Complainant

Respondent

Anonymised Parties

An airline employee

An airline

Representatives

Company manager.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028741-001

29/05/2019

The Complainant is employed by the Respondent, an airline.

The Complainant commenced employment in February 2000.

This complaint was received by the Workplace Relations Commission on 29th May 2019.

The Complainant commenced her employment with Aer Lingus on 17th February 2000 as a Cabin Crew member until March 2006 when she successfully applied for the role of Grade 2 Guest Relations Agent.

The Complainant held this position until 28th February 2018 when her department area was outsourced and she is now assigned to the Legal Department. On the 25th August 2014, a supervisory position (Grade 1) became available In the Guest Relations Department and the Complainant applied for same. She believed that she should have had a reasonable and fair opportunity of being successful in gaining promotion to this position but because of flawed human resource procedures she did not get appointed to this role which has resulted in a very significant loss of earnings, a reduction in pension benefits and a very serious negative impact on her self-esteem. A report commissioned by the company, “Formal Grievance raised by the Complainant (name removed) - 19th June 2017” found numerous shortcomings in the aforesaid process.

The Complainant seeks to be compensated for the aforementioned losses. To exacerbate the situation she had to wait nearly 4.5 years for the company to complete the internal grievance process. Background/Timeline

July 2014: The Complainantraised concerns with her Supervisor, Ms C, about the probity of the recruitment process for an upcoming Grade 1 promotional position.

25th August 2014: A Staff Vacancy Notice (SVN) was published to advertise for a Grade 1 Supervisor in the Customer Relations Department. It should be noted that within this notice it is stated;

“The ideal candidate will already be familiar with the processes and procedures of the area (Guest Relations).”

Post 25th August 2014: Despite the Complainant’s serious reservations regarding the integrity of this recruitment process she applied for the position.

5th November 2014: The Complainant received an email from Mr C (Human Resources) advising that;

“…he was conscious the she had made an allegation against her Line Manager and the wider recruitment process and he requires her to formally put it in writing or if she was satisfied with the meeting (27th October) to send a short email to close this matter”.

10th November 2014: The Complainant was shocked and upset at Mr C’s email and advised him that the Union are looking into this matter and will revert back in due course.       10th November 2014: The Complainantreceived a response from Mr C asserting that;

“You have made a serious allegation against J which is still outstanding, thus will need to be investigated or withdrawn. J has not chosen to move this case formal from his side and is keen to resolve this through informal channels. However, we cannot leave this kind of allegation out there without it being withdrawn or investigated”.

1st December 2014: The Complainantsubmitted a formal grievance to Mr O’R of the Respondent’s HR Department and requested an investigation regarding the Grade 1 supervisor position in Customer Relations.

2nd December 2014: Mr O’R contacts the Complainant to confirm that the company will

appoint a person in the coming days to conduct an investigation. 11th December 2014: The Complainant contacted Mr O’R to advise that she had received

notification from Mr K confirming he had been appointed to conduct the investigation. The Complainant raised concerns as to the suitability of this investigator and the company agreed to engage a different investigator.

17th December 2014: the Complainant attended a meeting with the company’s, Mr Mc S, HR,

Mr C, HR and Mr K, Manager of Guest Relations, to discuss the process. THE Complainant and a colleague Mr O’B and Siptu Official Mr KB were also in attendance. At this meeting, Mr Mac S used a colourful metaphor to confirm that the company had messed up. Mr MacS advised that he needed time to consider this process and would revert with a formal response. No reply was ever received.

9th January 2015: The Complainant received an email from Mr. O’R requesting her to call him.

2nd February 2015: The Complainant received a letter from Ms RB to advise of her appointment to conduct the investigation and to arrange a meeting to discuss her concerns and provide details of her grievance.

23rd February 2015: Ms RB contacted the Complainant to advise that the initial meeting is;

“…to get some background into your complaint so that I can move on and talk to all parties

concerned and hopefully bring this to a speedy resolution for you”

25th February 2015: The Complainant and a colleague JK, attended a meeting with Ms RB

(Investigator) to discuss her grievance and proceed with the investigation.

08th April 2015: Ms RB contacts the Complainant to apologise for the length of time that this

investigation is taking and confirms that she has one more person to meet and she should

then be in a position to finalise this issue.

01st July 2015: The Complainantcontacts Ms RB to seek an update to her grievance.

01st July 2015: Ms RB replies with an apology and informs the Complainant that she has received a reply from HR and that she is now in a position over the coming days to give appropriate consideration to this complaint.

01st July 2015: Later in the dayMs RB contacts the Complainant and again reiterates her embarrassment at the length of time that has elapsed in addressing her grievance but now advises that despite been unable to contact a witness she is now in a position to complete her report.

19th August 2015: Ms RB emails expressing embarrassment at the length of time that it is taking to conclude this investigation.

21st December 2015: With the passing of nearly six months the Complainant emails Ms RB requesting the status of her grievance and the expected timeline for the completed investigation report.

21st December 2015: Ms RB replies with another apology but opines that she will complete the investigation over the Christmas period.

22nd March 2016: A further three months passes so the Complainantemails Ms RB to request an update on her grievance and declares that as it is now over a year since the genesis of this grievance and she now wishes to be provided with the Investigation report.

22nd March 2016: Ms RB responds to the Complainant to apologise and advises that

“I totally understand how frustrating this must be for you and I will put time aside to get this finalised. I had brought it to midway stage and it got dropped again”.

14th June 2016: The Complainant contacts Ms RB to advise that another 3 months have passed since their last correspondence. She emphasises that it was Ms RB who gave undertakings over the past 15 months that she would have concluded the report by now. The Complainant concluded by asserting the negative impact this was having on her personal and professional wellbeing and urged Ms RB to bring closure to this stressful episode.

17th June 2016: Ms. RB responds to the Complainant’s email stating;

” Yet again I write to you with an apology. I will get to it this week and will have report to you at the back end of next week”.

22nd June 2016: The Complainantacknowledges Ms RB’s communique and advises that;

“I look forward to your response next week “.

15th August 2016: The Complainant contacts Ms. RB and asserts:

” I regrettably find myself once again emailing you. Our last communication you advised you would have your findings to me by the end of the week, that was 22nd of June. Now 15th August 2016 I am so disheartened that I have to contact you. There was talk of another Grade 1 role being appointed in the near future and that person was offered the role in 2014, when I put forward my grievance, and he was made permanent in the role last year while I am still seeking answers. “

The Complainant protests that she has been abundantly patient and understanding to date but her tolerance has worn thin in relation to the company’s numerous broken promises and she closes by way of seeking a meeting to ascertain clarifications and answers.

16th August 2016: Ms RB  schedules a meeting with the Complainant for the 26th August 2016.

26th August 2016: During the meeting Ms RB yet again apologises for the delays in processing the grievance and was highly critical of the role of individuals in the Guest Relations and Human Resource Departments. In a reply to a query as to what the Complainant expected from this long running episode she informed Ms RB that a minimum she should be awarded a Grade 1 position to which Ms RB suggested was a reasonable outcome.

21st November 2016 : Once again the Complainant emails Ms RB for an update and Ms RB responded as follows;

“I have done some more work on your case and hope to finish it shortly.”

17thJanuary 2017 : Ms RB forwards another apologetic but holding email to the Complainant.

18th January 2017 : The Complainant acknowledges Ms RB’s latest email and, inter alia, makes reference to her meeting on the 26th August 2016.

23rdJanuary 2017 : Ms RB replies to the Complainant’s email and states;

“ …thank you for your patience. I have done some work on this and hope to complete it shortly. You should get a medal for your patience and niceness”.

27thApril 2017: Once againthe Complainant contacts Ms RB seeking the status of her grievance and she raises serious personal and professional concerns that emanated from a report provided to a close work colleague.

2nd May 2017: Ms RB replies that she will have the report by the end of the week and urges the Complainant to desist from taking any further action until she receives her grievance report. Ms RB concludes by acknowledging that the Complainant needs her report.

3rdMay 2017 : The following day the Complainant retorts;

“… it’s shocking to see written on someone’s statement trying to smear your character without justification and that I await your report”.

In reply Ms RB confirms that she;

“ …will get report finished this week and not to stress about the statements, to have a look at mine and if you still feel there is an issue, it is your right to raise another grievance”.

19thJune 2017: Finally, the Complainant receives Ms RB’s report and within the covering letter she is advised that should she be dissatisfied with the findings of same she could avail of an appeal process.

5th July 2017: Siptu formally appeals the findings of the grievance report.

6thJuly 2017: Mr O’R (HR) responds and acknowledges the request.

15thMay 2018: The Complainant emails Ms SM (HR), requesting an appeal hearing.

16thMay 2018: Ms SM (HR) emails the Complainant and advises her that she had not contacted her previously as she thought she had been satisfied with the findings of the report and went on to state, inter alia;

“… there may have been oversight of earlier appeal”.

16thMay 2018: The Complainantreplies by suggesting that if she had been contacted directly there would have been no oversight as to the status of her grievance and she concludes by asserting there is no linkage between the two matters raised in Ms SM’s email.

22ndMay 2018: The Complainant contacts Ms SM (HR) and they arrange to meet on the 24th May at 11.00.

24tHMay 2018: The Complainant attended the meeting with Ms SM and was accompanied by a Siptu official. The Complainant highlighted that although the report had vindicated her and confirmed that the process was tainted and unfair, she did not receive any redress or compensation.

She further advised that she should now be a Grade 1 and emphasised that she was unable to consider the recently enhanced Voluntary Severance Programme due to the delay in securing a resolution to her long-standing grievance. The Complainant concluded by remarking that her grievance was multi-faceted and every element needed to be considered before the company came to a decision.

Ms SM (HR) advised she would revert back within 10-14 days with an outcome.

28thJune 2018: The Complainant requested her Siptu official to contact Ms SM (HR) requesting an outcome to the appeal hearing as she had not received the outcome within the timeframe declared by the company.

23rdAugust 2018: The Complainant emailed Ms. SM looking for confirmation of appeal outcome as she had not been contacted by Ms SM.

11thSeptember 2018: The Complainant receives an email from Ms SM advising she had called her Siptu official with an offer of €5,000 and also informing her that she could apply for the voluntary severance package.

The Complainant was unable to respond to Ms SM email of the 11th September as she underwent major surgery shortly thereafter.

The Complainant was out of work as a result of her surgery until 25th February 2019.

25th February 2019: The Complainant returns to work following recuperation from major surgery on the 17th September 2018 and emailed Ms. SM and enquired, inter alia;

“Can you confirm the next step of this process please,…”.

20th May 2019: With the passage of a further three (3) months without a reply from the company the Complainant declared, amongst other things;

“… with the passing of another three (3) months it is now apparent by the company's lack of engagement, that they have no meaningful desire to settle my grievance”

“Therefore, in the event of the company’s further refusal to respond to me in the coming days, I will be left with no alternative but to appoint a representative and submit a formal complaint to the Adjudication Services of the Workplace Relations Commission”.

28th May 2019: Ms SM emailed the Complainant and advised that;

“…as far as the company is concerned the internal processes associated with this matter are closed”.

29th May 2019: the Complainantmakes a formal complaint to the Workplace Relations Commission.

 Complainant’s Arguments

Leaving aside the astonishing long period i.e. 1,639 days for the company to exhaust their Grievance procedure, it is worth noting just some of the following excerpts from the Investigating Officer’s Report;

“If the Complainant’s issues had been dealt with in an appropriate manner, there should have been no need to raise this formal grievance”.

Commenting on a commitment that was given to the Complainant but not delivered upon it is declared;

“This is inexcusable as when HR commit to reverting to a staff member, they should honour that commitment…”

During the investigation the Investigator felt that it was necessary to speak to the Recruiter but she reports;

“However, I was not permitted to do this as I was told that Aer Lingus did not have an agreement with the 3rd Party to allow me to do this”.

Within the Investigator’s summation she opines, amongst other things;

“My overall finding is that the Complainant was not afforded a fair recruitment or grievance process and was treated inconsistently when compared with other candidates. The recruitment process in this case was tainted with inconsistencies”.

From the very beginning of this episode attempts were made to intimidate the Complainant by way of accusations that she was making allegations against her senior manager. This issue is addressed in the report.

Despite this we contend that the entire episode was flawed, tainted and unfair and has had a profound negative impact on the Complainant’s well-being particularly her self-esteem and confidence. Furthermore, the Grade 1 position carries a significantly higher remuneration scale which she has probably been deprived of as a consequence of this extraordinary debacle.

Conclusion

In light of what is contained herein, the complainant respectfully requests that the Adjudication Officer finds in her favour and recommends that the Complainant is appropriately compensated, awarded a Grade 1 role and receives a fitting apology for all she has endured over the last four and a half years.

The Claimant is dissatisfied with the outcome of an internal grievance investigation carried out by the Respondent personnel in accordance with the Respondent Grievance Procedure. In the referral to the WRC the Claimant contends that

“she raised a formal grievance with her employer on 1st December 2014 and was only advised by way of email on the evening of 28th May 2019 that “as far as the company is concerned the internal processes associated with this matter are closed”.

Position of the Respondent

The Respondent wholly rejects the claim as presented.

The grievance raised by the Claimant has been fully explored in line with Company procedure.   The Respondent is satisfied that the complaints were fully and fairly examined by an independent manager.   The Complainant’s initial grievance was upheld by the individual appointed to hear the grievance.

Notwithstanding the fact that the complaint was upheld, and the Claimant had confirmed to the appointed investigator her satisfaction with the outcome, the Claimant subsequently sought to appeal the outcome. This appeal was raised by way of email from the Claimant’s full-time union official, SIPTU.

Efforts were made to establish the basis of the Claimant’s appeal as her decision to appeal appeared to be at odds with her stated position that she was satisfied with the outcome of the investigation. The Claimant in the presence of her Union Official subsequently clarified that she did not in fact wish to appeal the findings of the grievance investigation as she viewed the report to have “vindicated her position” but rather was seeking to establish whether the company was willing to make any financial gesture to her in an effort to address/compensate her as the grievance outcome did not provide for any redress.

The Respondent considered the request for compensation and an offer of €5k on a “without prejudice and precedent basis” in full settlement of this claim. The Claimant was advised of the Respondent’s offer both directly and through her Union Official on a number of occasions back as far as June 2017. The Claimant reverted some eight months later to advise that she did not accept that offer made. The Claimant was advised that given that she had declined the offer made to her, the internal process was closed and that it was for her to consider the next steps and options open to her and in this regard, she may wish to seek advice from her Trade Union Official.

Summary of the Factual Background to the Com

The Claimant commenced employment with the Respondent on 17th February 2000.

The Claimant submitted a formal grievance on 1st December 2014 in respect of the filling of a position of Grade 1 Supervisor in the Customer Relations Department.

The complaint related to the manner in which the position was filled, the fact that the hiring manager appeared to have a person in mind for the role before it was even advertised and that the recruitment process followed was not consistent.

In her letter setting out the basis for her grievance, the Claimant also set out a desire to bring her concerns to the attention of management through the Grievance procedure so as to ensure fairness in future SVNs.

The Director of Restructuring was appointed to conduct the investigation. She issued a report to the Claimant on 19th June 2017.

“not afforded a fair recruitment or grievance process and was treated inconsistently when compared with other candidates. The recruitment process in this case was tainted with inconsistencies. I do not know, in the event that all candidates had completed the testing, that the Claimant would have been successful in the role, but this will never be established now.

I also find that the behaviour of the Line Manager, Supervisor and the HR Business Partner was not always at the professional level that we would expect and there were many unjustifiable incidents during the Claimant’s journey through this recruitment process.

The Claimant’s desire in bringing this grievance process was to ensure fairness in future SVN’s. I will bring this report to the attention of the Respondent’s Recruitment Manager, and the XXXX Management Team, to ensure that all learnings from the case are applied going forward”.

The Claimant subsequently appealed the outcome to Mr O’R by way of email from SIPTU Official on 5th July 2017.

The matter was referred to the Employee Relations Manager for consideration. In preparing for the appeal, the Employee Relations Manager sought to establish the background to the grievance. The Employee Relations Manager established there had been communications between the Claimant and the Director of Restructuring which appeared to suggest that the Claimant was happy with the outcome of the grievance process. In light of the above, the Employee Relations Manager sought clarification as to the basis and grounds of the appeal. The Union Official agreed to speak to the Claimant and revert to advise how the Claimant would like to proceed. Despite a follow up mail to the Union Official of 28th July 2017 the Employee Relations Manager did not hear anything further on the matter from either the Claimant or her Union Official until the Claimant sent a further mail to the Employee Relations Manager on 15th May 2018. In the email, the Claimant set out that she had been awaiting a meeting since 6th July 2017.

The Employee Relations Manager reverted to the Claimant on 16th May to advise detailing the above background in particular her engagement with the Union Official on the matter. The Employee Relations Manager went on to state that potentially the reason for the lack of follow up in respect of the appeal or possible oversight was owing to a focus on a separate business reorganisation which was impacting the Claimant’s business area, and which was the focus of attention for everyone at that time. The Employee Relations Manager proposed an appeal date of 24th May 2018.

The meeting took place on 24th May 2018. At the meeting, the Claimant in the presence of her Union Official confirmed that she was not in fact appealing the outcome of the grievance as she believed it “vindicated her position”. Rather she clarified that she was seeking to establish whether the Respondent would be willing to make any financial gesture to her in an effort to address/compensate her as the grievance outcome report did not provide for any redress.

At the same meeting, a separate discussion took place regarding potential voluntary severance terms which might apply if she were to avail of same arising as a result of the recent restructuring of her business area. In particular, the Claimant sought enhanced travel concessions known as retiree concessions which apply to eligible staff with over 25 years service.

The Employee Relations Manager reverted to the Union Official by telephone on 27th June to confirm that the Respondent was willing to pay €5k on a “without prejudice and precedent” basis in full settlement of this claim. The Employee Relations Manager also advised that the Respondent were not in a position to offer enhanced staff travel concessions should the Claimant opt to avail of voluntary severance. The Union Official committed to advising the Claimant of this offer and subsequently advised that he had done so, and she was considering same.

On 23rd August 2018 the claimant emailed the Employee Relations Manager seeking an update on the outcome of the grievance process.

The Employee Relations Manager by way of 11th September reconfirming the position and the Respondent’s offer as previously advised. The Employee Relations Manager received no reply to same. The Claimant subsequently was on a period of sick leave from 17th September 2018 until 26th February 2019.

On 25th February 2019 the Claimant sent an email to the Employee Relations Manager advising that she had been absent from work and had just returned. She advised that she did not accept the offer of €5k. The Claimant sought confirmation of the next stage of the process. The Employee Relations Manager engaged with the Union Official to advise that from the Respondent’s perspective the process was closed, that the Respondent had made what they believed was a reasonable offer in all of the circumstances. The Union Official committed to following up with the Claimant in respect of same.

The Employee Relations Manager heard nothing further on the matter, until 20th May 2019 when she received a further email from the Claimant.

The Employee Relations Manager responded to the Claimant to advise that the Respondent’s position was as set out in the email of 11th September 2018. She advised that the said email had merely reiterated what was previously advised to the Claimant through her full time Trade Union Official on 27th June 2018. It was noted that the Claimant chose not to accept the 5k which was offered to her and that the Respondent had received no further enquiries from her in terms of the voluntary severance. Therefore, as far as the Respondent was concerned the internal processes associated with this matter are closed. The Employee Relations Manager advised it was for the Claimant to decide on the next steps and options open to her and that in this regard she may wish to take advice from her Trade Union.

The matter was subsequently referred to the WRC for consideration.

Summary of the Evidence to be adduced by or on behalf of the Respondent

Whilst the Claimant has set out in her complaint to the WRC that she was advised by email that her formal grievance raised on 1st December 2014 was only closed on 28th May 2019. The Respondent contend that this is a misrepresentation of the facts as detailed above.

It is the case that the matters complained of by the Claimant have been examined in full an independent manager with experience in the field. The investigator upheld the allegations made by the Claimant. The Claimant confirmed both to the investigator and subsequently at a meeting with the Employee Relations Manager and her Trade Union Official that she accepted the outcome of the grievance process and was not appealing same.

The Claimant outlined that she was satisfied that the outcome vindicated her position and clarified that she was seeking financial compensation. This request was considered, and an offer was made which the Claimant subsequently rejected.

The complaints raised by the Claimant were brought as a workplace grievance under the Respondent’s Grievance Procedure. The Claimant accepted the outcome of the grievance process.

The Claimant sought financial redress/compensation. The Respondent offered her €5k on a “without prejudice and precedent basis”.   The Claimant rejected that offer.

While the Claimant may well feel aggrieved that the level of compensation offered was in her opinion not adequate. The Respondent contend that the offer was fair and reasonable in all of the circumstances.

Conclusion

For the reasons outlined above, the Adjudicator is asked not to uphold the complaint.

The facts of the case to a very great extent are not in dispute.

The Complainant felt satisfied that the outcome of the investigation vindicated her decision to pursue the grievance regarding the recruitment process that the Respondent had utilised.

By way of compensation the Respondent had offered €5k on a “without prejudice and precedent basis”. This offer was rejected by the Complainant who appears to be seeking elevation to a Grade 1 level.

It may be the fact that if the recruitment process for a supervisor in the Guest Relations Department had been conducted in a fairer manner the Complainant may well have been the successful candidate, this is something we shall never know.

I cannot recommend a promotion / elevation of status for the Complainant. I do believe that the best candidate for any position should be offered that position. To elevate the Complainant to a Grade 1 status as compensation for the treatment she received could create a dangerous precedent.

I now recommend that the offer made to the Complainant of €5k be increased to €10k on a without prejudice and precedent basis and that this offer is accepted by the Complainant in full and final settlement of her grievance.

In addition to the compensation referred to above I would also recommend that the Respondent’s head of Human Resources write a letter to the Complainant apologising for the manner in which she has been treated.

As outlined above.

Industrial Relations Issue.