UD27/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                           CASE NO.

Rex Ijisonuwe

- appellant                                                                                                                UD27/2013

against the recommendation of the Rights Commissioner in the case of:

Aer Lingus Limited - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Mr C. Lucey

                    Mr M. O'Reilly

heard this appeal at Dublin on 20th February 2014, 16th May 2014

                                                                     and 15^th October 2014.

Representation:

_______________

Appellant:            Mr William O'Reilly, Steen O' Reilly, Solicitors, 31/34

                             Trimgate Street, Navan, Co Meath

Respondent:                    Mr Tom Mallon BL instructed by Arthur Cox, Solicitors, Earlsfort Centre,

                             Earlsfort Terrace, Dublin 2

This case came before the Tribunal by way of an appeal by the employee (appellant) appealing against the recommendation of the Rights Commissioner (R-098166-UD-10/DI) under the Unfair Dismissals Acts 1977 to 2007.

Respondent’s Case

The appellant was employed by the respondent airline company as a check-in operator. An incident occurred on the morning of the 14^th of June 2010 that led to the appellant’s dismissal.

The Tribunal heard evidence from the current emergency response manager (manager of passenger service in June 2010). He has been employed by the respondent company for 35 years and has worked in all areas of ground operations. He outlined in detail to the Tribunal the duties and functions of check-in operators in relation to checking in passengers and baggage, and the processes/procedures that are required to be followed for every check-in transaction. In that regard all check-in operators are trained in the required procedures and if an operator has any doubt in checking in a passenger/baggage he/she should immediately contact a supervisor. He outlined to the Tribunal the scheduling process of morning flights which are done in blocks of three. As part of the company’s multi-skilling agreement with the trade union check-in staff can act as boarding staff following the completion of the check-in process. However the first flight each morning is not part of this agreement and there is no requirement for check-in operators to act as boarding staff on this first flight following the completion of their check-in duties.

He gave evidence that on the morning of 14 June 2010 he was contacted by a duty manager concerning an incident in relation to check-in process/procedures followed by the appellant in checking in passenger(s) and baggage. He met with the appellant later that morning and asked him a number of questions in relation to check-in transaction that he had processed earlier that morning. A customer agent supervisor was also present at the meeting. He gave evidence that the appellant admitted to breaches of procedures in relation to the checking in of passenger(s) and the passenger(s) baggage. He told the Tribunal that the appellant had checked in passenger(s) without the passenger(s) being present and had accepted passport documentation in relation to the passengers from an unknown non-travelling third person. He gave evidence that the appellant had not followed any of the normal transaction check-in requirements and the appellant had admitted that ‘he did not know the passenger(s) from Adam’. He had evaded all of the required regulations and had failed to charge for excess baggage. He told the Tribunal that the appellant got down on his knees and said “please forgive me, you only caught me once”.

He told the Tribunal that the appellant had checked in the said passenger(s) on a flight to Nigeria via Amsterdam. He had checked in the passenger(s) and baggage from area No 4 where he was working on the morning in question even though the correct checking area for passengers on that flight was from area No 5. He should have had no dealings with those passengers from his area No 4 workplace. His actions amounted to wilful gross misconduct. The witness gave evidence that he advised the appellant at the meeting on 14 June 2010 that there had been a breach of trust in the workplace and he suspended the appellant on full pay pending an investigation.

The Tribunal heard further evidence that the aforementioned baggage was subsequently stopped by a floor worker prior to being loaded on the aircraft as it was well in excess of the maximum 32 kilos permitted. The passenger(s) and baggage were subsequently checked-in in the correct manner by another employee.

LD, a customer assistant who had previously worked as a check-in operator and witness to the incident gave evidence. LD witnessed a passenger enter check-in area 4, the appellant’s desk. Some time later LD witnessed the passenger re-enter check-in area 4 with his bags already tagged; bags are never tagged and returned to a passenger. Two bags had been tagged when the passenger left area 4 initially and all three bags were tagged when he returned to area 4 from the oversized baggage area.   If bags are oversized the passenger is always escorted to the oversized baggage area. LD approached the passenger and directed him to the correct check-in area (5) to drop off his bags, the passenger responded, ‘I’m going to my friend over there’ indicating the appellant. LD informed the passenger that he needed to go to area 5 to check in; the passenger then produced boarding cards that had already been issued to him. LD then escorted the passenger to MTM in area 5 to complete the process.

For security reasons passengers are escorted if they need to go to another area after the check-in process has begun and it is the same reason that tagged bags are not given back to passengers.   LD queried the transaction with the appellant who responded, ‘don’t worry, it’s sorted.’ The two passengers were not present for the check-in process.  LD informed his supervisor (KG) of what had taken place. It transpired that the male passenger that checked-in was not actually travelling.

A check-in operator (BH) working 2 desks away from the appellant gave evidence. Area 4 was very quiet the morning the incident took place. BH witnessed a single male approach the appellant’s desk. BH was alerted to the appellant’s conversation when he heard Amsterdam mentioned, as the passenger should be re-directed to the correct check-in area. The appellant checked the passenger in and tagged a number of bags; the passenger proceeded to re-pack his bags in front of the check-in desk before going to the oversized baggage area alone. The passenger returned to area 4 and spoke to LD. The passenger then went to the appellant’s check-in desk where his baggage was re-weighed and the appellant issued him with a final bag tag; the passenger then left the area with all of the bags tagged. At no point did BH see the 2 passengers presumed to be travelling with the male passenger. The appellant later asked BH had he seen the shop steward.

The check-in supervisor KG gave evidence that LD informed her of what had occurred that morning. KG had previously been a check-in operator and was very aware of the correct procedure. KG did not witness the incident or see the CCTV footage. KG then e-mailed her manager (KB) and outlined the incident stating, ‘the problem is the man that checked in was not travelling.’

All baggage must be checked in in the correct area so the baggage is directed to the right place. It is a serious breach of security to allow a passenger to leave the check-in area with tagged/checked bags.

KG attended the meeting held with the appellant later that day. The appellant was extremely apologetic and ‘accepted what he did.’ KG was informed prior to the meeting what it was about and that it was a disciplinary matter.

A check-in supervisor/trainer (PmcM) and note taker at the investigation meeting gave evidence. It is PmcM’s evidence that the appellant’s check-in process does not make sense and is a total breach of security and health & safety procedures. The appellant admitted tagging the bags, printing the boarding cards, not seeing the travelling passengers, knowing the male passenger was not travelling, not escorting the male passenger to the scales and only asking the male passenger the security questions. PmcM stands over the accuracy of her investigation meeting minutes.

Extensive evidence was given to the Tribunal regarding the check-in areas; when they are allocated to flights and the logic and importance of checking in passengers only in the area assigned to the flight. There is no practice of checking in passengers for a flight in any area other that the one allocated.

The Tribunal heard evidence from a check in operator known as (MTM) working in area No 5 on the morning of 14 June 2010. She called her flight for Amsterdam at 05.10 which was the first flight departing from the Airport. It was not particularly busy in her area. A colleague (LD) then brought a male to her desk. The male in question was not travelling but had baggage with him one of which was already tagged. He also had other baggage tags and two boarding cards. She enquired as to where the passengers were and he then left area 5 and returned with the passengers, a female and an infant approx 15 minutes later. She then followed the security procedures in checking in the passengers and weighed the baggage. The baggage had excess weight and she charged €300 for the excess baggage. She sent the baggage to the aircraft and person with a DAA uniform brought the passengers through security.

She told the Tribunal that the female passenger held a Nigerian passport and spoke good English. She later spoke to the appellant and asked him why he had checked the passengers in the wrong area (area No 4) and he replied that he just did. She gave evidence that he did not tell her that he had other duties to attend to that morning and he did not bring the passengers in question to her desk. She confirmed that her colleague (LD) had brought the male to her desk.

Appellant’s Case

The appellant gave direct evidence that on the morning of 14 June 2010 he was working in area 4 as a check-in operator. Area 4 was quiet and area 5 was very busy. He gave evidence that at 04.30 he was approached by a Nigerian man with his wife and an infant seeking assistance. The man’s wife and infant were passengers seeking to check-in on a flight to Amsterdam. He informed them that area 5 was the correct area to check-in for the flight but proceeded to assist them as the infant was crying and he has been trained by the company that all passengers are VIP’s. He communicated at all time with the male as he was told by the male that his wife did not have good English.

He carried out the normal security checks and printed boarding cards. He did not give them the boarding passes and held them at his desk. He then printed the baggage tags and placed a baggage tag on one bag. He returned this bag to the male. The passengers two other bags had excess weight and he informed them that the weight would have to be reduced or the bags re-packed. The party then left his area and went to a different location to re-pack the bags. They returned to him some time later but the bags were still too heavy and he sent them away again to re-pack the bags. By 05.10 they still had not re-packed their bags and he gave evidence that he was due to report for boarding duty at 05.20. Before he left for this duty he brought the passengers to his colleague (MTM) in area 5 and apprised her of the efforts he had made to assist the passengers. He had not charged for excess baggage as the bags were not ready for loading. He gave evidence that following his return from boarding duties he enquired from (MTM) as to the ultimate outcome and she informed him that she had completed the check-in duties and the passengers had paid €300 for excess baggage.

He gave further evidence that he was familiar with the baggage handling requirements and was aware of the significance of the security questions and the dangerous goods procedures to be followed. He believed that he followed these procedures and told the Tribunal that there was no strict rule concerning baggage being checked in specific areas. Staff are trained in check-in procedures on all flights and can assist passengers when it is particularly busy. He had no concerns about the passengers in question.

He was subsequently requested to attend a meeting later that morning. He was not informed of the nature of the meeting. He was not afforded the opportunity of having a witness present with him at that meeting. He was asked a number of questions by the manager of passenger service. A record of this meeting including his response to the questions asked was opened to the Tribunal. In evidence he denied that his answers are those as are recorded in the record of the meeting. Following this meeting he was suspended on full pay and asked to leave the airport. The matter then progressed to an investigation stage and he attended an investigation meeting on 18 June 2010 where he was represented by a trade union official. The matter subsequently progressed to a disciplinary stage and a disciplinary meeting was held on 29 June 2010. He was again represented by a trade union official. He only received notification of this meeting on 25 June 2010.

The appellant gave evidence that he was never asked to give a written report of the events of the morning of 14 June 2010 and the Tribunal was told that he only received the written reports of (LD), (MTM), (BH) and (GC) on the day before his disciplinary hearing. He was not allowed to question these employees on the written reports that they had given and in evidence to the Tribunal he denied the version of events as recorded by these employees. He accepted that during the course of the disciplinary meeting he was given the opportunity to adjourn the meeting to a later date but he declined to do so as he was distressed. He had a good employment record with no disciplinary issues and he expected his replies to be taken on board by the respondent.

He was dismissed from his employment by way of letter dated 8 July 2010 on the grounds of gross misconduct. He was afforded the right to appeal this decision and he exercised this right by way of letter dated 19 July 2010 setting out his grounds of appeal. The appeal hearing was held on 5 August 2010 and the decision to dismiss him was upheld. The outcome of his appeal was not conveyed to him until 31 August 2010. It was submitted to the Tribunal that this was in breach of the company’s own policy and increased the levels of stress to which the appellant was subjected. The appellant stated in evidence that he was given no reason for this delay.

The appellant gave further detailed evidence in relation to his efforts to mitigate his loss. He was not provided with a reference by the respondent. He has completed a course in progressive education and has done some community work. He has not been in paid employment since his dismissal and is in receipt of job seekers allowance. He gave evidence that he held a taxi license for three years but he never operated the license due to his family circumstances. The license expired in 2012/2013 and he no longer holds a license.

The Tribunal heard further evidence from the trade union official who represented the appellant at the disciplinary and appeal hearings. She told the Tribunal that she worked as check-in operator and also worked in the boarding area in her period of employment with the respondent. She is now retired having left the respondent’s employment 2/3 years ago. She gave evidence that language barriers presented difficulties in dealing with customers. She confirmed that she was only presented with witness statements one day prior to the disciplinary hearing despite requesting them on a number of occasions prior to the hearing. She accepted that during the course of the hearing the respondent offered to adjourn the hearing to a later date but the appellant said he just wanted to get it over with as he was very upset.

She gave evidence that employees have to use discretion in dealing with customers e.g. elderly passengers, bereaved parents travelling on a flight. Employees have to evaluate each situation and while she was in the respondent’s employment she gave evidence that she was handed boarding passes and tags by her former colleagues with a request to process them. She worked alongside the appellant and described him as a fine colleague and believed his version of events. She accepts that handing back boarding passes and baggage tags is very dangerous and contrary to all rules.

Determination

The Tribunal carefully considered the oral and documentary evidence adduced at the hearing and is unanimously of the view that the appellant was clearly in breach of the respondent’s check-in and safety procedures which are of paramount importance to the respondent airline. The Tribunal is further satisfied that the appellant was provided with all necessary and appropriate training in relation to the respondent’s safety and check-in procedures.

The Tribunal accepts there were some minor procedural deficiencies in the respondent’s handling of the disciplinary process eg: the appellant not being informed of the nature of the initial meeting and not being allowed to have a witness present with him at that meeting. Notwithstanding this the Tribunal is satisfied that the action of the respondent in dismissing the appellant was not unfair and notes that the appellant was afforded the right of representation at the investigation and disciplinary hearings.

In all of the circumstances the Tribunal prefers the evidence of the respondent and finds that appeal fails and the recommendation of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007 is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)