Complainant

Respondent

Anonymised Parties

An Airline Pilot

An Airline

Representatives

Lars Amussen BL ,Seán Ormonde Solr. Sean Ormonde & Co. Solicitors

Anne Flaherty Solr, Mark Kelly Sol, McDowell Purcell Solrs.

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-00017565-001

22/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017565-002

22/02/2018

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

CA-00017932-001

14/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017932-002

14/03/2018

The Complainant issued a workplace relations complaint form on the 22nd of February 2018 some six or seven weeks after having tendered his resignation. His complaint form cited a Constructive Dismissal due to the conduct of his employer together with a claim under the Equality Acts for discrimination on the grounds of disability. There was a duplication issue in respect of the Complaints made, so that two claims have been made under the Unfair Dismissals legislation and two claims have been made under the Employment Equality Acts. It has been agreed with the parties that one each of both these claims is to be withdrawn and that is detailed further in the section reserved for the final decision.

The Complainant was represented by both Solicitor and Counsel. I had the benefit of a comprehensive and well-prepared submission dated the 25th of July 2018 and a second one prepared at the end of evidence on the 9th of December 2019. The Complainant gave extensive evidence on his own behalf and his evidence was robustly challenged by the Respondent. The Complainant was also allowed challenge the evidence as presented by his Employer.

As per Section 101 (4) of the Employment Equality Acts, it was noted that:

“An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if… (b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal”

In consequence of this prohibition against seeking redress for both a Constructive Dismissal and a Discriminatory Dismissal (the issue of parallel proceedings), it was made clear to me that the Complainant intended no overlap and that he was seeking redress in respect of the alleged discriminatory treatment in the workplace up to the point of Dismissal.

The Respondent was represented by Solicitor and Barrister. The Respondent has vigorously defended its position and does not accept that it has repudiated the Contract of Employment nor has it acted in such a way that the Complainant can rightfully claim to have been constructively dismissed. I heard from one Respondent witness and was provided with two books of submission dated the 25th of November 2019 and 23rd of December 2019.

The Respondent evidence was primarily presented by Ms.CL (Flight Operation Base Manager). The Respondent had held open the possibility of having various other witnesses introduced (to give various aspects of evidence) including Ms.LMcC. It was known at the outset that a key witness Mr. McFA, would not be available. However, at the last day set aside for hearing I was notified that a MsLMcC had been called away to Spain to negotiate redundancies. Respondent Counsel proposed that the correspondence which Ms.L McC would have been called upon to prove, largely spoke for itself. On balance, I accept that he was correct in that proposition and that this is one of those rare cases where almost everything was captured (without further explanation or interpretation required) on paper in the 12 month period of correspondence which led up to the termination of the employment Contract. Where necessary, Ms. CL spoke generally to any discrepancies or queries raised in the letters penned by Ms. McLMcC and Mr. McAF. Ultimately, I am satisfied that no issue as to evidence tendered arose in the course of the hearing.

The Complainant is clearly a very experienced airline pilot who came to work with the Respondent company in and around 2007. The Complainant was a captain on the Airline’s Boeing 737 aircraft and operated commercial flights across Europe in accordance with seasonal and other demands. For a while, the Complainant was based in Stansted and then in Luton, but in 2014 he and his partner had moved to Alicante, Spain and he was flying out of the airport there. The Complainant described the way the Rostering Department put together the Rosters and the difficulties which arose in operating to such tight schedules. The Employer was clearly trying to maximise hours in the air. There is no suggestion that the Complainant was being asked to work other than safely within the hours allowable to pilots by law, but that he was personally feeling the strain of long days with short and busy turnarounds that afforded him little relief for an increasingly problematic back pain.  The Complainant indicated in oral evidence that over his lifetime his vertebrae have become compressed and are prone to aggravation when he sits for extended periods without movement and flexion. In addition, the Complainant described earlier health problems that he had experienced in 2002 which had left him somewhat immunosuppressed. The Complainant was very susceptible to catching colds, flus and other viruses. The Respondent employer was aware of this pre-history.

There can be no doubt that the issues of sick leave, annual leave, sick pay and absenteeism by reason of health are central to the chronology of events that led up to the termination of this employment.  I acknowledge that as far back as November of 2016 the Complainant made overtures with his Employer to try and reach some sort of acceptable arrangement which would recognise his particular health issues and in particular a nagging back pain. 

I would also have to note that for the ten month period  between the 1st of April 2016 and the 31st of December 2016 the Complainant had been  absent from the workplace (through illness) for 76 working days – so I appreciate that  addressing the issue of absentees (for whatever reason) had to have been important, and of some concern to the Employer. A big difficulty articulated by this Employer is the knock-on effect that unexpected absenteeism has. A Pilot’s colleague has to step in, there are inevitable delays and knock-on reputational damage.

It was in these circumstances that on the 10th of February 2017 the Complainant was invited by the Employer to attend an Investigation meeting to consider the high levels of absenteeism. It is noted that there is no suggestion that the absences from work were for other than legitimate and bona fide reasons and that (per company policy) the Complainant adduced sick certificates on nearly every occasion. However, what did come into focus at the meeting which was held on the 10th of March 2017 with a Mr. McFA (Flight Operations Manager) was that the Complainant was reporting his absences incorrectly. The Complainant was happy to adopt the correct procedure albeit he had believed he had been complying with the correct policy all along (and for some considerable length of time) without correction. At this meeting, the Complainant canvassed his hitherto unacknowledged request to be considered for part-time engagement. In particular, the Complainant stated that his medical advisors had advised that the pain in his lower back was bound to get worse if he maintained his current work pattern. Mr. McFA agreed that he would contact the rostering sector in this regard. It was drawn to my attention that of the 76 days absence only half related to lower back pain, with about 40 days of absenteeism by reason of other medical issues. On balance, I would accept that this meeting was conducted without ill will and was, as intended, a meeting seeking to explore the reasons giving rise to absenteeism and to express concern at the levels. In addition, the meeting sought to express the very real need to notify appropriately to ensure the smooth operational running of the airline.

Unfortunately for the Complainant, some six or seven weeks after this meeting the Complainant was involved in a workplace incident on the 28th of March  2017 wherein he ruptured his Achilles heel while operating the Aeroplane.

I am satisfied that this said incident concerning the Achilles heel was not part of Mr. McFA’s considerations when he wrote to the Complainant on the 10th of April 2017 to confirm the outcome of the meeting of the 10th of February was not to take any further action. Mr. McFA did state that the levels of absenteeism was a matter of some concern and drew attention to the need for good attendance to avoid disruption. Mr. McFA stated that the Complainant must adhere to proper procedure when absences become inevitable, and he confirmed that there would be a careful monitoring of attendances and punctuality in the future. It is fair to say that Mr.McFA did not reference the Part Time request (which had most certainly been raised at the meeting in March 2017) in this letter, which was disappointing for the Complainant who saw this request as of fundamental importance .

It was in these circumstances that the Complainant wrote back to Mr. McFA on the 25th of April with a somewhat stinging and combative response. I would observe that I find the tone to be unusual in the workplace setting. Clearly the Complainant was affronted at the dispassionate tone of Mr. McFA’s letter and the suggestion, as perceived by the Complainant, that the Complainant’s absences were not being seen as genuine or reasonable in light of the very real health scares experienced by the Complainant. The Complainant does not accept that he acted contrary to company policy in the way in which he reported absences. The Complainant was highly critical of the failure of Mr. McFA to address (in his 10th of April letter) the issue of the Part Time request which had been raised at the meeting and, in fact, had been raised time and again by the Complainant (at least, he says from November 2016).

It is noted that even as he wrote this letter to Mr. McFA, the Complainant was out on certified sick leave arising out of the damage he did to his Achilles heel and he was also certified (on April 27th) as unfit to exercise his licence privileges by the Aviation medical services.

Without reference to the aforementioned letter he had received from the Complainant, Mr.McFA wrote again to the Complainant on the 12th of May outlining several proposals for Part time work which the Complainant might want to consider. These included moving full time to Barcelona or Madrid or to stay in Alicante and agree to a Part Time schedule for the winter period only and excluding December. This was all that was available Mr.McFA stated:

“..in accordance with the current operational requirements in the Alicante Base”.

I consider it worth noting that there is no suggestion that this offer was made on foot of anything other than a “request” by the Complainantfor a part time roster. That is to say, there was no acknowledgement of the Complainant’s medical issues.

I note that MsCL gave evidence concerning the efforts made to secure the six month part time roster arrangement which would be considered “exceptional” in the context of the Alicante base.

The Complainant by letter dated the 17th of May 2017 indicates he is not satisfied with this proposal as he has consistently looked for a 50% reduction in working pattern. It is worth noting that the Complainant re-iterates that this reduction is being sought on the advice of Doctors and Specialists though these remain unnamed and the specific advices are not detailed. The Complainant suggests that Mr. McAF had previously indicated a full 50% reduction other than for December, August and July would normally apply where part time work is requested. Based on this, the Complainant suggests he should be allowed a 50% reduction in working pattern other than those three months. The Complainant believed this to be a reasonable proposal even after having been categorically told that the Company could not accommodate a part time roster year-round at Alicante and had been clearly told what could be accommodated. I accept fully that a move to Barcelona or Madrid was never an option for the Complainant.

On the 2nd of June 2017 Mr.McFA confirms that the offer on the table is the only one available and this has been obtained in consultation with the planning and crewing department. A further letter on the 12th of June 2017 indicates how the part time period will operate on a five day on/thirteen day off pattern as against the full time five days on/four days off pattern. So, my understanding is that, for every 18 day cycle, a part time employee works 5 days and a full time employee works 10 days. This offer, due to come into operation in September 2017, was ultimately accepted by letter from the Complainant on the 15th of June 2017 albeit now written to a Ms. LC (Alicante Base Manager) who has now taken over the issue. Again, this letter is quite combative and seeks to blame Mr.McFA for lost opportunity (such as missing a job share spot with another pilot). Again, there is heavy emphasis on the reason why part time work is needed with the suggestion that the Employer is responsible for the lower back pain by reason of the long working days.

Despite the arrangement being imperfect, the Complainant accepted in his oral evidence that at this time the parties were presumably happy to be moving forward on the basis of a six month part time and six month full time Contract (being December and five summer months). The terms, he knew, were the best achievable by him at that time, and he accepted in evidence that rosters are always operated at the discretion of the Company but he hoped ultimately to achieve a year-round part-time pattern.

On balance I am satisfied that the Complainant should have known how a five day on with thirteen days off Roster should operate. I am satisfied that the Employer can presume that he would understand what he was agreeing to.  The Complainant took this offer without presenting any medical evidence outlining why it would not work.

In and around this time a second issue also came into focus as between the parties, and which related again to the multiple absences through illness which had been part of the Complainants work pattern for the preceding three years. In fact, starting in January 2014 and up to the end of 2017 (a three year period) the Company had calculated that the Complainant had been absent through illness for 120 days. This is significant because:

“The Company Sickness Benefit Scheme pays up to a maximum of 6 calendar months or 120 days (which ever comes first) sickness benefit in any 3 year period”

In a letter written by Ms.SA, which became very contentious in the course of these proceedings, and (to be correctly) dated the 2nd of June 2017 the company points out that the Complainant hit the 120 day cut off point for any payment under the sickness scheme some six months earlier – on the 27th of December 2016. The same letter goes on to state:

“I wish to confirm that as you have now exceeded the number of days for which you are entitled to receive payment for under the discretionary Sickness benefit Scheme any further absence will be unpaid by the company.”

What the letter of 2nd of June 2017 did not say was that payments made under the sickness benefit scheme after the 27th of December 2016 were liable to be recovered by the Employer. As it happens, of course, the Complainant was still out sick when he received this letter in June 2017 (arising out of complications with the Achilles injury) and would be out sick until early July and he therefore was anxious to understand where this 120 day limit now left him? I should point out that the sickness scheme is readily available to Employees and the Complainant should have known the content of same – especially in circumstances where he was a nett beneficiary under the said scheme. By letter from the Employer dated the 28th of July 2017 he got his answer wherein a Ms. SA on behalf of the company indicated that owing to an “administrative error” the company had incorrectly paid him for the months of May 2017 and June 2017 whilst he had been absent from work even though  his entitlements under the scheme had long since expired. One of these months pre-dates the letter of the 2nd June (May) and one month post dates it (June). Ms.SA (HR Officer) categorically describes these payments as overpayments and indicates a need to agree a repayment plan. I note an underpayment in July after he had come back to work was also an issue at this time, but this issue subsequently fell away.

On the 31st of July 2017 the Complainant met with Ms SA  and  MsCL and the head of HR Ms.LMc to discuss the injury at work (going back to March) and to address the overpayment under the sickness scheme. The Complainant made the case that sometimes these payments under the sickness scheme are intended to be more compensatory in nature as the illnesses which prevented him from attending the workplace arose out of a workplace induced injury such as the low back pain and potentially the Achilles injury. In the course of the meeting it The Complainant was still seemingly aggrieved (mainly with MrMcFA) with the delay in addressing his part time request which had compounded his back pain. The Complainant vocalised a general dissatisfaction with the care and support being provided by the company and the long delay in getting anything done.

It is noted that the remuneration payment made for the month of April 2017 was at this point in time considered and classified as an Annual Leave payment to which the Complainant was entitled as he had previously sought April off.

MsCL noted in evidence that she could see that the Complainant was very very unhappy that the sickness pay scheme had been stopped with no goodwill gesture made by the Company.

It is apparent (and certainly by the time he pens a follow up letter on the 18th of August 2017 very apparent) that the Complainant feels he was entitled to be paid salary in the aftermath of his Achilles injury. This was, after all, an injury induced in the workplace. The Complainant therefore proposes that the Company should exercise it’s discretion (as allowed for under the sickness benefit scheme) and not seek to recover the €6,000 - €7,000 paid to him over May and June. This, he says, would “keep an amicable working relationship”. The Complainant also points out (for the first time) that in the HR prepared letter of June 2nd there is no proposal to perform a retrospective clawback of monies paid out - meaning only the June payment should be at issue (if anything). To settle the matter the Complainant offers to repay half of the June payment as of the 18th of August 2017.

This offer is flatly rejected by Ms LMc in her response of the 27th of August 2017. The Employer herein clearly saw this as a straightforward matter. There had been an overpayment and the monies were due and owing.

In his evidence, the Complainant said that he saw this drive to recover a salary overpayment as the start of the souring of the relationship between the parties. He believed after 10 years of service his Employer was being unreasonable. As against this, the Employer pointed to the flexibility and accommodation it had demonstrated over the years. The Employer pointed to facilitating the initial move to Alicante, the facilitating of the part time roster and the decision not to pursue further the issue of high levels of absenteeism (exemplified by the 76 days absenteeism in 160 working days which had been a cause of some justifiable concern).

On balance, I am of the view that the Complainant was wrong in his expectation that the Company ought to be exercising its discretion in this regard. If the (personal) injuries being complained of had arisen out of a dangerous workplace practise, or other hazard or negligence, then the Complainant had a remedy through the Courts. It is clear that the Complainant (who sought 3rd party counsel throughout his dealings) should have been well aware of this fact. What is also clear is that the workplace sickness scheme cannot be expected to operate as some sort of compensation scheme. The sickness scheme is set up for the benefit of all employees and to provide a level of financial assistance when employees are genuinely ill and incapable of work. The scheme clearly states that it operates to a maximum of 120 days sickness benefit in any 3 year period. If there is a discretion, it seems to me that the discretion lies before the maximum point is reached.

I also cannot see how the Complainant could expect to benefit from a mistaken financial windfall. This was an Administration error that had to be made good. Otherwise, someone else (for example in payroll) might end up taking the hit (disciplinary or financial) for the error. Equally, I find the Complainant’s interpretation of the letter of the 2nd of June to suit himself overlooks the fact that this would place the author of the letter (MsSA) on the hook for having crafted the letter so carelessly.

It was, in fact, put to the Complainant that not only was he attempting to “trouser” money but had also the temerity to see himself as having been the victim. Whilst this said language in the course of cross-examination was a little strong it was not difficult to see that the Respondent had a point.

In any event, in the course of September and October 2017 the parties got embedded into an increasingly fractious correspondence regarding what (if anything) was to be repaid and how and in what amounts it was to be repaid. I absolutely accept that the Complainant was well within his rights to ensure that re-payments should only be demanded at a level that were affordable to him and can see that no prejudice would be on the Employer in taking the long-term approach. The Complainant was also correct in clarifying the correctness of the figures and had some success in reducing the overall liability.  There was the issue of how things would be run through payroll, and Pension, as well as tax and Annual Leave implications. It is also worth noting that the Complainant was seeking 3rd party legal advice concerning his position under the Payment of Wages legislation and was open and transparent in telling his Employer that this was the case.

By now, of course, the Complainant had embarked on his newly instituted part time roster which had commenced in September 2017. There can be no doubt that the Complainant was very disappointed with the new work schedule. The Complainant was now working 5 days in every 18 as against 5 days in every 9. Despite the fact that the Complainant now had thirteen days of rest between work cycles he believed the level of work he was expected to undertake in the five-day period he was working for his Employer, was onerous and unprecedented in terms of the expectation.

The Complainant in correspondence stated that he wished to raise genuine safety concerns regarding the new pattern. Though it is noted that in the course of this hearing when challenged on the issue of safety, the Complainant conceded that the hours were not considered dangerous or contrary to aviation regulation limits. He further accepted that he had never opted to file a “Captain’s service Report” highlighting issues raised with the Employer.

It is interesting to note that in his letter of the 16th of October, the Complainant talks of his “disability” needing to be “reasonably” accommodated. I believe I am correct in making the observation that this is the first time that this familiar and distinctive language forms a part of the narrative. This is important, as it seems that the move to part time engagement was deliberately described by the Employer as being as a response to a request by the Complainant (per letter of 2nd of June) and not as a response to any recognised ailment. In any event, the Complainant in the course of this correspondence is making the case that he is being deliberately rostered for more hours than a part time pilot on the days he works. The Complainant does appear to recognise that the rostering might be getting done on an automated system that generates rosters automatically and I believe there is no suggestion that the Employer is deliberately or wilfully over-working the Complainant.

Ms. LC gave considerable evidence concerning the rostering out of Alicante and how two and four sector days work and how early blocks and late blocks work. Rostering, she said, optimises availability. In addition, there is no precedent for “partial daily duties” which was, in effect, what the Complainant was looking for.

In it’s response in a letter on the 27th of October from Ms. LC the Employer states that there has been a misinterpretation of what is intended by this part-time rostering process – the Complainant it seems was always expected to work for five full days followed by either a break of four days (full time rostering) or  a break of thirteen days (part time rostering). It was never intended that the complainant would work less than a full day for each of the days he is rostered on. Everyone is expected to pull their weight was how MsCL put it in evidence. The Complainant was also rebuked in this letter for having independently made changes to his schedule which resulted in other Pilots having to pick up the extra duties he had shed.

The Complainant was adamant that the rostering was causing him significant back problems. It is worth noting, however, as it was raised in MsCL’s direct evidence, that only one of the ten days of absence through sickness from the date of his return to work in July 2017 after the long-term Achilles problem and the beginning of December 2017 was for lower back pain. Demonstrating perhaps that the Employer could be forgiven for not singling out that ailment (of a bad back) as being a red flag issue.

By the middle of the month of November 2017 these two issues of repayment of the sickness scheme monies and the unsatisfactory rostering schedules were still live and were seemingly intractable.

On the 19th of November 2017 the Complainant introduces a further issue to be contemplated and thrashed out. I know that the Complainant maintains that the issue of owed Annual Leave has been live since the previous July – though there is direct conflict on whether or not it had been put to bed as an issue at that time. I am, on balance, inclined to accept the Employer’s assertion that it was somewhat blindsided by the new demand that the Complainant be allowed to take the month of December 2017 off as his official Annual Leave. The complainant now wanted the earlier month of April 2017 to be re-classified and recognised as sick leave (given that he had sustained the Achilles injury just prior to the start of April). To my mind, the Complainant knew or should have known that this request was not going to be acceptable to the Employer. For starters the hitherto unflagged request was made less than two weeks before the start of December and then, of course, December is one of the airlines busiest months and the Employer had already earmarked and agreed with the Complainant that the Complainant would be available for full time employment for the Christmas month. Posing this request (as a demand) on the 19th of November was, to my mind, utterly unreasonable.

The Respondent Company replied to the Complainant on the 28th of November 2017 confirming that such a request was impossible to allow.  The month of April had been designated an annual leave month from the beginning of the year and had been paid on that basis. The company was never provided with medical certificates to cover that month (and thereby change it’s status to sick leave) and both parties had operated on the basis of there being no more annual leave entitlements to be met in 2017. The Employer made it absolutely clear that the main reason for not being willing to facilitate the request was the fact that it was December, it was the busiest month and he was needed. By way of amelioration, the Company offered January as a Leave month if the required medical certificate was available. In what I accept was a somewhat heavy-handed rider, the company does also state that if the Complainant seeks to retrospectively change the status of the time away from the workplace in April from Annual to Sick leave, then the company will seek to recoup in full the (Holiday) payment made for that month immediately.

The Complainant is very upset at this threat and very upset that he is being denied his entitlement (as he perceives it) to take his 2017 Annual leave in that Leave year. He articulates his upset in a letter of the 29th of November 2017. This said letter is a comprehensive breakdown of all the heads of disagreement as between the parties which continues to include the repayment and calculation of any overpayment due, the onerous rostering and the more recent Annual Leave issue. The Complainant describes his Employers behaviour as untenable and grossly unreasonable. In addition, the Complainant says that the Employer is harassing him and bullying him and, indeed trying to force a resignation out of him. The Complainant indicates that he has he believes an excellent foundation for legal action.

I have been obliged to closely consider the content and tone of the correspondence between the parties over the end of November and beginning of December days. Their proximity to the final days of the employment relationship means I am obliged to consider their reasonableness and what impact they had on the Complainant’s decision to tender his resignation. The Complainant was by then writing voluminous letters to two Respondent members of staff (MsCL and MsMcC) concerning three main issues - the perceived unfair rostering, the overpayment under the sickness scheme and the proposal to take Annual Leave. There were also other associated issues being discussed. The correspondence is unusual in it’s robustness. As previously stated, the Complainant genuinely believes the company is being unreasonable in not letting him take his Annual Leave as proposed.

On foot of further communication, the Employer concedes that if the Complainant is minded to take the Annual Leave in January as suggested the Employer will not seek to re-coup any Leave monies already paid and will instead pay nothing in January 2018 (as he was not entitled to the sick scheme payment having already exceeded the 120 day rule). This was to my mind a workable solution on this particular issue and was presented in a letter to the Complainant on the 1st of December 2017. There was unfortunately a few letters crossing between the parties on the 1st of December and it is not clear to me whether the Complainant had picked up on this last offer. To my mind this offer was reasonable. As seven or eight letters passed between the parties in this period it is easy to see how something might have been missed.

It is further noted that by this time the Complainant had already independently notified “crewdock” that he should be removed from the December Roster as he was taking Annual Leave. This was done on the 28th of November and without sanction.

I do note that on the 30th of November Ms.CL also called the Complainant on foot of that intervention with Crew dock and indicated that the proposed Annual Leave was cancelled and that the Complainant would be expected as normal into work on the 4th of December.

It is worth noting that the Complainant did articulate (in letter of the 29th November) a belief that the company was forcing a resignation out of him. He describes threats, bullying and harassment in the correspondence (the issue of not paying him for December was seen as particularly punitive to the Complainant).

In her evidence MsCL stated that she believed the correspondence had fully addressed each and every issue which the Complainant was raising. The company, for example, had reduced the overall figure it expected to recoup from the Complainant for May and June and this was in direct response to his tenacity. The Company was agreeing to lesser amounts in the monthly re-payment schedule to reflect his part-time status. The Company could not agree to annual leave in December but was happy to give January on the full pay (already received). Ms. CL is also clear that though the Complainant may not have been happy she is adamant that no Grievance was ever raised. She does not accept that his correspondence (and in particular his letter of the 1st of December) purports to articulate a Grievance procedure has or should be triggered.

The Complainant did not turn in to work on the 4th of December as directed. Unfortunately, the Complainant was forced to attend his Doctor and he was certified as unfit to attend the workplace by reason of blood pressure issues. A medical cert to this effect was sent in on the 4th of December. The cause was noted to be “problems at work”. In cross examination the Complainant confirms that he did not attend with the AME for this diagnosis.

The Complainant wrote to both ladies on the 4th of December again stating that there was no agreement on the outstanding issues mainly consisting of overpaid salary, conversion of April to Sick leave and unfair rostering. He concludes:

I am of the opinion that due to the protracted and unnecessary dispute I am now unwell with high blood pressure very probably as a result of the constant battle over what should have been a very simple resolution. After a number of days rest, I will be discussing all of this with my doctors specialists legal counsel and government Department about the next steps

The correspondence between the parties rests until the 27th of December at which time company invites the Complainant to a disciplinary meeting to investigate a pattern of absenteeism in December for the years 2015, 2016 and 2017. This has, of course, come to light as the Complainant was certified sick some three weeks earlier. This letter came from MsCL. She confirmed in evidence that once the pattern came to light she needed to understand why this was happening and how this was happening. In particular, she wanted to see if this had happened before –  i.e. that an application is made for annual leave subsequently the applicant takes sick leave if the annual leave is refused. This is not articulated in the letter but would have formed a part of the conversation she intended having with the Complainant. She described it potentially as being a “pre-emptive absence”.

MsCL explained that she wanted to distinguish between the previous conversation had with the Complainant (with Mr. McAF in March 2017) which related to the high levels of absenteeism. Her concern was the pattern. The Complainant, she knew had been given the benefit of the doubt regarding the high levels of absenteeism, her letter of December 27th was to be an entirely new investigation concerning the pattern. That said the Complainant had been advised that his absentees were going to be monitored and he should be considered to have been alert to that fact.

The letter I note is similar in tone to the one received earlier in 2017 regarding the exceptionally high number of absentee dates. Whilst no action had previously been taken the Complainant had been advised that there was an intention to monitor absenteeism.

MsCL did concede in evidence, that sending this letter out on the 27th of December was unfortunate and she should have waited to the New Year.

The Complainant does not reply to this request and instead (without reference to the proposed disciplinary inquiry) he writes to Ms McC on the 4th of January 2018 tendering his resignation by reason of the breakdown in the employer/employee relationship. He states there has been a failure to find any solution to the grievances raised and that he has been positively discriminated against by reason of his disability. MsCL stated that this was the first time that the Complainant suggests that he has formally lodged some sort of Grievance – which she reject was the case. In addition, MsCL accepts that she never invited the Complainant to re-direct his issues through the Grievance procedure.

It is also worth stating at this point that the Complainant had been sent a copy of the company Grievance procedure as recently as February 2017 (acknowledged by the complainant on the 13th of February).

It is interesting that the Complainant invokes the language of the Grievance procedure as having already been adopted. To my mind it has not. The Complainant has never in the course of the correspondence raised a formal grievance. In reality, this is because the Complainant has never moved away from arguing his own position for himself - as against having a third party look at the different issues that might have been raised as grievances against the Employer.

The final relevant letter was penned by Ms LMcC on the 31st of January 2018. It was pointed out to me in the course of the oral hearing that this letter offers no comeback to the Complainant after a period of “cooling off” – often allowed for in cases of constructive dismissal. Instead, this letter confirms that the decision to resign rested with the Complainant and that the Employer at all times felt it had striven to accommodate the many and varied issues which had arisen in the final year of employment.

Equally, the Complainant did not seek to retract his decision to resign and was adamant in the course of his oral evidence that he had no alternative and the behaviour of his employer had forced his hand in this regard. In addition, the Complainant says that his Employer, well aware that he had a disability, failed to make reasonable accommodation for this and instead set about victimising and harassing him instead. Issues which I must decide.

Regarding the Complaint under the Employment Equality Acts, I do accept that the Complainant could be regarded as having a disability for the purpose of the Acts and  I have been so invited  to make this finding in the Complainant’s submission in applying the de minimis rule. Whilst there is a dispute concerning how far back the Employer was on notice of the nature and extent of this disability, I accept that the Company was certainly on notice of the fact that the Complainant was experiencing difficulty with his back at the meeting wherein he had asked for a reduced working pattern. I confirm therefore that I would date this knowledge from the March 2017 meeting. Beyond that, it is difficult to fix the Employer with any knowledge as contended by the Complainant who states he had been raising the issue since mid-2016. Looking at his absentee pattern it is fair to say that the Complainant was out sick with a number of different ailments in the years leading up to the termination of his employment. His absence record was opened at length in the course of the hearing. For the three-year period commencing January 2015 to the end of 2017 the Complainant was absent from work for 185 days with up to 10 different medically certified reasons. Only 47 of those days relate to lower back pain. The Respondent has asserted, and I accept that the Respondent need not necessarily have been aware of an acute back pain as being a particular problem above all others. For example, the illnesses which effected the Complainant in 2017 (and which kept him out of the workplace for 4 months (if I include April 2017)) relate to non-back related  injury to his Achilles heel and high Blood Pressure. There is no evidence that there was any meaningful communication regarding an insurmountable issue with the Complainant’s back before March 2017. Whilst it may be true that the Complainant called in sick with back pain before this time, the Employer was not provided with any medical reports or other evidence or facts from which it could deduce that this ailment (like the others presenting) was anything other than a passing problem.   In the circumstances, I accept that the issue of back pain only came into focus in March of 2017 at the meeting with Mr. McAF and at which meeting the Complainant set out his request for a change to his working conditions.

I would also have to state that in terms of the Respondent being on notice of a disability, it is not clear to me that the back problem being experienced by the Complainant was ever presented as acute and/or chronic. There was absolutely no medical evidence adduced to suggest this, and the Respondent (in it’s submission) has referred me to the relevant caselaw wherein medical evidence should normally be provided. Also, it occurs to me that the fact that the Complainant accepted the offer of part time work for half the year might have been taken by the Employer to mean that the problem wasn’t that bad and they had accommodated whatever the problem was.

MsLC was cross examined in relation to the company policy regarding the provision of an occupational therapist. She conceded this was not in her remit but suggested that had one been required this should have been picked up by the AME (or at the required annual medical) and there is no evidence to suggest this ever happened.

It seems to me that the parties were at cross purposes when it came to putting the Complainant on a (six month) part time roster to commence in September 2017. The Employer reduced the number of days from working 10 in every 18 days to working only 5 in every 18 days. This, the employer said, allowed the Complainant 13 days rest and recovery between bouts of work. I accept that the Employer genuinely believed it had thereby acceeded to the Complainant’s request to work part time. This was the reasonable accommodation it was affording the Complainant. The Complainant found the working days too onerous. He described them as unsafe and unworkable. A lot of time was spent, in the course of evidence, looking at the rosters which operated in the months wherein the Complainant worked (and I appreciate that some of these had been changed by the Complainant by communicating with Crewdock directly).

I note that the hours are calculated in accordance with whatever understanding that the algorithim has of the hours each individual has worked as against what hours he/she should be available to work (even in a part time capacity). The system would know, for example, that the Complainant (missing a lot through absenteeism) had capacity to be availed of.

What became evident was that what the Complainant should possibly have been looking for in a part-time situation was to continue to work for the 10 in every 18 days albeit working only 50% of the potential hours in each of the 10 days. In the course of evidence, it became clear that that was what he was looking for.  It is perfectly understandable that if he was having low back difficulty exacerbated by being seated too long, then he should cut the number of flying hours in any 24 period to half what would be normal. However the Complainant did not make this clear from the start.

It seems to me that the Complainant entered into the arrangement on offer (5/18) without fully understanding that the 5 days which he would be called on to work, would be rostered in the usual way. They may have been onerous and long days, but I accept that the company operated within the allowable limits and no evidence was adduced which suggested that the Complainant had been discriminated against in terms of how his hours were rostered. In fact, the evidence seems to be that hours are allocated by a computer programme which seeks to maximise the pilot hours to the best advantage of the company.

It is an unfortunate fact that the parties never fully explored any other part-time options. Events overtook any such exploration. It is worth noting that the Complainant whilst seeking to work lesser hours on the days he was rostered to work did not suggest an increase in the number of rostered days. As Counsel for the Respondent put it, the Complainant wanted to work 50% of the hours normally expected of someone working 50% of the job. As against that, I would have to accept that the Respondent had been clear that part time work would only be offered as the operation demanded which might have meant any further movement unlikely. That said, the Complainant did say in evidence that he accepted the part time arrangement on offer (i.e. for six months per annum) in the hope that in the course of time the part time arrangement would extend to twelve months thus suggesting that he knew there was always room to negotiate.

He suggested that it was simply “common sense” that he should be put on partial daily duties. However, there is no evidence to substantiate why the Employer should objectively reach that conclusion.

On balance, I am finding that the Complainant has not made out a Prima facie case of discrimination against the Employer. I accept that the Employer reacted to an assertion that the Complainant suffered from sporadic back difficulty. The Employer provided the Complainant with a half year part-time Contract as fit in with the operational requirements of the Alicante base. There is nothing to suggest that the Employer knew or ought to have known that any back condition would not be ameliorated by the arrangement that the parties readily entered into. The Complainant willingly entered into the arrangement. There is no evidence to suggest that the Complainant was treated less favourably than another person might be and in fact the evidence is that the Company (through the efforts of MsCL ) bent over backwards to facilitate the Complainant when (in the absence of medical evidence) there was no particularly strong motivation to do so. It follows, therefore, that the complainant was not victimised or harassed when he was given perfectly normal and workable rosters. They might have been onerous, but they were lawful and consistently operated by other pilots. By reason of the foregoing, I find the Complainant was not discriminated against.

Regarding the claim under the Unfair Dismissal legislation I find, on balance, that the Complainant has not made out his case. In the first instance, I cannot find that the Complainant utilised the company Grievance procedure as is expected in circumstances such as these. I am satisfied that the Complainant would have known that option was open to him and he made it clear in the course of correspondence with his Employer that he was taking advices of a legal nature. The Complainant does not therefore satisfy the proposition that an Employee should engage the internal mechanism before going for the nuclear option. I disagree with Complainant Counsel’s assertion that the Complainant had through his actions/written words somehow triggered the process. It is clear to me that the Complainant was engaged in a protracted interaction and was not looking for third party intervention or oversight.

The Respondent described the Complainant’s correspondence as “antagonistic” and I have to say that I cannot disagree with this description. It seems to me that the Complainant had absolutely no insight into how the tone and content of his letters might be perceived by an objective observer. As previously noted, this is one of those rare cases where the voluminous inter parte correspondence has captured all the salient facts leading up to the resignation and I would assert that the reasonableness of the parties conduct has also been inescapably captured in the correspondence. I find that the Complainant has been utterly unreasonable in his dealings with his Employer.

The Complainant resigned his employment at the beginning of January of 2018. In his letter of resignation he does not specifically reference the proposed investigation into his pattern of absenteeism. Instead, he cites a breakdown in mutual trust and confidence. In particular, in the absence of a reasonable resolution of the various issues raised. In this I disagree. The letters penned by MsCL and others speak for themselves. They are respectful but firm. The Company had at all times engaged with the Complainant and had found some resolution and where there was no more movement, I do not find the that the Respondent had been unfair or unreasonable. So, for example (as I have said) the Complainant had to recognise that erroneous payments made under the sickness scheme needed to be repaid. The allegation that the Respondent did not accommodate his sporadic back pain does not hold weight. As I have previously said, I find that the company went to some effort to accommodate the disability that it had been made aware of. The fact that the Complainant subsequently came back to his Employer and sought more accommodation for a more acute condition cannot possibly be blamed on the Employer. Given some time (and perhaps some medical advice), I have no reason to believe that the Employer might not have been in a position to further facilitate the Complainant. The Complainant opted not to see this out and instead tendered his resignation.

Of course, the Employer’s conduct may have been imperfect in some of it’s dealings - for example when it suggested it would re-coup holiday pay from the December 2017 salary or when it sent a Disciplinary letter on the 27th of December. Also, Ms LC gave evidence that the Complainant was always given the assurance that no deduction would be made until it had been agreed. In fact, the Employer did hold back amounts of money which (however small) was treated as an act of outright hostility by the Complainant, who did not consent to this non-payment. I can accept that such behaviour is unacceptable and indeed contrary to the Payment of Wages Act.  However, on balance, I would have to say that the correspondence from the Employer was even-tempered and rational. Put simply, the Complainant wasn’t hearing what he wanted to hear, and was reacting badly to that.

Given the extraordinary levels of absenteeism extending well beyond the time frame that we are dealing with, for the purpose of this matter, I would have to comment that the Employer has demonstrated marked forbearance and patience with the Employee. I assume that this was because  they valued his experience and professionalism when it came to handling aircraft.

I have no reason to believe that the Complainant tendered his resignation because he believed he was going to be dismissed, I believe he tendered his resignation because ultimately he didn’t want to work for an Employer that would not re-struture it’s operation to facilitate him. This was never a reasonable objective or demand. By reason of the foregoing, I find the Complainant was not Constructively dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00017565-001 I

I am satisfied that the Complainant has not made out his case for Constructive Dismissal and his claim under the Unfair Dismissal legislation fails.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00017565-002

I am satisfied that the Complainant has not demonstrated a Prima Facie case of discrimination on the Grounds of Disability and his claim under the Employment Equality Acts therefore fails.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00017932-001

This claim is withdrawn in circumstances where it is repetitive.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00017932-002

This claim is withdrawn in circumstances where it is repetitive.