Complainant

Respondent

Anonymised Parties

An Airline Employee

An Airline

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009071-001

13/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009071-002

13/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009071-003

13/01/2017

The complainant is employed by the Respondent since 1981. She held the position of Manager of In Flight Sales from 2002 until July 2013. The complainant is paid a gross salary of €2,879.00 per fortnight. The complainant contends that she was removed from her position in July 2013 and that this unilateral action of the respondent was discriminatory on the basis of her age. The complainant also contends that she was discriminated against in getting a job, in being promoted, in relation to training and in relation to her conditions of employment. The complainant also contends that she has been harassed and victimised by the respondent in contravention of the legislation. The complainant has also submitted Industrial Relations disputes in relation to the actions of her employer and its handling of grievances which she raised in relation to this issue and its continuing impact on her.

The respondent raised a preliminary point that the within complaints of discrimination, harassment and victimisation are out of time. The respondent stated that the complaints relate to the restructuring of the Airline’s Catering Department which took place in August 2013. In relation to continuing acts of discrimination, the respondent stated that the Labour Court has ruled that in order for continuing discrimination to be considered, there must first be acts of discrimination within the cognisable period.

Specifically, the respondent referred to Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland in support of its position. The respondent quoted the Labour Court Determination which stated as follows:

“The Appellant did however, submit to the Court that the events contended to be acts of discrimination were elements of a continuum of discrimination and thus capable of being considered by the Court as sufficiently connected to acts of discrimination occurring within the time period specified by the Act as to be within the jurisdiction of the Court of the within appeal”.

The Court held that:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

In the Dunnes Stores case the Court also held that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

The respondent also quoted Labour Court Determination EDA1124 County Cork VEC v Ann Hurley wherein it held that:

“it is clear for the passage just quoted that in order for acts or omissions outside the time limits to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.”

The respondent stated that on the basis of this complaint, which was lodged on 13th January 2017, there must be acts of discrimination, harassment and/or victimisation between 14th July 2016 and 13th January 2017 for the continuum argument to arise.

The respondent contends that no prima facie case of discrimination has been identified during the cognisable period and on that basis the complaint is simply out of time.

In relation to the requirement to await the outcome of internal grievance procedures, the respondent quoted Labour Court Determination EDA177 Brothers of Charity Services Galway v Kieran O’Toole where the Court held that:

“the Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

The respondent also considered Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to the same issue. The respondent stated that in that case the Court found that the complaints were statue barred as the complainant in that case had decided not to pursue a complaint of alleged discrimination under the Employment Equality Act and when the grievance procedure that he utilised did not find in his favour he then sought to make a complaint using that decision as the last date of discrimination.

The respondent stated that there is no requirement to await the conclusion of a grievance procedure prior to lodging a complaint in relation to statutory rights. The respondent contends that the requirement to exhaust internal grievances procedures relates only to referrals concerning Industrial Relations matters.

The complainant contends that the complaint is not out of time. The complainant stated that the matter was raised in line with the respondent’s grievance procedures which makes provision at Stage 4, where a matter remains unresolved, for the matter to be referred to the WRC and thereafter to the Labour Court. The complainant’s position is that the grievance appeal report was issued on the 28th July 2016 and that the matter was referred to the WRC within six months of that date. The complainant also stated that the final act of discrimination occurred in December 2016 when the status of the complainant was clarified in an email from the Director of Restructuring.

The complainant cited Employment Appeals Tribunal Determination No UD529/2013 Ashley Fitzgerald v Chief State Solicitors Office in support of its position. The complainant stated that the Tribunal in that case found that all aspects of the disciplinary process should be exhausted before the timeframe for making a complaint begins.

The complainant referred to an Adjudication Officer’s Decision DEC-E2017-080 A Chef v A Hotel in relation to the law concerning a regime of discrimination as outlined in Section 77(5) and Section 77(6)(A) of the Employment Equality Acts, 1998- 2015. The Adjudication Officer in that case also considered Labour Court Determination EDA1124 County Cork VEC v Ann Hurley in relation to continuing forms of discrimination. The complainant further cited the case of Vlad Teleanca V GMIT DEC E-2017-066 which stated that: “it can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts….”

The complainant contends that the actions of the respondent towards the complainant and the less favourable treatment that continually occurred until December 2016 constitutes a regime of discrimination. The complainant’s case is that the complaint lodged on 13th January 2017 is therefore within time.

In relation to the preliminary points surrounding time limits, the respondent has stated that the complaints are out of time. It stated that the cognisable period for the compliant is the preceding six months from 13th January 2017 which is the date the complaint was submitted to the WRC. The respondents position is that it must firstly be established that discrimination occurred between 14th July 2016 and 13th January 2017. The respondent contended that as there were no acts of discrimination/ harassment or victimisation within this time frame, it cannot be argued that previous incidents of alleged discrimination can be considered to be part of a regime or continuum of discrimination and therefore within time.

The complainant contends that as discriminatory treatment of the complainant continued until December 2016, the lodging of the complaint is within time and as discrimination occurred within the cognisable period, the previous allegations of discrimination Harassment and Victimisation are therefore part of a continuum or regime of discrimination and are therefore within time.

In relation to the time limit issue I find as follows:

Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commissionor Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a)shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

The complainant relied on two incidents of discrimination within the cognisable period in addition to the general contention that the acts of discrimination continue to date as the complainant has not yet been returned to a managerial role.

The first incident related to a report on 28th July 2016 which outlined the conclusion of an internal grievance procedure. The second relates to an email dated 22nd December 2016 from the Director of Restructuring clarifying the status of the complainant and the permanency of the role that she now occupies.

The complainant stated that the time frame for making a complaint did not begin until the internal grievance was concluded. I do not accept this contention on the basis that, while it is a requirement to await the conclusion of internal grievance procedures in Industrial Relations matters, there is no such requirement in relation to lodging a complaint relating to an alleged contravention of individual employment rights.

In addition, the complainant’s grievance was lodged in line with the respondent’s procedures on 10th September 2013 and there were 24 issues within the grievance. The grievance did not contain any complaint of alleged discrimination. In those circumstances, I do not accept that the last date of discrimination occurred on the 28th July 2016 with the conclusion of the internal grievance process. I am also of the view that the clarification email of 22nd December 2016 did not constitute an act of discrimination as it clarified the status of the complainant’s role as requested.

For all of the reasons outlined above, I find that there were no incidents of discrimination within the cognisable period of this complaint.

Having considered the submissions of both parties, I find that the complaint of alleged age discrimination, harassment and victimisation submitted on 13th January 2017 in relation to the displacement of the complainant from her role in August 2013 is out of time and is therefore statute barred.

The worker is seeking a recommendation under Section 13 of the Industrial Relations Act, 1969 in relation the disputes/grievances which are outlined as follows:

Dispute 1.

“I was removed from my role, which I contend was due to my age. My role was never genuinely redundant. My Employer has acted in breach of, and without regard for, my rights and entitlements under Common Law, Statute, Equity and Contract and even with disregard for their own policies and procedures and/or best Industrial relations practice. My Employer has repeatedly failed to address my grievances properly and, inter alia, has failed to consider and/or redeploy me into any suitable alternatives roles, while younger staff members progress. I have been left in a temporary and uncertain role for over three years - in effect left "in limbo" and my terms and conditions of employment are continually undermined which leaves me in a vulnerable situation, aggravated by the existence of my on-going grievance.

I have been greatly upset, distressed and stressed by my employer's actions and treatment of me. I reserve the right to furnish further particulars of this claim, at or before the hearing of this matter.

Dispute 2.

“Strictly without prejudice to the foregoing, as I have been in a "temporary role" for over three years I wish to see my status and position restored and/or regularised. I was removed from my original role, which I contend was due to my age. My role was never genuinely redundant - I and another colleague (and co-complainant) were just replaced by younger colleagues. My Employer has repeatedly failed to address my grievances properly and, inter alia, has failed to consider and/or redeploy me into any suitable alternatives roles, while younger staff members progress. I have been left in a temporary and uncertain role for over three years - in effect left "in limbo" and my terms and conditions of employment are continually undermined which leaves me in a vulnerable situation, aggravated by the existence of my on-going grievance.

I have been greatly upset, distressed and stressed by my Employer's actions and treatment of me. I reserve the right to furnish further particulars of this claim, at or before the hearing of this matter.”

The worker contends that she was discriminated against on the basis of her age when she was removed from her role as Manager of In Flight Sales following a restructuring of the Airline’s Catering Department into two separate units in August 2013. The worker stated that she was placed in the employer’s staff resource pool and offered a voluntary redundancy package or the option of suitable alternative roles as they arose within the organisation.

The worker stated that there had been no consultation with her on the proposed restructuring of the Catering Department and she had not been involved at any stage throughout the process. She stated that she was informed on 22nd July 2013 while on holiday abroad that the position she held for many years no longer existed.

The worker contends that she remained in the resource pool for three and a half years and was not offered suitable alternative positions as they arose. The worker stated that the role of Manager of Flight Kitchen became available yet it was not offered to her nor was it made available to staff in the resource pool. The worker stated that she applied for the role of On Board Sales Manager Specialist 1 and was unsuccessful in this application despite her experience in that area and her obvious suitability for the role.

The worker stated that the Catering Department was restructured again in 2015 and returned to a single unit yet despite being in the resource pool at the time, she was not offered the post of Acting Manager of In Flight Retail, which was the position from which she was removed in the previous restructuring in August 2013.

The worker contends that she was also harassed by the employer as a result of remaining in the resource pool for three and a half years with no suitable offers at the appropriate grade. The complainant further stated that she was victimised by the respondent when she opposed the discrimination that she had suffered.

The worker stated that there were vacancies for which she was suitably qualified, yet these roles were not offered to her and in some cases external people were appointed into roles for which she was both qualified for and highly experienced in. The worker stated that despite applying for suitable roles she was unsuccessful in her applications and was informed that this was due to an apparent skills gap. The worker refutes that she was lacking in any of the skills required to carry out the roles she applied for and that no skills gaps had ever been communicated to her throughout her employment.

The worker raised a grievance in line with the employer’s procedures and this process concluded in July 2016 and did not adequately address the issues she raised.

The employer refutes all of the worker’s claims. The employer’s position is that the worker’s role within the organisation ceased to exist when the Catering Department was restructured in August 2013. The employer stated that this restructuring was necessary as the Catering Department was loss making at the time and a decision had been made at Senior Management level that it be restructured. The employer stated that it was in no way related to the age of the worker; that it was related specifically to the role and to the fact that it no longer existed within the new structure.

The employer stated that the worker was given the opportunity to avail of a voluntary redundancy package or to be facilitated with suitable alternative roles within the organisation as they arose. The employer stated that it made every possible effort to source suitable alternative roles for the worker and that she has excelled in her current role. The employer stated that the worker remains in receipt of the favourable terms and conditions of employment that applied to her previous role to date.

In relation to the grievances lodged by the worker and the findings of the appeal report which issued on 28th July 2016, the employer accepts that there were shortcomings in the process in relation to prior consultation on the restructuring and communication issues throughout the process including the notification to the worker of the changes to the Catering Department.

The worker has submitted these disputes further and in the alternative to complaints made under the Employment Equality Acts, 1998 -2015.

I have carefully considered the written and verbal submissions of both parties and all of the evidence adduced at the hearing of these disputes.

I find that the employer was entitled to restructure its Catering Department in an attempt to return it to profitability. The worker contends that his removal from his post was age related whereas the employer’s position is that it was not related to the worker’s age and related solely to the role, which it claims no longer existed within the new structure. I accept that in this case the restructuring resulted in two roles becoming redundant.

The worker submitted a grievance in September 2013 and this process concluded in July 2016 after it was paused for the parties to attend mediation, which proved unsuccessful.

The initial grievance report which issued in July 2014 found that there were shortcomings on the employer’s side in respect of consultation and communication with the worker throughout the process and in relation to its notification of the decision to restructure the Catering Department to her. The report stated that the Company’s own grievance procedures lists lack of consultation and inadequate communication as potential items for complaint. The appeal report issued in July 2016 and also outlined these shortcomings in the process.

I find that the lack of any consultation throughout the process, the continuous lack of communication and the manner in which the decision was informed to the worker was unfair and unreasonable. It was particularly harsh that the worker was notified of her job loss while she was abroad on holidays. The worker confirmed in evidence the significant effect that the actions of the employer have had on her both professionally and personally and it was also confirmed that matters may have been a lot different had been a level of consultation and communication.

In all of the circumstances of this case, I find that the employer had breached its own policies in relation to the consultation and communication of its decision to the worker and the effects that the loss of her position in the organisation has had on her.

In relation to these breaches and the distress caused as a result, I consider it fair and reasonable to award compensation to the worker in the amount of €4,000.