INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY ARTHUR COX, SOLICITORS)
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr McGee
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR15318/03/GF.
2. The worker joined the Company on the 8th of May, 1988, as a member of Cabin Crew. During the training period she was involved in an accident and could not complete the training course. She went on sick leave and unpaid sick leave, and after six months went on what is known as "loss of wings" which is an income protection scheme. When the worker had recovered to a certain extent she was assigned to ground work pending her return to full fitness for flying. She returned to Cabin Crew on the 6th of February, 1995. The dispute between the parties relates to the worker's seniority. The Union claims that she did not cease to be a Cabin Crew member following the accident in 1988 and that for seniority purposes her starting date is the 8th May, 1988. The Company maintains that she did not become a member of Cabin Crew in 1988 and that the correct starting date for seniority is the 6th of February, 1995.
The dispute was referred to a Rights Commissioner and his recommendation is as follows:-
"I have considered the evidence carefully and I have come to the conclusion that the letter issued as recently as 11th April, 2002, by Aer Lingus, quote "this is to confirm that the worker is permanently employed as a cabin crew member with Aer Lingus since 9th April, 1988". The letter speaks for itself. I will not go against it's contents."
I recommend in the claimant's favour.
(The worker was named in the recommendation).
The Company appealed the recommendation to the Labour Court on the 30th of March, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 1st of December, 2004, the earliest date suitable to the parties.
3. 1. The worker first became a Cabin Crew member on the 6th of February, 1995. She did not become a Cabin Crew member in 1988 because she did not successfully complete the pre-selection course for Cabin Crew. The offer letter to candidates contains the following. "We must stress this is not an offer of employment as a Cabin Crew Member. This will depend on your performance on the course, and will be subject to your passing the service and emergency examination at the end of the course".
2. The letter on which the Rights Commissioner's recommendation is based was signed by a Cabin Crew member working in a front desk clerk capacity on a temporary basis for a short number of weeks. It appears to have been written to support a request for a loan / credit facilities from a third party.
3. To recognise a different date of seniority for the worker would have an adverse effect on every Cabin Crew member who joined between May, 1998, and February, 1995.
4. 1. The 6th of February, 1995, was when the worker rejoined the training course for Cabin Crew. All documents relating to the worker e.g. Company ID, Aer Rianta ID etc. confirm her commencement date as 9th May, 1988. Since that date there was no severance or termination of her connection with the Company.
2. Cabin Crew who, for reason of injury or otherwise cannot carry out flying duties, frequently work on the ground, as the worker did in this case.
3. The Company is attempting to exaggerate the impact on other Cabin Crew should the Rights Commissioner's recommendation be upheld. Those members will only be ranked in a lower position by one place.
There is no disagreement on the fact that the respondent commenced Cabin Crew Training on 9th May, 1988. It is the view of the Court that Paragraph 1.2 of the "Black Book" was aimed at trainee staff whose employment was terminated for disciplinary or quasi-disciplinary reasons. In the view of the Court, this paragraph did not apply to the respondent's circumstances and any attempt to terminate her employment at that time (for which no conclusive evidence was provided) should have been deemed invalid. Her commencement date with the Company is, in the Court's view, 9th May 1988 for all probation and employment record purposes.
By the respondent's own commendably honest admission, however, she was unable to complete her Cabin Crew training in 1988 and did not, in fact, do so until 1995. She also admits not appealing until later the fact that her seniority placing dated from 1995 and not 1988. The Company's contention that she became a Cabin Crew Member in 1995 is, therefore, correct.
The rules of the 1980 agreement on seniority are set out as follows:-
"Seniority will be determined by date of entry to flight services department as Cabin Crew Member".
While the respondent, in the Court's view, entered the Flight Services Department on 9th May, 1988, she did not become a Cabin Crew Member until 1995.
While the Court is concerned at the Company's inflexible attitude towards the respondent's palpable honesty and towards the circumstances in which she found herself, it has, technically no choice but to regard the letter on which the Rights Commissioner based his recommendation as insufficient, and overturns it in favour of the Company.
Signed on behalf of the Labour Court
17th December, 2004______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.