Complainant

Respondent

Anonymised Parties

Supervisor

Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011708-001

01/06/2017

The issue in contention concerns the alleged Unfair Dismissal of an Airport Supervisor for gross misconduct for allegedly not adequately checking the aircraft hold; giving rise to a serious safety and security breach.

The complainant accepts that the incident was serious. However, the initial disciplinary hearing was flawed as statements that should have been shared with the complainant, weren’t, this was later rectified. The main complaint relates to the refusal of the company to take account of mitigating circumstances with regard to the actions of the other employee who caused the incident; the failure of management to move that employee away from active loading when earlier he was found sleeping in a loading truck; the failure of the company to provide for a shift safety briefing; adhoc changes to crew and equipment that contributed to the human error. The complainant in addition to his alleged failure to adequately check the hold, he was also disciplined for not reporting the incident; however, the complainant’s supervisor had been present at the incident

(The complainant makes no complaint about the disciplinary procedures applied during a reconvened hearing and no issue was raised relating to the fairness of that process at the adjudication hearing and the company’s adherence to fair procedures.)

The main issue relates to the harshness of the punishment, when an alternative to dismissal should have been implemented; albeit, with a final warning and other requirements such as training, having regard to all the circumstances of the case.

The complainant was a crew supervisor responsible for unloading and then loading a passenger aircraft. The procedure requires the supervisor to check the hold to ensure that unloading has been fully completed and that loading has been properly completed as per the loading instructions.   On the 5th of October 2016 the supervisor did sign the required documentation that Loading had been completed as per the loading instructions. This requires the Supervisor to check each hold to ensure that it complies with the loading instructions. In the front hold another employee had slipped into that hold to sleep. The hold was meant to be empty. The complainant states that he did check the hold, the netting was down and clipped, apart from one clip which he rectified, and he states that he saw no one in the hold.

There were several mitigating circumstances on the day, no safety briefing was conducted, and crew members were changed. The supervisor wasn’t aware who was assigned to his crew for the unloading and loading of the plane. The plane was boarded, holds closed, and then load shouting was heard by a passenger. The forward hold was opened, and an employee discovered in the hold. The complainant was shocked at this; however, in his view he had adequately completed the procedure. If he had made mistakes, there were also checks and balances in the operating procedures that contributed to this serious incident such as the lack of a safety briefing at the beginning of the shift and crew members not being clearly identified to him who were assigned to the unloading and loading of the aircraft. In those circumstances a final written warning and retraining would have been a more just decision.

This incident was very serious and amounted to a fundamental breach of the loading and unloading instructions. A passenger had heard the loud banging and shouting coming from the forward hold. If that had not been the case, the employee who had slipped into the hold to sleep could have died, if the oxygen in that hold had been turned off. The forward hold where the employee had slipped in to sleep is small and about 6 feet wide. The loading supervisor is responsible for signing off for the unloading and the loading of the aircraft. A thorough check would have clearly shown that an employee was asleep in the forward hold. The supervisor had not thoroughly checked the forward hold to ensure that it was empty as per the Loading Instructions. He signed the Loading Instructions document to the effect that it was empty as per the instructions. This failure and omission to carry out the most important check created a very serious safety incident. Checking the hold as per the instructions is a fundamental safety and security requirement that goes to the heart of passenger safety and security.

The company had taken account of the mitigating factors; however, on balance found that failing to adequately and properly check the forward hold amounted to gross misconduct.

The complainant was found to have breached several key and crucial duties that underpin safety and security. The test to be applied is the reasonable employer test. Having regard to all the circumstances what would a reasonable employer do having regard to a band of reasonableness? In this case the decision made by the employer was to dismiss the employer for a serious breach of company safety; security and operating procedures-it amounted to gross misconduct. The company had followed fair procedures; impartially investigated the incident and having regard to all the circumstances found the claimant’s omissions and failures amounted to gross misconduct.

The company argued that the sanction must be considered having regard to the reasonable employer test and cited Looney & Co. Ltd v Looney, UD 843/1984 as a relevant authority regarding the test. The trust and confidence required by both employer and employee was fundamentally breached and this justified dismissal and referred to Knox Hotel and Resort Ltd, 27/2004 relating to fair procedures and the sanction of dismissal. The actions of the defendant contributed to his dismissal and in those circumstances no redress should be awarded as affirmed in Murray v Meath County Council, UD 43/1978.

There is a shared view by both parties that what happened amounted to misconduct. The difference relates to whether it was gross or serious misconduct

The issue in relation to the sanction relates to the harshness of the sanction. The claimant argues that there were mitigating circumstances, there was also a failure of other company procedures such as no safety briefing occurring, at the beginning of the shift, crew changes particularly compromising his capacity to know who was on his crew, the wrong equipment used; that had contributed to such an incident occurring. The other employee had created this serious incident and his behaviour had become manifest earlier in the shift and he should have been taken off active loading duties. There was also an equipment contributing factor as there was no belt loader.

The crucial issue relates to the failure to adequately and carefully check the forward hold to ensure that it was empty as per the Loading Instructions. The claimant signed off that the hold was empty. It was a relatively small hold about 6 feet wide. He states that he didn’t see anyone in the hold. The employer conducted on balance a fair disciplinary hearing. Matters that required rectification were rectified, relating to sharing statements and a new hearing reconvened. It is also clear that there were mitigating factors at play.

It is not up to the adjudicator to determine what sanction he or she would have issued and to take the place of the decision maker. The standard to be applied is the reasonable employer test, which importantly is a band of reasonableness having regard to the circumstances of the case. This was a serious incident. The supervisor had a duty to check the hold. His failure to adequately and thoroughly complete that check was a very serious omission. The holds were locked, and an employee trapped in the forward hold. Unless a passenger had heard the load banging and shouts of that employee, a fatality could have occurred. The signing of the Loading Instructions document by the claimant stating that the forward hold was empty was clearly not the case. This omission was a serious breach of policy and clearly gave rise to a serious safety incident. On balance a reasonable employer would class this omission as gross misconduct. On balance a reasonable employer could dismiss an employee for such a breach having regard to the circumstances and facts relevant to this case relating to passenger and aircraft safety. In accordance with Section 6(4) of the act: I deem the dismissal not to be an Unfair Dismissal as it resulted wholly or mainly from the conduct of the employee:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal

of an employee shall be deemed, for the purposes of this Act, not to be an unfair

dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing

work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

                (d) the employee being unable to work or continue to work in the position which

he held without contravention (by him or by his employer) of a duty or

restriction imposed by or under any statute or instrument made under statute.”

I deem the dismissal not to be an Unfair Dismissal as it resulted wholly or mainly from the conduct of the employee.

Gross Misconduct-Fair Procedures-Reasonable Employer Test