ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000611

Complaint for Resolution:

Date of Adjudication Hearing: 25/02/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Preliminary Matter

The complainant, who is resident in Germany did not attend the hearing.

Her legal representatives presented a signed power of attorney in English and in German authorising them to act on her behalf. 

While to proceed in the absence of the complainant is unusual, given that she lived in Germany and was legally represented I decided to proceed with the hearing to the point where her absence, and her non availability to give evidence or challenge the evidence of the respondent might give rise to difficulty in relation to the evidence or compromise the fairness of the hearing. I was also conscious that the burden of proof in the case fell on the respondent.

Her legal representative also submitted that the hearing should proceed having regard to German law. After some discussion it was agreed that the essential principles governing the conduct of a hearing in either jurisdiction were similar to the point that the argument was academic.

The hearing proceeded.

Complainant’s Submission and Presentation:

The complainant is a cabin crew member on an international airline based in Ireland, although she was resident in Germany.

In a written submission from her German lawyers it was argued that the matter should be decided under German law, it said that the dismissal was void on the grounds that she did not receive notice of the dismissal in writing.

It further submitted that there was no justification for the dismissal on the grounds of her personal conduct or behaviour. (Some other points were made in a written submission which were poorly translated and not intelligible).

The complainant did not dispute any of the facts in relation to the process carried out by the respondent and conceded that the detail outlined in its submission regarding the conduct of the process were correct. However it did submit that the complainant did not actually refuse to work with the device at the centre of the dispute but had sought clarification on the implications of signing the form accompany use of the device. She had questions regarding the implications of signing the form.

She needed additional training in the use of the device.

She also was given short notice of disciplinary meetings.

Respondent’s Submission and Presentation:

The respondent submitted that the relevant law under Article 6 of the Rome Convention was the law of Ireland. Basically the applicable law is determined by reference to where the complainant habitually carries out her work. In this case the airline is registered in Ireland, staff are rostered and paid from Dublin, and in the case of the latter, to an Irish bank account, crew control is based in Dublin and all HR issues are processed in Dublin.

The airport from which the complainant habitually worked was only a departure and return venue and that at all other times she was on ‘Irish territory’ legally speaking while at work. No aspect of the working location was on German territory.

On the substantive matter the issue arose from the introduction of a new hand held point of sale device which was an important tool in the cabin crew operation in respect of on-board sales. It is a type of ‘smart phone’ which connects to a special computer server to relay sales data with greater speed and accuracy. It can process cash and credit card details during flights. It differed from the previous device in that each employee had their own device and this gave rise to the necessity for each employee to sign for receipt of the device

The Deputy HR Director gave evidence that she had not asked for more time to familiarise herself with the device. He also outlined the previous disciplinary record of the complainant and that she had been given a second written warning in 2015 regarding ‘inappropriate behaviour’ on board an aircraft and an earlier warning in 2012.

Very detailed evidence was given about the disciplinary process followed by the respondent and the notice provided to her at all stages of the process.

There had been a total of four investigation meetings; on July 20^th and 30^th and on August 4^th and 6^th. The complainant failed to attend any of these meetings despite travel arrangements being made and communicated to her.

There were a total of a further eight disciplinary meetings of one sort or another; some first instance and some appeal. The complainant attended two disciplinary meetings on August 31^st and an outcome meeting on September 9^th 2015 but failed to attend for her appeal on September 14^th. This appeal was rearranged for September 16^th and again she failed to attend and at that point the appeal closed.

There were two further opportunities for the complainant to attend a disciplinary hearing which she also failed to attend and neither did she attend the ‘Outcome meetings’ on October 5^th and 10^th.

Travel arrangements for all meetings were put in place by the respondent.

Detailed evidence was presented about the notice given to the complainant in respect of these meetings, and other correspondence to her regarding her right to appeal, various warnings and finally the letter terminating her employment which was issued on October 12^th 2015.

The respondent submitted that the complainant had every opportunity to sign the form and then seek any clarification she required. She had been given reassurances that signing the document did not expose her to any risk She was the only person out of the large workforce employed by the respondent to decline to sign the form.

Regarding the claim that notice of the meetings was short she had not raised this at any time and as she was off the roster at the material time there was no reason which she should not present herself at short notice for the disciplinary and other meetings.

The complainant was given every opportunity to put her case and ultimately failed to avail of it.

Finally, the respondent says the sanction was reasonable in the circumstances.

Conclusions and Findings

I approach an assessment of the submissions in this case under three headings. Was the matter which gave rise to the disciplinary process of sufficient gravity to warrant disciplinary action in terms of the respondent’s business needs. Related to this first ground is whether the complainant’s response was a reasonable one.

The second is whether the disciplinary process was fair in all respects by the standards of Irish (and European) law.

The final consideration is whether the sanction was reasonable in the circumstances.

Anyone who has travelled by air will be familiar with the ‘on board’ retailing and service carried out by all airlines and it is therefore a very significant part of the work of cabin crew members in the course of the flight, in addition to whatever passenger safety and comfort responsibilities they also carry out.

On the basis of the evidence it is hard to see how a cabin crew member could discharge their role without it and therefore there was no discretionary element about its use. That said it appears that while the technology was more sophisticated than its predecessor there was no greatly increased skill requirement on the operator.

The form to which the complainant took exception was exhibited in evidence and was unexceptionable. It required the complainant to acknowledge receipt, confirm that various pieces of relevant information had been read and it warned of liability in the case of misuse of the device. The complainant was the only one of the respondent workforce of 6,500 to decline to sign the ‘acknowledgement of receipt’ form.

On the first point I conclude that the respondent’s requirement for the introduction of the device and the accompanying form was entirely reasonable for the purposes of the efficient conduct of its business. Conversely, the various explanations for the complainant‘s studied refusal to sign the form lack any degree of credibility or justification, and one might add, insight.

As to the disciplinary process, which was not disputed by the complainant’s legal representatives I can find no fault. I have carefully reviewed the investigation step, (with which the complainant did not cooperate), the various correspondence and meetings which took place in the disciplinary process (some thirteen in all), and the fact that the respondent was willing to reschedule meetings when the complainant failed to attend (on three occasions in each of the investigation and disciplinary stages).

Accordingly, having established the absence of any identifiable procedural flaw I move to the sanction.

It should be added that at various stages in the process the complainant was offered the opportunity to change her mind and sign the document. Her refusal to do so resulted in a final written warning on September 10^th 2015 following which she still had the opportunity to comply with the company’s requirement. The submission on behalf of the complainant that her behaviour did not represent refusal to operate the device is disingenuous and I do not accept it.

She ultimately failed to do so and the final stage of the disciplinary process was conducted in the knowledge that at the next stage she was at risk of the termination of her employment. She failed to attend at the appeal of that decision, and also failed to attend the ensuing disciplinary hearing resulting from her continuing non-compliance.

In the twin circumstances of her continuing refusal to use the device and the fact of being on a final written warning, from which she clearly had failed to draw the obvious conclusion, the decision to terminate her employment was reasonable in all the circumstances.

The claim that the complainant did not receive written notice of the termination was contradicted in its own written submission and by the evidence of the respondent. I find that she did.

I conclude that the respondent comfortably discharged the burden of proof.

 Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons set out above the decision to terminate the complainant’s employment was fair and I dismiss the complaint.

Dated:   18^th May 2016