ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003670
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 22/05/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Location of Hearing: Room 4.05 Lansdowne House, Dublin4.
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.
The Complainant is employed as a Cabin Crew member since 2006. She is paid €1,100 per month she has claimed that the Respondent has discriminated against her on grounds of her disability and its impact on her promotional opportunities. She has sought compensation.
1) Employment Equality Act CA 5190-001
Summary of Complainant’s Case:
In January 2016 the Complainant was advised by management that her absence record was to be investigated. She was represented by her union official at this investigation. She fully and frankly co-operated with the investigation. She and her union official were of the view that there was no need to progress the matter further. All her absences were due to factors outside of her control and she followed procedures fully. However she was called to a disciplinary investigation on 25th February 2016 for reaching five occasions of absence from April 2015 to November 2015. Sec 3.8 of the collective agreement states, “Abuse of Attendance policy will be considered gross misconduct. Misuse of the policy could lead to non-payment or removal from the scheme and/or other staff privileges”. Absence thresholds are used ; more than 3 incidents (occasions) in a rolling 12 moths / more than 12 days absence from work in a rolling 12 months.
She was represented by her union official at the 25th February meeting. On 11th March she was notified in writing of the decision. She was issued with a Verbal Warning to last on her file for 3 months. She decided not to appeal the sanction, following advice from her union. She understood that the sanction was a verbal warning simpliciter with no further sanction or penalty.
In March/April the Respondent advertised vacancies for Senior Cabin Crew, which is a promotional level to her position. At the time of the vacancy she had over 10 years’ experience and had “acted up” on several occasions. She applied for this position of Seasonal Senior Cabin Crew. When she contacted her Team Manager to arrange an interview she was advised that as she had a letter on file due to her certified sick leave she was unable to apply for the position. HR also confirmed that all applicants who have disciplinary sanction on file do not meet the criteria to progress in the process. They advised her that the Team Leader should have told her at the time of application. She asserts that her manager did not know of this rule, it is not written down. This was an unreasonable, unjustified and discriminatory sanction of which she was not informed has been unilaterally imposed on her. There is no basis in law, statute or collective agreement for the imposition of this additional sanction. When her solicitor wrote to the Respondent they replied that they reserve the right to set qualifying criteria for the recruitment and promotion of staff. It is her position that she has a right to know this.
It is her position that she was the subject of unfair and unreasonable processes and procedures. They cited Mackin J in Dellway Investments & Others v NAMA & Others  IESC 14, also Haughey v Moriarty  3 I.R. 1 and O’Callaghan v Mahon  IESC 9.
The Complainant suffered from a disability as defined under statute i.e. depression. This disability was diagnosed and certified by her doctor and brought to the Respondent’s attention and confirmed by the Respondent’s medical adviser. She was discriminated on grounds of her disability. She is seeking that her complaint is upheld and she has sought compensation.
Summary of Respondent’s Case:
The Respondent has an extremely generous sick leave policy in place which supports all staff that are certified as unfit for work. As part of this policy the Respondent reserves the right to appropriately manage absence levels and where employees have multiple occurrences of absence they may be investigated. This is provided for in a collective agreement which is a registered agreement. This provides that in certain situations disciplinary action may ensue, i.e. more than 3 incidents (occasions) in a rolling 12 moths / more than 12 days absence from work in a rolling 12 months.
The Complainant had been absent on 5 occasions totalling 42 days absence. She was called to an investigation meeting on 1st February 2016. She was represented by her union official. No exceptional circumstances surrounding the reason for her absence were identified. She had 5 different reasons for her absence; depression was stated on only one certificate. The matter was progressed to a disciplinary hearing. The disciplinary hearing was held on 25th February 2016 and she as represented by her union official. The outcome was that she was issued with a Verbal Warning to last on her file for 3 months. She did not appeal the sanction and it was on her file from 11th March to 10th June 2016.
In April 2016 the Respondent advertised a number of vacancies for Seasonal Senior Cabin Crew. The Staff Vacancy Notice set out the essential requirements for successful applicants which included under essential criteria – excellent punctuality and attendance record. The Complainant applied for this post. Out of 137 applications 6 were screened out before interview stage as they all had current disciplinary sanctions on their personnel file. This is a standard practice with the company, long established by custom and practice. This is provided for in the Sick Leave Policy which is on the intranet and in the Staff Manual. It states, “Staff who apply for promotion may be screened out because of their attendance record”. She had a live disciplinary sanction in place at the time of the recruitment process and this rendered her ineligible for promotion as she was screened out. The circumstances of the disciplinary sanction and the reasons for same were not made known to the recruiters in each case nor were they relevant as the fact of the sanction was the defining criterion, not the underlying circumstances. Had the sanction been for conduct, performance or punctuality this would equally have resulted in her application being screened out automatically as they were live sanctions. The essential criteria specified ‘an excellent attendance record’.
To ground a complaint under the Equality Acts the Complainant must demonstrate that she suffers from a disability and must establish a ‘prima facie’ case of less favourable treatment vis a vis an identified comparator. She did not advise the Respondent that she suffered from a underlying medical condition that could be regarded as a disability under the Equality Acts. It is accepted that 1 of the 5 medical certificates refers to depression. An Employee Assistance Programme is available to all staff. The Respondent reserves the right to manage attendance and to investigate multiple occurrences of absence in line with the collective agreement. Her application for seasonal promotion was not successful, not because of any disability that she may have but because of the fact that she had a live disciplinary sanction on file. The reason for the sanction was not made known to the recruitment team. So she could not be singled out for or disadvantaged because of any disability. 5 other employees were screened out because they had disciplinary sanctions on their files.
An appropriate comparator would have been a person with a disciplinary record such as a verbal warning who does not have a disability. They would have been screened out because they had a sanction on file. Therefore no less favourable treatment could have taken place. Were she to apply for promotion she would be eligible because the sanction has been lifted. Recently she was granted In Week Special Leave which is a favourable part time working arrangement.
Fair procedure and natural justice were adhered to throughput the investigation and disciplinary process. She was issued with the lowest possible sanction for unsatisfactory attendance. She did not appeal that sanction. The recruitment team were unaware of the reasons for the disciplinary sanctions. There is no evidence to link the exclusion from the recruitment process to a disability. The Respondent views the setting of criteria for selection for a role as being a prudent safeguard in finding the best person for any given role. Its custom and practice in regard to internal recruitment is well established and is applied across the company in a fair and transparent manner.
This complaint is rejected.
Findings and Conclusions:
I note that the basic facts concerning the Complainant’s absence, investigation and disciplinary sanction were not in dispute.
I note that she was represented by her union official at the investigation and disciplinary investigation into her absence record.
I note that she had an absence level of 5 occasions totalling 42 days.
I note that 1 absence was certified as depression.
I note that the absence relating to depression made up of 75 % of the total absence.
I note neither she nor her union official made any case for depression related absence and she did not appeal the sanction.
I note that she was excluded from the recruitment process because she had a disciplinary sanction.
I note the conflict of evidence of both parties. It is the Complainant’s position that she was treated less favourably and in a discriminatory manner because of her disability. While the Respondent asserts that the exclusion was solely because of the sanction on her file.
I note the Respondent’s position that she had not affirmed that she had a underlying medical condition that amounted to a disability.
I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
Therefore in order to ground a complaint of discrimination the Complainant has to establish a prima facie case of discrimination on grounds of disability.
She has to have a comparator who has no disability and has a disciplinary sanction that’s not excluded.
I note that she has not established such a comparator.
I note that a total of 6 applicants were excluded from the process because they had disciplinary sanctions.
I note that the circumstances of the disciplinary sanctions and the reasons for these sanctions were not made known to the recruiters.
I note the conflict of evidence regarding the criterion for having no sanction on the file in order to make an application.
I note that the Respondent asserts that it is widely known and used throughout the company, whereas the Complainant asserts that she was unaware and so was her Team Manager.
I note that the vacancy notice stated under “Essential Criteria “Excellent punctuality and attendance record to date”.
I note that the Respondent subsequent to the hearing forwarded a copy of the Sick Leave Policy which states, “Staff who apply for promotion may be screened out because of their attendance record”. This policy is on the intranet and in the Staff Manual.
I find that that statement is crystal clear; in order to apply, applicants must have an excellent attendance record to date and may be screened out because of their attendance recoprd..
I find that the Complainant cannot but acknowledge that she did not have an excellent attendance record when she had a sanction on her file.
Therefore I find that she did not meet the essential criteria set by the Respondent.
If she had an issue with the sanction especially if she believed that her alleged disability should be considered then she had the right to appeal that sanction at the time of its issue.
I note that she did not appeal that sanction despite being represented by a professional trade union official who she also alleges advised her not to appeal the sanction.
On the balance of probability I must conclude that at the time of the issuance of the disciplinary sanction she did not believe that she had an underlying medical condition that would preclude her from being issued with a disciplinary sanction, otherwise she would have appealed it.
I find that the Complainant has failed to establish that the reason why she was excluded from the selection process was because of her alleged disability.
I find that she was excluded along with 5 others was because she had a disciplinary sanction on her file irrespective of the reason for that sanction.
I find that she has not established a prima facie case of discrimination on grounds of disability.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the above stated reasons I have decided that this complaint should fail.
2) Industrial Relations Acts CA 5190-002
Preliminary Point Grievance raised and exhausted at local level?
The Complainant stated that she raised the issue of appeal of the exclusion from the promotional competition. The Respondent did not respond so she had no option but to refer the matter to the Workplace Relations Commission.
They stated that no formal grievance has been raised and it has not been exhausted at local level.
Decision on preliminary point
I note that the Complainant was represented by her trade union at this point in time.
I note that she received a contract of employment which contained a grievance procedure.
I find that she did not raise a formal grievance on this matter.
I note the Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.
Therefore I have decided that I may not insert myself into this matter.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that I do not have the right to insert myself in this matter as it has not been formally raised and exhausted at local level.
Dated: 14th June 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Discrimination on grounds of disability and promotional opportunities, grievance on promotional opportunity