Complainant

Respondent

Parties

Olufeyi  Akinmola

DAA Airport Services Limited

Complainant

Respondent

Representatives

Self-Represented

Ms Donegan of  DAA  (Dublin Airport Authority)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060068-001

16/11/2023

The issue in contention was the ending of the employment of the Complainant, a trainee Airport Security Officer, by the Airport Authority. The Complainant argued that he had been unfairly and selectively “failed” in a required Security Scanning Test/ Trial Simulation.  The employment began on the 16th October 2023 and ended on the 6th November 2023.

The rate of pay was stated by the Complainant to have been €1,300 per fortnight for a 30-hour week.

As the Complainant had less than 12 months service he brought his complaint under the Terms of Employment Act,1994.

The Complainant was self-represented and gave an Oral testimony supported by various copy e mails and general correspondence with the Respondent.

His argument was that the Respondent had no proper legal authority to end his employment on the basis of Tests and Simulations that he was not properly briefed on. He referred to this as an “Illegal Condition Precedent”.

 The process was not part of his Contact of Employment. The process was conducted in a most arbitrary way by the Training Instructor and Staff.

 He was not given any clear and precise Training Documents.  The was an atmosphere of Racial prejudice against him throughout his period of employment.

The Respondent employer had breached the Terms of Employment (Information) Act, 1994 by creating the Assessment / Simulation Tests leading to his removal.

The Respondent was represented by Ms Donegan from the HR Department supported by a number of Management witnesses. A comprehensive Written Submission was also supplied.

In essence the Respondents argued that they were a front-line Aviation operation responsible for Security at Irish Airports. The Complainant had been recruited for the Airport Security Team as effectively a Baggage Checker at the Passenger Screening Security Desks in the Airport.

To successfully fulfil this role, it was necessary that a very comprehensive 5-week Security training programme be successfully undertaken by all newly recruited Officers. This programme is multifaceted and involves Scanning Simulations – i.e. sitting at a Scanning Screen as “Testing” Bags are X Ray examined. Considerable attention to detail is required from the Trainees. It is an absolute that “Critical Items” i.e. objects as firearms, knives etc are identified by the Trainees. The Complainant was not successful and made a number of what were termed as “Critical Errors” in his Tests.

Despite being afforded a number of Repeat Tests the Complainant failed to achieve the required standards. He was advised and coached, as far as possible, by the Trainers. Regrettably the Trainers came to the view that he was not suitable for the Security role and recommended his removal from the Programme. This was not an uncommon situation.  It is not unusual for potential Security personnel to be removed from the Training Programme. A number of other Trainees in the Complainant’s class did not complete the Programme. Oral Testimonies on the Training routines and procedures were given by supporting Managers.

 Without a Pass / Proper Air Safety Certification on the Training Programme there can be no employment. Managers familiar with the Programme gave Oral evidence to these facts.

There was no suggestion of any Racial bias as the class was multiethnic.

On a legal basis Ms Donegan pointed out that the initial Contract of Employment clearly advised on this process – Section9(g). The Contract was submitted in evidence.

Ms Donegan argued that the Contract had been properly fulfilled. There had been no changes to the Terms that would have required the notification or prior consent of the Complainant.

The case has no merits as the Contract of Employment had been clearly fulfilled without any amendments or changes as would support a Complaint under the Terms of Employment (Information) Act, 1994.

3:1.         Legal Position

The Complainant has brought a complaint under Section 7 of the Terms of Employment (Information) Act, 1994.

This essentially refers to a complaint of a Breach by the Employer of Sections 3,4,5 or 6 of the Act.

These sections are primarily related to Terms of Employment information and the details & format in which they are supplied.

Section 5 refers to Notification of Changes and was Referenced by the Complainant.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

[(a) the day on which the change takes effect, or]

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order,] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

In plain language this involves a situation where the Contact of Employment is changed by the Employer and proper notification has not been given to the Employee.

In has to be noted that none of the Sections 3 to 5 of the Act involve situations where the Employee is Unfairly Dismissed. Section 6 C, Protection against Penalisation does refer to a possible Unfair Dismissals situation under the Terms of the Unfair Dismissals Act,1977.

 .

Protection against penalisation

6C.— (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

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(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

It was noted that this Section 6C was not directly referred to by the Complainant. Accordingly, there was no Respondent counter argument save in the general sense that the Act had been fully complied with and there was no suggestion of any Racism or other malign employer actions.

Legal provisions not withstanding all cases rests of their own factual matrix and particular evidence both Oral and in Writing. These will be examined below.

3:2       Examination of the Evidence presented both Oral and Written.

Extensive Oral and Written evidence was presented by both sides.

The key background issue was the Aeronautical/Safety Regulations required of the Respondent.

Security & Scanning Staff are required to achieve required Legal Certification to be allowed work as Security / Passenger Baggage Examination Officers. Considerable Oral Testimony was given by Respondent Managers (Ms M and Ms McI) involved in this process. The Testing routines were explained and the various opportunities afforded to the Complainant to repeat various stages. Computer Print Outs of Scoring sheets were presented. The interpretation of these were disputed by the Complainant.

Of key importance the Respondent exhibited the Contact of Employment. The Testing & Certification requirements were highlighted. Holding these Certification requirements were a key part of the position. This had been made plain from the start of the job.

To the Adjudication Officer there was no discernible evidence of unilateral changes to the Contract as required to bring a Complaint under Section5 of the Act.

The Respondent Managers and the Complainant gave evidence under Sworn Oath/Affirmation.

 While Section 6C was not formally raised, there was no obvious evidence of Penalisation. The Testing /Simulation was clear cut, and racial origin was not relevant. Penalisation as understood from Section 6 of the Act was not simply there in the Testing processes. Legal precedents to sustain a Penalisation compliant is well established. The Burden of proof is quite high for an employee. This Burden of proof was not achieved by the Complainant.

Potential staff not succeeding in the Testing process was not unique to the Complainant.

The Complainant referred to a “Condition precedent” in the Contract as regards the requirement to achieve certification. It was unclear as to what exactly this phrase meant in Irish Law.

3:3        Adjudication Conclusion.

The Act requires evidence of failing to properly inform an Employee of all Terms and Requirements at start of an employment and or of changes during the Employment. The Respondent issued all proper Contract requirements and there were no changes during the duration of the Work. There was no evidence of Penalisation.

Accordingly, the Conclusion has to be that the Complaint is Not Well Founded and cannot succeed.

Terms and conditions of Employment, Required Certification, Ending of Employment.