FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER LINGUS LIMITED TRADING AS AER LINGUS - AND - A WORKER DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Complaint not addressed.
BACKGROUND:
2. This dispute concerns the worker’s claim that a complaint was not addressed. The Worker referred this case to the Labour Court on 5 December 2018 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 6 March 2019.
The Claimant is a cabin crew employee of the Respondent. In October 2017 the Claimant sought to avail of staff travel privileges to bring her husband and children on a flight on which she was working. The flight was overbooked. The Claimant’s husband approached the Captain of the flight close to the standby desk to seek to get him to speak to the Claimant, who had already reported for duty, on his mobile phone. What happened next is disputed. The Claimant alleged that the Captain waved her husband away and that when he arrived at the aircraft he made a threat of physical violence against her husband to her. The Captain claimed that he denied to the Claimant’s husband that he knew the Claimant and that when he arrived at the aircraft he made a jocose comment to the Claimant about her husband but that he did not threaten any physical assault. There was also conflicting evidence as to whether or not there was a further allegedly unsatisfactory interaction between the parties on the aircraft before the flight. In the event, the Claimant’s children were accommodated on the flight but her husband was not.
- The Claimant made a complaint three weeks later. In a letter to the Claimant, which the Respondent acknowledges as a ‘clerical oversight’ and for which an apology was given verbally to the Claimant, she was advised that she could be liable for ‘investigation up to and including dismissal’. The Company then carried out a formal investigation, which did not conclude until May 2018. There were no witnesses to the alleged threat apart from the parties. The Investigator concluded that a serious allegation of this type would require ‘…a degree of substantiation which in this case is absent.’ She then went on to find that ‘on balance’ she believed that the Captain did not make the comments as alleged.
The Claimant availed of her right to appeal and submitted grounds in June 2018. The appeal meeting did not take place until September 2018 and the outcome was conveyed later that month. The appeal was not upheld. It concluded that an appropriate investigation was carried out and that all relevant matters were taken into consideration.
The Respondent refused to attend a WRC hearing on the matter and the Claimant referred the issue to the Court under s.20(1) of the Industrial Relations Act.
3.Claimant's arguments:
- 1.Threats were made by a colleague, which caused great distress.
2.When the grievance was stated to the Respondent, a very intimidating letter was sent threatening that the Claimant could be liable for investigation up to and including dismissal. When challenged, the Respondent stated that this was a ‘clerical oversight’. However, this was interpreted as an attempt to intimidate. This caused considerable stress and upset.
3.The Investigator scheduled a meeting but refused to explain its purpose, which was not clarified until HR advised that its purpose was to discuss the grievance.
4.The Investigator only took statements from three colleagues when it would have been prudent to interview the entire crew. The grievance was not upheld despite two of the people interviewed acknowledging the level of the Claimant’s upset on the flight.
5.In his response to the grievance, the Captain made disparaging remarks about the Claimant.
4.Respondent's arguments:
- 1. The grievance raised was explored fully in line with Company procedure and the complaints were examined fairly. The substantive complaints were not upheld both at first instance and internal appeal. On this basis, the Respondent decided not to avail of a further investigation by the WRC.
2. The investigation carried out was detailed and involved several witnesses. The delay in concluding is acknowledged, and the Investigator apologised for same. The delay was due to a number of factors.
4. The Claimant was represented at the appeal by her union.
- 5. There have been no employment consequences for the Claimant arising from the process.
6. The Respondent is satisfied that the complaints made were examined fairly and that the processes were fair.
RECOMMENDATION:
Consideration
The Court is not in a position, nor is it the function of the Court, to carry out an investigation into the grievance raised by the Claimant and, consequently, is not in a position to make any judgement regarding the differing accounts of what occurred. Therefore, the Court is not in a position to up-hold the Claimant’s grievance, which is what she sought in referring the matter to the Court.
By contrast, the Court notes that, notwithstanding the absence of any corroborative evidence to substantiate either account of events, the Investigator determined ‘on balance’ that she believed the version of events given by the Captain against whom the Claimant raised her grievance. It seems to the Court that where there are opposite versions of an event at the source of a complaint and where there is no material or witness evidence to substantiate either account, investigators need to tread with caution and should offer explanations in circumstances where they cannot reconcile differing versions or where they choose to believe one version rather than another. Failure to do so can, as in this case, lead a party to the belief that rank within an organisation plays a part in determining credibility despite the fact that that ought not to be a factor. The Court cannot judge if the Claimant’s belief is correct, and does not do so, but her view is understandable in the circumstances and the Respondent is urged to take care to avoid such instances in the future, which can give rise to perceptions of unfairness.
In terms of the processes used by the Respondent, there is no disputing their thoroughness and the Court will not question the outcome. However, the unnecessary distress caused to the Claimant by what was described as a ‘clerical error’ in a communication to her, in response to her complaint, that threatened her with potential and inappropriate consequences is viewed with disapproval by the Court. It is evident that, whatever happened in the course of the events that gave rise to the complaint, the Claimant was upset. This was very seriously compounded by what can best be described as rank carelessness on the part of the Respondent in issuing her with such a letter.
The inordinate delay in processing this grievance strengthened further the sense on the part of the Claimant that she was being victimised for having made a complaint. The Court welcomes the assurances given by the Respondent that their processes for handling grievances are undergoing what can only be described as a clearly necessary overhaul. This was an uncomplicated grievance that could have been, and should have been, processed relatively quickly. A reputable employer such as the Respondent needs to be in a position to bring timely conclusions to straightforward grievances. The Respondent failed to do so in this case and, in so doing, caused further gratuitous distress.
The Court finds it extraordinary that a reputable employer of the stature of the Respondent would refuse to utilise the services of the WRC to assist in the resolution of a dispute of this nature without having good reason for not doing so. In the view of the Court, it is inappropriate that the Claimant should be compelled to utilise the very restrictive opportunities provided under s.20(1) of the Act in order to be given the chance to bring her grievance to an outside third party. The WRC’s function under the Act is to assist parties. The Court is pleased to note the acceptance of the Respondent that it would have been better to have facilitated the Claimant in this regard.
The Court feels obliged to comment on one final matter. The Respondent in their submission to the Court refer to the fact that the Claimant suffered no consequences in their employment as a result of the matters before the Court. This is a somewhat surprising and curious observation. No allegation of wrongdoing was ever made against the Claimant and it would be deeply disturbing if she had suffered consequences without such an allegation being made, in the first instance, and then established. The Court would point out that an employee should not be deterred from utilising a grievance procedure by the prospect of consequences for them. Such consequences are likely to arise only if there is proof of malice behind an allegation, something which was not suggested in any make, shape or form in this case.
Recommendation
The Court is not in a position to uphold the Claimant’s grievance.
Signed on behalf of the Labour Court
Tom Geraghty
MK______________________
13 March 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.