ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000007

Dispute for Resolution:

Date of Adjudication Hearing: 18/01/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 1^st October 2015, the complainant referred a dispute pursuant to section 13 of the Industrial Relations Act to the Workplace Relations Commission. The complainant is a member of cabin crew and the respondent is an airline.

In accordance with the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The complainant commenced employment with the respondent on the 10^th December 2000 as a member of cabin crew. The respondent operates a facility that permits staff to “jump seat” travel on its flights outside of their work duties and this facility is governed by a set of rules. She outlines that this dispute arises out of an inadvertent breach on her part of the rules, where it was common practice to do as she did. She outlines that this dispute arises from events in July 2015 where she travelled between Dublin and Manchester availing of a jump seat ticket. In advance of these flights on the 7^th and 11^th July 2015, the complainant said she contacted airline operations and the relevant captains to obtain permission to use of the jump seat. She was informed by the captains that she would be accommodated in the cabin and would not physically occupy the jump seat in the cockpit.

The complainant said that it was common for staff travelling on jump seat arrangements to be accommodated within the cabin. She outlined while the rules were clear that she had to be in uniform to occupy the jump seat in the cockpit, they were not explicit that she had to wear the uniform while seated in the cabin when travelling by way of a jump seat arrangement. She said that she had brought her uniform for this trip but was not wearing it as she had been informed that she would be sitting in the cabin. She said that she did not think it necessary for her to be wearing the uniform while seated in the cabin, and this was the common practice of members of cabin crew and pilots in the airline. The complainant outlined that she had bought a staff ticket for both flights but was able to redeem them because she had been able to avail of the jump seat. She was aware that there were occasions in which it might not be possible to avail of a jump seat, necessitating the use of the staff ticket. The complainant outlined that in October 2014 when she had travelled in the cabin while listed in the passenger manifest as occupying the jump seat, but while not wearing a uniform. There was one other occasion where she had availed of a jump seat, but was then in uniform.

This dispute arose when a senior member of the respondent emailed a senior colleague to say that he had overheard that the complainant was trying to board a flight on the 7^th July 2015 without a ticket. The email is dated the 8^th July 2015. The first the complainant was aware of the issue arose from a telephone call and email she received from the base manager to summons her to an investigation meeting. This meeting took place on the 29^th July 2015. From the notes of the investigation meeting of this date, the investigator raises the issue of the complainant using her work ID to access the airport when she was not on duty. There is also reference to an email from one captain, but the complainant said that the respondent later withdrew its reliance on this email. The matter progressed to a disciplinary hearing, held on the 14^th August 2015. The complainant sought to submit correspondence from colleagues, which she suggested provided evidence that what she had done was common practice. In correspondence dated the 20^th August 2015, the Training and Compliance Manager found that there had been breaches of policies related to the cockpit jump seat, the Cabin Safety Procedures Manual, the conditions of use of an airport permit and staff travel policies. Because of the severity of the breaches and how they pertain to airport security and airline security, the report recommends a Final Written Warning be given to the complainant to be retained for 12 months. Because of the breaches of Staff Travel arrangements and the jump seat policy, it recommended removal of her travel privileges and her use of the jump seat for two years.

The complainant appealed this outcome and attended an appeal hearing on the 16^th September 2015. Following this the Chief Operations Officer issued findings that there had been serious breaches of airport security and that a Final Written Warning would be placed on her file for 12 months. The appeal on the severity of the sanctions imposed for the breaches of the jump seat policy was upheld and the revocation of her staff privileges and eligibility for travel on the jump seat was reduced to 15 months. As part of this dispute, the complainant challenges the findings that she breached company policy as well as the sanctions imposed on her. The complainant submits that it was clear that a member of cabin crew occupying a jump seat was required to wear a uniform; it was also clear that such a person flying on a staff ticket was not required to wear a uniform. It was not clear, however, that a member of cabin crew booked to fly on a jump seat but accommodated within the cabin had to wear a uniform. In respect of airport security, the complainant said that because she was travelling by way of a jump seat booking, she had no option but to use the staff entrance to the airport. She would not be issued a boarding pass and could not avail of the passenger entrance to the airside part of the airport. She was not in uniform when passing through airport security and they confirmed that she was travelling on a jump seat. In respect of Manchester airport, the complainant said that she had offered airport security her staff ID card, but they insisted on her producing a driving licence, which she did. She did not accept the submissions made by the respondent that staff availing of jump seat arrangements were included in the supernumerary crew referred to in the Cabin Safety protocols; they relate to personnel who are travelling to bases to commence work or other personnel rostered to work.

The complainant outlined that she was currently not in work, because of illness related to the workplace. Her representative outlined that included in her claim is a claim for consequent loss of earnings. The complainant indicated that separately, she had initiated a grievance complaint against a named member of staff.

In the complaint form, the complainant makes reference to being required to attend security training and takes issue with having to attend this training in uniform. At the hearing, the complainant and her representative outlined that such a request was unprecedented. She had been asked to attend the training session on a particular date but could not do this as she was on annual leave that day. She was given an alternative date, but this too was on a day of scheduled annual leave. In email correspondence, the complainant was informed that the training session was not part of the disciplinary sanction but that she was required to attend in uniform. She was told that this was required by the Cabin Operations Manager and had only been previously a requirement in first aid training.

In closing submissions, the complainant outlined that the respondent was entitled to regulate staff travel, including on jump seats. The respondent was not entitled to penalise an employee where the relevant policy was not clear. In this case, the breach by the complainant was unwitting. It had been the airline and not the airport that had invoked the issue of the breach of airport security. A crew member could seek to travel on a jump seat for purposes other than when being on duty. When they obtained such permission, they would not be issued a boarding pass and therefore could only get access by presenting their access permit to get airside. They did so, even though they were not on duty. It was submitted that the decision to issue a Final Written Warning was extreme. It was also submitted that the length of the Employee’s service should have been a positive in assessing sanction, in particular because it was unblemished.

Respondent’s Submission and Presentation:

The respondent submits that it operates in a highly regulated environment and subject to enforcement by the Irish Aviation Authority. This includes the regulation of staff travelling on its flights as supernumerary crew. In respect of the complainant, it came to light that she had travelled on flights without having checked in as a passenger and nor had she presented herself in uniform, a requirement for any supernumerary crew member. It was submitted that it was tacit that every member of staff who availed of a jump seat that they were supernumerary crew for the flight in question. It was also submitted that the actions of the complainant had endangered her entitlement to an airport security pass because she had availed of the staff entrance at airport security when not on duty. The loss of this pass would have also frustrated her contract of employment. The Cabin Crew Base Manager met with the complainant and his report is submitted on behalf of the respondent. The report provides an account of the Manager’s discussions with the complainant and also provides what the Manager describes as clarifications of relevant policies. The Manager also states that using an Airport Access ID when not in uniform is a significant breach of duty. The report finds that the complainant should have travelled on a staff travel ticket (and not on a jump seat booking). It finds that as a crew member with 14 years’ experience, she should have had a full awareness and appreciation of the implications of a non-checked in passenger on board. It also states that using her airside access permit when not in uniform for non-work purposes is a significant security breach. The investigator draws an inference of a previous incident where the complainant availed of a jump seat while in uniform to conclude that she understood company policy. The report recommends that the matter progress to the disciplinary procedure.

The Training and Compliance Manager outlined that Cabin Crew Instructions are revised regularly and following their approval by the Irish Aviation Authority, they are issued electronically. Members of staff are issued with documents summarising changes and they are asked to sign to acknowledge receipt. The document entitled ‘8.3.1.1 Cockpit jump seat’ provides that this is available for pilots and crew travelling in uniform. It provides that the occupant of the jump seat must also have a ticket, with the exception of crew in uniform. The Training and Compliance Manager referred to an entry to a summary of changes document issued on the 28^th October 2014, addressing un-ticketed pilots and cabin crew. This provides that crew in uniform can be manifested as supernumerary crew and that it is for the commander to ensure that the individual concerned travels in uniform. She outlined that this was additional text added to the manual, but that it was always a requirement that staff be in uniform when travelling in a jump seat. There was also the issue of the breach of airport security. With respect to the complainant’s service, the Training and Compliance Manager outlined that her lengthy service meant that she should have questioned more when making arrangements for the July 2015 flights. She should have established that she should have worn the uniform on these occasions. She outlined the pilots always wore uniforms when in jump seats and did not accept the complainant’s submissions that there were occasions (e.g. flights related to maintenance) where this did not occur. The Chief Operations Officer outlined that he heard the complainant’s appeal. He said that the breaches of airport security were serious breaches and referred to clause 18 of the conditions of issue of the access permit. This provides that “an access permit does not provide an automatic right of entry – access is only permitted where staff are on duty carrying out their official duties.” He said that he reduced the revocation of the complainant’s travel privileges and access to the jump seat to a period of 15 months. He did so because of the complainant’s acknowledgement that she would now comply with the policy. In respect of the training session, the Training and Compliance Manager outlined that it had been practice to require staff to attend all forms of training in uniform. This had been recently reduced to writing in a formal policy statement, which was circulated at the hearing. The Head of Human Resources said that this had been an evolving policy over the last 16 months and that it should not have been an issue as a member of cabin crew is required to wear a uniform on a daily basis.

In closing submissions, it was submitted for the respondent that the complainant could not claim for loss of earnings in these proceedings and would have to advance such a claim by way of a Personal Injuries action. On certain events coming to the respondent’s attention, it had carried out an investigation and having established that there had been significant breaches of policies relating to airport security and company jump seat policy, the respondent took the necessary action. The sanctions imposed were proportionate to the breaches and it was clear that the breaches had occurred. The respondent said that it had not received reports of breaches by other members of staff, but would act on any such reports it received.

Findings and issues for decision:

Having considered the written and oral submissions of the parties, I recommend that the Final Written Warning be expunged from the record of the complainant and that the restrictions placed on her be removed immediately. I do so for the following reasons. This dispute arises from flights taken by the complainant on the 7^th and 11^th July 2015. She had sought to avail of the jump seat on each flight, and had also reserved a staff ticket and brought her uniform with her. On each occasion, she was accommodated in the cabin and did not physically occupy the cockpit jump seat. She gained access airside in both Dublin and Manchester airports by using the Staff access facility. No issue was raised by the captain of either flight, and no issue raised by airport security in either Dublin or Manchester.

The respondent’s actions emanated from an email of a senior manager to the Cabin Operations Manager, against whom, and separate to this dispute, the complainant has referred a grievance against. The issue of how the complainant travelled on the flights of the 7^th and 11^th July 2015 was referred to investigation by the Cabin Crew Base Manager. His report was submitted to the adjudication. It states that it is investigative in nature. The respondent acknowledged that the investigation was, in one respect, unsatisfactory as it no longer relied on the references in the report to an email from the captain of the second flight. This email, apparently, had been issued for a different purpose. The report is also unsatisfactory for other reasons. It states categorically that the complainant has breached company policy in relation to jump seat travel and airport access. One would expect such an investigate process to refer to the relevant specific company procedures and to summarise or reproduce their contents. As part of the adjudication, I have reviewed the policies relied on by the respondent and I cannot see the basis for the certainty of conclusions reached by the Cabin Crew Base Manager. Despite the weakness acknowledged by the respondent in part of the investigative report, the matter proceeded to the disciplinary process. At this meeting, the complainant sought to introduce exculpatory documentation in the form of correspondence from colleagues, which the complainant says shows that her not wearing a uniform on the 7^th and 11^th July 2015 flights was part of established practice for staff travelling in the cabin on jump seat arrangements. Given that this contention was central to both the complainant’s defence and her mitigation plea, it is fundamentally unfair that such evidence be excluded by the respondent, in particular where it has failed to justify such exclusion. It is also not in compliance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000). This provides that an employee “the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.” I also take account of clause 3.2 of the respondent’s Disciplinary Procedure, which provides “Managers must also ensure that the employee is given a fair and impartial hearing in all cases taking into account all relevant or appropriate evidence, factors or circumstances.”

The next question to consider is whether the complainant is correct in her contention that the relevant policies are unclear. The document entitled “Section 8.3.1.1 Cockpit Jump seat” lists at subsections a) to g) seven categories of personnel that may use the cockpit jump seat. The policy distinguishes between categories a) – c) and categories d) to g). The relevant category in this case appears to be category d), which refers to pilots and cabin crew travelling in uniform. The document, however, refers only to situations where the pilot or cabin crew member is physically occupying the jump seat, and does not contemplate where they are accommodated in the cabin. The document refers to the central role to be played by the commander in acceding to the use of the jump seat by any party. The respondent relies on 8.3.12.3 regarding the carriage of supernumerary crew. The document states that supernumerary crew includes inspectors, auditors or authorised observers and makes clear that such crew are not passengers and are not members of the required crew complement. There is no reference to staff flying off duty but subject to jump seat arrangements as falling within this category. Also relevant is the document, dated the 28^th October 2014, issued by the Training and Compliance Manager. This is an update of company procedures. It is entitled to “Unticketed pilots and cabin crew” and refers in to “pilots and cabin crew in uniform, on production of an ID card and having given prior notice and obtained permission from the commander, can be manifested as supernumerary crew.” It further provides that “Commanders granting permission for such travel are personally responsible for ensuring that the individual concerned travels in uniform and that any security, immigration or customs restrictions at outstations are fully met.” The complainant signed the confirmation sheet to acknowledge the opportunity to review this document.

It is clear that the document entitled 8.3.1.1 does not cover the situation of an unticketed cabin crew member travelling in the cabin; it refers only to the physical occupation of the jump seat. Furthermore, it is not clear that document 8.3.12.3 applies to such un-ticketed travel as the examples provided in the definition of “supernumerary crew” are those engaged in inspection, auditing or observational roles. Such roles are very different to staff seeking to avail of what is effectively a staff benefit or privilege. The clearest document is the document dated the 28^th October 2014. This date is significance because the investigation report makes a negative inference arising from an occasion in the summer of 2014 when the complainant availed of jump seat travel while in uniform. There is no basis for such an inference when the incident preceded the clarification of policy issued in October 2014. What is also of significance is the personal responsibility placed on commanders to ensure adherence to the provisions of this policy change. This is the core issue of the dispute: if the policy was clear, why did the commanders of the7 and 11^th July flights allow the complainant to travel out of uniform? The respondent resiled from a contention that the captain of the second flight had criticised the complainant for seeking to use the jump seat. No captain raised any issue regarding the actions of the Employee at the time or following the flight.

In respect of the alleged breach of airport security, I note that the complainant was able to gain access to fly on both occasions, with no complaint raised by either Dublin or Manchester airports. The conditions of issue for a Dublin airport pass were provided to the adjudication. Clause 18 states as follows “An Access Permit does not carry automatic right of entry – Access is only permitted while staff are on duty carrying out their official duties.” There are two requirements in this provision: one that the staff member be on duty and a second that he or she be carrying out their official duties. The difficulty for the respondent is that any member of staff, even in uniform, is in breach of this clause if they use the Staff Access Permit to access the airport when availing of the jump seat for private travel. Even had the complainant been in uniform for her flight to Manchester on the 7^th July 2015, she would still have been in breach of clause 18.

In conclusion, I recommend that the Final Written Warning and all sanctions be withdrawn by the respondent. This conclusion follows defects in the investigative process (part of which is acknowledged by the respondent), the failure of the disciplinary process to consider the exculpatory documentation proffered by the complainant and the lack of clarity and understanding of the policy documents and revisions issued by the respondent.

Decision and recommendation:

Pursuant to the Industrial Relations Act and the Workplace Relations Act, I am required to issue a recommendation in relation to the dispute:

I recommend that the Final Written Warning be expunged from the complainant’s record from the date of this recommendation and that the restrictions placed on her access to her travel privileges and her use of the jump seat be removed immediately.

Dated:   8/4/2016