ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001232

Complaint for Resolution:

Date of Adjudication Hearing: 20/10/2016

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.

Background

The complainant is an airline cabin crew employee working as a ‘Senior Steward’. He admits to having breached both Customs and company regulations by importing 2,000 cigarettes without paying duty.

The Complainant at all times fully admitted the breach of regulations and, in that regard, there is no dispute as to the facts of the case.

The matter was first brought to the attention of the respondent HR Department by the Revenue’s Customs Enforcement Service advising that the complainant had been stopped and found to be in breach of duty free limits.

The complainant was interviewed by his line manager and accepted the facts of what happened. She told hi that it was a serious matter and that there would be an investigation.

The respondent then undertook an initial investigation which commenced on August 26^th 2015, in the course of which the complainant again accepted the facts of what had happened but said he did not do it for any personal gain but as a favour for some friends. He confirmed to the investigator that he knew what the limits were.

The investigation concluded on September 10^th and this was followed by a disciplinary hearing at which the complainant was represented by his trade union.

Again he did not dispute the facts of the matter or that he had breached company policy. The outcome was a conclusion that he had breached the policies and procedures of the respondent ‘in a manner which amounts to gross misconduct’.

The Decision Maker concluded that the appropriate sanction should be to dismiss the complainant for ‘gross misconduct’.

This was followed by the first appeal, the hearing of which took place on October 12^th 2015. It heard medical evidence on behalf of the complainant but concluded that they did not exclude his original actions. The decision was issued on October 29^th 2015. This decision maker also drew attention to the complainant’s failure to bring the matter to the respondent’s attention when advised to do so by the Customs official.

A second appeal followed and this took place on November 13^th. This also was unsuccessful and the decision was issued on November 23^rd, on which date the complainant’s employment ended.

Respondent’s Submission and Presentation:

The complainant was dismissed for a very serious breach of company and Customs regulations of which he was fully aware.

The respondent applied a fully fair procedure at all stages of the process from the investigation, disciplinary hearing and two appeals and the complainant was accorded all rights due to him. He has not disputed the facts of the incident

Finally the sanction was proportionate and appropriate to the conduct of the complainant once this had been properly established. The respondent was in a position of trust as a Senior cabin crew member and fully aware of the regulations. In addition he failed to follow Customs advice to bring the matter to the respondent’s attention

Legal submissions were also made referring to decisions of the EAT involving the respondent’s sector and where dismissals had occurred for breach of procedures in relation to security checks. The respondent says that the decision to dismiss the complainant was a reasonable one in all the circumstances.

Complainant’s Submission and Presentation:

The Complainant accepts that while his conduct was wrong, it does not constitute gross misconduct. He says that the penalty of dismissal without notice is disproportionate to the offence. The Complainant further asserts that the penalty failed to take the following mitigating circumstances into account.

Those mitigating circumstances are the Complainant's long service during which he was promoted to Senior Cabin Crew Member, his impeccable record generally and lack of prior disciplinary issues, his record of honesty in respect of a previous incident in returning a substantial amount of cash found on board an aircraft in the course of his duties, his immediate acknowledgement of the offence and full cooperation with the investigative and disciplinary process, including admission of matters that would be beyond proof by the Respondent.

Also the complainant says that the respondent tolerated similar breaches of customs regulations by other staff members without similar disciplinary sanctions being imposed and that there was ‘a culture” involving a lax approach to customs regulations

Conclusions and Findings

While the hearing in this matter ran to over six hours and two sittings the issues in dispute are relatively clear.

There are generally three criteria in assessing whether a dismissal is fair.

The first is whether good and substantial cause existed to trigger the disciplinary process.

The second is whether that process was a fair one which met the onerous, although straightforward requirements of constitutional fair procedure.

The final one is whether the sanction was reasonable having regard to the facts of the matter.

Looking at the first of these, in this case the complainant had a position of responsibility within the company; a Senior member of the cabin crew. The legal limit for importing cigarettes without duty is forty. The amount involved here was two thousand. The complainant knew what the regulation was but seemed to believe that Customs would turn a blind eye to the matter, or that he would not be stopped.

The incident was brought to the attention of the company by Customs (and has since been the subject of proceedings in the civil courts). Therefore it is not a minor matter. Evidence was given by the senior Employee Relations officer who took the call from Customs that it was that it came from a senior Customs official and that it was one of only two such calls he had ever received.

While the complainant made much of the alleged ‘culture’ in relation to breaches of the regulations, and the generally good relationship between flight crew and Customs personnel, the first question I must answer is whether the respondent had any alternative in the matter but to trigger its disciplinary processes. It can hardly be seriously suggested that it had, and indeed it was not by the complainant.

My second area of inquiry concerns the disciplinary process thereafter.

In fact the complainant raised no significant issue about the core process, claiming somewhat vaguely that there were inadequacies but these, whatever they were, did not go to the heart of the matter nor was the process attacked as being unfair arising from them.

Indeed, a very considerable part of the hearing was devoted to the evidence of the first decision maker; at the level of the disciplinary hearing, whose process and decision making was robustly tested by the complainant. She too confirmed that she considered all options before making her decision and rebutted suggestions that she had not made an independent decision.

Accordingly, I conclude that the conduct of the process falls well within the principles of a fair procedure and that no issue arises from that aspect of the matter that would taint the outcome. Indeed the complainant was facilitated with a second appeal which would be uncommon.

This brings us to the sanction which the complainant argues strongly was disproportionate. In his submission above he outlines the factors which ought to have mitigated the sanction.

In their evidence to the hearing the decision makers confirmed that they took those submissions into account. An Adjudicator should be slow to interfere with the judgement of, in this case three decision makers unless the process is defective or the conclusion is demonstrably unfair. Evidence was given by the Employee Relations Manager that in the only other case reported to him by Customs’ authorities the outcome was the dismissal of the employee involved.

Nonetheless, I have reviewed the issues raised in mitigation by the complainant as set out above and find no basis for disturbing the decision of the respondent to terminate his employment.

The complaint under the Minimum Notice & Terms of Employment Act, 1973 was resolved before the conclusion of the hearing and I am not required to make any decision there.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 I find that the complainant was not unfairly dismissed and I do not uphold Complaint CA-00001650-001. Complaint CA-00001650-002 was resolved before the hearing and withdrawn.

Dated:   16^th November 2016