determination
While acknowledging there may have been minor procedural deficiencies in the disciplinary process, the claimant failed to satisfy the Tribunal that he conducted the search of the aircraft as per the statutory requirements and respondent procedures. Bearing in mind the nature and inherent responsibilities of the respondent and claimant to ensure adequate safety of air passengers, the Tribunal believes that higher standards than might otherwise be required must be adhered to in such circumstances. On balance the Tribunal find that the claimant was fairly dismissed and therefore the claims under the Unfair Dismissals Acts 1977 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005 fail.
The Tribunal is satisfied that as the claimant was required to be available during his suspension and could not therefore be on annual leave. The claimant is awarded €1,380.00 being the equivalent to 10 days annual leave under the Organisation of Working Time Act 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)