Complainant

Respondent

Parties

Virginia  Linehan

Aer Lingus Limited

Representatives

Paul Henry of SIPTU

Tom Mallon BL instructed by Rachel Barry of Arthur Cox

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-00045554-001

05/08/2021

The Complainant worked for the Respondent airline for some 16 years before her dismissal on the 13th of May 2021. The Respondent’s reason for dismissing the Complainant related to an incident on 31st of July 2019 following which she was suspended.  

A hearing was held into the matter over three days in November 2022 and March 2023.

The Complainant attended the hearing and gave evidence under affirmation. She was represented by Mr. Paul Henry of SIPTU.

The Respondent was represented by Mr. Tom Mallon BL instructed by Ms. Rachel Barry of Arthur Cox and Elaine Mettler in house counsel.  Ms. Mary Montgomery Director of In-flight Services gave evidence under affirmation. Ms. Carmel Byrne HR Case Manger gave evidence under oath. Ms. Deirdre Hayes, HRBP for Ground Operations gave evidence under affirmation. Ms. Cathy Dolan Customer Delivery Manager gave evidence under affirmation.

The Respondent provided the WRC with detailed written submissions and four of their staff gave evidence.

The Complainant worked in a customer-facing role which involved checking people in for flights. These roles were coordinated by a central control function, the Hub Control Centre (“HCC”), which sent staff to the various flights throughout the course of the day. Generally the HCC needed to be notified when a person was not available.

On the 31st of July the Complainant went to take lunch. She told the other staff with her at check in that she was going on lunch, normally this was sufficient notice. However on the 31st of July the Complainant then took the extra step of contacting the HCC directly to let them know she was going on lunch. When she called the HCC, a colleague who she had previously had disagreements with, answered the phone and the Complainant discontinued the call.

The Complainant then went to the HCC in person and without provocation began shouting at staff in that office.  Her behaviour there is what led to her dismissal, it was aggressive and abusive and entirely unprovoked. Ms Cathy Dolan and Ms Deirdre Hayes were two of the staff who witnessed this conduct.

Following this incident, the Respondent initiated an investigation which was conducted by Ms Carmel Byrne. Following the findings of this investigation the matter was referred to a disciplinary hearing which was led by Mr Finnian Dawson, a manager from a different area of the business. Mr Dawson has since left Aer Lingus.  This decision was then appealed to Ms Mary Montgomery. There were numerous challenges during the course of this process by the Complainant’s union, SIPTU. These were all addressed at the time they were raised and demonstrate what a robust process it was.

This entirely fair process ultimately resulted in the Complainant’s dismissal. As the Complainant held a customer facing role it is vital that the Respondent has trust and confidence in her when she performs that role. While the Complainant did and does have various grievances with the Respondent that does not change that her underlying conduct was sufficiently serious to warrant dismissal.

In the hearing Mr Mallon read through a letter sent by the Complainant to the Respondent’s CEO and a number of other people following her dismissal. The letter demonstrates the Complainant’s lack of regret for her actions, her extremely negative view of the Respondent and that the remedy of reinstatement would be entirely inappropriate.

Mary Montgomery

Ms Mary Montgomery gave evidence on the appeals process following the decision of Mr Dawson to dismiss the Complainant. As Director of Inflight Services, she oversees all cabin crew. She reports to the tier of management one step below the CEO. She has worked for the Respondent for some 13 years but had no prior dealings with the Complainant. She had acted as an appeals person in other HR matters in the past.

HR wrote to Ms Montgomery on 18th of March 2021 to refer the appeal to her.  They had some difficulty to get a hearing date fixed because of covid. The Complainant wanted a face-to-face hearing. The appeal hearing happened in late March 2021 and was recorded by way of written minute.

Mr Henry attended the appeal meeting and queried why Ms Montgomery was handling the appeal as she was at the same grade as Mr Dawson who had made the decision to dismiss. Mr Henry had argued that someone in a more senior grade should hear the appeal. Ms Montgomery was satisfied that she was sufficiently independent and senior to consider the matter.

Ms Montgomery reviewed the evidence available, including the CCTV, as well as the Complainant’s grounds for appeal. Ultimately her conclusion was that the correct decision had been reached by Mr Dawson and she upheld the sanction of dismissal.

Mr Henry then cross-examined Ms Montgomery on the details of the disciplinary policy. He pointed out that Point 8.3 of the policy requires dismissal to be approved by the Chief People Officer. Ms Montgomery outlined that she believed that the decision had been delegated to Mr Dawson by the CPO.

Mr Henry pointed out that the Complainant’s request for more of the CCTV footage was not facilitated by the Respondent and this had hampered her defence. The Complainant’s position was people were lobbied by management to put in a complaint after the incident. Ms Montgomery is clear that she found there was no evidence of this.  When Mr Henry pointed out, from the report, that a local manager had asked people to take a note at the time of the incident, Ms Montgomery didn’t agree that this was lobbying.

Under re-examination Ms Montgomery stated that in her experience it was normal for a manager on duty to ask people to take a note following any incident.

Ms Montgomery then rewatched the CCTV footage in the hearing and confirmed that it was the same footage that she reviewed as part of the appeals process.

Carmel Byrne

Ms Carmel Byrne then gave evidence of the investigation process. She has been a HR case manager for the Respondent since June of 2018.  This role involves handling Internal HR processes such as grievances and disciplinaries. She reports to Ms Elaine Mettler, Employment Law Counsel.

Ms Byrne had some prior knowledge of the Complainant before being assigned to the disciplinary investigation in August 2019.  She was involved with follow up to a grievance the Complainant had submitted previously, sometime in 2018. Ms Byrne had been assigned to do an initial review and ask the Complainant to further particularise her complaint. She was involved an internal meeting to then refer the complaint to a particular policy framework. She then went on maternity leave.

Once Ms Byrne was assigned to the investigate the incident which occurred in the HCC she wrote to the various individuals who had been present and gathered witness statements. The Complainant was unwell for a period and then reengaged in December.

There had been engagement from SIPTU who wanted the Respondent to deal with this matter as a welfare issue. This was something considered by Ms Byrne, and she dealt with it in her report.

Ms Byrne sought CCTV of the incident from corporate security. This involved following an number of internal procedures. She identified four cameras which covered the relevant area. Initially ,she was only able to access redacted CCTV footage. The General Data Protection Regulation (“GDPR”) had been implemented in 2018 and associated policies were still being interpreted quite strictly by the Data Protection Officer (“DPO”). Ms Byrne was able to get the unredacted CCTV in February 2020. This was after Mr Henry, Mr Gowan and Mr Ennis (also SIPTU) had each raised the issue. The DPO confirmed that there had been no updated guidance from the Data Protection Commissioner (“DPC”) and their position seemed to relax. The only requirement was that unredacted footage needed to be kept in house. As such redacted footage was given to the Complainant and then she and her representatives were allowed to view unredacted footage on site. This viewing occurred on the 13th of February 2020.

An interview meeting with Complainant took place on the 19th of February, this was recorded by written minute. The Complainant responded to a number of witness statements and denied having been aggressive.

The Covid-19 pandemic hit the following month and it delayed the investigation by about 6 weeks. During this time Ms Byrne put the Complainant’s responses to the witness statements, back to the witnesses. This exercise was done by email. There were ten witnesses in total.  Two other people were identified by the CCTV but did not want to be involved, Ms Byrne felt that she could not compel these people to be interviewed. There was one person who the complainant suggested should be interviewed who Ms Byrne could not identify.

In review of the witness statements Ms Byrne noted that they were not at odds, but none were identical. All said that the Complainant was shouting. Most stated that the Complainant swore at a colleague while standing over that colleague who sat at their desk.

Ultimately Ms Byrne arrived at a number of findings which were set out in her report. These were based on the witness statements and the CCTV. Before setting out her findings Ms Byrne considered the Complainant’s suggestion that the matter should be dealt with as a “welfare issue.” Ms Byrne acknowledged that most of the witnesses saw the Complainant crying but that they also saw her engaged in aggressive behaviour. While she had received a statement from the doctor confirming that she had suffered from an acute stress reaction Ms Byrne had seen no evidence of any medical diagnosis which would have justified her alleged behaviour.

On the balance of probabilities Ms Byrne found that the Complainant had behaved in a manner that was verbally abusive and aggressive. She set out in detail what she found had occurred.  No issue had arisen that day which had apparently caused this behaviour and the Complainant never followed through on her initial reason for attending the HCC, which was to tell management she was going on lunch. She just went into the HCC and began shouting. She refused attempts to calm her and redirect her into a meeting room. Ms Byrne found that at one point the Complainant took a swipe at a member of staff and at another point stood over Ms Cathy Dolan, who was sitting at her desk and shouted at her while pointing at her.

At the WRC hearing Ms Byrne reviewed CCTV footage and confirmed it was the same footage she had reviewed previously when drafting her report. 

Ms Byrne was cross examined by Mr Henry.

She clarified her interview process. Most of the witness statements were gathered by email.

She confirmed that she was never involved in any previous investigation concerning the Complainant. Just the initial review of the grievance she had submitted sometime in 2018, she couldn’t remember it in any detail.

The Director of Employee Relations, Mr Murphy had suspended the Complainant shortly after the incident in July 2019. The suspension was not reviewed as far as Ms Byrne was aware. She did think that the process took some time, but this was in a large part due to the Complainant being too unwell to engage from July 2019 until February 2020.

SIPTU had sought more CCTV footage which Ms Byrne did not obtain for them. She was satisfied that they had footage of the incident. She acknowledged that local mangers asked witnesses to take a note after the incident but did not see this as any sort of collusion or coaching,

Deirdre Hayes

Ms Deirdre Hayes is the Human Resources Business Partner (“HRBP”) for ground operations and operations control in Aer Lingus.  As such she is the HR person working with the HCC and was present on the 31st of July.

She had previously conducted investigations concerning the Complainant.  These involved two separate complaints against the Complainant by three different members of staff, which were upheld. There was also a bullying complaint by the Complainant against others staff which was not upheld.

Ms Hayes gave detailed evidence of her experience on the 31st of July 2019 when the Complainant came into the HCC and began shouting. Following the incident, she contacted her line manager Mr Murphy who suggested that she write a note of what had occurred but she had already begun doing this.

Ms Hayes was cross examined by Mr Henry on the previous investigation concerning the Complainant in 2018 as well as the incident in on the 31st of July 2019.

Cathy Dolan

Ms Cathy Dolan is the Respondent’s Customer Delivery Manager. She oversees a large team of supervisors who in turn oversee frontline staff such as the Complainant. She would know the Complainant in a work capacity for a long time.

She provided evidence of a previous investigation into the Complainant.

Ms Dolan then provided a detailed account of the incident of 31st of July 2019. She felt the Complainant’s behaviour was aggressive, she was called a bitch by the Complainant three time in the course of her outburst. She was quite upset to be called a bully also. The whole incident affected her confidence. Ms. Dolan feels that she couldn’t work with the Complainant in the future. Generally, she felt the Complainant’s behaviour at work was escalating. She was concerned that the Complainant had been working in a public facing role.

Ms Dolan was also cross examined by Mr Henry. He raised the issue of witness statements being solicited, Ms Dolan was clear that staff are usually expected to give a statement or report when an incident happens.

The Complainant’s Union made detailed submissions in writing.

The Complainant was unfairly dismissed following an episode of acute stress. Rather than treat the Complainant with compassion and understanding the Respondent sought to use this incident to remove the Complainant from her role. This incident lasted 3 minutes and no colleague who witnessed the incident actually chose to make a complaint.

Following the incident, the Complainant was subjected to an unfair and prolonged process which failed to adhere to her rights of natural justice. There was a failure to fully investigate the matter and to provide the Complainant with vital CCTV footage.

The result was an entirely unreasonable and disproportionate sanction of dismissal which the Complainant sought to appeal. In direct contravention of the Respondent’s own policies the person who heard the appeal was of the same grade as the person who made the decision to dismiss.

Virginia Linehan

The Complainant worked for Aer Lingus as a Customer Service Agent since 2005. This mostly involved check in and boarding passengers.

The Complainant first provided evidence as to her suspension. Following the incident on the 31st of July she was suspended by Mr Murphy. She was not surprised at this because she knew how Aer Lingus operate.  After the incident she had gone to her own GP and been signed off. Due to her suspension she couldn’t even submit her sick cert. She couldn’t contact the EAP she had no assistance from the Respondent even though she was in an obviously distressed state.

The Complainant noted that the language in Mr Murphy’s letter, specifically that she had allegedly behaved in a manner that was aggressive and verbally abusive was replicated across a number of witness statements. She later heard that Ms Dolan had sought statements from staff.

One of the reasons she wanted CCTV is because she wanted to look back at what had happened. She was extremely broken down and didn’t have a clear recollection.  She wanted to see objectively what had happened.  However, on reviewing the footage she thought it was curated to show only a short section of the whole relevant period.

The Complainant then gave evidence on her memory of the 31st of July 2019. She was extremely concerned that she was under enhanced supervision from the Respondent and that if she was absent on her lunch without notifying the HCC, someone might use it against her. She tried to ring the HCC and speak to her line manager, but she was unavailable. She then went to the HCC but felt increasingly overwhelmed and became upset. She recalled her interaction with Ms Hayes and thought that Ms Hayes was opportunist and took advantage of her stress. She was told by Ms Hayes that she couldn’t behave like this. She responded that Ms Hayes was constantly putting her under investigations and that she couldn’t work like this anymore. She believed that Ms Hayes was going to use the interaction against her and that she wasn’t actually trying to calm her down.

The incident was not unprovoked. There was a context which the Respondent was well aware of. She had recently gotten the appeal outcome of her grievance and had been told that her grievance had not been upheld. She had been treated badly by the Respondent and certain staff for years.

Once the investigation took place she knew exactly what was going to happen from previous processes. 

In review of Ms Byrne’s findings the Complainant notes that there was never an allegation that she engaged in disorderly conduct in breach of Aer Lingus’s general regulations. This allegation was never put to her.  She disputes having used threatening body language; she describes herself as being broken down when she was in the HCC on the 31st of July rather than aggressive.

The Complainant then recounted her experience of the disciplinary hearing. She had raised a preliminary issue with Mr Dawson. This related to Allegation B, which was that she had behaved inappropriately at the Dublin Airport Medmark office had not been upheld. However, the whole investigation report was given to Mr Dawson. She felt that he ought to have recused himself and that a redacted version of the disciplinary report should have been used for the disciplinary hearing.  

Mr Dawson asked her no questions. He also failed to put the specific outcomes contained in the report to her. She felt that Mr Dawson didn’t give any consideration to other sanctions. She looked for the matter to be dealt with it as a welfare issue but was ignored.  Ultimately, she realised that she was gone from the second she was suspended. From there on it was all just a box ticking exercise.

The Complainant was then cross examined by Mr Tom Mallon BL.

He asked her about the allegation she swore at both Ms Dolan and Ms Hayes. She does not recollect doing this but accepts on the basis of the witness statements that it happened. She accepts that it was unacceptable conduct, that it was offensive and outrageous but not aggressive.

Mr Mallon then took the Complainant through the various witness statements challenging her on the suggestion that she was not aggressive. He noted that she was animated and shouting. The Complainant reiterated that she was not aggressive but acutely stressed. She could not point to an individual stressor that caused the reaction at that point and time. She was generally upset about the recent outcome of her appeal.

Mr Mallon put it to the Complainant that by her own logic the incident could have happened at any day and at any time.

The Complainant denied that she took a swipe at Ms Hayes, but she accepted her behaviour was inappropriate. She also says it wouldn’t have happened if the Respondent had treated her equitably. 

The Complainant confirmed she has not looked for a new job since she was terminated. She was not in the right frame of mind and was very distressed after having been terminated following sixteen years with Aer Lingus. She did take a course in animal science.

Mr Mallon referred to the Complainant’s letter of 14th of May 2021 where she wrote to the CEO. In this letter she stated that she had the luxury to decide when to choose to take up further employment.  Mr Mallon suggested that she chose not to work. The Complainant is upfront with the fact that she wasn’t aware that she had a duty to mitigate her losses until SIPTU advised her so.

Unfair Dismissals Act

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in her dismissal, but rather whether a reasonable employer might have reasonably dismissed her for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

The reason the Respondent identified for dismissing the Complainant was that on the 31st of July 2019 she had behaved in a wholly unacceptable manner and engaged in conduct which was both verbally abusive and aggressive. This decision is set out in more detail in the letter of Mr Dawson dismissing the Complainant.

Welfare Issue

I must accept that the band of reasonableness test adopted in O’Reilly v Bank of Ireland provides a degree of discretion to the Respondent in how it deals with an incident like the Complainant’s outburst in the HCC. However, the Complainant’s representative has raised a valid issue that his member was, at that time, under extraordinary stress and that arguably the most appropriate way to deal with the matter would be as a welfare issue. That is, even accepting the Respondent’s discretion, there may be situations where potential misconduct, such as a verbal outburst can be considered outside the band of reasonableness as a reason for dismissal because of a wider context. In his decision in O’Reilly Judge Noonan also gave serious consideration as to whether the decision to dismiss was proportionate. As such the Complainant’s argument that this matter ought to have been dealt with as a welfare issue has to be examined.

 The Complainant had some sort of acute stress episode when she went into the HCC and spoke as she did to her colleagues. It is also clear that she behaved in an unacceptable manner. There is also no evidence of any sort of medical condition which might suggest she was not responsible for her actions at the time the incident occurred.

For this defence to be tenable, that is that a reasonable employer would have dealt with the matter as a welfare issue and rather than a disciplinary one, the Complainant was required to show some level of understanding that her actions were not acceptable. This understanding is entirely absent from the Complainant’s conduct throughout the investigation and the disciplinary processes. Indeed, at various times she blamed her own union for failing to ensure that the matter treated as a welfare issue. This was simply not within their power, notwithstanding the considerable effort and resources SIPTU clearly put into her case. Ultimately it was for the Complainant herself to show that she knew her conduct was unacceptable and only on that basis would she have any reasonable right to insist that the matter be dealt with as a welfare issue. This was not something her union could do for her. It was not until the hearing at the WRC, some three years after she was interviewed about the incident that she expressed some regret and understanding.

Investigation and Findings

Following a thorough investigation Mr Carmel Byrne, for the Respondent, made clear and understandable findings on the balance of probabilities that the Complainant had been verbally aggressive to her colleagues and manager. While there was a difference between the evidence of the Complainant and other staff Ms Byrne preferred the evidence of the other witnesses when read in conjunction with the CCTV footage. She was entitled to do so. The reasonableness of Ms Byrne’s approach was actually evidenced by the Complainant herself when she suggested, in the WRC hearing, that she had a limited recollection of the incident and she accepted that she must have swore at colleagues, something she had proactively denied doing during the investigation.

Ms Byrne also found that the Complainant had taken a swipe at a colleague, she was able to conclude this from her own review of the CCTV. Ms Byrne went further in making this finding that there had been a breach of Aer Lingus’s General Regulations in this regard. This is undoubtedly a flaw in the process as the regulations themselves were never put to the Complainant during the investigation.

Ms Byrne found in favour of the Complainant in one matter which was referred to as allegation B. This concerned allegedly inappropriate behaviour of the Complainant at the Medmark office in Dublin Airport. Mr Henry, for the Complainant, took issue with the detail of this allegation being given to the disciplinary decision maker Mr Dawson on the basis that it was no longer at issue. Ms Byrne’s own reports concludes that the allegation was “removed from the process” but as the report went in full to Mr Dawson it arguably remained live. 

The Complainant alleges that there was some sort of collusion in HCC. That local managers tried to use her outburst to remove her. Her submissions point to the fact that there was no proactive complaint against her made by anyone in the HCC. She also draws attention to the reaction of local management after the incident in gathering statements.

On this point I disagree with the Complainant. Firstly, the Respondent is entirely entitled to set a minimum standard for behaviour at work and to discipline or even dismiss an employee who falls below that standard. An employer does not need one of their employees to proactively complain against another to take issue with that employee’s conduct. Secondly, it is entirely unreasonable to insist that local management should have acted in an unnatural and unresponsive way following the Complainant’s outburst.   There is nothing wrong with managers asking staff to make a note after any unusual incident and I have little doubt that the HCC staff discussed the incident amongst themselves and formed their own view on it.

The Respondent’s obligation was to ensure an independent investigation of the facts and an independent disciplinary hearing. Neither the investigator nor the decision maker were part of the cohort of management who had witnessed the incident nor had they any relevant prior dealings with the Complainant.

This above point relates to a separate issue the Complainant has raised regarding CCTV. At times the Complainant sought a wider period of CCTV footage, this request was denied. The Complainant relies on the decision of the Labour Court in Panasov v Pottle Pig Farm UDD175 and alleges that this refusal constituted a failure to properly investigate the matter and as such renders the dismissal unfair. I disagree with their interpretation of that decision. Ms Byrne properly investigated the incident, that is actions of the Complainant in the HCC, the above decision does not entitle the Complainant to insist on a wider and fundamentally different investigation into unsubstantiated allegations of collusion against her. I would reiterate that I do not think local management gathering statements following an incident is an example of collusion.

The Decision to Dismiss

Mr Dawson considered Ms Byrne’s findings regarding the Complainant’s conduct on the 31st of July 2019. Relying on that report he concluded that the Complainant had been verbally abusive and aggressive, and that this behaviour was totally unprovoked. In particular, he referred to the Complainant’s guest facing role in a safety critical environment and decided, with this context in mind, that the relationship of trust and confidence had been broken. On this basis he decided to dismiss the Complainant.

Ultimately, in review of the submissions before me and three days of evidence I have seen nothing to suggest that he was not entitled to come to that conclusion.

The Complainant did establish some flaws in the Respondent’s procedure. I would tend to agree with her that the allegation B (concerning Medmark) which was not upheld ought not to have gone to Mr Dawson, particularly after she had raised the issue. I would also agree that Ms Byrne found specific breaches of the Aer Lingus regulations which had not been put to the Complainant beforehand. The Respondent did also ultimately fail to offer her an appropriately senior figure to hear her appeal as required by their own policy. However, I am satisfied that none of these issues are determinative. In that they do not give rise to any realistic concern that the Respondent failed to properly establish the grounds for dismissal, which was the Complainant’s conduct in the HCC on the 31st of July 2019. 

I find that the complaint is not well founded.