UDD1962

The time taken to complete the hearing of the within appeal was significantly affected by the challenge experienced by the Court in ensuring that both parties were afforded an opportunity to understand the case being made by the other party and certain logistical challenges experienced in securing a hearing date which could be attended by all parties. The matter ultimately came on for hearing on 12^thSeptember 2019.

The case

The Appellant commenced employment with the Respondent in April 1994. He was appointed to the role of cabin crew member on 25^thMarch 1999.

On 25^thJune 2015, on arrival at Dublin Airport, on a flight on which he was working, from Geneva the Appellant was stopped by customs officers and asked to open his bag. The customs officers found that the Appellant was in possession of 2000 duty free cigarettes. The statutory limit allowed for import by members of cabin crew is 40 cigarettes.

The Appellant did not report the incident to the Respondent. The Respondent’s Director of Employee Relations and Change was ultimately contacted by the Revenue’s Customs Enforcement Service and informed of the incident. The Revenue official advised the Director that the Appellant had been advised to contact his employer.

The Appellant’s team manager MW arranged to meet the Appellant on 12^thAugust 2015 in order to clarify the report from the Revenue Official. The Appellant on that date confirmed the facts of the matter. MW stood the Appellant down from duty and informed him that a formal investigation would be commenced in accordance with the Respondent’s disciplinary policy.

The Respondent initiated an investigation meeting which commenced on 26^thAugust. The Appellant chose not to be represented at that meeting and was asked whether he would like the meeting adjourned so that he could secure representation. The Appellant declined that invitation.

The investigator, JM, completed her investigation and referred the matter for a disciplinary hearing. That hearing was convened by SM on 18^thSeptember 2015 and the Appellant was represented by his Trade Union Official. SM determined that the Appellant’s behaviour amounted to gross misconduct and decided that the appropriate penalty was dismissal.

The Appellant appealed that decision and MM, in a decision dated 29^thOctober, upheld the decision to dismiss. The Appellant was afforded a second and final appeal. That appeal was heard by Mr PO’N and in a decision communicated on 23^rdNovember 2015 the decision to dismiss was again upheld. The employment of the Appellant formally ended on 23^rdNovember 2015.

The basic facts of the matter insofar as the events of 25^thJune 2015 are not in dispute between the parties.

Summary position of the Respondent

The Respondent submitted that the Appellant was fairly dismissed from his employment following breaches by him of both company procedures and Customs regulations. He was at all times afforded fair procedures.

The Appellant was fully aware of his responsibilities regarding the importation of duty free products and allowances applicable to cabin crew.

The Appellant was stopped by Customs Authorities on 25^thJune 2015 and was found to have exceeded applicable allowances for the import of tobacco products. The Respondent’s Director was contacted by Customs authorities in early August 2015 and advised of the incident of 25^thJune 2015. The Customs authorities made the Respondent aware that the Appellant had been advised to make his employer aware of the event. The appellant did not make the Respondent aware of the events of 25^thJune 2015.

The Appellant’s team manager arranged to meet him on 12^thAugust to clarify the report from Customs and the Appellant confirmed the details of what had occurred.

The Respondent appointed JM, a manager with the Respondent, to conduct an investigation in accordance with the procedures of the Respondent. JM convened a meeting on 26^thAugust. The Appellant declined to be represented at that meeting. He confirmed that he had breached customs regulations and that he had been found by the customs authorities to have done so. He confirmed that he had been advised to make his employer aware on the event but that he had not done so until he attended a meeting with his team manager on 12^thAugust.

A second meeting was convened on 3^rdSeptember. At that meeting the Appellant admitted that he had conducted the transaction of sale of the tobacco products himself on board the flight on 25^thJune in breach of the Respondent’s regulations which provide that members of cabin crew are not permitted to conduct such transactions themselves and must make any purchases through the senior cabin crew member on board the aircraft.

JM advised the Appellant by letter on 10^thSeptember that she had decided that the matter should proceed to a disciplinary hearing.

That hearing was convened on 18^thSeptember 2015 by SM, a manager of the Respondent. The Appellant was represented by his Trade Union at that hearing. SM was accompanied by HO’R of the Respondent’s HR department.

The Appellant at all times fully admitted that he had knowingly breached customs regulations, the Respondent’s policy as regards the importation of tobacco products and the Respondent’s policy as regards purchase by crew of goods on board the Respondent’s flights.

SM decided that the Appellant had breached the regulations of the Respondent and that this behaviour amounted to gross misconduct. She decided that the appropriate sanction was dismissal and she so advised the Appellant by letter dated 29^thSeptember.

The decision to dismiss the Appellant was appealed by him. He attended an appeal hearing on 12^thOctober convened by MM, a Deputy Director of the Respondent. He was represented at that hearing by his Trade Union. MM, by letter dated 29^thOctober conveyed her decision to uphold the dismissal of the Appellant.

The Appellant, through his trade union, sought and was granted a second appeal of the decision to dismiss him. The hearing of that appeal was convened by a Director of the Respondent, PO’N, on 13^thNovember 2015. By letter dated 23^rdNovember PO’N conveyed his decision to uphold the decision to dismiss the Appellant. The Appellant’s employment with the Respondent ended on 23^rdNovember.

The Respondent submitted that the procedures it employed were fair throughout and that the decision to dismiss the Appellant was a proportionate and reasonable response to the offences committed by him.

Summary evidence on behalf of the Respondent.

The Court heard evidence from a range of representatives of the Respondent including the decision maker in the disciplinary hearing which initially decided to dismiss the Appellant and the two persons who heard appeals of that decision. The witnesses stated that the Appellant had at all times admitted the facts of the case and his knowledge of the relevant regulations of the Respondent and of the Customs authorities. Each witness asserted in evidence that they had conducted hearings and reached decisions without influence from any other party.

Summary position of the Appellant

The Appellant was employed by the Respondent for a period of 22 years. He was stopped by Customs at Dublin Airport and was found in possession of 2000 cigarettes which was in excess of the quantity permitted for flight crew. He did not disclose that to the Respondent until he met with his team leader on 12^thAugust 2015.

He submitted that breaches of customs allowances are commonplace among flight crew and are well known throughout the Respondent company. A pilot, DB, in or around December 2014 was contacted by a senior pilot to say that Customs authorities wanted to talk with DB. DB had exceeded his permissible allowance on multiple occasions and subsequently paid a fine in respect of his breaches of regulations. Three senior pilots were aware of these events.

CD, a public representative, had spoken to SM, a Director of the Respondent, in December 2015 and was advised that nothing could be done for the Appellant because others higher than the Director were involved. EC, a pilot and trade Union representative, also spoke to the Director of the Respondent by phone in January 2016 and the Director had advised that the decision to sack the Appellant had been approved at a high level. The Appellant had no opportunity to address the ‘higher’ level personnel involved in the decision to dismiss him.

The Appellant submitted that his breach of regulations did not constitute gross misconduct and even if it did he was not aware of its classification as such due to the culture of tolerance of customs breaches that existed within the Respondent company.

The Appellant submitted that, in light of his long and unblemished career, the decision to dismiss him was disproportionate and unreasonable.

Communications to flight crew from the Respondent in relation to breaches of customs regulations dated 2010 and 2014 are ambiguous in that the word ‘may’ rather than ‘shall’ is used by the Respondent when stating

“Any incidences brought to our attention will be thoroughly investigated and may lead to disciplinary action up to and including dismissal.”

Summary evidence on behalf of the Appellant

The Court heard evidence from EC, pilot and Trade Union representative. He stated that he had contacted a Director of the Respondent in January 2016 and had asked for the Director’s view as regards the value of him calling the Respondent’s CEO in relation to the Appellant who had been dismissed in November 2015. The Director gave EC the impression that the CEO was aware of the matter and that the decision had been made and that consequently a contact with the CEO would not be beneficial.

EC said that he was aware of an incident involving a pilot and that he had settled his affairs with Customs and was subsequently promoted. EC was not aware of any other personnel who had been treated similarly to the pilot. He was not aware of a culture of tolerance of customs breaches in the Respondent company. He was not suggesting that the CEO of the Respondent was involved in the decision to dismiss the Appellant.

The Appellant gave evidence to the Court that it was a regular thing to buy cigarettes for friends. He never considered such activity was a ‘sackable’ offence. He stated that he knew about previous cases where cabin crew had been disciplined or dismissed but that his circumstance was different in that he was not profiting from the breach of customs regulations. He was aware of a pilot who had not been disciplined for a similar offence.

He said that, after the incident, he asked his team leader if he could speak to her ‘off the record’ about something that had occurred and she had advised him that any matter he discussed with her would be formal. He did not speak to his team leader about the incident of 25^thJune until 12^thAugust when she asked him to attend a meeting and asked him about the matter.

He accepted in evidence that he broke the law and the Respondent’s procedures. He accepted that he had a duty to tell the Respondent about the matter after it occurred but that he did not do so. He said that he had previously been warned by Customs authorities in relation to breaches of regulations.

The applicable law

Section 6(1) of the Act provides that: -

• Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

• (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:

  (b) the conduct of the employee,

• (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —
  • (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

The basic facts of this matter are not in dispute. The Appellant did manage a sale on board the aircraft himself rather than via the on-board senior and he did purchase tobacco in excess of customs limits. He was stopped by customs officer and advised to contact his employer, the Respondent, in respect of what appeared to be a breach of customs regulations. The Appellant did not report the matter to the Respondent. Ultimately the Respondent was contacted by customs officials and became aware of the matter in that manner. The employer held an investigation, a disciplinary hearing, an appeal hearing and a second appeal hearing. The decision to dismiss the Appellant was taken following the disciplinary hearing and that decision was upheld on appeal and on second appeal.

The Appellant was dismissed on the basis of gross misconduct. The letter conveying the decision to dismiss to the Appellant advised him that he had been found to be in breach of the Staff Manual policy and procedures of the Respondent at Sections 3.1.3, 3.2.5 and 3.1.12.

The Appellant has put forward a submission that the Respondent’s response to the events which occurred on 25^thJune 2015 was inconsistent with the Respondent’s approach to such matters when they had arisen previously. In addition, the Appellant contends that the Respondent’s response to the events commencing on 25^thJune 2015 was disproportionate. Finally, the Appellant submitted that the decision to dismiss was influenced by or in fact taken by persons other than the decision maker at the disciplinary hearing and that he had not been afforded an opportunity to state his case to those un-named persons. The Appellant has also submitted that there was a culture within the Respondent employment of staff breaching the customs limits on importation of goods including tobacco.

The Respondent has submitted that its response to the events of 26^thJune 2015 was entirely consistent with its response to such matters previously. The Respondent has submitted that the matter at issue was of such a serious nature that the penalty of dismissal was not disproportionate and finally the Respondent has submitted that nobody other than the decision maker at the disciplinary hearing and the two decision makers on appeal had any role in or influence on the decision to dismiss the Appellant and to uphold that decision on appeal.

The matters put forward by the Appellant are significant and it is necessary for the Court to consider whether the Respondent, in addressing such matters, has established that the dismissal was, within the meaning of the act, fair.

In support of the Appellant’s contention that the Respondent’s response to the events of 26^thJune was inconsistent the Appellant has set out that a pilot who had breached customs regulations and been the subject of action by customs authorities in 2014 had not been the subject of disciplinary action. The Respondent has submitted that it had not, prior to the hearing of the Court, been made aware of any such contention by the Appellant. The Appellant does not dispute that he had never raised the matter with the Respondent prior to the procedure leading to the hearing of the Court.

The Court notes that the Respondent does not dispute the essential facts of the events which occurred in 2014 and which involved a named pilot. The Respondent submitted that the matter had never been brought to the attention of its HR department at that time or since. The Respondent submitted that the matter was in the knowledge of three senior pilots at the material time but that it appeared that they considered their knowledge of the situation to have been informal in nature. The senior pilots considered that they could not act on informal knowledge. The Respondent submitted that the three senior pilots were wrong in that respect and that they should have engaged with HR at the time. The Respondent submitted that had the Respondent’s HR department been made aware of the matter at the time it would have dealt with the matter entirely differently to the manner in which it was treated by three senior pilots.

The Respondent submitted that its response to contraventions by staff of customs limits has been consistent where it has had knowledge of such occurrences. In support of that contention the Respondent submitted that the only other staff it was aware of which had been involved in such matters were three cabin crew members who were involved in such incidents separately to each other. In the case of one of those cabin crew members the person was dismissed. In another case the cabin crew member was suspended without pay for two weeks and placed on a final written warning. In the case of the third the cabin crew member the person, when advised that an investigation would take place resigned the employment on the following day. The Respondent submitted that these events demonstrated a consistent response to such instances and also demonstrated that the Respondent treated such incidents as serious matters. The Respondent submitted that the case of the cabin crew member who was suspended rather than dismissed can be distinguished from the within case on the basis that the member concerned had reported the incident to the Respondent.

The Appellant stated in evidence that, at the time of his commission of the customs offence, he was aware of the matter involving a pilot and was also aware of at least two of the incidents and their outcomes involving cabin crew.

The Court has been made aware of only four previous cases in which the alleged offence by a staff member was broadly analogous in nature to the offence admitted to have been committed by the Appellant. It is clear that in three of those cases the Respondent reacted by initiating disciplinary proceedings. In one of those case a dismissal took place, in another a severe disciplinary sanction short of dismissal was imposed and in the third case the staff member resigned the employment before the conclusion of the disciplinary procedure. In the fourth case the matter at issue did not result in the initiation of any disciplinary procedure at all.

The Court concludes that in three out of four known cases where a matter of the nature which has given rise to the within appeal the Respondent had behaved consistently in that the Respondent has initiated disciplinary proceedings. The Court cannot support the contention that consistency can only be found where the penalty in respect of a breach of customs regulations is identical in every case. Such a finding would put at nought the purpose of any disciplinary proceeding which followed an investigation in that the penalty would be pre-determined before any disciplinary procedure took place. That would of course remove from the disciplinary procedure the function of weighing all the circumstances of each case in its own right. The Court therefore is satisfied that the Respondent in these cases treated the matter very seriously and, in the two cases where an offence was found to have occurred, imposed serious disciplinary sanctions. The Respondent therefore acted in these cases in a manner consistent with its response to the incident involving the Appellant.

The matter involving the pilot was not dealt with by the Respondent through its HR department. It was in fact dealt with at an operational level and no disciplinary procedure at all was invoked. It is self evident that the treatment of the pilot was inconsistent with the treatment of the Appellant and indeed the treatment of three cabin crew in similar situations. The Court however finds that the treatment of the pilot cannot be considered to constitute evidence of a degree of inconsistency of response from the Respondent such that it could be found to be fatal to any procedure which would purport to dismiss a staff member who committed the offences which the appellant has admitted committing.

The Court accepts that the treatment of the pilot was out of line with the normal and consistent response of the Respondent to situations where a staff member is stopped by customs authorities and found to have breached customs regulation. The Court accepts that the appropriate personnel of the Respondent were never made aware of the events involving the pilot at any material time and that any failure to respond in the manner in which the Respondent has responded to all other incidents brought to the attention of the Court was as a result of a failure of senior pilots to act appropriately in the circumstances.

In the alternative to his submission that the Respondent failed to behave in a consistent manner the Appellant has submitted that the decision to dismiss him was disproportionate and unreasonable.

It is clear that the Respondent views breaches of customs regulations as serious matters. That conclusion can be drawn from the actions of the Respondent in three previous cases and from the content of notices issued to staff in 2010 and 2014 in respect of such matters. A crew notice dating from 2010 dealing with breaches of customs regulations, stated as follows:

Any incidences brought to our attention will be thoroughly investigated and may lead to disciplinary action up to and including dismissal.

The Appellant has submitted that this crew notice is far from clear and unambiguous. He contends that the use of the word ‘may’ instead of ‘shall’ leads to lack of clarity and creates ambiguity. The Court does not accept that submission and considers that this notice placed staff on notice of the serious nature of a breach of customs regulations. If that notice had stated that such actions shall lead to disciplinary action up to and including dismissal it could fairly be argued that any investigation process or disciplinary procedure was in effect pre-determined in that the outcome had been stated to be mandatory in that any such process must lead to disciplinary action. The Court finds that the impugned notice, which is acknowledged by the Appellant to have issued, was clear and unambiguous as regards the potential penalty for breach of customs regulations.

The Appellant also submits that certain un-named senior executives of the Respondent were party to the decision to dismiss him and that he had no opportunity to state his case to those decision makers. That contention, which was introduced in the course of the hearings of the Court, led to significant delay in processing the within appeal. The Respondent has denied this contention and evidence tendered by the disciplinary decision maker and the two appeals decision makers was clearly to the effect that they had made their decisions without influence of any kind from any other party. No evidence has been put before the Court by the Appellant to support his contention and the Court accepts the evidence of Ms SM, Ms MM and Mr PO’N that they were the sole decision maker at the stages of the procedures in which they were required to make a decision and that none of them were influenced by any other party in the course of carrying out their function of disciplinary decision maker or appeal decision maker.

The Appellant has submitted that there was a culture of tolerance within the Respondent company for breach of customs regulations by flight staff. He has put no evidence before the Court to support this contention.

It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

In all of the circumstances outlined and having regard to the submissions of the parties and the evidence tendered, the Court finds that the decision of the Respondent to dismiss the Appellant was within the band of responses of a reasonable employer to the conduct of the Appellant. The Court further concludes that the procedure followed by the Respondent was fair throughout and was free from external influence in its execution.

Determination

The Court determines that the Appellant was dismissed on substantial grounds which justified his dismissal and that consequently he was not unfairly dismissed and the appeal fails. The decision of the adjudication officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
22 October 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.