LCR21603

FULL RECOMMENDATION

CD/17/266

RECOMMENDATIONNO.LCR21603

SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

AER LINGUS
(REPRESENTED BY MS ROSEMARY MALLON B.L.
INSTRUCTED BY MS ELAINE METTLER, AER LINGUS

- AND -

A WORKER
(REPRESENTED BY A FAMILY MEMBER)

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Ms Treacy

SUBJECT:
1. A referral underSection 20(1) of the Industrial Relation Act, 1969.

BACKGROUND:

2. On the 17 August 2017 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.

A Labour Court hearing took place on the 24 October 2017.

WORKER ARGUMENTS:

3. 1. The Worker submitted that her former Employer failed to conduct a thorough investigation before dismissing her on grounds of gross misconduct.

2. The Worker submits that she followed all proper procedures and received confirmation that the Internal Aer Lingus Ombudsman was hearing her case but that never happened.

COMPANY ARGUMENTS:

3. 1. The Company submitted that an investigation in accordance with Aer Lingus policy was carried out.

2. The Worker was afforded fair procedures and natural justice.

RECOMMENDATION:

The Worker was employed by Aer Lingus (‘the Company’) as a cabin crew member, on a permanent seasonal basis, from 9 May 2016 until her termination on grounds of gross misconduct on 11 January 2017. The Worker seeks to challenge the fairness of her dismissal through the within referral under section 20(1) of the Industrial Relations Act 1969 (‘the Act’).

The event which gave rise to the application of the Company’s disciplinary procedures to the Complainant occurred on 24 September 2016. On that date, the Complainant was scheduled to attend at Dublin Airport at 4.20 p.m. for a pre-flight briefing in advance of a return flight to Amsterdam. The Complainant was approximately ten minutes late for the briefing meeting. Thereafter, the outward flight from Dublin to Amsterdam proceeded without anything of note occurring until the plane landed. While the plane was taxiing to its stand, a senior cabin crew colleague noticed that the Complainant appeared disorientated and distracted. She reported her concerns about the Complainant to the Captain during the turnaround period. The Captain then consulted with the Aer Lingus Executive on Call in Dublin and made a decision to stand the Complainant down from duty. She, therefore, returned to Dublin as a passenger. Two members of the Company’s Inflight Services Team awaited the arrival of the flight. The Complainant was notified on her arrival back in Dublin that the Company’s Intoxicant Policy was to be applied in her case as is normal practice when a crew member has been stood down from duty.

The Complainant was brought to Shamrock House where an independent company (Alere) facilitated the Complainant in taking two breath tests using a breathalyser machine that was calibrated immediately prior to the tests taking place. The result of the first breathalyser test was 30ug/100ml of breath; the result of the second was 28ug/100ml of breath. The maximum permitted under the Company’s Intoxicant Policy is 9ug/100ml of breath. The Complainant was also requested to provide a urine sample in order to check for the possible presence of other intoxicants. However, she was unable to do so before leaving Shamrock House. The Complainant attended the Company’s Chief Medical Officer on 29 September 2016.

The Company held an investigation meeting pursuant to its Disciplinary Policy on 6 October 2016. The Complainant was accompanied at that meeting by an experienced Official from her Trade Union, IMPACT. The Company informed the Complainant by letter dated 17 October 2016 that the matter was to be progressed to the disciplinary stage and that a disciplinary hearing would take place on 20 October 2016. (The disciplinary hearing, in fact, took place on 24 October 2016.) The Complainant was again represented at that meeting by her Trade Union. Her representative raised a number of technical queries in relation to the results of the breath tests that had been carried out on 24 September 2016. Those queries were addressed by the testing company and its response was communicated to the Complainant by letter from the Company on 2 November 2016.

On 21 October 2016, the Complainant sent an email to the Ms Sharon Clifford who had conducted the disciplinary hearing on the previous day. The Complainant stated the following, inter alia, in her email:

“I can only blame myself for the outcome of the breathalyser and am devastated and embarrassed by this. In my defence, I did what a lot of people do by going out the evening before. I was na�ve. I truly thought I was okay, as I was not due into work until 4.20 pm. I didn’t knowingly break any rules as far as my job was concerned, however I am now aware of the ramifications of having drinks the night before work and the effects it has on my body. (This was the first night I had ever gone out when having work the next day). Ultimately, it is my responsibility and I truly regret this.”

Following a second disciplinary meeting held on 10 November 2016 (at the Complainant’s Trade Union representative’s request for the purpose of reviewing certain technical aspects of the matter), Ms Clifford wrote to the Complainant on 23 November 2016 setting out the findings made by her following the disciplinary hearing: that the Complainant’s conduct on 24 September 2016 - whereby she had reported for work with a level of alcohol in her system in excess of 28 ug/100 ml of breath - constituted gross misconduct and was at odds with the values the Company expects its staff to display in a customer-facing safety critical role. Having considered the range of disciplinary sanctions open to her, Ms Clifford determined that the Complainant’s conduct warranted summary dismissal.

The Complainant appealed Ms Clifford’s decision by letter dated 28 November 2016. In accordance with the Company’s Disciplinary Policy, the Complainant’s dismissal was stayed pending the conclusion of the appeal process. The appeal hearing took place on 15 December 2016. As part of her appeal, the Complainant submitted a report from a Dr Craig Slattery which stated inter alia:

“On the basis of the information provided there are inconsistencies regarding [the Complainant’s] projected blood alcohol levels over the period of time concerned, and her disposition and professional performance as reported, particularly during the earlier outward flight. In the absence of a definitive determination of blood alcohol it is not possible to draw absolute conclusions from the intoxicant screening performed due to a lack of confirmatory analysis. The inability to provide a urine sample should not be regarded as a donor refusal to provide a sample when no other method is offered or available.”

In the course of her appeal, the Complainant sought to challenge the reliability of the breathalyser used by Alere. She also queried whether the fact that she had swallowed chewing gum prior to taking the breath test could have impacted on the results. A representative from Alere subsequently confirmed in writing that the chewing gum would not have had an impact on the results achieved in the breath tests.

The Complainant’s appeal was unsuccessful. This was communicated to her by letter dated 11 January 2017. That letter also confirmed the sanction of summary dismissal would remain and that a lesser sanction would not be appropriate, having regard to the breakdown of trust and confidence that resulted from the Complainant’s intoxicated state on 24 September 2016 while performing a safety critical role.

Discussion and Recommendation

The Court received comprehensive submissions, supplemented with extensive supporting documentation, from both the Complainant and the Company. Having considered the Parties’ written submissions as well as the information put before it orally at the hearing, the Court is of the view that the Company conducted a disciplinary process that was substantially in compliance with its written Disciplinary Policy and which afforded the Complainant the benefits of natural and constitutional justice, as appropriate, at all stages. The Court is of the view that the Company also appropriately applied its Intoxication Policy in all the circumstances to the Complainant. The Court notes that the Complainant was accompanied by an experienced Trade Union Official throughout the process and that the queries and concerns raised on her behalf in relation to the breath testing process were comprehensively addressed by the Company and by Alere.

The Complainant clearly understood that she was employed in a safety critical role. She confirmed her understanding in this regard to the Court and that she was fully aware of the Company’s Intoxication Policy. In all the circumstances, the Court, therefore, finds that the Complainant’s dismissal was not unfair in any respect. Her claim under the Act is not well-founded.

The Court so recommends.

Signed on behalf of the Labour Court

Alan Haugh
LS______________________
9 November 2017Deputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.