ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002402

Complaint for Resolution:

Date of Adjudication Hearing: 7th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 18^th March 2016, the complainant referred a complaint to the Workplace Relations Commission for adjudication. The complaint was made pursuant to the Unfair Dismissals Acts. The complainant is a member of cabin crew and the respondent is an airline.

The complaint was scheduled for adjudication on the 7^th July 2016. The complainant attended the adjudication and was represented by the UNITE trade union. The respondent was represented by Peninsula Business Services. The Cabin Crew Operations Manager, the HR Director and the Head of HR Operations attended as witnesses. As the legal burden rests with the respondent to prove that the dismissal was not unfair, they advanced their case first. Each witness gave their evidence and was subjected to questioning by the other side.

In accordance with section 8(1B) of the Unfair Dismissals Act 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.

Respondent’s Submission and Presentation:

The respondent dismissed the complainant from its employment on the 29^th January 2016. The dismissal arose from the events of the 13^th January 2016 when it states that the complainant refused to perform a duty as a member of cabin crew. It asserts that the dismissal is not unfair. The incident arose where the complainant was scheduled to work on a Dublin-London and London-Dublin return, but indicated that he was unable to assume an additional leg to the return flight, which would have meant a diversion to another Irish city. He was replaced by a colleague on the outbound Dublin to London flight.

The Cabin Crew Operations Manager wrote to the complainant on the 18^th January 2016, to request his attendance at a disciplinary hearing on the 20^th January following the conclusion of the informal investigation. The letter refers to alleged gross misconduct, being alleged serious insubordination or refusal to carry out a legitimate management instruction and alleged commission of an act which is detrimental to the respondent or which brings its name into disrepute. At the adjudication, the Cabin Crew Operations Manager outlined that she met with the complainant on the 20^th January 2016 in the context of the disciplinary policy. She drafted the letter of dismissal of the 29^th January 2016. This concludes that the inflexibility shown by the complainant may occur again and refers to the chance of repetition. She noted the impact such an event could have on passengers, in particular with regard to a new route that the respondent is seeking to develop. She further noted that the complainant’s actions caused the flight to be delayed as well as that the complainant had given conflicting reasons for his actions on the 13^th January 2016. In evidence, the Cabin Crew Operations Manager said that the first flight on the 13^th January had been delayed by 30 minutes because of the complainant’s actions. The complainant was the senior member of cabin crew on the flight and when he refused to work on the return leg, he had to be replaced on the three flights by a colleague of equivalent rank. Given that the airplane was boarded, the Cabin Crew Operations Manager said that it was quicker for her to replace the complainant and she had her uniform with her. She had had to jump in to replace colleagues on occasion. She said that she had had a long day and flew the rota assigned to the complainant. When asked, the Cabin Crew Operations Manager said that this did not prejudice her view of the complainant during the later disciplinary process and that she had known the complainant for many years. She said that her reference to the complainant “digging his own grave” was made in this context. In respect of sanction, the Cabin Crew Operations Manager said that she had regard to the high level of disruption caused to a new route; the fact that the complainant had been flexible in the past and was aware that such changed rotas were normal; the complainant had not shown any remorse and nor had he apologised; she could not put her faith in an unreliable crew member. The complainant had also not made any reference to a headache during their meeting.

The Head of HR Operations gave evidence. She outlined that at the investigation meeting of the 13^th January 2016, the respondent had sought to understand the reasons for the complainant refusing to fly. They asked for evidence from the complainant of why he could not work beyond 8pm. The complainant had first replied that he had plans and then referred to having to take sleep medication. He said that he needed to establish a routine when on the medication. The Head of HR Operations said that the complainant had advanced many reasons in the meeting. She stated that the complainant had not raised the medication issue prior to the flight and ought to have done so. She outlined that she was concerned that the complainant would do the same thing again on a subsequent flight. She outlined that after the investigation, the matter was sent to the disciplinary process and the statements obtained in the investigation were forwarded on. She wrote to the complainant to say that there was sufficient evidence to proceed. She said that she had informed Crew Control that she was agreeable that the complainant record the meeting but told them that they would record the meeting. She could not be sure whether Crew Control had relayed this to the complainant. The complainant would have seen the iPhone on the table. The first meeting had been informal and no procedures were necessary. It was not a requirement that an employee be allowed to have a representative and there had to be flexibility around such meetings. The Head of HR Operations wrote to the complainant on the 15^th January 2016 to give the outcome of the informal investigation meeting of the 13^th January and informed the complainant that he was suspended with pay to allow for an investigation to take place into alleged gross misconduct.

The HR Director outlined that the inclusion of the additional leg was done to preserve the flight schedule. It was important from a metrics point of view. The last flight on the duty had landed in Dublin 1.5 hours after its scheduled time of arrival. The complainant appealed the decision to dismiss him and this was subject to an appeal hearing on the 17^th February 2016. The two officers of the respondent who heard the appeal did not attend the adjudication and the minutes of the hearing were submitted. This records the complainant’s representations over the fundamental difference between an instruction and a request and the absence of a link between the informal investigation and formal disciplinary policy. On the 29^th February 2016, the respondent wrote to the complainant to inform him of the conclusion that his appeal was not successful. The letter refers to the possibility of the complainant taking the same action again and his lack of remorse. The appeal did not accept that it was inappropriate for the Head of HR Operations to have attended the meeting of the 13^th January 2016 and nor was the Cabin Crew Operations Manager’s comment about the complainant digging his own grave inappropriate. The appeal letter concludes that the request to accommodate the rerouted return flight was a legitimate management instruction. The appeal letter addresses the statement that other supervisors had refused changed duties and not been disciplined; it replies that one situation arose of a staff member of another EU country, where different statutory rules apply, and a second where the rerouting meant that the supervisor would have entered days off when in another country. The appeal letter confirms the complainant’s dismissal.

The respondent asserts that the dismissal was fair. There had been three separate meetings following the investigation. The disciplinary officer could have cleared the complainant or given a sanction. The respondent did not agree that there was any substantial difference between an instruction and a request and stated that the captain had referred to refusing to fly being a disciplinary matter. The dismissal was a proportional sanction in aviation. The complainant had not given any commitment to being flexible in the future and no such commitment is given in his grounds of appeal.

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent on the 25^th January 2005 until the end of his employment on the 29^th January 2016. He states that he was dismissed unfairly by the respondent.

In submissions, the complainant outlined that the respondent had requested, as opposed to instructed, him to crew the additional duty on the diverted London to Cork flight. He had asked to record the investigation meeting on the 13^th January 2016, but was not aware that the respondent was also recording it. The complainant was not responsible for the respondent not having a standby available and commented that the respondent and the union had not agreed rosters. The complainant had felt unwell at the start of the shift. He referred to an inconsistency in the respondent’s submission which refers to a 90-minute delay when it was now stating that there was a delay of 1 hour and 15 minutes. He submits that he was never informed by the respondent after the investigation meeting that a decision had been made to initiate the disciplinary process. There had been no investigation findings; the matter had immediately been sent to disciplinary. He takes issue with the manner he was summonsed to the investigation meeting. It outlined that the letter of dismissal refers to there being no other option to dismissal, but the disciplinary procedure refers to alternatives to dismissal. It was submitted that the complainant had been prepared to work the roster but could not work later to include the later flight. He had not been instructed to work the additional flight and had not been warned of the consequences. This had been the first occasion in 11 years that the complainant had not worked additional hours. The complainant said that it was possible he would do the same again if the same circumstances arose, i.e. if he had plans after the end of his duty. He did not say that he would never do additional duties.

It was submitted that the complainant had not been treated fairly. On the 13^th January 2016, he had had personal plans after the scheduled end of his duty. He had been willing to fly the first leg of his duty to London and the scheduled return, but could not accommodate the additional leg. He had not been allowed a representative at the first investigative meeting. The matter had progressed from investigation to disciplinary without any findings of the investigation ever being reached. The statements from personnel involved in the incident had not been given to the complainant prior to the conclusion of the appeal and he also did not receive the statements referred to in the appeal letter regarding other flights. He had not seen the handwritten notes taken at the investigation meeting. The complainant said that he had been requested to fly the additional duty and no instruction had been issued; he was told that he was “needed”. It had not been fair that he was told to attend a disciplinary meeting on the 29^th January 2016 and handed a letter of dismissal. It was submitted that the issue of sanction should have been decided by someone else and that the investigation team should not have been involved in the disciplinary process or in deciding sanction. The person who heard the appeal was aware of the facts of the incident and was not independent. It was submitted that the appeal letter issued by the respondent refers to “instruction” in the letter of dismissal, but later itself refers to “request”. The complainant had honestly answered the question of whether he would take the same approach and this applied if the same circumstances arose again. He should have been allowed have a representative at the investigation meeting.

In evidence, the complainant said that it was common for flight schedules to change and there were incidents on a daily basis. Anything could happen on a flight, for example a medical emergency or a technical problem. The complainant referred to a workplace incident occurring in November 2015 which had a devastating impact on him. He was struggling to cope and under a great deal of pressure. This did not impact on his performance at work and he had always been flexible. He said that the Head of HR Operations had not followed up on him raising the health issue at the first meeting. Addressing the events of the 13^th January 2016, the complainant outlined that the airplane was on the ground and the doors were open. Take off was delayed for different grounds and only a delay of 20 minutes could be attributed to his actions, in which time the Cabin Crew Operations Manager came to replace him. He had learnt that the duty was to be extended when the flight captain mentioned a problem with another airplane in London. He outlined that they would divert to Cork on their return and then fly to Dublin. The complainant said that he could do the duty assigned to him but unfortunately, he could not do the additional flight. He was asked whether he would mind doing the additional duty. He characterised this as a request and declined to do the additional flight. The complainant said that during this time he telephoned the union shop steward because there had been a history of intimidation in the airline. There was also no record of his inflexibility in the past. During this time, there had been several telephone calls from Operations. He said that the last flight on the duty arrived into Dublin at 1am on the 14^th January 2016. He said that he was under a lot of pressure and taking medication, so did not pursue a grievance. On the 13^th January, he had said that he was willing to do his duty but that he could not do anything else. He stated at the disciplinary hearing that he was willing to perform as before. He said that he had mentioned that at the moment he had problems. Since the ending of his employment, the complainant had undertaken a course in information technology and had sought a training role relating to cabin crew. The respondent had not supplied certificates that it held regarding the complainant’s qualifications. He was looking to develop his career in the industry appropriate to his seniority.

Commenting on the account of a member of the flight crew, the complainant said that he had been warned about getting into trouble over not flying, but that no instruction had been issued. He had indicated that he was willing to fly the first flight out of Dublin, but had been told by the captain that the Cabin Crew Operations Manager was on her way to replace him. He then knew that he would not been flying the duty at all. He said that the respondent had not taken sufficient account of his service when it decided to dismiss him. He felt bullied in the workplace and it had taken the respondent nine months to process an earlier grievance. He referred to working for the respondent as his life and that a previous issue he had raised had led to a change in the respondent safety procedures.

The complainant said that he had been required to go to the first meeting after a number of phone calls from the respondent. He enquired what procedure would be followed. He felt intimidated at the investigation and was not allowed to have a witness at this meeting. The meeting with the Head of HR Operations had been formal and antagonistic. No concern had been shown to his health. The “digging his own grave” comment was upsetting. He had not informed the respondent that he required a stricter schedule on health grounds.

In closing submissions, the complainant outlined that the respondent had taken a sledgehammer to crack a nut. The sanction of dismissal was excessive and unfair. The issues arising from the events of the 13^th January 2016 could have been addressed in an informal meeting. The decision taken by the respondent should have based on the actual events and that others had not been dismissed where they could not fly during a duty.

Findings and reasoning:

The complainant was a longstanding and senior member of the respondent cabin crew. The end of his employment arose out of the events of the 13^th January 2016 when he indicated his refusal to fly an additional duty added for that day. According to his own evidence, while his actions were not the only reason for delay on the Dublin – London flight, they contributed to a 20-minute delay. The respondent conducted an investigation on the 13^th January 2016 which it deemed to be informal. This was followed by a disciplinary meeting, where the respondent found that the complainant’s actions amounted to gross misconduct and merited the sanction of dismissal. This was upheld on appeal.

The complainant challenges the fairness of the dismissal, including on grounds that he had not been issued with an instruction to fly the additional duty. He states that the investigation meeting was antagonistic and he was not permitted to bring a representative. It did not produce any conclusions and moved to the disciplinary process. He raises comments made to him at the disciplinary meeting and asserts that the respondent did not take account of his long service and the alternatives to dismissal. He challenges the fairness of the appeal, in particular where the incident was so well-known within the respondent. The respondent asserts that the dismissal was fair in substance and procedurally.

In Bank of Ireland v Reilly [2015] IEHC 241, the High Court considered the legal test arising in a claim of unfair dismissal in the following terms:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

In assessing the interaction between an investigation and a disciplinary process, the High Court in Gallagher v Certus [2013] IEHC 621, granted interlocutory relief to a plaintiff in circumstances where the disciplinary process could not overturn findings of fact made at investigation regarding breaches of policy.

In Nurendale T/A Panda Waste v Burke UD/15/1, the Labour Court held “At its most basic level the requirements of fairness in employment dictate that similar situations be treated similarly. It follows that where an employer acts inconsistently in responding to misconduct, a dismissal can be rendered unfair.”

Having considered the written and oral submissions of the parties, I make the following findings in relation to the complaint. I do not agree with the complainant that the decision to add a duty on the 13^th January 2016 could be anything other than an instruction. I have regard to the fact that the complainant knew that his refusal to undertake this additional duty was a serious matter; he telephoned his shop steward to obtain advice and these events took place when the plane was boarded. While the additional duty was undoubtedly inconvenient, it was not an unprecedented event in commercial aviation. I have regard to the fact that the complainant could have raised a grievance and could have informed the respondent of his health issues. It would be a different matter had the complainant said that he was too unwell to fly.

While the investigation is described as informal, I agree with the complainant that it was very formal and I accept his evidence that it was antagonistic. He was not facilitated in having a representative present. Given the seriousness of the issue, it was not appropriate to address this matter informally. Important to this case is the role played by the Cabin Crew Operations Manager. Having considered the evidence and the documents provided, I find that it was open for the disciplinary process to come to a finding that no breach occurred or that it was a breach of less significance. I find that this was the approach adopted by the Cabin Crew Operations Manager in her conduct of the meeting of the 20^th January 2016. I base this finding on the open and inquisitorial approach she took at the meeting. I interpret her comment that the complainant was “digging his own grave” as something said by a longstanding colleague of the complainant’s to warn him of the consequences. An additional issue to consider is the selection of the Cabin Crew Operations Manager to conduct the disciplinary hearing. I say this because she was the person within the respondent most inconvenienced by the events of the 13^th January 2016 and was later assigned the role of conducting the disciplinary meeting. She said at the adjudication that she was coming to the end of a long day when she had to step in as senior cabin crew on the three flights. Having questioned the Cabin Crew Operations Manager on this and considered her evidence, I find that her role in the disciplinary process is not undermined because of her involvement in the latter events of the 13^th January 2016, i.e. in crewing the three flights on this day. Taking these findings together, I find that the disciplinary process was robust.

In respect of the appeal, the letter confirming the complainant’s dismissal of the 29^th February 2016 refers to inquiries made after the appeal hearing of the 17^th February 2016. This includes inquires made with a member of cabin crew and an operations manager. The letter refers to the complainant’s points that other cabin supervisors were not sanctioned for having refused additional duties. The respondent gives an explanation for the two incidents raised by the complainant. The complainant, however, is not given any right of reply or the right to challenge this account. Despite this, the letter concludes that the appeal is unsubstantiated and states that this is final. This is unsatisfactory given that the complainant ought to have a right of reply to the respondent’s findings in relation to the two other incidents.

Taking the findings together and applying the test provided in Bank of Ireland v Reilly, I find that the dismissal was unfair. I reach this finding because of the failure on the part of the respondent to finalise its investigation of the two other incidents raised by the complainant. The failure to finalise arises because the explanations provided by the respondent were not put to the complainant before concluding the appeal. He is expected to take the findings without further query. This is unsatisfactory, as applying Nurendale T/A Panda Waste v Burke, the other incidents might give the complainant grounds to challenge the finding of gross misconduct or, more likely, the sanction of dismissal. This is more than a technical breach in the appeal stage as the important issue of how two colleagues were treated for refusing to fly may have been exculpatory of the complainant in deciding the appeal.

In assessing redress, I take account of the role played by the complainant in the circumstances leading to the dismissal, i.e. refusing to fly on the 13^th January 2016. In respect of mitigation, the complainant outlined that he has been facing health challenges and was looking to develop his career. Taking the circumstances of the case, including these factors, I award €6,000 for the unfair dismissal.

Decision:

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.

CA-00003256-001

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and the respondent shall pay to the complainant the amount of €6,000.

Dated:   4^th November 2016