EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD66/2013
CLAIM(S) OF:
Karolina Jabczuga -claimant
against
Ryanair Limited T/A Ryanair -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Hayes B.L.
Members: Mr. E. Handley
Mr. P. Trehy
heard this claim at Dublin on 17th February 2014, 16th June 2014, 22nd October 2014 and 23rd October 2014
Representation:
Claimant: Mr. Kieran O'Callaghan B.L. instructed by Mr William Joyce, Business & Commercial Solicitors, Leeson Chambers, 28 Lower Leeson Street, Dublin 2
Respondent: Mr. Frank Beatty B.L. instructed by Mr. Killian O'Reilly, McDowell Purcell, Solicitors, The Capel Building, Mary's Abbey, Dublin 7
The determination of the Tribunal was as follows:
The claimant commenced employment with the respondent in or about August 2007, initially through an employment agency and, since January 2012, as a direct employee. She resigned her employment in September 2012 in circumstances that she claims amount to a constructive dismissal. Her resignation took effect on 29th October 2012. While the length of the claimant's service was put in issue by the respondent no substantive submission was made to the Tribunal in this regard. The Tribunal is satisfied that the claimant is deemed, pursuant to the provisions of s.13 of the Unfair Dismissals (Amendment) Act, 1993, to have been an employee of the respondent during the currency of her engagement through the employment agency.
The Tribunal heard evidence about a number of issues that arose in the course of her employment with the respondent. It is the claimant's case that these issues and the manner in which they were dealt with by the respondent led to her resignation.
The Passenger Issue
The Tribunal was told that on the 24th December 2009 the claimant approached some celebrity passengers who were on board and asked for their autographs. She was aware that, per the manual, cabin crew were not to talk to celebrity passengers. She was subsequently told by BM, her base supervisor, that she had harassed the passengers and was not to do so again. There does not appear to have been any complaint from the passengers in question. The claimant made no complaint at the time as to how this issue had been handled. Some two years later the same passengers were on board a flight and, despite the claimant counselling against it, some members of the crew approached the passengers, both during and after the flight, and had photographs taken with them. No action was taken against any of these crew members. The claimant wrote a letter to EOC, the European Bases Manager, about the differing treatment that she and her colleagues received in this regard. The letter was dated the 4th December 2011 but it was not given to the respondent until the 18th July 2012. It was first brought to the respondent's attention in the course of her complaint about the Captain Issue, which will be dealt with below. This was well outside the time delimited in the grievance procedure for the raising of grievances. Having heard what she had to say in this regard, EOC decided that it was the claimant's responsibility to raise any issue at the time of their occurrence and, that given the length of time since the incident, it was, at that time, impossible to investigate. This decision was conveyed to the claimant by letter dated 21st August 2012. This was one of the issues addressed in that letter. In reply, the claimant thanked EOC for her letter. The claimant raised no issue in relation to the passenger issue. The only issue raised by the claimant in relation to that letter was that it had not dealt with her main grievance, which was in relation to promotion issues. EOC's decision not to investigate the complaint in relation to the passenger issue was not appealed by the claimant. The Tribunal does not accept her explanation for her failure to appeal.
The Captain Issue
The claimant was working on a flight on 28th June 2012. The captain had had cause to leave the cockpit. The claimant was the member of crew that went to the flight deck in the captain's absence. On the captain's return, the claimant released the lock on the cockpit door to allow the captain's re-entry. The claimant told the Tribunal that the captain then began shouting at her and speaking to her in an insulting fashion for not having correctly followed the correct procedure in relation to the unlocking of the cockpit door. The claimant said that the first officer had given her permission to do so and that she had been able to see that the person at the door was the captain. The claimant was certainly upset by the manner in which the captain spoke to her.
The following day the claimant learnt that the captain had made a report about her. The claimant wrote to EOC on 12th July in which she disputed the captain's version of events and made her own complaint against the captain.
The claimant was invited to a meeting on 18th July 2012 to discuss her complaint about the captain. The note of this meeting was somewhat semantically entitled "Complaint Meeting" as her letter was not being treated as a grievance. EOC told the Tribunal that this was because it had not been submitted online in the appropriate form as required by company procedures.
An employer is, of course, entitled to lay down a procedure whereby a grievance is brought to its attention. It will usually be of benefit to all parties to have a structure for the reporting and investigation of grievances. However, this structure should not be entirely inflexible. If a complaint is made and it is clearly employment-related, it ought to be treated as a grievance. At the very least, inquiry ought to be made as to whether the complaining employee wishes the complaint to be treated as a formal grievance.
Notwithstanding the name given to the meeting, what was in essence the claimant's grievance in relation to the incident with the captain was discussed with her in the course of the meeting on 18th July 2012. Three other staff members, including the captain, were interviewed and reports furnished to EOC. In her letter dated 21st August 2012, EOC informed the claimant that she had been unable to find any evidence to support her claim. Again, this finding was not appealed by the claimant as she was entitled to do under respondent's procedures.
The Probation Issue
When the claimant began working for the respondent she was employed through an employment agency and worked exclusively for the respondent, was paid by the respondent albeit through the employment agency and received all employment directions from the respondent. She became a direct employee on 1st January 2012. Other than the change in her contractual arrangements, nothing changed in relation to her employment either in relation to the nature of the work or the people to whom she was answerable. Notwithstanding her previous work for the respondent, her new contract provided for a probationary period. The claimant told the Tribunal that she was not happy about this and could not understand how, after almost five years with the company, she was being put on probation. The claimant told the Tribunal that she asked her supervisor about this and was told that this was just the way it was. She accepted in cross-examination that she took no further issue with it and did not seek to raise a grievance about it. She also proceeded to sign the new contract.
The Pregnancy Leave Issue
When the claimant became pregnant in early 2012 she was removed from flying duties and placed on office-based duties. The claimant had a number of issues in this regard.
Firstly, she was dissatisfied at being removed from flying duties at all although she did accept that this was a general policy of the respondent's. Given that it was a general policy and not one directed at the claimant in particular, it is difficult to see how this was discriminatory towards her.
Secondly, she complained that by not flying she was at a loss as she was no longer receiving the flight-based elements of her pay. The Tribunal is satisfied from the evidence adduced on the respondent's behalf that the claimant received an additional payment in lieu of the flight-based elements of her pay and that she was not at a financial loss as a result.
Thirdly, she complained about a loss of accrued hours. In essence, on a yearly basis, the first 300 hours of flying attracted a lower rate of pay than the second 300 hours, which in turn was lower than the third 300 hours. The Tribunal does not accept that she was at a loss in this regard. She returned to flight work shortly after the start of the annual accounting period and accordingly, and in line with all other staff, her accrued flight hours had been set at nil. Her complaint appears to be that she was not allowed to carry her accrued hours forward from one accounting year to the next. The Tribunal is satisfied that, in this regard, she was not treated less favourably than other employees.
Fourthly, the claimant gave evidence that while she was on office-based duties she was given menial tasks and was bullied. The Tribunal is not satisfied that these matters were raised with the respondent. In particular, in her leaving-interview she was asked what she had meant by bullying and harassment in her resignation notice. It is noteworthy that these matters were not mentioned. It is important that complaints of bullying and harassment be brought to an employer's attention so that the employer has a reasonable opportunity to address the issues.
The Promotion Issue
It was a longstanding source of complaint for the claimant that she was not promoted. She had written to EOC on 9th February 2011 asking why she had not been promoted given that two staff with a worse attendance record, lower average spend and less service with the respondent had been promoted. EOC replied and told her that she needed to improve her average spend. Average spend was essentially a measure of how much an employee had raised in making sales to passengers. EOC also denied that staff with poor performance had been promoted.
In the letter dated 4th December 2011 that was given to EOC on 18th July 2012, the claimant said that she understood that the passenger issue, referred to above, was one of the reasons that she had not been promoted. She was told by EOC during their meeting on 18th July 2012 that base supervisors have no decision-making power in relation to staff promotion and that she, EOC, had not been influenced by any attitude of the claimant's base supervisors in relation to the passenger issue. EOC told her that promotion was based on average spend, attendance and general performance. EOC undertook to review the claimant's performance under these criteria.
In her subsequent letter, dated 21st August 2012, EOC again set out the criteria used in consideration of promotion and again assured the claimant that the passenger issue had had no impact on the decision not to offer her promotion. In her letter dated 3rd September 2012, the claimant noted that EOC had overlooked her main grievance, i.e. being overlooked for promotion. EOC replied on 14th September that she did not consider that this issue had been raised as a grievance but that if the claimant wished to do so, she could. Notwithstanding that, EOC pointed out that, having reviewed the claimant's performance, her sales were below the Dublin base average and that she had above-average levels of absence.
The Tribunal was told that the respondent considers all absences, irrespective of cause, when considering promotion. While this might seem a heavy-handed approach, in that neither the legitimacy nor the cause of any absence is considered, it was one that was applied to all employees and was not directed towards the claimant unfairly vis-a-vis her colleagues.
Evidence was adduced by the respondent in relation to the performance of the claimant and equivalent colleagues in respect of their respective performances under the relevant criteria. On foot of that evidence the Tribunal is satisfied that the claimant was not unfairly overlooked for promotion.
Resignation
Subsequently on 29th September 2012 the claimant tendered her resignation. She gave as the reason for her resignation "discrimination, bullying and harassment in the workplace". On foot of her notice of resignation she was invited to a further meeting with EOC on 4th October 2012. The issues discussed by the claimant in that meeting were her lack of promotion; the passenger issue; and the captain issue. Neither the probation issue nor the pregnancy leave issues were canvassed. The claimant appears to have adopted the position that she had already told EOC all that EOC needed of know, that EOC was not doing anything about it and that she, the claimant, wasn't going to repeat herself.
It seems clear that the claimant was becoming increasingly frustrated in her employment and, in particular, with her lack of promotion. It would appear that the captain incident was the catalyst that led to her resignation. As noted above, the Tribunal is satisfied that the claimant was not unfairly overlooked for promotion. In respect of the captain issue, it is clear that her complaint was listened to and that some form of investigation took place. The claimant was dissatisfied with the outcome of that investigation. The conduct of that investigation is not above criticism in that it is clear that the substance of the claimant's complaint and version of events was not put to the captain. However, this is not something that the claimant appears to have known at the time of her resignation and it could not, therefore, be said to have informed the resignation in any way. Further, as noted above, the claimant did not appeal the decision of EOC that there was no evidence to support her claim.
The claimant had made a number of complaints in relation to her employment. She was dissatisfied with the way in which these complaints were dealt with. She did not exercise the option to appeal the findings or decisions of EOC. She appears to have lost faith in EOC and in the ability of EOC to deal with her complaints. That, of itself, does not justify a failure to continue to pursue the grievance process. The point of having the option to appeal is to have the opportunity to have a finding with which you disagree considered by a different decision-maker.
The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not reasonably in so doing. Accordingly this claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)