ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009961

Parties:

An Employee V An Employer

Complaint(s):

Date of Adjudication Hearing: 22/01/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] 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 claimant commenced employment with the respondent on the 11th March 1999 as a member of the cabin crew inflight Services(IFS)department.

The claimant was absent from work on sick leave from the 7th February 2014 until her return to work on the 22nd May 2016. The respondent Chief Medical officer examined the claimant on the 1st March 2015 and on the 25th August 2015 and reported that she was not fit to resume work. The claimant was again reviewed by the Medical officer on the 13th November 2015 and having received a report from the claimants treating specialist orthopaedic surgeon stated that the claimant was permanently unfit to return to her role.

The respondent representatives met with the claimant on the 8th December 2015 to discuss her on-going employment status. Following this meeting, the respondent wrote to the claimant to confirm that the respondent was placing her into its resource pool, an internal redeployment process for displaced staff and those who were medically incapable of performing their duties to find alternative employment within the respondent's company.

In January 2016, the respondent's medical officer received correspondence from the claimant’s surgeon that indicated that the claimant had recovered and that he now considered her fit to resume work. Following the examination, by the respondent medical personnel, the claimant was deemed fit to resume work.

The claimant was again examined by the respondent's new occupational health services provider and was confirmed as being fit to return to her cabin crew duties.

The claimant was scheduled to undergo a refresher training course on the 22nd may 2016 as part of the applicable statutory (EASA Regulations part ORO.CC.100) requirements which the respondent must comply with.

These regulations provide that where a cabin crew member has not performed flying duties during the preceding 6 months but who is still within the validity period of the last relevant recurrent training and checking, the cabin crew members are required to complete refresher training and checking for each type of aircraft being operated before being reassigned to flying duties.

The claimant did not successfully complete her refresher training in May 2016. Following this, the claimant was offered and accepted a ground-based role on an interim basis from the 7th June 2016 to end of July 2016.

The respondent provided opportunities to the claimant for study time of up to a 1 hour per day. The claimant was also encouraged to do aircraft visits and observe crew doing Pre-Departure inspections.

All these measures were intended to assist the claimant in transitioning back into the operation. The claimant was unable to attend a planned refresher training on the 31st July due to certified illness.

The claimant was given additional opportunities to meet the criteria but she reported late for her first familiarisation flights on both 10th and 11th September 2016 and she did not present the relevant and required paperwork for signing.

The claimant attended training for the 3rd time on the 31st October 2016 but failed to pass all elements of the classroom training. The Respondent appointed and IFS team Manager from another location to review the claimant's performance and training history to determine appropriate next steps. The respondent's medical provider confirmed by email that he found no medical reason for the claimant's failure to return to work. The claimant was advised that a final decision with regards to her employment would be made and on the 17th January 2017, the respondent wrote to the claimant advising that her employment was to be terminated due to her incapability to reach the standards of competence required of all operating crew. The claimant's employment ended on the 13th February 2017. The respondent stated they had done everything possible to help the claimant reach the required standards. The fact I for the first time the provided the claimant with 3 refresher training season but unfortunately, she did not pass the standards required. The respondent did not have any additional work opportunities where the claimant could be placed. It was with regret they had to make the decision to terminate.

The claimant representative submitted a detailed submission on behalf of his member. It was stated that she was a long servicing employee of the respondent and up until the time she went ill she had an unblemished record. The respondent could have accommodated the claimant as a ground staff employee.

Findings

Both parties made extensive written and verbal submissions at the hearing.

I find that the claimant has a long length of service with the respondent and I accept that she has an unblemished record up until she went sick. I find that the respondent is governed by strict regulations, for the position the claimant held, that must be met. I find that the respondent provided the claimant with every opportunity including 3 refresher training sessions, a period as ground staff along with providing time for study. I find that while the respondent did accommodate the claimant on ground staff duties for a limited period they are not able to do so on a long term basis. I find the claimant was also provided with the opportunity of familiarisation flights where she did not show up, or provide the relevant and required paperwork. I find that the decision to terminate the claimant’s employment was due to the failure to achieve the required regulatory competency standards.

I find that the claimant was held in very high esteem by the respondent and they took all reasonable steps to facilitate the claimant in returning to her substantive position.

Recommendation

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I uphold the respondent's positions and deem the decision to terminate the claimant's employment was reasonable under the circumstances.

Dated:   10th May 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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