UDD2418

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034556 (CA-00045554-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 25 July 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 29 February 2024. The following is the Decision of the Court.

DECISION:

This is an appeal by Ms Virginia Linehan (the Complainant) against Adjudication Officer’s Decision ADJ-00034556 CA-00045554-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against her previous employer Aer Lingus Limited (the Respondent) that she was unfairly dismissed. The Adjudication Officer held that her complaint was not well founded.

Background

The Complainant commenced employment with the Respondent in the position of Customer Services Agent on 13th July 2009. Her employment was terminated by the Respondent on the 13th May 2021 following a disciplinary and appeal process arising from an incident which took place on 31 July 2019.  The Complainant submits that she was unfairly dismissed. She lodged a complaint with the WRC on 5th August 2019.  The Adjudication Officer’s decision issued on 14th July 2023, and was appealed to the Court on 25th July 2023. The Labour Court heard the case on 29th February 2024.  Dismissal is not in dispute.

 Summary of Respondent’s submission and evidence.

Mr Mallon BL on behalf of the Respondent submitted that the Respondent totally rejects the claim. The Complainant’s employment was terminated on grounds of gross misconduct, namely her verbally abusive and aggressive conduct towards colleagues in an incident which took place on 31st July 2019. The Complainant’s employment was terminated following a detailed internal investigation, disciplinary process, and appeal process. Fair procedure was always followed. The Complainant was represented by her Union at all stages of the process. The incident was captured on CCTV and was witnessed by several staff. Based on all the information available a sanction of dismissal was within the range of reasonable responses available to the Respondent.

On the day in question the Complainant informed her supervisor she was taking her lunch at a particular time which her supervisor approved.  For reasons that still remain unclear, she also telephoned crew control. Crew control allocate staff to gates for departure and arrivals. The phone in crew control was answered by Ms Crossan who the Complainant previously had issues with, so the Complainant hung up. Even though there was no requirement for her to do so the Complainant then decided to go to crew control office. When she got there, she was verbally abusive to staff called people bitches and bullies. She was aggressive and swinging her arms. Her behaviour caused some of her colleagues to be concerned about the health and safety of staff. That behaviour undermined the trust and confidence the Respondent had in her as she was in a public facing role. The Complainant was suspended with pay as based on her conduct it was felt that she could not be left working. While the process was longer than they would have liked this was in part due to Covid. Mr Dawson was the decision maker in this case but is no longer with the company and not available to give evidence.

Ms Carmel Byrne HR Case Manager was the first witness for the Respondent to give evidence. She confirmed that the HR team oversee disciplinary and other internal processes. She was assigned by the HR Manager to carry out the investigation. Ms Byrne met with Mr Linehan once before to assist her particularise a complaint she had, and to identify the different policies available, this was sometime in the second half of 2018. Other than that, she had no involvement with Ms Linehan.

When she was asked to carry out the investigation, she was given some statements, and she obtained the CCTV footage. By letter of 12th August 2019, she contacted Ms Linehan advising that she had been appointed to carry out an investigation into an incident on 31st July 2019. Attached to the letter were three witness statements and the letter stated that there were further witness statements to be collected and that she would be supplied with them.  A further letter was sent on the 20th August 2019 providing an additional five statements. The Complainant was also advised that CCTV footage was now available for her to view. The letter invited her to attend an investigative meeting on 23rd August 2019 and informed her she could be accompanied.  By email of the 22nd August 2019 she was advised by the Complainant’s representative that the Complainant was unfit to attend an investigative meeting.

 The meeting was rescheduled and took place on the 9th January 2020. The Complainant was accompanied by her Union representative.  At that meeting the Complainant and her representatives were afforded an opportunity to view the CCTV footage. A further meeting was scheduled for 19th February 2020. At the meeting the Complainant was given the opportunity to set out her account of what happened on the day in question and to respond to witness statements in respect of same, which she did. The Complainant’s Union representative on the day suggested that this matter was a welfare matter and not a disciplinary issue and should be treated as such.  The Complainant was then asked to comment on the CCTV footage which she did and raised concerns as to why the first version was edited and if the CCTV was date stamped.  It was confirmed that it was time and date stamped.  On Wednesday 15th April 2020 Ms Byrne advised the Complainant by email that the process was going on hold arising from the Covid pandemic.

 By letter of 16th July 2020, Ms Byrne stated that she wrote to the Complainant advising of a further meeting to afford her the opportunity to address additional information she had received from witnesses, and she attached a copy of that information. The Complainant was advised that due to the pandemic the meeting would be by video conference on Friday 24th July 2020 at 11.30am.  The Complainant did not wish to meet remotely and instead sent in a further written submission addressing the issues from her perspective on the 7th August 2020.

Ms Byrne in her evidence to the Court stated that there were issues around the CCTV footage and GDPR. The first version she was supplied with was redacted. The Head of security provided what he believed to be the footage relevant to the incident and in compliance with GDPR requirements.  This was later corrected, and the full CCTV coverage of the incident was made available to the Complainant and her representative. The witness statements arrived at various times. However, as the Complainant was alleging collusion by some of the witnesses all staff who were present in the office at the relevant time were invited to make statements. Fifteen people in total were invited to make statements. The standing procedure is, if there is an incident staff make a written statement which is why some statements were received without being requested. This process is embedded in the organisation. Ms Byrne confirmed that she was satisfied that she had addressed all issues raised by the Complainant and received all information she could be reasonably expected to take into consideration. She confirmed that she was satisfied that she followed up everything that the Complainant raised. She confirmed that the CCTV footage was viewed in the company of the Complainant and her representative. They opted not to give feed back on the CCTV footage on the day but provided it in writing at a later stage. Ms Byrne stated that she prepared a report and confirmed that she was satisfied that there was behaviour that was verbally abusive and inappropriate in the workplace on the day in question.

 The CCTV footage was played for the Court and Ms Byrne identified who the various people were.  The Complainant confirmed that the identifications were correct.

 Ms Byrne confirmed to the Court that she was not guided or directed by any one as to what the outcome of her investigation should be.

 Mr Mallon BL on behalf of the Respondent informed the Court that the Decision maker in this case was no longer employed by the Respondent and not available to be called to give evidence.

 The next witness for the Respondent was Ms Montgomery who informed the Court that she was Director of inflight services and that she had never worked with Ms Linehan. She confirmed that she received the Complainants appeal and by letter of 18th March 2021, invited her to an appeal hearing on 26th March 2021. The hearing took place on 31st March 2021 and the Complainant was represented by her Union.  It was her evidence that in coming to the decision to uphold the decision to dismiss she took account of all issues raised by the Complainant at the meeting or put forward after the meeting. She also had regard to the investigation report and disciplinary report. In her opinion the conduct on the day in question was unacceptable and unprofessional. 

The minutes of the meeting were shared with the Complainant and her representative on 7th April 2021. On the 14th, her Union representative provided some additional commentary, and an addendum was requested by her representative on 23rd April 2021. The final version of the minutes was accepted on her behalf by her representative on the 5th May 2021. By letter of 13th May 2021, she informed the Complainant of her decision to uphold the sanction of dismissal and provided her with a copy of the appeal outcome report. The Complainant’s dismissal was effective from 13th May 2021, and she was paid six weeks pay in lieu of notice.

 The next witness for the Respondent was Ms Hayes Leader of ground operation. She was working in the Hub Control Centre (HCC) at the time. She generally hot desked between three locations. She was sitting at her desk in the HCC when she heard the Complainant talking to her and asking her to come down with her to talk to this other colleague. She asked the Complainant if she would come into an office, but she would not. The Complainant called her a bitch, she was looking around for help when the Complainant went over to Cathy Dolan and called her a bitch. The Complainant exited the office by the upper door she followed her to the door and said it was not appropriate for her to talk to staff like that.  Mr Wayne Gough asked herself and Ms Dolan to come into the office and checked if they were ok. On her way back to her office in the hanger she decided to write up a report of what had happened.

The next witness for the Respondent was Ms Cathy Dolan. She confirmed that she had 27 years’ experience as manager of Boarding Area airside. She could have 70 staff minimum on any given date to assign and manage.  They report into the HCC, but after that the contact is usually by phone.  On the day in question the Complainant had requested a particular lunch break which was approved by her supervisor. Usually requests of that nature are done by phone, there was no requirement for the Complainant to visit the HCC. Ms Dolan stated she was sitting beside Mr Gough when she heard a raised voice and saw the Complainant standing over Ms Hayes. Mr Gough went over to see what was happening. The Complainant was calling people bitches and pointing her finger.  As the Complainant was walking towards her, she called her a bitch three times and also called her a bully. Ms Dolan said she wrote a report the next day. It was the worse experience she had ever had in her workplace.

 Mr Mallon BL submitted that as set out in his submission and supported the by the evidence given by his witnesses the decision to dismiss was not unfair. Case law makes it clear that in defending an unfair dismissal claim, an employer does not need to convince the Court that they would have made the same decision to dismiss, or indeed that every employer would have done so. What must be shown is that it was reasonable for the employer to have made the decision that it did. In this regard provided the Court accepts that it was within the band of reasonableness for Aer Lingus to have dismissed Ms Linehan, her dismissal was not unfair.  Mr Mallon BL opened to the Court the decision in Allied Irish Banks plc v Purcell [2012] 23 ELR 189 in support of this contention.

Summary of Complainant’s submission and evidence

 The Complainant’s submission contained a number of paragraphs referencing issues not relevant to the case before the Court. The Complainant agreed that these paragraphs should be omitted from her submissions. The Complainant requested that her submission be taken as read, and that she would give sworn evidence. It was agreed to proceed on the basis of taking her submission as read and the Complainant giving sworn evidence.

 The Complainant believes that her employment was terminated unfairly and arose from her exercising her right to raise a grievance in 2014. The Complainant believes from that point she was treated less favourably than her colleagues and the cumulative effect of being treated differently led to stressors which ultimately led to the event on the 31st July 2019. The Complainant accepts that her behaviour on that day was unacceptable behaviour in the workplace and wholly regrets same.

 In her evidence to the Court the Complainant stated that it started out as a normal day. She commenced her shift at 10.00am and had pre-arranged to meet someone for lunch at 1.45pm. She confirmed that you had to request lunch if you wanted it at a certain time, otherwise lunches were just allocated. She had rung and asked her supervisor for lunch at 1.45pm and he had agreed. As she was walking to the main building, she picked up the phone to tell her supervisor she was going to lunch. Ms Crossan answered, she asked if Jason her supervisor was there, Ms Crossan said no, so she hung up. At that point she did not know if she was marked down as on lunch or what time she had to comeback at. She previously had an issue with Ms Crossan in 2018 when she came back to work after a bereavement when Ms Crossen called her a ‘pycho’. At that time an investigation was carried out and  the Complainant was given a twelve-month written warning, this left relationships with Ms Crossan strained. When she arrived in the HCC, she went up to a different supervisor who said she was very busy. She asked Ms Hayes to come over to Ms Crossan with her. The Complainant in her evidence accepted that she was asked to go into a meeting room but didn’t go. She accused Ms Dolan of bullying her, and Ms Hayes stated you cannot behave like that you have attacked people. It was her evidence that she does not accept that she attacked people. When she left the HCC, she rang the EAP services, but they were not available. She then went to Occupational Health as they knew about the bullying but had certified her fit for work. While in a waiting room there she received a call from her supervisor who had made an appointment for her with a primary care support GP.  She attended that appointment.

She then received an email from HR to say she was suspended. She was told by HR that there were multiple complaints, but she does not accept that was true. The Complainant stated that she felt and her Union at the time raised it, that the Respondent should treat the incident as a welfare issue, and not a disciplinary issue but they would not do that.   The Complainant stated that the process was biased from the start, and it was a conflict of interest for the Head of HR to suspend her. In terms of mitigation of loss, she had done some voluntary work and applied for one job.

 In response to questioning under cross examination from Mr Mallon BL the Complainant confirmed that she had been living abroad for a period of time. She also confirmed that she had called two people bullies and bitches but stated that it was a stress reaction. When asked what triggered the reaction, she stated that it was years of bullying. In response to a question from Mr Mallon BL as to whether she accepted her conduct was entirely unacceptable she replied no. However, she did confirm that she would find it unacceptable if somebody called her a bitch or a bully.

 The Complainant suggested that the Court should take into account the fact that she was under stress when the incident happened.

The Relevant Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

(1) 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.

Discussion

 The Complainant in her submission to the Court accepted that her behaviour on the day was not acceptable behaviour in the workplace.  In the case of Allied Irish Banks plc v Purcell [2012] 23 EL 189 which was opened to the Court Linnane J stated as follows:

“”The correct test is: Was it reasonable for  the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”

[quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift]

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken”

The Court notes there is no suggestion that the Respondent did not faithfully follow their own procedures or that any steps in the process were bypassed. No flaws in the process used have been argued before the Court. The Complainant has stated that she was stressed on the day in the question and seeks to rely on a medical certificate provided by the GP her Employer sent her to, when she presented herself at Occupational Health after the event. The Doctor’s note stated that she had presented in a distressed state but went no further.  The Complainant’s own evidence was that it was a normal day, she could offer no reasonable explanation as to why she went to the HCC when her supervisor had already approved her lunch. She accepted that when Ms Hayes tried to   de-escalate the situation and bring her into an office that she refused to go to the office, again no explanation for that refusal was put before the Court. Taking all of the foregoing into account and the fact that the Complainant was employed in a public facing role the Court finds that the decision to dismiss falls within the band of reasonable responses, and therefore the decision to dismiss was not unfair.

 Decision

 The Court decides for all the reasons set out above that the decision to dismiss was not unfair.

The appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
30 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.