Complainant

Respondent

Parties

Alan  O'Neill

Aer Lingus Limited

Representatives

Jason Murray B.L. instructed by Jennifer McCarthy Daniel Spring & Co. Solicitors

Tom Mallon B.L. instructed by Katie Rooney Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067029-001

30/10/2024

The Complainant made a claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended). 

The Complainant was employed by the Respondent as a Senior Cabin Crew Member from the 22nd of July 2013 to his dismissal on grounds of gross misconduct with effect from the 16th of October 2024.  Dismissal was not in dispute.

Before the commencement of evidence, the parties advised that certain aspects of the evidence would concern the disclosure by the Complainant of highly sensitive information of a personal nature in the course of the disciplinary procedures which led to his dismissal. The parties were agreed that there was no need to anonymise the matter or to conduct a private hearing but that it would be important that the detail of the personal information would not the subject of evidence in public or be recorded in detail in this decision. After a discussion it was agreed that the personal information and its disclosure would be referred to in evidence and recorded in this decision as “the Personal Issue”. This measure was agreed and adopted by all parties myself included however for the avoidance of doubt the methodology used is analogous to the conduct of the hearing, in part, otherwise than in public and as such if a formal order had been made it would have been authorised by Section 41 (13) and (14) of the Workplace Relations Act 2015 (as amended) and Section 8 (6) of the Unfair Dismissals Act 1977 (as amended).

The Complainant initiated the claim by way of Workplace Relations Complainant form received by the WRC on the 30th of October 2024. The Complainant form contained the following submission:

Mr. Alan O'Neill has worked in Aer Lingus for over eleven years without any issue while in employment. On the 9th April 2024 Mr. O'Neill was operating as the Senior Cabin Crew member on board a flight. On the flight while the flight was boarding Mr O'Neill had a brief interaction with a customer. During a safety critical point on the flight, where every customer was instructed to remain in their seats with their fastened seat belts on, one particular customer continually tried to get out of their seat to use the toilet. Mr. O'Neill alerted the customer to the fact that the flight was re-fuelling and it was not safe at that moment to get up. The passenger continued to try and get up, however, Mr O'Neill went down to the customer and re-affirmed the position due to safety requirements. During the flight another passenger took pictures of this interaction and subsequently made a complaint to the company. After the incident on the 9th April, Mr O'Neill had immediately notified his manager of the interaction. However, Mr O'Neill continued to fly for a month after the incident before Aer Lingus suspended him pending an investigation. The company investigated the matter and as a result a disciplinary hearing took place in respect to a complaint from a separate passenger. During the process, the employer refused to provide the name of the complainant to Fórsa as part of the process, which Fórsa believe is contrary to the principles of natural justice and fair procedure. However, within the investigation it became apparent that the passenger who Mr O'Neill had interacted with on the flight around safety protocol was banned from flying with Aer Lingus. In light of the investigation and disciplinary, the disciplinary hearing committee determined that gross misconduct had occurred and a recommendation to dismiss was made. Fórsa appealed the decision on 19 different grounds, which varied from "severity of the sanction", "no due regard or consideration applied to mitigating circumstances applied", and "penalisation on the ground of trade union activity" amongst others. Despite an appeal hearing taking place the decision was upheld. The decision to terminate was exceptionally severe. There seems to be no explicit justification for this outside of "breach of trust", Mr. O'Neill was applying the safety procedures at the time requesting the customer to remain seated. However, Mr O'Neill had serious mitigating reasons as to justify what happened and demonstrated improvement measures he was applying to give a commitment to the company that this would never happen again. However, this seemed to have no impact on the outcome. On that basis, we are requesting adjudication on this matter.

Prior to the commencement of the adjudication a submission was delivered by the Complainant’s trade union which made the following points (in summary)

1 INTRODUCTION

1.1 This is a submission being made on behalf of Mr. Alan O’Neill, who was employed by Aer Lingus as of July 2013 as Cabin Crew. Mr. O’Neill was dismissed by Aer Lingus, following a process, with his final date of employment being the 16th October 2024.

1.2 There is no dispute, between the parties, that Mr. O’Neill holds the reckonable service for a claim under the Unfair Dismissals Act to be brought to the Workplace Relations Commission. Nor is there a dispute as to Mr. O’Neill’s status as an employee of Aer Lingus.

1.3 Mr. O’Neill was employed as a Senior Cabin Crew Member, at the time he was dismissed by the company. A final outcome letter issued on the 29th August dismissing Mr. O’Neill from his place of work. This was appealed and on the 16th October the appeal upheld the decision to dismiss Mr. O’Neill.

1.4 It is Fórsa’s contention that the process was procedurally flawed along with the decision to dismiss being a disproportionate sanction, comparatively to other decisions taken by the employer around misconduct in the workplace. It is also Fórsa’s contention that no consideration was applied to any other plausible outcome, ahead of dismissal.

1.5 Mr. O’Neill operated, in his role as Cabin Crew, operating both long haul and short haul duties. He was based in Dublin and his basic salary equated to approximately €1,495.31 per fortnight, as of October 2024. Mr. O’Neill was out of employment until the 27th January 2025, as a consequence of his dismissal. He gained meaningful employment and commenced in his role, leaving Mr. O’Neill approximately 16 weeks out of employment.

2 DETAIL OF DISPUTE

2.1 Mr. Alan O’Neill commenced employment with Aer Lingus in July 2013. He worked, without incident, during his time in Aer Lingus, until the event which resulted in his dismissal.

2.2 Mr. O’Neill, while in employment, was an elected trade union representative, having held elected officer roles on the IMPACT cabin crew branch (now Fórsa trade union). He held this role from 2014 to 2020 and was a union representative attending Workplace Relation Commission and Labour Court hearings, whilst also attending union management negotiations.

2.3 Mr. O’Neill, had never been called into a workplace investigation nor a disciplinary meeting, he had never had a meeting in relation to his attendance and he was promoted within the organisation, whilst having won employee recognition awards. This is as well as receiving customer compliments which customers wrote into Aer Lingus to single out Mr. O’Neill’s performance and attention on flights.

2.4 On the 09th April 2024, Mr O’Neill operated a flight from Marseille to Dublin as the Senior Cabin Crew Member on board that day. The duty had been uneventful until a passenger had boarded the flight from Marseille to Dublin, entered the flight and instantly engaged in a hostile manner with Mr. O’Neill and his colleague, cursing and using aggressive language. Mr. O’Neill addressed the language used by the passenger, in line with his training. Later and throughout the flight Mr. O’Neill had to deal with safety related concerns with the same passenger on three further occasions. This involved raising all safety related concerns with the Captain on board, which ultimately resulted in the Captain determining the passenger should be issued a “Dip1” form, which is effectively a warning to a passenger as to their conduct on-board.

2.5 Outside the various interaction(s) with this passenger the flight operated, as usual. Mr. O’Neill completed a safety report immediately after the flight, highlighting the issues with the passenger and the concerns that occurred in relation to flight safety and the safety of other passengers. The report detailed;

a) Hostile and expletive language used by the passenger while boarding

b) The same passenger seeking to stand on-board while the plane was fuelling

c) The same passenger seeking to stand immediately after take-off while the plane was climbing altitude and while the fasten seat belt sign was on. This resulted in Mr. O’Neill having to instruct the passenger to remain in his seat both on the intercom and by leaving his own seat, due to the seriousness of the safety breach.

d) The same passenger looking to stand, on reaching cruising altitude, but when the fasten seat belt sign remained on and an advisory issued over the intercom.

2.6 Mr. O’Neill documented the safety issues that occurred on-board in relation to the one passenger. No other passenger nor their conduct was referred to in the report, which demonstrated the isolated actions by this passenger. During the flight Mr. O’Neill referred to the actions the passenger took noting the safety concerns, in addition to his consultation with the Captain as to the issues that occurred. The Captain eventually made the determination to issue the passenger with a “Dip1” and instructed Mr. O’Neill, as the Senior, to carry out the issuing of this action.

2.7 The 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft, otherwise known as “The Tokyo Convention”, is an international treaty that grants the aircraft Commander the authority to take necessary actions to prevent or stop offenses on board and to maintain good order and discipline. Article 6 refers to;

“The aircraft commander may, when he has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act contemplated in Article 1, paragraph 1, impose upon such person reasonable measures including restraint which are necessary:

(a) to protect the safety of the aircraft, or of persons or property therein; or

(b) to maintain good order and discipline on board; or

(c) to enable him to deliver such person to competent authorities or to disembark him in accordance with the provisions of this Chapter.”

2.8 The aircraft commander may require or authorize the assistance of other crew members and may request or authorize, but not require, the assistance of passengers to restrain any person whom he is entitled to restrain. Any crew member or passenger may also take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein.”

2.9 Given the legislative provision under Article 6 of ‘The Tokyo Convention”, Mr. O’Neill was, under the instruction of the Commander of the aircraft on the day, directed to issue a “Dip1” to the passenger due to the reasonable concern posed by the passenger, and as authorised and protected under the Convention. Mr. O’Neill carried out the instruction of the Commander while dispensing his duties.

2.10 In addition to completing a report after the flight, in line with protocol, Mr. O’Neill came into further contact with the passenger after the flight. Mr. O’Neill was concerned that the passenger was aware as to where the cabin crew car park access was. Given both the interaction with the passenger on board and given the interaction with the passenger after the flight, on the same date, Mr. O’Neill contacted his line manager to communicate his concerns around the interaction with the passenger, also detailing the issues that presented on board. Mr. O’Neill’s manager noted his concerns but made no reference to any concern about the flight Mr. O’Neill had operated.

2.11 Given Mr. O’Neill’s concern with the customer after the flight, he also reported this to the Gardaí, filing a report in relation to the interaction.

2.12 Mr. O’Neill continued to operate his duties as normal, after the flight on the 9th April. He operated multiple duties on both long and short haul flights. On the 8th May Mr. O’Neill operated a duty and at the end of the duty Mr. Brian Mulligan, Operations Crew Manager, asked to speak to him. He informed the Complainant that he was being suspended from work, following an alleged incident that occurred on board a flight on the 9th April and that he would receive a letter confirming this.

2.13 On the 10th May, Mr. O’Neill received a letter from Mr. Mulligan informing him that he was being suspended from work. In the letter it advised

“Based on the nature of your role, within a safety critical environment, we believe it was necessary to take the decision to stand you down from your duties and suspend you from work on full pay at this time. The decision to stand you down was taken to facilitate an investigation of this matter, to prevent any repetition of events, to protect the business and reputation of Aer Lingus and to create the opportunity for all parties to work through the issues in a timely manner. This suspension is a precautionary measure given the seriousness of the alleged behaviour.”

2.14 This was despite Mr. O’Neill having operated a multitude of flights, since the incident.

2.15 The letter was an advisory letter placing Mr. O’Neill on notice of his suspension. On the 17th May, Mr. O’Neill received a letter from Ms. Sinéad Fegan, Operations Crew Manager, with a copy of the investigation letter in addition to a customer complaint. At this time, the investigation letter cited the sole grounds being investigated. The letter clarified that it was alleged;

“that you behaved in an unprofessional and aggressive manner towards a customer of Aer Lingus whist you were operating as Senior Cabin Crew on board flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers and business reputation.”

2.16 The letter of the 17th May cited one matter being investigated and in light of a breach of the Disciplinary Policy. However, on the 12th June the Complainant received a second letter from the Respondent. This letter was in relation to the same matter the letter of the 17th May referred to but it significantly expanded the scope of the investigation meeting. Three additional grounds were included by Aer Lingus and Mr. O’Neill was invited into an investigation on the 14th June.

2.17 In the letter of the 12th June it provided three witness statements from the cabin crew, in addition to a witness statement from the Captain. The interview notes with the Captain are noticeably brief. The company posed no question as to whether the Commander was concerned as to the safety of the aircraft and which ultimately warranted in the customer being issued with a warning on board. Instead, the company asked two questions “if [the Captain] hear[d] what the customer stated to the senior” and if he “hear[d] what the senior Alan O’Neill stated to the customer”. There was no focus on safety related concerns on board, despite the company being notified through a safety report in addition to line management being informed of the concerns immediately after the flight.

2.18 The witness report of Ms. Claire Durkan who operated as the No.2 on board, and who operated at the top of the plane with Mr. O’Neill, confirmed in her statement a number of the safety concerns that were outlined in the Complainant’s safety report. Much of the witness statement also contradicted the passenger complaint with the witness complaint presenting a different perspective to that of the passenger complaint. The report from Ms. Durkan, by and large, demonstrates the process and procedure that the Senior Cabin Crew Member followed.

2.19 A report from Ms. Amy Lockhart identified the fact the plane was refuelling, in addition to referring to the passenger as “abusive” and how the issuing of the verbal warning was “straightforward… Alan just read out the actual verbal warning sheet.” Within the interview management proceeded to press Ms. Lockhart as to her perception, behaviours, body language and drawing out, after the employee had concluded her statement on;

“Alans behaviour or body language (line 35)”

“Alan’s body language towards the passenger (line 37)”

“If it was “appropriate or not (line 39)”

“[if] body language was appropriate or inappropriate in terms of the behaviours expected of an SCCM towards the passenger (line 41)”

“his tone, was it appropriate (line 43)”

2.20 In anticipation of the investigation meeting taking place Fórsa sought confirmation as to who submitted the passenger complaint in order to rule out any potential conflict of interest. Aer Lingus responded outlining they will not be providing a copy of the detail of the passenger complaint. Fórsa proceeded to outline the reason for seeking confirmation of the name, in that potentially the customer who lodged the complaint could have been an Aer Lingus employee who may have been travelling on staff travel on the day. If it is the case that the complainant is either an Aer Lingus employee or former employee then it is only appropriate that Alan is informed of the name of the person. Despite requesting this, detail of where the complaint came from this was never provided to Fórsa or Mr. O’Neill.

2.21 The investigation meeting took place on the 25th June, at the meeting Mr. O’Neill provided a clear, demonstratable basis as to his thinking and perception on the day. Mr. O’Neill identified mitigating factors and how he has since engaged with a councillor therapist to ensure it would not happen again. At the investigation meeting a series of questions were asked as to if he “thought he had become enraged”. Aer Lingus referred to a video that the customer had, which was never provided and presented as evidence throughout the investigation process. The Complainant referred to following the chain of command, as instructed by the Commander on the day.

2.22 The “Chain of Command” is an aviation regulation, which ensures safety of the cabin and of passengers and where, again, delegated authority comes from the Commander. This is provided for under S.I 298/2024, part 77 (a) (Appendix 6) where the Chain of Command is referred to under section 7 “Investigation and Prevention of Accidents and Incidents in Civil Aviation”.

2.23 At the investigation meeting there were no questions around the safety concerns. There were zero questions on the requests to follow safety obligations which are provided through legislation and Aer Lingus policies. Instead, it focused on Mr. O’Neill’s “behaviour”, “the energy created by [Mr. O’Neill]”, in addition to unsubstantiated allegations.

2.24 Within the investigation, management put forward an unsubstantiated allegation that Mr. O’Neill had consumed alcohol. There was zero evidence for this, none of the witness statements make any reference to this. Instead management put forward many allegations of conjecture which had no basis and no evidence for such. Not only was this inappropriate but it demonstrates a bias.

2.25 On Thursday, 25th July Mr. O’Neill received the outcome of the investigation, advising him the matter was proceeding to a disciplinary, due to take place on Tuesday, 30th July. Mr. O’Neill advised he could not secure representation in time for the meeting and if the meeting could be rescheduled until the 12th August, due to annual leave of his representative. Aer Lingus refused this request and insisted on the meeting proceeding. Mr. O’Neill confirmed his representative would not be available to the 12th, however, Aer Lingus continued to insist it proceed. On the 1st August the disciplinary took place. The meeting had to be paused, due to Mr. O’Neill becoming upset within the meeting. The disciplinary ultimately had to be adjourned due to the clear distressed and upset nature of Mr. O’Neill. A reconvened hearing took place on the 7th August. Within both hearings management did not question the safety protocols, the concerns on board or the fact a passenger disregarded safety protocol on three separate occasions, which resulted in the Commander taking a particular course of action.

2.26 On the 29th August, a letter issued to Mr. O’Neill confirming the decision taken by the disciplinary committee was to dismiss him.

2.27 On the 30th August, a letter of appeal was lodged based on the below, extensive grounds;

• No due regard or consideration has been applied to the mitigating circumstances outlined at both the investigation and disciplinary hearing

• Mr O’Neill’s record and long standing career was not given due consideration, especially in the context to the mitigation of circumstances to the incident investigated

• Mr O’Neill continued to fly for one month after the incident. If the incident was so serious and grievous Aer Lingus would have withdrawn Mr O’Neill from duties with immediate effect. The severity of the sanction is excessive.

• The customer complaint was not made by the affected party who Mr O’Neill interacted with on the flight. On the basis that the individual who the matter revolves around did not complain, this also mitigates the incident which the decision maker has not considered.

• Mr O’Neill has been penalised for following Aer Lingus policy on safety protocol

• The disciplinary committee have introduced new content, detail and grounds that have only been presented in the final outcome letter

• Concerns about ‘conduct that is prejudicial to safety’ was never identified in any earlier process and as such Aer Lingus cannot use a ground in the disciplinary outcome which was never identified, highlighted or investigated in earlier processes

• The outcome letter cites that Mr O’Neill has breached “policies and procedures of Aer Lingus which amounts to gross misconduct”. However, Aer Lingus never furnished Mr O’Neill with any copy of a policy which Aer Lingus are now referring to. This correlates with a breach of natural justice and fair procedure. By failing to provide a copy of the policy this has resulted in the employer failing to demonstrate the grave and serious nature of the matter being investigated

• The employer have placed a very heavy weighting on the issuing of the Dip1 form to qualify their decision. No similar action has been taken against the Captain who has final sign off and decision making authority on the issuing of the Dip-1 form. This demonstrates an imbalance in how Aer Lingus have engaged with Mr. O’Neill

• Aer Lingus refused to provide all relevant detail requested within the process. Fórsa requested clarification on the identify of the complainant, however, Aer Lingus have refused to provide this. In effect the employer have withheld information and evidence which could be pertinent within this process

• Aer Lingus refused to allow a postponement of the meeting to allow Mr O’Neill representation of his choosing and which is a legal right. This demonstrates a level of unreasonable and severity directed towards Mr O’Neill

• Mr O’Neill has been a trade union activist within Aer Lingus, he is being penalised punitively for his trade union membership and engagement as there is a clear deviation from normal industrial processes in this specific case. This is another legislative breach against Mr O’Neill.

• Incorrect and wrong information has been included by Aer Lingus on the final outcome letter and which contradicts correspondence from Aer Lingus dating the 10th May

• There is a GDPR issue around the use and sharing of photos and data which was not consented to by Mr O’Neill and taken without his knowledge

• Mr O’Neill also requested CCTV footage to be brought into evidence which would assist his case in providing proof to his statements. However, Aer Lingus reverted outlining this was unavailable and as such, there should have been a mitigation in the sanction or consideration for such given the employer failed to obtain footage that would assist in providing more detail and to de-escalate the situation

• Aer Lingus banned the passenger who Mr O’Neill interacted with on the day, and of which this incident revolves around. Aer Lingus initially deemed the incident in such a serious light that it was required that the passenger would be banned from future flights. This demonstrates that Aer Lingus affirmed Mr O’Neill’s actions, and again, the decision for dismissal is acting in total contradiction to earlier Aer Lingus decisions

• At the disciplinary meeting, management referred to “getting Alan back to work” and questioned him about which managers he would like to work with. The decision arrived at in the outcome letter is at total odds with the engagement at the disciplinary hearing

• At the disciplinary hearing Fórsa formally requested the opportunity to question those interviewed in an earlier process who Aer Lingus have relied on their statements to arrive at an outcome. This access was refused outright and no consideration was applied to this request. This is not in line with correct procedure, it demonstrates appropriate avenues were actively shut down by the employer to establish more detail and fact that would support Mr O’Neill’s case.

If this matter is appealed to the Workplace Relations Commission that opportunity to interview and question witnesses relied upon will exist and we will be seeking to establish more detail at that point. The fact this option was refused has limited the ability to examine detail that would assist in providing more clarity in Mr O’Neill’s case and as such Aer Lingus have acted on impartial information, knowingly to arrive at a decision.

• The outcome letter refers to Mr O’Neill’s exemplary record in the company. The decision and threshold of dismissal is overly harsh and extremely punitive for one occasion and one incident of performance issues in Mr O’Neill’s 11 years employed in the company. Again, this demonstrates a contradiction in the decision arrived at in the formal outcome letter

2.28 An appeal hearing took place on the 18th September with Ms. Marie Walsh the appointed decision maker in relation to the appeal. Mr. O’Neill was familiar with Ms. Walsh as she was involved in many negotiations on the management side, dealing with Mr. O’Neill in his capacity as a union representative. On the 16th October the outcome issued affirming that the decision of the disciplinary meeting was being upheld.

2.29 At that point the case was referred into the Workplace Relations Commission. Since the outcome letter on the 16th October, Mr. O’Neill had a large proportion, in his final paycheque, withheld. Despite Mr. O’Neill querying this, no resolution was produced. Fórsa made formal representations on his behalf with the Director of Crew Operations on the 1st November questioning why his final paycheque of €6,700.74 was deducted leaving Mr. O’Neill with a final paycheque of €0.00. Management reverted clarifying that half of his wages were withheld until a “leaver pack is returned”. Mr. O’Neill was never informed that a leaver pack should be completed nor that his wages would be withheld in lieu of this. This was a further punitive measure that occurred against the Complainant. Fórsa had to follow up, again, on the 12th November seeking confirmation as to when Mr. O’Neill would be paid the voucher awarded to all cabin crew, as of the 1st October which was also withheld from being paid to Mr. O’Neill.

3 UNION ARGUMENTS

3.1 Mr. O’Neill in his role as a Senior Cabin Crew Member carried out his primary function and role, while dispensing his duties. He addressed safety concerns from a passenger, and which was in line with the safety regulations in Aer Lingus. The safety concerns, as set out in the report completed by Mr. O’Neill after the flight, are provided for as set out in Aer Lingus regulations, as follows;

• Hostile and expletive language used by the passenger while boarding – provided for under the Operations Manual, Part A

• Passenger seeking to stand on-board while the plane was fuelling – provided for under the Operations Manual, Part A

• Passenger(s) seeking to stand immediately after take-off while the plane was climbing altitude and while the fasten seat belt sign was on

• Passenger looking to stand, on reaching cruising altitude, but when the fasten seat belt sign remained on

3.2 Mr. O’Neill, followed the requirements of him, under legislation around the chain of command. He also advised line management, in addition to completing a post flight incident report. Mr. O’Neill proceeded to operate for a month prior to being informed of his suspension.

3.3 Aer Lingus banned the passenger from the particular flight flying with Aer Lingus given the disruption that occurred on the flight. Aer Lingus hold robust requirements to decide to ban a passenger from flying and this case clearly met the threshold at the time.

3.4 Following a social media post which criticized Aer Lingus banning a passenger, a concerted change in approach commenced from Aer Lingus. It is plausible that the social media post created undue influence and which saw a change of approach from Aer Lingus. This can be evidenced in the first notice letter informing the Complainant of the investigation from the 17th May in comparison to the letter of the 12th June.

3.5 In all other cases where a decision has been reached by the Company to suspend a member, pending a process the normal process would be immediately after an incident or allegation the member would be stood down, followed by being issued with a letter informing them of their suspension, following an investigation meeting. There is no other example in the past two years in Aer Lingus where an incident occurred the Company took no action for over a month and where the employee operated multiple shifts, eventually being stood down. Mr. O’Neill’s case seems to be an outlier in how Aer Lingus handled this case.

3.6 It is outside of normal procedure for Aer Lingus to furnish two separate invite letters to an investigation meeting, adding three further grounds of possible policy breaches. Again, Mr. O’Neill’s case is an anomaly in how Aer Lingus engaged with a Fórsa member, where two separate letters were issued adding new allegations as they progressed. The only identifiable difference in the cases that Fórsa have made representations for members is Mr. O’Neill being a former trade union representative.

3.7 Investigation meetings, in particular witness meetings, only have two members of management participating and involved. This can be evidenced in where examples provide for an investigator and HR notetaker. Mr. O’Neill’s case is again an outlier as to why the process changed, increasing the numbers of management at the meeting to three.

3.8 It can be argued that Aer Lingus engaged in a phishing expedition at the investigation stage. There is a clear divergence in the interview with the Captain which saw Aer Lingus ask two questions and only as to what he heard. This is in contradiction to the interviews with each of the cabin crew members where the investigation meeting procced to seek information relating to ‘body language’ in addition to asking less senior cabin crew their opinions on expectations of the fulfilling of duties of a Senior. Aviation is a heavily regulated industry, opinion on behaviours and body language should not inhibit or be used as a basis to contravene safety regulations, which are provided through Irish and European statute from being followed.

3.9 Witness meetings with cabin crew focused entirely on body language, behaviours, tone, duties and responsibilities of a Senior Cabin Crew Member, asking the personal agreement of crew on the actions of the Senior on board. At no point did Aer Lingus ask the Captain, in the witness interview, as to his decision to issue a Dip1 and what the conversation related to. Neither did Aer Lingus interview the First Officer, who would have been able to confirm the safety focused discussion and position established in relation to the passenger. This is a fundamental failure within the process. All witness interviews refer to safety protocol but Aer Lingus failed in their responsibility to establish the fullness of the facts in this case.

3.10 While each cabin crew refer to the approach in issuing the Dip1 to the passenger, the carrying out of this instruction is adjudicated and delegated under the function of the Commander. If there was a question, from Aer Lingus, as to how the warning was issued it was only appropriate for this to be posed to the Commander who executed the decision, which Aer Lingus failed to do. Under the Tokyo Convention the Commander is the sole actor who can authorise the issuing of a Dip1 and the carrying out of this instruction is directed by the Commander. Mr. O’Neill simply carried out a lawful request by the Commander on the day. He complied with the issuing of an instruction on board, in line with his obligations as a cabin crew member but in particular as a Senior. He has ultimately lost his job due to following the Chain of Command. There has been no threshold established by Aer Lingus on the function or need of the Dip1.

3.11 Aer Lingus have failed to establish if the safety regulations and were required. They have failed to make any determination on this which is the genesis as to why Mr. O’Neill was dismissed. If safety regulations were required, it could be argued this would be a mitigation against the sanction to dismiss and would have possibly reduced in a lesser sanction.

3.12 There has been no transparency with the process itself. It is still not apparent who or where the complaint issued from. The request was made by Fórsa for the source the complaint, which was denied by the Respondent. This is a breach of the Code of Practice on Grievance and Disciplinary Procedure (S.I. No. 146 of 2000). Under section 7, the Code states;

“These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.”

3.13 The Respondent failed on two areas under section 7, namely that the source of the complaint was never provided and refused outright, as per Aer Lingus communication on the 17th and 18th June respectively.

3.14 Fórsa, as part of the disciplinary process sought to question witnesses, of which the Respondent relied on witness statements to justify their termination of the Complainant. This request, put to the Company at the disciplinary hearing meeting by Fórsa and reiterated in correspondence to Aer Lingus in point 18 of the Appeal letter to the Company. Despite our formal request for this, this was not facilitated. This is a breach of part 7 of the Code which specifically allows for an employee to “be allowed to confront or question witnesses”. There is a fundamental difference from Aer Lingus’ assertion to “have had every opportunity to review and challenge any witness evidence”. The Code allows for an employee to confront not to review and challenge which is a total dilution of the Code. Furthermore, the Respondent did not ask for our challenge of the witness investigations, nor did they allow for a forum for their testimony to be subject to a response. The witness statements were ultimately used to dismiss an employee, the fact that this provision was denied is a fundamental failure procedurally but it also further sees the employer acting outside of the provisions within the Code.

3.15 Mr. O’Neill was invited into a disciplinary hearing, of which he sought for his trade union representative to be facilitated with attending and making representation on his behalf at the disciplinary hearing. Despite Mr. O’Neill seeking a deferral to the 12th August Aer Lingus refused this request and insisted it was to proceed. Mr. O’Neill advised the company that his union representative was on annual leave and the first available date that could be offered was the 12th August, which Aer Lingus refused to facilitated.

3.16 It is Fórsa’s contention that when Aer Lingus became aware that the responsible trade union representative representing cabin crew in Fórsa was on leave, they insisted in proceeding with the hearing in full knowledge of this. This resulted in Mr. O’Neill being placed at an immediate disadvantage in having to secure both new representation for his hearing, in addition to having to secure representation from an Official who held no experience in aviation or in its regulations. It was particularly unreasonable for Aer Lingus to refuse the postponement given the initial hearing had to be postponed and the resumption of the meeting occurred on the 7th August, the difference of two working days of the originally requested date. It was also unreasonable for Aer Lingus to take this position given there were substantive gaps in between Aer Lingus engaging between stages. There is no evidence from Aer Lingus to qualify the decision they have made. Given this is a case under the Unfair Dismissals Act, 1977 the burden of responsibility falls on Aer Lingus to demonstrate their actions were fair.

3.17 Where very serious incidents occur on board Aer Lingus will have an OCM meet the crew after the flight as part of a de-brief to deal with the impact of the event. This did not occur after the flight on the 9th April, which again demonstrates that Aer Lingus did not view the incident as a serious incident at the time, as they did not action their protocol as if it was a serious matter which ultimately warranted an employee to be dismissed.

3.18 The Aer Lingus “PAC”, otherwise known as the Operations Manual Part A, refers to procedures in flight, as carried out under the authority of the Commander through the Tokyo Convention. It cites “The SCCM, as delegated by the Commander, will be responsible for the management of these procedures in the cabin.” It also proceeds to cite the process, providing a flow chart, of what is required where there is a disruptive passenger. It identifies that a Dip1 form should be complete, in addition to a Captain’s Special Report and the Cabin Crew Flight Report, all of which should be countersigned by the Commander. Not one question was posed by Aer Lingus on the provisions followed by Mr. O’Neill on the flight.

4 The Law and Precedent

4.1 Section 7 of the Unfair Dismissal Act allows and provides for re-dress for the employee where the employee was determined to be unfairly dismissed. Section 6 (3) of the Act deems a dismissal to be unfair where;

“(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal”.

Section 2 (a) “the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage.”

4.2 It is Fórsa’s contention that Mr. O’Neill’s trade union activity acted in part for the Respondent in coming to the decision to dismiss him. Mr. O’Neill held much more exposure with the company than his average comparator who was not a trade union representative. He would have attended meetings with senior members of Aer Lingus, including with Ms. Marie Walsh who was the decision maker from the Appeal Hearing. Meetings would have dealt within a wide range of industrial matters, including cost increasing claims. Mr. O’Neill’s name and standing within the company could have created a conscious bias with the company, especially given that the decision to dismiss for following safety regulations was unduly harsh.

4.3 In the case of ADJ-00020741  the Respondent, in a case where the employee was dismissed the Respondent put forward the employee had “destroyed the basis of trust and confidence essential to continuation of employment”. This is a similar claim provided by Aer Lingus in the disciplinary outcome. The Adjudicator in this case found that;

“I note that the Respondent carried out an investigation, witness statements were taken and the allegations were proven.

I note that the Complainant accepted that he had done what he was accused of.

I note that the Respondent then took the decision to dismiss.

I find the sanction of dismissal to be wholly disproportionate.

I note that the Complainant had a clean employment record.

I find no basis for the decision to dismiss.

I find that the punishment does not fit the crime.

I find the decision to dismiss was unfair on substantive grounds.”

4.4 In similar circumstances to the above case, Mr. O’Neill identified wrong doing in his actions and provided mitigating factors to the sequence of events. He also held a clean employment record in the company and in fact had glowing customer reports around his capabilities. The employer made no effort to look at alternative sanctions, including demotion which is open to them within the Disciplinary Policy.

4.5 In Looney & Co. Ltd V Looney and Another [2004] ELR 56 the Employment Appeals Tribunal held that in assessing fairness, the test is whether the employer’s decision falls within the “range of reasonable responses”. The Tribunal asserted that it was not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employers position, would have acted as he did in his investigation… Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances would have done and to set this up as a standard against which the employer’s action and decision can be judged.” Aer Lingus in this case gave no consideration as to the safety risks and concerns that Mr. O’Neill, was obliged to respond to. Instead, Aer Lingus focused on residual issues, namely “body language” and “tone” of the interaction. It is reasonable to assert that another employer would have focused on the safety risks, and through mitigating measures such as training and/or demotion of the staff member this could have addressed issues relating to “tone”.

4.6 JVC Europe Ltd v Panisi [2011] ELR 123 in its findings refers to how “The employer’s failure to consider any sanction short of dismissal rendered the dismissal disproportionate and therefore unfair.” The Employment Appeals Tribunal determined that the dismissal was unfair. Under the disciplinary policy in Aer Lingus section 12 refers to ‘other sanctions’ which can be applied “as an alternative to the stages set out”. The sanctions include;

“a) demotion;

b) transfer to another role, department or location;

c) withdrawal/reduction of staff travel privileges;

d) withdrawal/reduction of sick leave entitlements or other employment benefits;

e) suspension without pay for a period of time;

f) deferral of increments

g) imposition of restricted sick leave privileges (Scheme 2 – see below)

h) restriction on ability to be considered for future promotions for a period of time”

No concerted efforts seem to have been made by Aer Lingus to consider any of the above measures as a means to seek alternative options as opposed to dismissal, which has had a life changing impact on Mr. O’Neill. It left Mr. O’Neill who is a single parent of three children in a crisis, after the outcome issued. We would content that in line with JVC Europe Ltd v Panisi the employer failed to consider other sanctions.

4.7 In Bank of Ireland v Reilly [2015] IECA 158 (Court of Appeal), the finding saw the Court stress “It is incumbent upon an employer, before imposing the ultimate sanction of dismissal, to consider whether any lesser sanction might suffice in the circumstances.” There is no evidence that Aer Lingus explored any alternatives to dismissal. Mr. O’Neill presented mitigating circumstances at both his investigation and disciplinary and it would seem zero consideration was applied to this. This is in addition to the employer proceeding with a decision to dismiss, without considering the prospect of other and alternative options before taking the decision to dismiss.

4.8 In Eircom Ltd v O’Donnell [2012] 23 ELR 206, the High Court upheld the decision that even where misconduct is established, the fairness of dismissal depends on whether the sanction is proportionate and whether any alternatives were assessed. It cites “Dismissal should only be a last resort. The absence of consideration of alternatives rendered the decision disproportionate and unfair.” There is no evidence of any consideration of alternatives. It is our view that the decision to dismiss was disproportionate but there was no consideration as to other sanctions, in addition to training requirements to mitigate against his “behaviour.

4.9 Fórsa are of the view that Aer Lingus cannot argue that the dismissal was fair under any of the below grounds;

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Given Mr. O’Neill raised safety concerns and risks, in line with the requirements of his role, the sequence of events followed only due to the fact that he carried out an instruction, as instructed by the Commander on the day. He has been treated in the most punitive of manners by losing his job, despite a regulatory request that was placed on him on the flight on the 9th April. He has suffered to the highest degree by the fact that a disruptive passenger that boarded his flight, resulted in issues around his manner, tone and body language and was subjected to intense scrutiny by the employer where the employer applied the harshest sanction, without giving any consideration as to alternatives.

4.10 It is Fórsa’s view that the Safety, Health and Welfare at Work act 2005 protects an employee for complying with safety requirements. Chapter 2 of the Act provides for;

“13.—(1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work”

Mr. O’Neill followed the statutory requirement, and was dismissed for doing so.

5 SUMMARY & CONCLUSION

5.1 Mr. O’Neill, in the course of his duties, came across a disruptive passenger and within his role, he was directed to carry out a directed course of action by the Commander. As a result, a sequence of events occurred subsequent to his initial interaction with a passenger which triggered safety concerns.

5.2 Cabin crew’s primary function is of a safety critical role. Mr. O’Neill carried out his core function which ultimately resulted in his dismissal.

5.3 As a result, Mr. O’Neill has suffered financial loss as a result. His final day of employment with Aer Lingus was the 16th October 2024. He was out of work until the 27th January 2025 and which has resulted in a significant financial loss as a result.

Fórsa asks, with respect, that having considered the contents of this submission that the Adjudicator recommends in favour of our member that;

• Mr. O’Neill would be reinstated within Aer Lingus, as provided for under section 7 (1) (a).

• Failing that, Mr. O’Neill would be compensated for the period of 16th October 2024 – 27th January 2025. Mr. O’Neill’s fortnightly earnings are €1,495.31. The total loss in terms of wages incurred by Mr. O’Neill is €11,962.48. Mr. O’Neill also would have earned approximately €150 a fortnight on commission which he is also at a loss of. He has lost out on approximately $300 (€260) dollars a fortnight in allowances, due to his bid pattern. That brings Mr. O’Neill over all loss of €15,037.48

• Mr. O’Neill earns €1,100 in his new role. There is a loss of €395 per fortnight between his current role and his previous role, we would request this would be taken into consideration as part of the recommendation. Mr. O’Neill cannot afford to pay into a pension contribution in his new role due to the pay reduction he has occurred.

It should be noted that more specific closing submissions were made by counsel at the end of the evidence at the adjudication hearing. These are set out and considered in the findings section of this decision below

The Respondent delivered a written submission in advance of the hearing stating as follows:

INTRODUCTION

1.1 By Workplace Relations Complaint Form filed with the Workplace Relations Commission (“WRC”) on 30 October 2024, Mr O’Neill alleges he was unfairly dismissed by Aer Lingus Limited (“Aer Lingus”) on 16 October 2024 under section 8 of the Unfair Dismissals Acts 1977 - 2015 (the “Acts”). A copy of Mr O’Neill’s Complaint Form is at Appendix 1.

1.2 Aer Lingus submits that Mr O’Neill was not unfairly dismissed. Mr O’Neill was dismissed by reason of his gross misconduct. The relationship of trust and confidence that must exist between an employee and an employer was destroyed as a result of Mr O’Neill’s misconduct.

1.3 Prior to Mr O’Neill’s dismissal, Aer Lingus undertook a full investigative process in line with the Company Disciplinary Procedure. A copy of the Company Disciplinary Procedure is at Appendix 2.

1.4 Following the outcome of the investigation, the Aer Lingus Company Disciplinary Procedure was progressed and Mr O’Neill participated in a disciplinary hearing and an appeal hearing in accordance with the Disciplinary Procedure.

1.5 For the reasons set out below, Aer Lingus disputes Mr O’Neill’s claim and requests that the Adjudication Officer rejects the complaint in its entirety.

1.6 It should also be noted that Aer Lingus does not currently have the particulars of Mr O’Neill’s loss or any employment he has taken up since 16 October 2024. The information was requested from Mr O’Neill’s union representative on 11 August 2025 (see letter at Appendix 3). It is requested that this be clarified at the outset of the hearing as it may have an impact of the running of the case and evidence to be adduced.

BACKGROUND

2.1 Mr O’Neill commenced employment with Aer Lingus on 22 July 2013.

2.2 On 4 March 2019, Mr O’Neill was promoted to the position of Senior Cabin Crew Member (“SCCM”). This position was offered to him by letter dated 26 January 2019. An extract from the letter is as follows:

2.3 On 9 April 2024, Mr O’Neill was operating as the Number 1 (most senior cabin crew member on board in the cabin) for flight EI 515, travelling from Marseille to Dublin. During this flight, Mr O’Neill issued a customer (“Customer X”) with a verbal warning and then followed up with a written warning which was documented in a DIP1 form, in accordance with the Disruptive Passenger Policy. The written warning was approved by the Captain based on the briefing provided to him by Mr O’Neill before issue to the customer. Mr O’Neill then had further confrontational engagement with the customer on his route to the car park in Dublin Airport after the flight.

2.4 On the basis of the report from Mr O’Neill, and further to the DIP1 form being issued, Aer Lingus banned Customer X from future travel with the airline, and this was communicated to the passenger in writing subsequently. This has since been rescinded.

2.5 On 29 April 2024, a customer complaint was received by Aer Lingus in relation to Mr O’Neill’s conduct while operating as a SCCM on a flight from Marseille to Dublin on 9 April 2024 being the incident referred to at 2.2 above. The complaint described Mr O’Neill’s aggressive treatment of another passenger on the flight (Customer X) and attached photographs, taken from a video, showing Mr O’Neill interacting with the said passenger. The customer complaint stated:

“In this position, you will be expected to operate to the highest professional standard in all respects. You will be expected to lead by example and display a high level of performance at all times.”

“I (and fellow passengers) were appalled by the aggressive nature in which your Cabin Services Director handled a simple request from a passenger to use the toilet upon boarding the aircraft.

I would like to start by saying, I have the utmost respect for flight crews and the job they do!

My partner and I were the last two passengers to board the aircraft. The passenger before us, 3rd last passenger to board (who we had never met btw), asked the CSD if there was "any chance of using the toilet".

The CSD responded in an angry, extremely unprofessional, hostile and snarly tone, "NO, for safety reasons, the toilet cannot be used for safety reasons while the place [sic] is on the ground", to which the passenger responded, in a low, exasperated but completely non-aggressive tone, "oh for fecks sake, we have been held here for an hour delay on the ground and badly need to use the toilet"

To which the CSD literally seemed to snap, and devoured the passenger in front of all passengers by saying:

"Don't you swear at me, do NOT swear at me or I will have you removed from this aircraft", he threatened him with the police, and was pointing his finger in the passengers face. The CSD looked enraged. I have NEVER seen such unprofessional and aggressive behaviour from a flight crew member.

The passenger tried to respond politely, but the CSD seemed to view the passenger as dirt, and treated him that way. It was a clear case of someone abusing their power. The passanger [sic] did not retaliate in anyway.

The passenger took his seat, and ironically, the plane door remained open for a further 20 mins before we began to taxi down the runway.

About 20 mins after take off, we seemed to be at cruising altitude for quite some time, and the passenger unfortunately misinterpreted the green light about the bathroom door as a signal that it was ok, to now get up and use the bathroom.

As soon as the passenger stood up, the CSD marched down the aisle, looking as angry and mad as hell, and started shouting at the same passenger in question.

I was using my phone at the time, and I have a video of what happened next, and the CSD's behaviour and dialogue.

He used threatening body language and words against the passenger. At this stage, for a considerable time that followed, I believed the CSD but [sic] the safety of the aircraft was in danger.

I just wanted off the flight at that stage, the energy created by the CSD was so bad.

The CSD escalated the situation at every moment, and fellow passengers were shocked by the CSD's behaviour. I honestly wanted to cry because of the CSD and his mistreatment of a passenger, and fellow human.

Another passenger (an older, gentle woman) sweetly put her hand on CSD asking him so kindly to just calm down a bit, to which he stormed off in a rage.

Another woman in front of the passenger in question said she smelt alcohol from the CSD's breath. I did not speak/get close so have no opinion. It is possible that they were misinterpreting the CSD's bahaviour [sic] for someone who was drunk, clearly irate and just wanting a fight.

I choose not to post the video evidence online, as it would no doubt go viral from CNN to LadBible, but it would be unfair on Aer Lingus. I would also not want an online audience to believe this is how our great national airline treats passengers ,incl. passengers who are non-Irish. It would no doubt be misinterpreted as something else.

Hand on heart, I have loved Aer Lingus, and my partner and I travel extensively, but today, the company was badly let down, and the CSD not only made us feel unsafe in the cabin, but left a bad taste in our mouth.

I wanted to not only cry because of the aggressive nature of the CSD, but more so, for the indignity and abuse the passenger had to suffer. My heart went out to him.”

2.6 The complaint was escalated to Inflight Services Management on 30 April 2024.

2.7 On 8 May 2024, Mr O’Neill was placed on paid suspension by Mr Brian Mulligan, IFS Operations Crew Manager and on 10 May 2024 Mr Mulligan issued a formal suspension letter to Mr O’Neill confirming that he was suspended pending the outcome of any investigation and subsequent process. A copy of this letter is at.

2.8 In accordance with the Company Disciplinary Procedure, Ms Sinéad Fegan, Inflight Services Operations Crew Manager - Seniors, was appointed to investigate the complaint. Ms Fegan was supported in this process by Ms Carmel Byrne, Human Resources Legal Case Manager (together the “Investigators”)

3         FACT FINDING INVESTIGATION

3.1 On 17 May 2024, Mr O’Neill was contacted by letter to inform him that Ms Fegan and Ms Byrne had been appointed to conduct a fact-finding investigation into this matter. Mr O’Neill was provided with a copy of the customer complaint and photographs, details of the process and the Company Disciplinary Procedure. The letter set out the following allegation before Mr O’Neill:

[Text Quoted – discussed in Findings]

3.2 In the letter of 17 May 2024, Ms Fegan outlined that Mr O’Neill’s alleged unprofessional and aggressive behaviour was being investigated under section 14 of the Company Disciplinary Procedure, which, inter alia, states:

“The following is a non-exhaustive list of behaviours or conduct that may be considered to be misconduct. Depending on the severity of the incident, the allegations may be classified as gross misconduct. Gross misconduct typically relates to behaviours, conduct, acts or omissions of such a serious nature that it breaches the necessary relationship of trust and confidence that must exist between Aer Lingus and our employees.

Acts or omissions detrimental to the reputation, image or interests of Aer Lingus, our employees and/or our customers.

Conduct that is prejudicial to safety”

3.3 As part of the investigatory process, the Investigators began conducting meetings with witnesses, namely members of the flight crew who were rostered on the Marseille to Dublin flight with Mr O’Neill on 9 April 2024. The Investigators held the following meetings as part of the process:

(a) On 21 May 2024, the Investigators met with Ms Joan O’Gorman, who was operating as Cabin Crew member (Number 3), to discuss what she witnessed between Mr O’Neill and the passenger on the said flight. Following the meeting, notes were agreed and shared with Mr O’Neill;

(b) On 23 May 2024, the Investigators met with Ms Claire Durkan, who was operating as Cabin Crew member (Number 2), to discuss what she witnessed between Mr O’Neill and the passenger on the said flight. Following the meeting, notes were agreed and shared with Mr O’Neill;

(c) On 24 May 2024, the Investigators met with Ms Amy Lockhart who was operating as Cabin Crew member (Number 4), to discuss what she witnessed between Mr O’Neill and the passenger on the said flight. Following the meeting, notes were agreed and shared with Mr O’Neill; and

(d) On 6 June 2024, the Investigators met with Captain Aidan Hoey, who was the Captain on the flight, to discuss what he witnessed between Mr O’Neill and the passenger. Following the meeting, notes were agreed and shared with Mr O’Neill.

((a) through (d) together the “Witness Statements”)

3.4 On 12 June 2024, Ms Fegan wrote to Mr O’Neill notifying him of the investigation meeting scheduled for the 14 June 2024, providing a copy of the Witness Statements and Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1 Specific responsibilities of the SCCM, and noting that, in addition to the allegation:

“(A) that you behaved in an unprofessional and aggressive manner towards a customer of Aer Lingus whist you were operating as a Senior Cabin Crew Member (SCCM) onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.”

further concerns had arisen in regard to Mr O’Neill in receipt of the Witness Statements, and it is also alleged that:

“(B) you failed to promote and foster an appropriate and co-operative teamwork environment in keeping with the principles of CRM which is an alleged breach of the Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM;

(C) you escalated the situation with the customer instead of seeking to manage and deescalate the situation in line with expectations of a SCCM;

(D) after the flight, when you came into contact with the customer, you behaved in an inappropriate and confrontational manner towards the customer, whilst you were in uniform and representing the company.”

3.5 Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM states the responsibilities of the SCCM to include but are not limited to:

•                     “Ensuring all crew members are fit to fly.

•                     The management and supervision of the cabin and all operating activities to ensure safe operations.

•                     Ensuring the effective communication and coordination of the cabin and ground personnel, including Crew Control, Operations Control, and Ground Operations.

•                     Ensuring the cabin crew team operates as a cohesive team to work safe, efficient and effective cabin operation and cabin service delivery.

•                     The co-ordination of the cabin crew team to ensure a safe, efficient and effective cabin operation and cabin service delivery.

•                     Promoting and fostering an appropriate and co-operative teamwork environment in keeping with the principles of CRM and Aer Lingus policies regarding Respect and Dignity.

•                     Ensuring all crew members under their control comply with SOPs, SMS, regulatory requirements, and company policies and procedures.

•                     Ensuring the SCCM is aware of and follows all company policy including the company disciplinary procedure and the Operations Manual Part A Cabin (PAC).

•                     The SCCM is responsible for ensuring that all crew members are aware of their responsibilities and are briefed accordingly.

•                     The SCCM is responsible for ensuring that all documentation and reports are completed accurately and in a timely manner.

•                     The SCCM is responsible for ensuring that all incidents, accidents, and occurrences are reported in accordance with company procedures.

•                     The SCCM is responsible for ensuring that all safety and security procedures are adhered to at all times.

•                     The SCCM is responsible for ensuring that all customer service standards are maintained at all times.

•                     The SCCM is responsible for ensuring that all crew members are aware of their responsibilities in the event of an emergency.”

3.6 On 13 June 2024, Ms Lisa Connell of Fórsa, representative on behalf of Mr O’Neill, wrote to the Investigators requesting the investigation meeting be rescheduled to a later date and seeking confirmation of the name of the customer who made the complaint, stating:

“Separately, we have received a copy of the customer complaint but it is not signed. We are requesting confirmation of the name of the complainant in order to participate in a fair manner with the process. In order for the principles of natural justice and fair procedure to apply within this process, it is pertinent that we receive the name of the complainant, as we have received the names of all those who have participated within the process to this date”  

3.7 Ms Fegan replied to Ms Connell on 14 June 2024 confirming the investigation meeting would be rescheduled to 25 June 2024 and noting Ms Byrne would respond on matters pertaining to the customer complaint. Ms Connell replied to Ms Fegan on 17 June 2024, reiterating Fórsa’s position on receiving the name of the customer who made the complaint.

3.8 On 17 June 2024, Ms Byrne replied to Ms Connell’s request for the name of the customer who made the complaint, stating:

3.9 Ms Connell replied to Ms Byrne on the same day, noting:

“To respond to your query in relation to the passenger complaint. Aer Lingus will not be providing a copy of correspondence with the passenger personal details exposed, particularly given the current investigation pertains to alleged behaviour towards a passenger of Aer Lingus. Aer Lingus are satisfied and have verified that this correspondence is from a genuine customer from the relevant flight who was not partof the same booking as the other passenger referred to within the complaint. A copy of the complaint as received has been provided in full, save for the identity of the customer. This customer complaint forms part of the overall documentation provided for the purpose of this investigation. For the avoidance of doubt, this investigation process will not be paused and will proceed on 25 June based on the information provided to date.

The investigation meeting is the relevant forum, should you or your member wish to raise any additional feedback/concerns in relation to the complaint received. Ms Fegan will take account of all feedback and representations made by you and your member in advance of reaching a decision in respect of the investigation process.”

3.9 Ms Connell replied to Ms Byrne on the same day, noting

While I appreciate that the matter being investigated relates to a customer complaint, what is clear from the photos is that the person who is taking the photos is not the person being dealt with in the interaction on-board the flight. The reason why we are seeking confirmation of the name, is that potentially the customer/person who has lodged the complaint could have been an Aer Lingus employee who may have been travelling on staff travel on the day. If it is the case that the complainant is either an Aer Lingus employee or former employee then it is only appropriate that Alan is informed of the name of the person, for the purpose of providing clarity and context at a meeting but also to allow Alan to access fair procedure by being informed of the name of the complainant. The use of terminology and aviation specific terminology in the customer complaint has left me of the view that the complainant could be an employee or former employee of the company.

Separately, your below email provides new information that the complainant was travelling with the individual on-board the flight. By the very nature of new information being received since receiving all original correspondence this demonstrates there is a clear issue as to whether the principles of natural justice and fair process is being applied. If the complainant was flying with the individual who was being spoken to in the photos, while it would not have made a substantive difference to the process, the fact that we are only finding out after the fact identifies a clear issue around transparency in this investigation.

Our position remains that it is important for the respondent to be made aware of the name of the complainant as is appropriate in line with fair procedure as we are unclear if there is a connection and information is too sparse currently.”

3.10 Further communications between Ms. Connell and Ms. Byrne occurred on 18 June 2024. During this exchange, Ms. Connell restated the importance of determining whether the customer who submitted the complaint was, or had been previously, employed by Aer Lingus. On 20 June 2024, Ms. Byrne confirmed to Ms. Connell that the verified customer was neither a current nor former Aer Lingus employee.

3.11 The Investigators held an investigation meeting with Mr O’Neill on 25 June 2024 to discuss his response to the complaint and Witness Statements. Ms Connell of Fórsa  was present as Mr O’Neill’s chosen representation. Following the meeting, notes were agreed and shared with Mr O’Neill.

3.12 During the investigation meeting, Mr O’Neill stated that CCTV footage from Dublin Airport Authority (“DAA”) was available regarding the alleged incident with the passenger outside the airport, and that a copy had been provided to Gardaí when he made his report. Ms Byrne subsequently contacted Corporate Security to request this footage. Mr Mark Dunphy, the relevant contact in Corporate Security, reviewed the DAA CCTV and confirmed that neither Mr O’Neill nor the passenger appeared on the footage from 9 April 2024 during the relevant hours. The investigators concluded that, unfortunately, the CCTV did not contain any material evidence relevant to their investigation.

3.13 The Investigation Report (the “Investigation Report”) was issued on 23 July 2024 (a copy is at Appendix 18). Extracts from Ms Fegan’s findings are as follows:

(a) “I am satisfied you are pointing in the passengers face consistent with witness statements, that your mouth is open to a level that you do appear to be shouting at the passenger as set out in statements and your body language in this picture visually looks aggressive as stated in the customer complaint and by Ms O’Gorman in her witness statement and her statement that “looked like there was an altercation happening”.

(b) “You have not however stated that you recognise anything wrong with how you behaved on this date. You contend that you were assertive and not aggressive. I am satisfied that you did not perform to the level expected and required of a SCCM operating as the number 1 on board. Whilst I note that you do not accept or recognise your behaviour as aggressive on the day, I am satisfied that the witness statements in totality demonstrate that your actions were perceived by others as aggressive, disproportionate and that you escalated the matter beyond a level considered appropriate. It is expected of a SCCM, to defuse a situation, calm situations whilst representing the company and leading your crew and I do not find this was what occurred on this date. Whilst I note you state that your actions were safety focused, I believe that in a safety critical environment the priority is to deescalate matters and ensure both you as the SCCM and other passengers and cabin crew, remain calm.”

(c) “I am satisfied upon consideration of the three CCM witness statements under consideration, that you gave your crew the impression that the captain had  witnessed something that he had not. I am satisfied, based on the witness statements that crew where possible, sought to reason with you in terms of the level you escalated the matter. I am satisfied that there was a real concern amongst crew not to do or say anything that would cause you further anger.”

(d) “This matter arose upon a simple request from a passenger to use the toilet upon boarding the aircraft after a long delay. It is appreciated his response, to your response, was not optimal, however I am satisfied that your reaction was disproportionate and unprofessional. This matter escalated on foot of the passenger, whom was clearly in desperate need to use a lavatory, misinterpreting the green toilet light, as him being allowed to use the toilet, an easy mistake to make. All 3 cabin crew onboard state they witnessed this passenger upset/crying, and all statements depict a passenger who was embarrassed, upset, complying with requests and someone who just badly needed to use the lavatory. The customer complaint stated that he was left feeling unsafe in the cabin. Cabin crew statements demonstrate a concern about your level of anger.”

(e) “It should be noted, at no point during the investigation meeting did you take responsibility for the part you played in the passenger incident or did you demonstrate any remorse towards how the passenger was treated. Additionally, at no point during the investigation meeting with you, did you show any regard for the fact that as a result of the incident on your flight and the reports you submitted the passenger subsequently received a ban from travelling with Aer Lingus. It is a matter of fact that this escalation of the incident derived from the issuance of the DIP 1 and your subsequent report of the matter on the basis that the company is reliant that the information you provided was a true reflection as to what occurred on this date.”

(f) “It should also be acknowledged that at no stage during the flight did you attempt to recover the escalated incident.”

(g) “At the investigation meeting you stated to me that “since you operated as cabin crew you have never experienced that from a customer before”. As a Senior Cabin Crew Member you would undoubtedly come across and be expected to lead and handle situations which far exceed what occurred with this passenger on this date, whilst being the operating Number 1, remaining calm and leading the rest of the crew, and reassuring passengers. I find that  your actions on the day, in terms of your reactions, were more of a risk to safety than that of the passenger under consideration.”

3.14 Based on all available information to the Investigators, including information provided in the customer complaint, by Mr O’Neill and the Witness Statements, Ms Fegan determined that there was a case to answer regarding the allegations against Mr O’Neill. Accordingly, the Investigation Report was referred to an independent manager, separate from the investigation, to initiate the disciplinary process.

4.1 Under Step 2 of the Company Disciplinary Procedure formal process, it sets out:

(a) If the facts establish a case to answer and/or support an allegation or allegations against any employee a disciplinary hearing will be convened.

The employee will be given the opportunity:

(i) to answer and challenge the complaint or allegations and investigation findings;

(ii) to respond to and comment on the documentation or evidence to include witness evidence,

(iii) to put forward any evidence he or she wishes and to present mitigating circumstances in support of his or her case,

(b) The employee will be invited to the disciplinary hearing with reasonable advance notice so that they can prepare for the meeting. The employee will be provided with all of the documentation, witness statements and any other evidence that may be relied upon at the disciplinary hearing.

(c)The employee will be notified in writing of the decision reached, including whether any disciplinary action is to be taken.

4.2 On 25 July 2024, Ms Sharon Clifford, Human Resources Case Manager, wrote to Mr O’Neill to inform him that Ms Mary McHugh, Operations Crew Manager–Recruitment, Inflight Services, supported by Ms Clifford (together “the Disciplinary Investigators”), had been appointed as the decision-maker and would be conducting the disciplinary hearing. The letter also notified Mr O’Neill that the disciplinary hearing was scheduled for 30 July 2024.

4.3 On 26 July 2024, Mr O’Neill replied by email stating he was in the process of arranging Fórsa representation. On 29 July 2024, Ms Clifford responded, apologising for missing Mr O’Neill’s earlier call and seeking confirmation of his attendance at the disciplinary hearing scheduled for 30 July 2024. Later that day, Mr O’Neill advised that Ms Connell would be unavailable on 30 July 2024 due to being on annual leave and requested to reschedule the hearing for 12 August 2024. To avoid unnecessary delay, Mr O’Neill was advised to secure an alternative Fórsa representative, and the hearing was rescheduled for 1 August 2024. On 30 July 2024, Mr O’Neill confirmed his attendance for the new date and notified Ms Clifford that Mr Jim Sheridan of Fórsa, would be his representative.

4.4 The Company Disciplinary Procedure sets out the following in regard to representation:

“An employee who is involved in an investigation, disciplinary or appeal process has the right to be accompanied by a work colleague or a trade union representative or official from a trade union recognised by Aer Lingus throughout the process.

Alternative requests for representation or support in meetings will only be considered in exceptional circumstances and strictly at the discretion of Aer Lingus.

An employee can choose any colleague he or she wishes, provided the colleague is willing to assist. Employees acting as a support colleague will be allowed reasonable time off from their normal duties (without loss of pay) to attend meetings. However, employees must recognise that in certain limited circumstances a choice of colleague may not be allowed, for example if the chosen colleague has a conflict of interest or is a witness to the matters complained of.

The employee must tell the person appointed to conduct the investigation or disciplinary hearing (as the case may be) or the nominated HR representative who his/her chosen representative is, in reasonable time before the relevant meetings.

Where deemed necessary and appropriate, a HR case manager or nominated HR representative will be appointed to provide support to the appointed investigator and/or decision-maker and to facilitate and support the process generally.

Repeated requests to postpone or adjourn meetings to accommodate the availability of representatives thereby delaying the process will not be facilitated unless in exceptional circumstances.”

4.5 The disciplinary hearing progressed on 1 August 2024 with the Disciplinary Investigators, Mr O’Neill and Mr Sheridan. During the meeting, Mr O’Neill became visibly distressed, leading to the adjournment of the proceedings until 7 August 2024. Following the meeting, notes were agreed and shared with Mr O’Neill.

4.6 On 7 August 2024, the disciplinary hearing resumed to conclusion. Following the meeting, notes were agreed and shared with Mr O’Neill. A copy of the minutes of the meeting are at Appendix 22.

4.7 On 29 August 2024, Ms. McHugh issued her disciplinary outcome to Mr O’Neill (the “Disciplinary Outcome”). The Disciplinary Outcome concluded:

“In arriving at my findings, I have considered all of the evidence available to me including the investigation report and the still photos, the explanation put forward by you at the disciplinary hearing and the representations made on your behalf by Mr Sheridan.

In summary, I am satisfied that you:

A. that you behaved in an unprofessional and aggressive manner towards a customer of Aer Lingus whist you were operating as a Senior Cabin Crew Member (SCCM)onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.

B. that you failed to promote and foster an appropriate and co-operative teamwork environment in keeping with the principles of CRM which is an alleged breach of the Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM.

C. that you escalated the situation with the customer instead of seeking to manage and de-escalate the situation in line with expectations of a SCCM.

D. that after the flight, when you came into contact with the customer, you behaved in an inappropriate and confrontational manner towards the customer, whilst you were in uniform and representing the company.

I am satisfied that your actions were contrary to section 14 of the Company Disciplinary Procedure pertaining to:

-Acts or omissions detrimental to the reputation, image or interests of Aer Lingus, our employees, and/or our customers.

-Conduct that is prejudicial to safety.

I am satisfied that your actions were also contrary to the Operations Manual Part A Cabin (PAC), Issue 1, Revision 7.9 Reference 1.13.1. Specific responsibilities of the SCCM) which include:

-The co-ordination of the cabin crew team to ensure a safe, efficient, and effective cabin operation and cabin service delivery. •

-Promoting and fostering an appropriate and co-operative teamwork environment in keeping with the principles of CRM and Aer Lingus policies regarding Respect and Dignity.

In light of the above, I find that through your actions, you have breached the policies and procedures of Aer Lingus in a manner which amounts to gross misconduct.

Our consideration now turns to whether any explanation provided by you during the disciplinary process contained any mitigating factors in respect of the above breach. We have taken into consideration your comments regarding your personal circumstances, your unblemished record and the effect this is having on you. While we are sympathetic to these, they cannot be excuses for your actions towards a customer who was in visible discomfort and distress.

We then moved to consider the appropriate sanction to apply in all of the circumstances. We have also taken into account your previous service and record with Aer Lingus. Whilst we have considered alternative lesser sanctions, it is our view that through your actions you have broken the bond of trust and confidence that your employer is entitled to have in you as a SCCM, an onboard leader of cabin crew. You are employed in a role where you are entrusted to engage with customers every day and where you are expected to represent our brand and our business with the highest standards. As you are employed in a safety critical role, CRM, communication, and conflict resolution are a key part of the function of cabin crew and it is concerning to note that your actions and behaviours were in direct contrast to this and that throughout this process you have failed to acknowledge this. We pride ourselves in Aer Lingus in delivering professional, warm, and exceptional service to our customers and your actions on 7 April were contrary to this in every way.

Accordingly, and in light of all of the above I have decided that I have no alternative other than to move to terminate your employment on grounds of gross misconduct from the date of this letter. You will be paid in lieu of your notice entitlements of 8 weeks and any accrued untaken annual leave.”

4.8 In the Disciplinary Outcome, Mr O’Neill was advised his last day of employment with Aer Lingus was 29 August 2024 and that he had the right to appeal this decision in writing within 7 working days in writing to Ms Marie Walsh, Inflight Services Manager, Service Delivery.

APPEAL

5.1 On 30 August 2024, Ms Connell on behalf of Mr O’Neill wrote to Ms Walsh to appeal the decision in line with the disciplinary process. The grounds of appeal are as follows:

“1. No due regard or consideration has been applied to the mitigating circumstances outlined at both the investigation and disciplinary hearing.

2. Mr O’Neill’s record and long-standing career was not given due consideration, especially in the context to the mitigation of circumstances to the incident investigated.

3. Mr O’Neill continued to fly for one month after the incident. If the incident was so serious and grievous Aer Lingus would have withdrawn Mr O’Neill from duties with immediate effect. The severity of the sanction is excessive.

4. The customer complaint was not made by the affected party who Mr O’Neill interacted with on the flight. On the basis that the individual who the matter revolves around did not complain, this also mitigates the incident which the decision maker has not considered.

5. Mr O’Neill has been penalised for following Aer Lingus policy on safety protocol.

6. The disciplinary committee have introduced new content, detail and grounds that have only been presented in the final outcome letter.

7. Concerns about ‘conduct that is prejudicial to safety’ was never identified in any earlier process and as such Aer Lingus cannot use a ground in the disciplinary outcome which was never identified, highlighted or investigated in earlier processes.

8. The outcome letter cites that Mr O’Neill has breached “policies and procedures of Aer Lingus which amounts to gross misconduct”. However, Aer Lingus never furnished Mr O’Neill with any copy of a policy which Aer Lingus are now referring to. This correlates with a breach of natural justice and fair procedure. By failing to provide a copy of the policy this has resulted in the employer failing to demonstrate the grave and serious nature of the matter being investigated.

9. The employer have placed a very heavy weighting on the issuing of the Dip1 form to qualify their decision. No similar action has been taken against the Captain who has final sign off and decision making authority on the issuing of the Dip-1 form. This demonstrates an imbalance in how Aer Lingus have engaged with Mr. O’Neill.

10. Aer Lingus refused to provide all relevant details requested within the process. Fórsa requested clarification on the identity of the complainant, however, Aer Lingus have refused to provide this. In effect the employer have withheld information and evidence which could be pertinent within this process. No copy of the procedure was attached to anything.

11. Aer Lingus refused to allow a postponement of the meeting to allow Mr O’Neill representation of his choosing and which is a legal right. This demonstrates a level of unreasonable and severity directed towards Mr O’Neill.

12. Mr O’Neill has been a trade union activist within Aer Lingus, he is being penalised punitively for his trade union membership and engagement as there is a clear. deviation from normal industrial processes in this specific case. This is another legislative breach against Mr O’Neill.

13. Incorrect and wrong information has been included by Aer Lingus on the final outcome letter and which contradicts correspondence from Aer Lingus dating the 10th May.

14. There is a GDPR issue around the use and sharing of photos and data which was not consented to by Mr O’Neill and taken without his knowledge.

15. Mr O’Neill also requested CCTV footage to be brought into evidence which would assist his case in providing proof to his statements. However, Aer Lingus reverted outlining this was unavailable and as such, there should have been a mitigation in the sanction or consideration for such given the employer failed to obtain footage that would assist in providing more detail and to de-escalate the situation.

16. Aer Lingus banned the passenger who Mr O’Neill interacted with on the day, and of which this incident revolves around. Aer Lingus initially deemed the incident in such a serious light that it was required that the passenger would be banned from future flights. This demonstrates that Aer Lingus affirmed Mr O’Neills actions, and again, the decision for dismissal is acting in total contradiction to earlier Aer Lingus decisions.

17. At the disciplinary meeting, management referred to “getting Alan back to work” and questioned him about which managers he would like to work with. The decision arrived at in the outcome letter is at total odds with the engagement at the disciplinary hearing.

18. At the disciplinary hearing Fórsa formally requested the opportunity to question those interviewed in an earlier process who Aer Lingus have relied on their statements to arrive at an outcome. This access was refused outright and no consideration was applied to this request. This is not in line with correct procedure, it demonstrates appropriate avenues were actively shut down by the employer to establish more detail and fact that would support Mr O’Neills case. If this matter is appealed to the Workplace Relations Commission that opportunity to interview and question witnesses relied upon will exist and we will be seeking to establish more detail at that point. The fact this option was refused has limited the ability to examine detail that would assist in providing more clarity in Mr O’Neill’s case and as such Aer Lingus have acted on impartial information, knowingly to arrive at a decision.

19. The outcome letter refers to Mr O’Neill’s exemplary record in the company. The decision and threshold of dismissal is overly harsh and extremely punitive for one occasion and one incident of performance issues in Mr O’Neills 11 years employed in the company. Again, this demonstrates a contradiction in the decision arrived at in the formal outcome letter.”

5.2 On 4 September 2024, Ms Nikki Hutchinson, Human Resources Case Manager wrote to Mr O’Neill to confirm that his appeal meeting was scheduled for 10 September 2024.

5.3 On 10 September 2024, an appeal meeting was held with Mr O’Neill and Ms Connell. Ms Walsh introduced herself and Ms Hutchinson, in her capacity as note taker. Ms Walsh explained that the purpose of the meeting was to provide Mr O’Neill with an opportunity to respond to the findings in the Disciplinary Outcome and to set out why he believed the sanction of dismissal was unfair. Ms Walsh then proceeded to discuss each ground of appeal raised by Mr O’Neill with him and Ms Connell. Following the meeting, notes were agreed and shared with Mr O’Neill.

5.4 On 16 October 2024, Ms Walsh issued her report to Mr O’Neill (the “Appeal Report”). Ms Walsh upheld the Disciplinary Board’s decision to dismiss Mr O’Neill. Extracts from the Appeal Report are as follows:

“I am satisfied that both the investigation and disciplinary decision makers acknowledged the sensitive nature of what you disclosed as a mitigating circumstance in the course of their respective processes. I too have given this consideration, however, in my view this does not excuse your behaviour and conduct onboard flight EI515 on 9 April 2024 when operating as Senior Cabin Crew. It is also the case that you had the opportunity of removing yourself from any engagement with this passenger and/or if you were feeling unable to operate, you had a personal responsibility to advise of this and to remove yourself from duty.

It is reasonable to take into account length of service as well as experience and the responsibilities of your role when determining the appropriateness of any sanction. In my view taking all of this into account alongside the severity of this complaint, such sanction was deemed necessary.

I would like to note that you worked a total of seven days during April and May 2024 following the incident on flight EI515. I would like to state that Aer Lingus places the upmost trust in their employees and as you were the Senior on flight EI515 you were not stood down from duty when this matter was first reported by you. The Operations Crew Manager took your report on the flight as being a truthful and accurate account of what occurred. It was only when the customer complaint was received by Aer Lingus and the full facts and seriousness of the complaint understood, that you were stood down from duties on full pay pending investigation in line with normal procedure.

I think it is significant that this matter was deemed so serious that another customer, who can be viewed as an independent party, wrote a complaint to report how they felt unsafe onboard due to the incident and your behaviours. In addition to this, several other customers verbally complained to the operating cabin crew. It should also be noted that the operating crew also witnessed your behaviour onboard and attempted to talk to you about your inappropriate behaviour. This is noted in the witness statements by operating crew obtained as part of this process.

On flight EI515 when refuelling was complete, you did not inform the customer that the lavatories could be used. It has been established that you chose not to communicate with the customer and thus ignored the customer’s needs. If you did not wish for the customer to come forward to the lavatories at the front of the aircraft, it is reasonable to believe that you should have asked a fellow colleague to advise the customer that the lavatories at the back of the aircraft were available… I do not find the customer to be non-safety compliant, the customer followed instructions of crew despite being in need of a lavatory break. The lavatory light was green indicating to the customer the lavatory was vacant. The customer was left for a considerable amount of time (approximately 40 minutes) between boarding and refuelling and after take-off. I do not believe this to be a reasonable way of resolving the situation onboard and certainly is not what Aer Lingus would expect from our Senior Cabin Crew onboard.

I recognise that it would have been preferable had the disciplinary policy been attached to previous investigation invite and disciplinary invite. However, you had the right to request same at the time of either the investigation and disciplinary hearings. It should be noted that all policies are available on the company intranet and on AerWaves and are accessible to all employees at all times. This was noted in Mr Brian Mulligan’s letter to you dated the 10th of May, notifying you of your suspension.

With regards to new content being introduced, Ms Connell stated in the appeal hearing that “Investigation meetings cannot be used to look for further information and to go out of scope”. An investigation meeting is set up as a fact-finding exercise, to understand how and why the incident occurred. The scope of the investigation naturally grew, and more information became available to the company in the process of the investigation in an effort to understand what occurred on the 9th April 2024 and further concerns have arisen upon receipt of witness statements in respect of the matter. I do not believe anything was out of scope and that you have had full opportunity to put forward your responses to all concerns raised.”

THE LAW

6.1 The termination of Mr O’Neill’s employment on 29 August 2024 was not unfair. Aer Lingus relies on Section 6(4) of the Acts as follows:

“the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of more of the following:-

a)…..

b) the conduct of the employee.”

6.2 In this regard, the Company Disciplinary Procedure provides for employee conduct which it deems unacceptable. Under the heading “Examples of Misconduct”, it includes inter alia:

“The following is a non-exhaustive list of behaviours or conduct that may be considered to be misconduct. Depending on the severity of the incident, the allegations may be classified as gross misconduct. Gross misconduct typically relates to behaviours, conduct, acts or omissions of such a serious nature that it breaches the necessary relationship of trust and confidence that must exist between Aer Lingus and our employees.

Examples of misconduct (which may also amount to gross misconduct):

•                     Acts or omissions detrimental to the reputation, image or interests of Aer Lingus, our employees and/or our customers.

•                     Conduct that is prejudicial to safety”

6.3 Aer Lingus relies on the Employment Appeals Tribunal’s decision in Kenneth Walker v Maplin Electronics Limited UD1424/2009 where the relevant test to be applied for determining whether a dismissal for alleged misconduct is fair was stated to be as follows:

“…Did the employer have a genuine or reasonable, belief, based on reasonable grounds arising from a fair and adequate investigation that the employee is guilty of the alleged misconduct and finally whether the penalty of dismissal was proportionate to the alleged misconduct (Noritake (Irl.) Ltd. v. Kenna UD 88/1983)...”

6.4 It is well established in case law that in defending an unfair dismissal claim, an employer is not required to persuade an Adjudication Officer that the Adjudication Officer would have made the same decision to dismiss or indeed that every employer would have done so. In the Circuit Court in Allied Irish Banks plc v Purcell [2012] 23 ELR 189 Ms Justice Linnane accepted that when considering whether or not it was reasonable for an employer to dismiss an employee, an employer need only demonstrate that a reasonable employer could have made the same decision in the circumstances. In other words that the decision to dismiss was within the band of reasonable responses.

6.5 In Governor and Company of the Bank of Ireland v James Reilly, [2015] 26 ELR 229  Mr Justice Noonan adopted with approval Linnane J's views and stated as follows:

“I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v Purcell[2012] E.L.R. 189, where she commented (at p.4):

‘Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v Swift[1981] I.R.L.R 91 and the following statement of Lord Denning MR at p.93:

‘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 might reasonably 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.’

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.’”

6.6 Aer Lingus must demonstrate that the decision it took was within the band of reasonable responses. Aer Lingus submits that its decision in this instance clearly falls within such band. Aer Lingus acted reasonably in deciding to dismiss Mr O’Neill based on the circumstances. In this regard, Aer Lingus relies on Loftus and Healy v An Bord Telecom [1987] IEHC 40 where it was held that it was not a question of whether the ex-employees were deprived of procedures to which they were entitled, but:

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish… [the basis of its dismissal] as the whole or the main reason for justifying their dismissal”

6.7 Section 13(1) of the Safety, Health and Welfare at Work Act 2005 outlines the general duties of employees in control of places of work. Section 13(1) states

An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work,

…

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person.

In Berber v Dunnes Stores[2009] IESC 10, Finnegan J states

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.”

(emphasis added)

6.9 Aer Lingus also relies on the decision of the Labour Court in Aer Lingus v Linehan

UDD2418. In this case, Ms Linehan had worked as a customer service agent and was dismissed due to being verbally abusive towards colleagues. She admitted her behaviour was unacceptable. The disciplinary and appeal processes followed fair procedures, with union representation throughout. The incident was also corroborated by witness statements and captured on CCTV. As such, the Court found:

“…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.”

6.10 It is submitted that the obligation of trust and confidence has been breached by Mr O’Neill by behaving in a manner that had the effect of destroying the trust and confidence that Aer Lingus must have in him.

6.11 The Adjudicator is asked to have regard to the fact that it is well established that a higher standard applies to claimants working in the aviation sector. Case law recognises the very specific environment of an airport where there is significant regulation and security restrictions. It acknowledges that where those employees hold safety critical roles such as for example cabin crew they are expected to adhere to guidelines, rules and expected standards of conduct both to ensure their safety, that of their colleagues and the members of public in their care are of utmost importance.

6.12 In Gould v ICTS Ireland Ltd and ICTS UK Ltd  UD301/2013, MN154/2013, WT38/2013  the claimant was employed to carry out security searches on aircraft by reference to security guidelines from the Department of Transport and the procedures of individual airlines. Evidence was given to the EAT that the claimant had been trained in the relevant guidelines and was well aware of same. In holding that the claimant's dismissal was not unfair, the EAT noted the responsibilities of the respondent and the claimant to ensure adequate safety of air passengers and stated that “higher standards than might otherwise be required must be adhered to in such circumstances”. This case is instructive, not only because it concerns the same sector as this current case, but because the EAT accepted that the decision to dismiss was fair in the circumstances, noting the special safety and security environment associated with air travel and air operators.

6.13 Mr O’Neill had a “front of house” role, engaging with members of the public, as part of a professional team of cabin crew members. He is experienced and trained and as a SCCM when on the A320 fleet, he is expected to act as onboard leader in the cabin

with the rest of his cabin crew colleagues. As part of his SCCM role, he was expected to be able to deal with, and where necessary de-escalate, day to day issues concerning the travelling public where emotional tensions can arise, and which demand a calm and measured response. Collaboration and teamwork are critical in such an operational environment. The aggressive behaviour that he displayed towards the passenger and his failure to de-escalate and/or remove himself from the situation raised fundamental concerns that went to the heart of Aer Lingus’ trust and confidence in his ability to perform his role with members of the public and to work with his colleagues going forward, notwithstanding the mitigation that was raised on his behalf. These concerns were expressly addressed in the Disciplinary Outcome and the Appeal Report.

6.14 It was accepted by Mr O’Neill at the meeting of 25 June that he went into “fight or flight mode” as it related to this passenger due to his resemblance to someone else and that his “reaction and skill set let him down”. Given Mr O’Neill’s acceptance of this, it is particularly concerning that he progressed a verbal and written complaint against the passenger and subsequently reported concerns regarding his conduct towards him post-flight all of which culminated in this this passenger being (temporarily) banned from future Aer Lingus flights. These actions on the part of Mr O’Neill entirely breached the trust and confidence that must exist between employer and employee. It was entirely reasonable for Aer Lingus to expect Mr O’Neill to conduct himself in accordance with his training and his responsibilities as SCCM in the course of flight EI515. To the extent that he felt any loss of personal control, it was incumbent on him to take appropriate action to cease all engagement with the customer, to handover to another colleague and to remove himself from having any further engagement. Unfortunately for the customer and for all those proximate to him, Mr O’Neill did not do so.

6.15 It is submitted that if the Adjudication Officer identifies any flaws in the procedures applied by Aer Lingus, which Aer Lingus denies is the case, any such alleged procedural flaws were not of a degree that should render the dismissal unfair. In support of its position, Aer Lingus relies on the decision of the Employment Appeals Tribunal in Burke v Egan t/a Little Sunflowers Creche & Montessori UD902/2012 This claim related to a dismissal on the grounds of gross misconduct where the Tribunal had been critical of the failure of the person running the disciplinary hearing not inviting the claimant or her representative to make submissions in relation to the dismissal. However, it concluded that “the dismissal was fair and while the respondent’s procedures were flawed, they were not so flawed to render the dismissal unfair”.

6.16 In the present case, it is submitted that a reasonable employer, acting reasonably, would have made a decision to dismiss Mr O’Neill for gross misconduct.

It should be noted that more specific closing submissions were made by counsel at the end of the evidence at the adjudication hearing. These are set out and considered in the findings section of this decision below

Relevant Statutory Provisions

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 (“the UDA”) provides as follows:

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.

Section (6) Subsection (4) (where relevant) provides as follows:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…(b) the conduct of the employee…

Section (6) Subsection (6) places the burden on the employer to establish that the dismissal was fair as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section (6) Subsection (7) provides (where relevant), as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer …considers it appropriate to do so—

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Section 7 of the UDA (where relevant) provides as follows:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer [ ]… considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

…

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

[Emphasis Added]

Section 41 of the Workplace Relations Act 2015 (as amended) provides (where relevant) at subsection (5) as follows:

“(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the

complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance

with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision

in writing.”

Subsection (17) of Section 41 of the Workplace Relations Act 2015 (as amended) provides as follows:

“(17) The Minister may, by regulations, make provision in relation to any matter relating to—

(a) the presentation of a complaint, referral of a dispute or conduct of proceedings under this section, or

(b) the making of a claim for redress or conduct of proceedings under the Act of 1977,

that he or she considers appropriate.”

At the outset of the hearing the Complainant relied on a written submission which was delivered by his trade union. I was advised that the Respondent advised that it would be calling three members of the cabin crew together with witnesses who conducted or assisted in the conduct of the Investigation, Disciplinary and Appeal stages of the Respondents dismissal procedures. I was advised that the Complainant would be giving evidence in addition to several other witnesses.

The following witnesses were called by the Respondent and gave evidence and were cross examined:

Ms. Clair Durkan Cabin Crew Member

Ms. Joan O’Gorman Cabin Crew Member

Ms. Amy Lockhart, Cabin Crew Member

Ms. Sinead Fegan, Operations Crew Manager for Seniors

Ms. Carmel Byrne, HR Support Disciplinary/Grievance, R & D, Internal processes

Ms. Mary McHugh, Resource and Attendance Manager

Ms. Marie Walsh, (then) Inflight Services Manager (now Customer and Onboard Services manager)

All of the above gave evidence on affirmation with the exception of Ms. Walsh who gave evidence on oath.

In the course of the evidence given by the Respondent’s witnesses the Complainant’s counsel put certain issues of fact at various times to the Respondent’s witnesses in cross-examination on the basis that the matters thus put in cross-examination would be followed up by evidence in chief from the Complainant or witnesses called on his behalf. However at the conclusion of the Respondent’s case, the Complainant’s counsel advised that no evidence would be called by or on behalf of the Complainant and that the Complainant would rely on certain matters adduced in cross-examination together with submissions which the Complainant’s counsel would make in respect of that evidence and in relation to the Complainant’s case generally.

The Complainant did not offer any evidence at the conclusion of the Respondent’s case and both parties at that stage were invited to make closing submissions.

Respondent’s Closing Submission

Three issues were raised by counsel as follows:

The first submission was that the fact that the Complainant had made the decision not to call evidence meant that the Complainant’s case must be dismissed. The Respondent’s counsel cited Memorex World Trade Corporation v. The Employment Appeals Tribunal [1990] 2 I.R. 184

The following passages from the judgement of Carroll J were relied upon:

“The [Employer] seeks certiorari. It complains that the Tribunal’s duty was to hear all the evidence available and make its decision in the light of all the circumstances as required by statute, that is all the evidence. It does not have the power to grant a direction and decide on credibility without hearing the evidence of the claimant on direct examination and on cross-examination and not just a statement of what his case was. This amounted to acting in excess of jurisdiction, was contrary to natural justice (i.e. failure to hear both sides) and showed a lack of fair procedures guaranteed by the Constitution”

[at page 185-186]

“In my opinion the Tribunal was wrong to accede to the application for a direction. As I have said, it is a misnomer but I assume the Tribunal meant to apply a procedure analogous thereto. A direction is given to a jury at the end of a Plaintiff’s case where a judge, assuming all matters in controversy will be resolved according to the evidence in favour of the plaintiff, nevertheless holds that even in those circumstances there is not sufficient evidence to support the plaintiff’s case. Matters of credibility do not arise at the direction stage.

Another factor to be considered is that the statute requires the Tribunal to form a view based on all the circumstances. This involves hearing all available evidence. Of course if the claimant did not intend to give evidence, then a decision has perforce to be made at the end of the employer’s case. But if the evidence is available it should be heard. Thr Tribunal should hear all evidence available relating to the dismissal not only to determine whether there were substantial grounds but also because the extent to which an employee contributes to his dismissal is a matter which has to be taken into account in determining the appropriate remedy. It is not sufficient if the evidence of the claimant is confined to matters relating to mitigation.”

[page 187 of the Report]

The above dicta notwithstanding, the order of certiorari sought by way of judicial review was refused due to the existence at that time of two full appeals from the decision of the E.A.T. to the Circuit Court and to the High Court. That appeal procedure was thus adequate, and certiorari was not necessary for the protection of the applicant’s rights.  It was submitted that if the same case arose today the discretion (not to grant and order of certiorari) exercised by the judge in Memorex would not be exercised as there is now (since the Workplace Relations Act 2015) only one appeal from a decision at first instance in an unfair dismissal claim.

The judgement of Keane J. in Harte and others v. The Labour Court and North Western Health Board [1996] E.L.R. 181;  [1996] 2 I.L.R.M. 450, was cited as authority for the proposition that even where a tribunal may commence its proceedings within its jurisdiction it may still exceed that jurisdiction in the course of the proceedings and its decision could be quashed by way of certiorari.

It was submitted that by not giving evidence the Complainant is in effect seeking a ‘direction’ that the case be decided in the Complainant’s favour without hearing evidence. If this process is to be adopted all the evidence must be taken in the Respondent’s favour.  Section 6 (1) (which has not been amended) uses the phrase “all the circumstances” which involves hearing all the available evidence. If evidence is available, it should be heard. Yet the Complainant has given no evidence from which his contribution to his dismissal might be considered. He has decided to shelter and not to face cross-examination. To deny the Respondent that opportunity when the Complainant has been given the right to challenge, and in some cases, with vigour, the Respondent’s witnesses is to deny fair procedures to the Respondent. In this case after the Respondent has made its case the onus of proof shifts to the Complainant and the price of this is that the Complainant must give evidence. As the Complainant has not given any evidence the case which he makes must fail.

In the alternative and without prejudice to the foregoing, the Respondent pointed to several aspects of the cross-examination where evidence which the Complainant would give was put to the Respondent’s witnesses. However, as the Complainant never said anything in evidence, the Respondent was denied an opportunity to defend itself and all of the material gathered from the questions put in this way must be disregarded.

As to the suggestion that witnesses wrongly became accusers, such suggestions were put to the Respondent’s cabin crew, yet the Respondent had no opportunity to challenge that challenge. Aside from this, the Respondent’s evidence was that the witnesses were and remained just witnesses and it is well established and understood that cabin crew who make statements internally can be called to give evidence in subsequent external proceedings for example if an unruly passenger is arrested and subsequently prosecuted.

The Complainant has provided no evidence of financial loss or of his efforts to mitigate any loss.

In the submissions delivered by the Complainant’s trade union, FORSA at paragraph 5.1 reference is made to a direction made to the Complainant by the Commander of the aircraft in relation to a disruptive passenger. There was no evidence of any direction from the commander. There is only evidence and cross-examination of a very limited nature from other cabin crew members. However, that evidence established that all of them agreed that the Complainant failed to de-escalate the incident. 

While the Respondent accepts that the cabin crew role is safety critical and that a safety critical direction cannot be overridden, the evidence was nonetheless that use of the toilet can be allowed in certain circumstances even where the ‘fasten seat belt’ light is on. As the Complainant did not give evidence and the Respondent has not been given the opportunity to put it to him the evidence on this issue must be accepted. Furthermore, the evidence that the passenger was in distress and ought to have been allowed to use the toilet must also be accepted for the same reason.

The Complainant has provided no evidence of financial loss or of his efforts to mitigate any loss.

The Complainant has provided no evidence in relation to the suitability or reinstatement or any other remedy if any.

No opportunity has been given to the Adjudication Officer to consider all the circumstances of the dismissal and thus the challenge made to the dismissal on behalf of the Complainant must be dismissed.

The Respondent has been deprived of the opportunity to challenge the case made by the Complainant and thus the dismissal cannot be deemed unfair.

In the alternative and without prejudice to any other submission made, if a procedural defect is found the Adjudication Officer is invited to make a finding that the Complainant by his own actions contributed 100% to his dismissal in like manner to the finding made in White -v- Cadbury (Ireland) Ltd. (UD44/1979).

Complainant’s Closing Submission

Counsel for the Complainant made the following submissions:

Counsel confirmed that he had not and was not making any application seeking any positive order from the adjudication process; whereas the Respondent has made an interlocutory application. Only one single decision can be made, and an adjudication officer has no power to make an interlocutory order.

As regards the Unfair Dismissals Act 1977 as amended It is not accepted that Section 6 (1) is the only relevant provision. That provision must be read in conjunction with Section 6 (6) (b) which provides that it is for the employer to show that the dismissal was fair. Nothing in that provision places an onus on the employee. Section 6 (7) was enacted after Memorex was decided. That provision looks to the reasonableness or otherwise of the employer’s conduct and/or its failure to comply with codes of practice. These, it is submitted are the relevant provisions. It is accepted that the decision to be made must be based on all the circumstances but these circumstances relate to the employer and no reference is made in any of the provisions to the existence of any onus of proof on the employee.

It is accepted that the Complainant cannot rely on anything which the Complainant would say or would have said.

It is accepted that there is no evidence relating to mitigation.

Section 41 (5) of the Workplace Relations Act 2015 did not apply to cases which were formerly handled by the Employment Appeals Tribunal. That provision states that the Adjudication Officer “shall enquire into the dispute” but there is no mention of the employee other than, as provided by subsections (5) (a) (ii) subparagraphs (i) and (ii), that he or she must be given an opportunity to be heard and to present any relevant evidence. Such an opportunity has been given to the Complainant who has chosen not to be heard. He does not wish to be heard, and he is entirely happy that unfair dismissal has been made out based on the employer’s case. Subsection (5) (a) (iii) refers to “a decision” (singular) which must be made in accordance with the relevant redress provisions, which in the present case are those provided for in the Unfair Dismissals Acts. There is no power to make any interlocutory decisions.

The Respondent alleges that the Complainant is sheltering or avoiding giving evidence but an adjudication officer has the power pursuant to Section 41 (10) of the Workplace Relations Act 2015 (as amended) to direct any person to give evidence albeit that it is not being suggested that this power be invoked to compel the Complainant to give evidence.

Section 41 (17) of the Workplace Relations Act 2015 ties in with the amendments made to the Unfair Dismissals Act by the Unfair Dismissals (Amendment) Act 1993 Amendment Act which introduced Section 6 (7) in that Section 41 (17) of the Workplace Relations Act empowers the Minister  to make regulations in relation to the presentation of a complaint, the referral of a dispute, the conduct of proceedings under this section, or the making of a claim for redress or conduct of proceedings under the Act of 1977 but the Oireachtas has not done so. If the Oireachtas had intended to place the burden of proof on an employee, the Oireachtas would have done so.

All of these provisions address any issues that arise from the Memorex decision which was issued nearly forty years and the issue the subject matter of that decision has not arisen since. In addition the dicta relied on are obiter.  This concludes the Complainant’s response to the Respondent’s application for a ruling in its favour based on the Memorex decision.

In relation to the substance of the Complainant’s challenge to the dismissal, it is accepted that he cannot rely on any positive proposition or document other than what has been put before the adjudication officer by the Respondent. The Complainant relies on the viva voce evidence adduced by the Respondent, and it appears that the Respondent was unhappy with its own evidence as the process was inherently flawed. It seems that the employer is intent on pursuing a vitriolic cross-examination of the Complainant

In her evidence Ms. Walsh said that “the Scope of the investigation naturally grew” which means that the length of the pitch kept growing and yet Ms. Walsh stood over that. The result was that it was left to the employee to work out what was being alleged between the Suspension letter, the First Investigation Letter and the Second Investigation Letter.

Three cabin crew members gave statements which were then treated as accusations. The cabin crew members were never informed that their statements would be used as complaints against the Complainant.

It was accepted in cross-examination by Ms. McHugh that a during the investigation a further charge was added to the initial charges, which was not put to the Complainant before the investigation findings were made. This constitutes a clear breach of the principle of audi alteram partem and furthermore this same charge was carried forward into the disciplinary stage.  These charges which were never put tot eh Complainant were relied on in a manner which prejudiced the Complainant.

It was acknowledged by Ms. McHugh that she did not provide the Complainant with the right to question witnesses.

The Human Resources Department provided Ms. McHugh with the outcome, and this evidence bears out the fact that the decision was not made by her.

When the dismissal went to the appeal stage, Ms. Walsh not only relied on the findings of the investigation and disciplinary processes, but she decided that there was another finding which was the basis of not upholding the appeal and this was that the Complainant had made a report which was factually inaccurate.

The entire process leading to the dismissal was unfair for the foregoing reasons. Without prejudice to that contention the evidence provided to the disciplinary and appeal processes was that the Complainant was a long-standing employee with an unblemished record and this was not disputed. This was a single incident and the sanction, on the Respondent’s own evidence, was grossly disproportionate.

With regard to redress, it is conceded that there is no evidence of mitigation and the Complainant seeks such order as is just and equitable as provided for by Section 7 subsection (7) (c) (2) of the Unfair Dismissals Act 1977 as amended which makes provision for an award even where there is no evidence of loss.

Respondent’s Reply to Complainant’s Closing Submissions

Insofar as it is suggested that the Respondent wanted to ‘have a crack’ at and to ‘scalp’ the Complainant, this is incorrect. The procedure provides for both sides to be heard. It is not about having ‘a crack’ at the Complainant. If anyone had to face ‘having a crack’ it was the Respondent’s witnesses who faced cross-examination.

With regard to the criticisms as to the fairness of the dismissal process the Complainant was accompanied at all times by his trade union official. The request to question witnesses issue was abandoned by Mr. O’Neill and this whole argument must fail. 

There is precedent with regard to the making of interlocutory orders for example in cases (not the present case) where a party behaves in a disruptive or unruly fashion. In any event what is sought is not an interlocutory order but rather a final determination that the case made by the Complainant must fail. Section 6 (1) remains in unamended form and still applies, and this provision requires an examination of “all the circumstances”. The adjudication officer has no access to “all the circumstances” because of the absence of evidence. The limitation on the evidence is imposed by Mr. O’Neill. The adjudication officer must act judicially and should not knowingly act in a way which may lead to a judicial review. If the Respondent is denied a fair hearing by the fact that evidence has not been called, then the adjudication officer must decide on the basis of the evidence available.

It is repeated that there is no evidence of loss and there is no evidence of mitigation.

Discussion of Submissions and Evidence and Findings

In the present case, dismissal was not in dispute nor was the date of dismissal. However, all other issues relating to the claim were disputed. The dismissal is covered by deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal.

In this case the Respondent relied Section 6 (4) (b) in that it was contended that the Complainant was dismissed on the basis of alleged gross misconduct pursuant to Section 6 (4) (a).

Section 6 (1) requires an analysis of ‘all the circumstances’ surrounding the dismissal and Section 6 (6) places the burden on the employer to establish the grounds for dismissal, which in the present case is gross misconduct. In this case the Complainant is entitled to put the Respondent on full proof of the ground of dismissal advanced and this is what the Complainant has done; whereas the Respondent contends that in the absence of evidence from the Complainant it is impossible to establish ‘all the circumstances’ and for this reason there is no case to answer and the Respondent must succeed.  

I do not accept the submission by the Respondent that the absence of rebuttal evidence of any sort from the Complainant automatically entitles the Respondent to a ruling in its favour that the dismissal was not unfair. However, it is certainly the case that in the absence of evidence by or on behalf of the Complainant the enquiry into ‘all the circumstances’ is limited to the available evidence. The available evidence consists of the documentation gathered by the Respondent together with the testimony of the witnesses called for the Respondent. The enquiry must therefore look to this material and testimony as the primary source as to what constituted ‘all the circumstances’. In the course of the enquiry into ‘all the circumstances’ a discretion is afforded to the adjudicator by Section 6 (7) whereby ‘regard may be had’ to the reasonableness of the Respondent’s conduct including compliance with procedures. The Complainant’s counsel drew particular attention to this provision in support of a challenge to the fairness of the Respondent’s procedures throughout the dismissal process and this being the case I deem it appropriate to have regard to the procedures adopted by the Respondent.

Because no evidence was offered by or on behalf of the Complainant any issues of fact which were advanced in submissions made on behalf of the Complainant and/or which were put on his behalf to the Respondent’s witnesses which required follow-up testimony from the Complainant or witnesses called by him must be disregarded.  What then remains comprises the material available to assess, as far as practicable, the fairness or otherwise of the dismissal in ‘all the circumstances’.  Accordingly, it is not the case that there is no material or evidence upon which to base the assessment of the dismissal pursuant to Section 6 (1) and having regard to Section 6 (7) and thus, instead of making an order for a ‘Direction’ - described a “misnomer” by Carroll J. In Memorex - upholding the dismissal for want of rebuttal evidence I shall assess the dismissal on the basis of the material and evidence which is available together with the submissions made by the respective parties.

There are many formulations guiding decision-makers in their assessment of when a dismissal for misconduct will be deemed fair. One such formulation appears in In Bunyan v United Dominions Trust[1982] ILRM 404, where the Employment Appeals Tribunal put it thus:

“…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

[1982] ILRM 404 at p. 413

A substantially similar approach which has become known as ‘the band of reasonableness test’ puts the test as follows: 

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably 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 [might] quite reasonably take a different view.”

British Leyland UK ltd v Swift [1981] IRLR 91, at page 93. Applied in Bank of Ireland v Reilly [2015] IEHC 241.

In  Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 the Employment Appeals Tribunal stated :

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act ... The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts … For this to be established the Tribunal must be satisfied that the alleged act … was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”

Preliminary General Commentary Regarding Admissions Made by the Complainant

In the present case the Complainant has chosen to put the Respondent on proof to establish that the dismissal was not unfair, but he has elected not to give evidence himself nor was any evidence offered on his behalf. Whilst he relies on several procedural breaches, he has not and cannot rely on any factual assertions other than those which are admitted by the Respondent or the Respondent’s witnesses, or which can be ascertained from the material presented. That material consisted of evidence which was gathered and put to the Complainant in a series of formal interviews which were conducted with him at the Investigation, Disciplinary and Appeal stages. Before each of those interviews all the available evidence was forwarded to the Complainant and his representative. The Complainant’s responses were recorded in agreed minutes.

In assessing the fairness or otherwise of this dismissal the fundamental question is whether in all the circumstances the Respondent’s decision to dismiss came within the band of reasonableness such that a reasonable employer might reasonably have made the decision. The primary source material to ascertain this question is the documentary evidence of the Investigation, Disciplinary and Appeal meetings. The Complainant and his representative were provided with all of the available evidence before each of these meetings and the Complainant was given an opportunity to respond as recorded in the notes of the interviews with the Complainant at the Investigation and Disciplinary stages.

I have carefully considered the statements made by the Complainant and his representatives in the meetings as recorded in the minutes as these statements were taken into account when the decision to dismiss was made and moreover they represent the only statements by or on behalf of the Complainant with the exception of the submissions made by his counsel at the end of the evidence at the adjudication hearing.

A reading of the contributions made by the Complainant and his representatives during the internal investigation, disciplinary and appeal meetings does not reveal a clear picture as to the Complainant’s response to the evidence and specifically whether the incidents complained of occurred at all - and if they did, whether he accepted responsibility for them. Running concurrently with this lack of clarity is another issue of a personal nature which the Complainant specifically raised in the meetings. The detail of this issue is fully laid out in the minutes of the meetings and was available to all parties and to me and I have fully considered it as part of my assessment of “all the circumstances”. However any detailed reference to it is redacted in the following extracts from the minutes.

The following extracts from the interview notes are pertinent:

The Investigation Meeting

At this meeting the agreed notes record the entirety of the statements made by the Complainant and his representative all of which I have read and considered.

“When the passenger boarded, [REDACTED] I was riveted to the spot.”

“I was riveted to the floor. That is the effect it took on me. In hindsight, 20/20, it wasn’t

my best performance. This is the first time this ever happened…[REDACTED] I am …[REDACTED taking steps] improving my skill set so this doesn’t happen again.”

Later in the meeting the Complainant’s representative made the following statement:

“This was out of character for Alan. Alan has given you his perspective as to why the

engagement with the passenger [REDACTED] had an impact on him on the day.”

Later in the meeting the Complainant said:

“It wasn’t my best day in work. It rocked me to the core. [REDACTED]… As I keep saying, it rocked me to the core….[REDACTED]…As I said, fight or flight.”

Further in the meeting the following exchange took place between Ms. Fegan the Investigator (“SF”) and the Complainant (“AON”):

“AON: I was in a state of fear. I was genuinely fearful.

SF: If you were feeling in fear on the aircraft or if you have ever felt in fear before on an aircraft, would you not stand yourself down?

AON: In hindsight, yes, I should have stood myself down. I was focused on getting the aircraft and customers back to Dublin. I thought the issue was dealt with and resolved after the customer used the toilet. So yes, hindsight I should have stood myself down but in the moment, it is not 20/20. You get into a groove to get that aircraft back.”

With regard to the interaction with the Passenger after deboarding, the Complainant gave his version of what had occurred:

“When you come down the escalator, there are busses, and you then turn left to cut across to the white zone. I went further down so as not to interact with him. Joan was with me for that. When we got to the pedestrian crossing, he shouted. I thought to myself, did he just say that? I turned and stopped. He called me a c…. I did say back “real mature bud”. Joan and I continued to walk to the car. I made sure he wasn’t

following us.”

Later in the meeting the following exchange took place:

“SF: Do you think you behaved in an inappropriate or confrontational manner towards the customer while in uniform?

AON: I didn’t shout or curse at him. I said, “real mature bud”.”

The Complainant maintained that in relation to his dealings with the Passenger he was assertive, not aggressive. However, on both occasions when this phrase was used it was supplemented by a reference to the Complainant’s state of mind:

“My record speaks for itself. As I have said, it was fight or flight. I was assertive. I was not aggressive.”

“We are trained to be assertive. I was assertive not aggressive. Fight or flight kicked in on the day. I was in fear. An airplane should be a safe place and I wanted to get the aircraft to a safe place.”

The Disciplinary Meetings on the 30th of July  and 7th of August 2024

The following was put by Ms. McHugh:

“Would you like to respond to the allegations and findings which were as follows:

The first finding is:

A.that you behaved in an unprofessional and aggressive manner towards a customer

of Aer Lingus whist you were operating as a Senior Cabin Crew Member (SCCM) onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.”

At this point the Complainant repeated the impact of the Personal Issue and became upset and a break was taken. On resumption, the Complainant’s representative made the following statement:

“Just speaking on Alan’s behalf, in relation to the first finding you mentioned, Alan

has already provided you with the reason. [REDACTED – Personal Issue referred to]… This was not a normal reaction. Alan has been in the company for 11 years now and something like this has never happened before… This was an isolated incident. He was

… [REDACTED - Personal Issue referenced.]”

Ms McHugh said:

“I take your point onboard regarding the CRM not being an issue on the first leg

but ultimately it did break down when the incident occurred with the passenger.”

The Complainant replied:

“It knocked the absolute wind out of me.”

The Complainant became upset again and the meeting was adjourned.

The Reconvened Disciplinary Meeting on the 07th of August 2024

Ms. McHugh asked the Complainant:

“Just following on from last week’s meeting where we already discussed the

first two findings from the Investigation report. I won’t go through them again but want

to ask if you wish to add anything further?”

The Complainant’s representative replied on the Complainant’s behalf:

“Just to say that there is no disputing the incident happened. On the day in question [REDACTED personal Issue referenced]. This is not how he normally deals with passengers. He has been with the company for 11 years and in the industry since 1996. He is a senior cabin crew member. In hindsight he should have dealt with the situation a different way, but hindsight is a great thing. I also want to point out that Alan gave the passenger complimentary tea/coffee during the flight.”

The Complainant referred to the Personal Issue and that he was fearful. He was asked whether he ever thought to ask one of the other crewmembers to deal with the passenger and he replied:

              “At that stage, I thought it was done. The interaction had happened, and I didn’t

think he was going to act like that again. Hindsight is 20-20. Fear was instilled in me on

the day.”

The following exchange then occurred:

Ms. McHugh      “I’m sorry, I’m just trying to get an understanding of your decision-making process, I’m not trying to upset you. I appreciate you felt fear [arsing from Personal Issue] however you had an aircraft full of passengers. Would it not have been best to remove yourself from the situation?”

Complainant:  “ I was the person nearest to him. I didn’t have time as I was the first point of contact. I compartmentalised it. I was so busy as we were re-fuelling and boarding and there was no APU. There was a lot of moving parts on the day to take into account. From a safety perspective I was on point. I had full situational awareness.”

Ms. McHugh:     “When you were aware of [Personal Issue referenced] did you not consider standing yourself down?”

Complainant:     “At the time I was happy to continue. The aircraft was safe, I was safe.”

Later in the meeting Ms. McHugh asked the Complainant: “would you like to add anything else for consideration?” and the Complainant’s trade union representative said:

“There is no dispute that it happened, and that Alan may have handled it better….This has never happened before, and it won’t happen again going forward…He has been in the industry since 1996 and nothing like this has ever happened and it won’t happen again”

As regards the other members of the cabin crew witnessing the Complainant’s interactions, the Complainant said that he chatted with Ms. Durkan and got on with his duties as normal. However, he added:

“Did I perform to the best of my ability, no. I have steps to ensure that it won’t happen again.”

In relation to the further interaction with the Passenger after deboarding the Complainant said:

“Basically, he called me a name. I went to the other side of the side of the road.

He had a phone up to his mouth at the time and I just said to him “real mature bud”. I

know I shouldn’t have said it in hindsight. I just wanted to go home.”

“In hindsight I shouldn’t have said “real mature bud”, but I tried to avoid him and

not interact”

The Complainant was provided with all the evidence against him in advance of each of the meetings. He was afforded and exercised the right to trade union representation, and he was given the opportunity not only to respond to questions put to him but to raise any further issues himself or through his trade union representative.

An analysis of the full transcripts of the interviews with the Complainant suggests an approach directed at establishing that the events which occurred were not of such a serious nature as would warrant dismissal. Coupled with this approach was the introduction of the role played by the Personal Issue. The role played by the Personal Issue was introduced for the purposes both of explaining the Complainant’s unprecedented and out-of-character behaviour, as a factor which should mitigate the gravity of the offence and a factor to be considered when considering the severity of any penalty to be imposed.

The closing submissions made by the Complainant’s counsel alleged that the dismissal procedures were so unfair as to render the dismissal itself unfair on a number of grounds. Further or in the alternative it was contended that the sanction of dismissal was grossly disproportionate, again for a number of reasons. What has not been and has never been contended by the Complainant is that the incidents complained of did not occur at all. However, beyond this certainty lies the question as to what the Complainant did admit and the implications of any admissions which he made. The primary source for the answer to these questions lies as it must, in the material available up to the time when the employment ended as all the issues for determination arise in that period rather than at any time thereafter. This fact effectively limits to a very considerable extent the relevance of facts or submissions which were not raised internally prior to the termination of the employment. Oral evidence is however of assistance to explain the procedures or to explain how they were defective. In the latter case evidence of how the defect prejudiced the employee is highly relevant and where it is not available the issue of prejudice is more difficult to establish.

The foregoing are general observations which are set out in advance of making specific findings because the issues identified constitute a theme which runs through many of the findings which follow. 

Findings on Specific Issues Raised in Closing Submissions

Turning then to the fundamental question as to whether the dismissal was reasonable in all the circumstances I must rely primarily on the material which formed the basis of that decision together with any ancillary evidence which was adduced arising from the interpretation or explanation of that material. However, that evidence is limited to the testimony provided by the Respondent’s witnesses alone without and there was no evidence from or on behalf of the Complainant as to how the various aspects of the three processes affected his understanding or the manner in which he and his trade union approached the situation.

Despite the absence of evidence from or on behalf of the Complainant the dismissal was challenged on the ground outlined in the closing submission made by counsel for the Complainant. I propose to assess these arguments by reference to the material available to the decision-makers and the limited evidence available.

The Right to Question Witnesses and Related Issues

This issue was initially advanced in cross-examination on the basis that a request was made by or on behalf of the Complainant to question witnesses and that this request was refused.

At the Appeal Meeting the following exchange was recorded in the agreed minutes:

[Ms. Walsh read out the relevant ground from the Complainant’s appeal letter as follows:

“At the disciplinary hearing Fórsa formally requested the opportunity to question those interviewed in an earlier process who Aer Lingus have relied on their statements to arrive at an outcome. This access was refused outright and no consideration was applied to this request. This is not in line with correct procedure, it demonstrates appropriate avenues were actively shut down by the employer to establish more detail and fact that would support Mr O’Neills case. If this matter is appealed to the Workplace Relations Commission that opportunity to interview and question witnesses relied upon will exist and we will be seeking to establish more detail at that point. The fact this option was refused has limited the ability to examine detail that would assist in providing more clarity in Mr O’Neill’s case and as such Aer Lingus have acted on impartial information, knowingly to arrive at a decision.”

[The minutes record that which was then said by Ms. Walsh (“MW”), the Complainant’s trade union representative “LC” and the Complainant himself (“AON”). (“JS” was a previous trade union representative who accompanied the Complainant at the Disciplinary Meetings] as follows:

“MW: Can you point me where this is raised? I am unable to find it in the agreed minutes?

LC: It was raised by JS in the disciplinary.

MW: Again, correct me if I am wrong, but I cannot not see that in the meeting minutes. If those

questions were asked in the disciplinary, why were the meeting minutes agreed by you

Alan?

LC: It is my understanding that they are snapshot and not verbatim.

MW: I know but that is an important point, surely that is something you would come back on and amend in the meeting minutes?

LC: This is why I believe that the union rep should have been consistent throughout. From my

perspective if I was able to attend both meetings, I would understand the need to refer to

that. [ES] was a witness to [JS]. If this goes to the WRC you can call on witnesses, the WRC facilitates cross examination.

MW: Alan, from all of us here present today, you were the only one in that meeting. Who was

asked to interview the witnesses? What response was provided when [JS] asked to

interview the witnesses?

AON: I believe Mary McHugh, the answer was no. There is an immense pressure, these meetings were a blur to me. As soon as I get the meeting minutes, I will go to [LC]. I don’t remember what was said.

LC: If it helps this appeal [JS] can send a letter.

MW: With regards to the point being raised here that the access was refused? I’m not seeing that documented here in the agreed minutes.”

The Respondent’s witnesses all denied that any request to question witnesses was made and there was no record in any of the agreed minutes of the making of this request. During the evidence it was indicated that this issue would be the subject of evidence which would be called from the Complainant’s side. However, when no evidence was called by or on behalf of the Complainant his counsel’s closing submissions limited the point to an assertion that It was acknowledged by Ms. McHugh that she did not provide the Complainant with the right to question witnesses. The matter was not put any further and no legal submissions were made. Accordingly, it is not alleged that a request to question witnesses was made and refused. Instead, the submission (as I interpret it) is that such a right should have been afforded in the circumstances - whether it was requested or not.

Firstly, in relation to the internal procedures, no automatic right in the Respondent’s written procedures was identified to me. As regards the existence of the right generally, no authorities were opened to me on this issue. However, the Code of Practice on Grievance and Disciplinary Procedures  

(S.I. No. 146/2000), at paragraph 7 of the General Principles has the following to say on the issue:

“7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.”

As can be seen the requirements referred to are not mandatory and “may” be required which I interpret as affording a discretion depending on the circumstances of each case. Both Ms. McHugh and Ms. Walsh denied that any request to question witnesses was made. Ms. McHugh said that if such a request had been made, she would have taken that away and Ms Walsh said that had the issue arisen she would have facilitated it but it did not arise. She was asked whether this meant that there was a right to question witnesses and she said: “If I had been asked – yes”.

Although not specifically advanced by counsel for the Complainant in his closing submission, questions were put to Ms. McHugh in cross-examination that contested issues of fact would have necessitated permitting the Complainant to question witnesses or if not, then those witnesses should at least have been re-interviewed. Ms. McHugh maintained that the Complainant was given a chance to respond to everything that had been said by other witnesses. She agreed that she could have reinterviewed witnesses, but she said that she did not feel this to be necessary. As to whether she should have requested from the Complainant a list of questions to be put to the witnesses she said that she already had all the statements necessary to make her findings. She also said that it was her understanding that when “JS” (the trade union representative in the meeting on the 7th of August 2024) indicated that the incident would not be disputed she understood this to mean that the Complainant was not disputing the facts which she understood to mean any of the facts. However, she accepted that she did not seek clarity on this issue at the meeting. 

My overall assessment of the issues raised must be related to the context and circumstances of this particular case. Although a right to question witnesses may arise as per the Code this does not suggest an automatic entitlement. In this case there was evidence in the form of an anonymous complaint and photographs, but the Respondent’s case was that the decision to terminate the Complainant’s employment was taken based on the witness statements taken from the other witnesses which corroborated the allegations contained in the anonymous complaint and photographs. As regards the evidence of those witnesses it was not disputed (and the minutes reflect) that the Complainant had their statements and was given an opportunity to raise any matters which had not already been discussed in the meetings. To this the Complainant, in effect contends (as I interpret the import of hi scounsel’s questions) that whether he sought to question witnesses or not, he should at the very least have been invited at the disciplinary stage, to identify any specific issues where a possible conflict arose and a further process should then have been undertaken whereby follow-up interview would have been conducted even if the right to confront - in effect, to cross-examine - the witnesses would not be permitted.

As far as Ms. McHugh was concerned the issue did not arise and the facility to question witnesses would have been granted if it had been made which, she insisted, it had not been.  Moreover, it was her understanding that there was no conflict of evidence since the incident was not disputed. To my mind this last issue is of considerable significance, and it is one where I only have the benefit of Ms, McHugh’s evidence. Without hearing from the Complainant or any other witness on his behalf I am not in a position to ascertain the Complainant’s account as to which facts were accepted and which were contested nor do I have any evidence as to how the failure to reinvestigate or to facilitate questioning of witnesses prejudiced the Complainant either at the disciplinary stage or on appeal.

If the issue did give rise to a significant prejudice, then it is reasonable to assume that any such prejudice would have been detailed, accompanied by an outright demand for a reinterview process or an opportunity to confront witnesses, at the disciplinary stage. However this did not occur at the disciplinary meetings. This then raises the question as to whether such an outright demand was made and pursued in the Appeal Hearing 

As regards the Appeal meeting where the ground of appeal relating to questioning of witnesses was discussed, a complaint of prejudice was not made other than to rely on a request allegedly made and denied and the statement of what would occur in the WRC:

“If this matter is appealed to the Workplace Relations Commission that opportunity to interview and question witnesses relied upon will exist and we will be seeking to establish more detail at that point”.

There was however also a submission contained at the end of the Appeal Letter as follows:

“As evidenced above, Fórsa hold a number of very clear and specific grounds to appeal the decision reached by Ms. McHugh in this process, and which now include breaches of legislation by Aer Lingus against Mr O’Neill within this process. Given the impact this process is having on Mr O’Neill’s health and wellbeing we would seek a hearing to be scheduled for the earliest possibility to address and deal with these issues.”

This aspect of the Appeal Letter was not discussed at the Appeal Hearing or ruled upon in Ms. Walsh’s outcome letter. At the adjudication hearing It was not specifically referred to in submissions nor was it specifically put to Ms. Walsh in cross-examination. I also note that in the written submission from the Complainant’s trade union at paragraph 2.27, the grounds set out in the bullet points in the letter are quoted in full but the above paragraph, which was at the end of the original of the appeal letter was not quoted.

In the circumstances I do not have an explanation from either party as to why the paragraph quoted above and specifically the words “we would seek a hearing to be scheduled” was not discussed or ruled upon at the appeal stage. 

In the circumstances I will consider the issue in the abstract on the basis that for whatever reason, the Respondent did not convene any further hearings or offer any further procedures and this being so, whether the Respondent should have done so. This in turn raises the question as to whether sufficient process had been afforded to the Complainant or whether the process that was afforded was so inadequate as to undermine the fairness of the dismissal.

There is no evidence showing that any specific proposals were made by the Complainant or his trade union as to the possible terms of reference of any further hearings and no such proposals were submitted at the adjudication hearing.  Aside from the fact that the Respondent’s procedures do not appear to provide for a further hearing, there were no concrete suggestions from the Complainant’s side at the Appeal stage as to which issues required further engagement, other than the wording from the Appeal letter quoted above. That wording suggests that it was or would have been necessary to consider the issue of culpability further. Additional to that enquiry, the reference to the Complainant’s health and well-being suggests that further consideration of the Personal Issue was required but again there was no clarity offered as to whether that issue was relevant to culpability or severity of sanction or both. Moreover, since the issue of whether the Respondent should have considered a medical assessment of the Complainant was put in cross examination to Ms. McHugh and Ms. Walsh, one cannot rule out the possibility that an issue engaging reasonable accommodation for a disability may have arisen.

At the Adjudication Hearing certain factual issues were put to the Cabin Crew in a public forum, including it must be said, assertions of fact which had not been raised by the Complainant at any stage of the internal process. These issues were later abandoned when the decision was taken that no evidence would be called from or on behalf of the Complainant. It was also suggested to Ms. McHugh that further enquiries were warranted. However, the submissions made at the closing of the adjudication hearing did not clarify how the Complainant was prejudiced by the findings and how that prejudice could and should have been addressed. It is impossible to say whether and if so to what extent, if further enquiries had been made, whether at a further internal hearing or a via a reinterviewing process, the outcome would have avoided the Complainant’s dismissal. However insofar as any further procedure did take place, it took the form of the present adjudication process which of course was not a further stage of appeal. Even at that stage clarity in the form of evidence from or given on behalf of the Complainant was not forthcoming and the submissions made on foot of the evidence fell short of addressing key issues, principally the issue as to what if any prejudice to the Complainant was occasioned by the procedural defects contended for. In the light of the Complainant’s admissions as to the events which had occurred, the lack of evidence that any request to question witnesses was made at the disciplinary stage and the lack of evidence as to how, if at all, the Complainant was prejudiced by the issue, I find that the Respondent’s failure spontaneously to offer the facility to question witnesses or to arrange for the re-interviewing of  witnesses was not such as to take the dismissal beyond the band of reasonableness given the circumstances of the case.

The Expansion of the Investigation as it Progressed and the Additional Findings Made

These two allegations are related. It was contended that the allegations expanded significantly from those which were set out in the Suspension Letter and to a more elaborate and detailed list of charges which were communicated before the Investigation and further that the conclusions of the Investigation contained a finding which was not included in the original charges. That additional charge was then included in the allegations which formed the disciplinary charges and findings were made when the specific wording of that charge was not put to the Complainant for a response at the disciplinary meetings. It was contended that these issues constitute a breach of the maxim audi alteram partem and it was contended that Ms. Walsh, who heard the Appeal, nonetheless stood over those breaches when she upheld the dismissal.

The original charges were set out in the Suspension Letter dated the 10th of May 2024 from the IFS (In Flight Service) Operations Crew Manager - Communications   which letter included the following:

“you behaved in a manner contrary to the standards expected of an Aer Lingus employee towards a customer when you were operating as the Senior Cabin Crew Member on board the above-mentioned flight. This matter, as alleged, was reported to Aer Lingus by a fellow customer travelling on the same flight.”

Before the Investigation Commenced the charges to be investigated were detailed in a letter dated the 12th of June 2024 from Ms. Fegan to the Complainant as follows:

“(A) that you behaved in an unprofessional and aggressive manner towards a customer of Aer Lingus whist you were operating as a Senior Cabin Crew Member (SCCM) onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.

Further concerns have arisen upon receipt of witness statements (attached) in respect of the matter.

Consequently, in advance of meeting with you to seek your response on the matter, I must advise you that in addition to allegation (A) above, it is alleged that:

(B) you failed to promote and foster an appropriate and co-operative teamwork environment in keeping with the principles of CRM which is an alleged breach of the Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM;

(C) you escalated the situation with the customer instead of seeking to manage and deescalate the situation in line with expectations of a SCCM;

(D) after the flight, when you came into contact with the customer, you behaved in an inappropriate and confrontational manner towards the customer, whilst you were in uniform and representing the company.”

The outcome of the investigation was set out by Ms. Fegan as follows:

“I am satisfied owing to the consistency across the statements that you have engaged in the behaviours set out in witness statements. Consequently, it is my considered view based on all of the information available to me, including representations put forward by yourself, and all witnesses, the customer complaint, as well as the representations put forward by your representative, Ms Connell, I have decided that there is a case to answer in respect of the allegations that while operating as the

Number 1 on EI 515 on 9 April 2024 that you:

A. behaved in an unprofessional and aggressive manner towards a passenger of Aer Lingus whist you were operating as a SCCM onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.

B. failed to promote and foster an appropriate and co-operative teamwork environment in keeping with the principles of CRM which is an alleged breach of the Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM;

C. escalated the situation with the customer instead of seeking to manage and deescalate the situation in line with expectations of a SCCM;

D. when you came into contact with the customer after the flight, you behaved in an inappropriate and confrontational manner towards the customer, whilst you were in uniform and representing the company.

In addition to these conclusions the following was also stated:

I am satisfied that your actions were contrary to section 14 of the Company Disciplinary Procedure pertaining to:

• Acts or omissions detrimental to the reputation, image or interests of Aer Lingus, our employees and/or our customers.

• Conduct that is prejudicial to safety. [Emphasis added]

I am satisfied that your actions were also contrary to the Operations Manual Part A Cabin (PAC), Issue 1, Revision 7.9 Reference 1.13.1. Specific responsibilities of the SCCM) which include:

• The co-ordination of the cabin crew team to ensure a safe, efficient and effective cabin operation and cabin service delivery.

• Promoting and fostering an appropriate and co-operative teamwork environment in keeping with the principles of CRM and Aer Lingus policies regarding Respect and Dignity.”

Ms. McHugh made the following conclusions in the Disciplinary Outcome letter dated the 29th of  August 2024:

“In arriving at my findings, I have considered all of the evidence available to me including the

investigation report and the still photos, the explanation put forward by you at the disciplinary hearing and the representations made on your behalf by Mr Sheridan.

In summary, I am satisfied that you:

A. that you behaved in an unprofessional and aggressive manner towards a customer of Aer Lingus whist you were operating as a Senior Cabin Crew Member (SCCM) onboard flight EI 515 on 9 April 2024 contrary to section 14 of the Company Disciplinary Procedure pertaining to conduct, customers, and business reputation.

B. that you failed to promote and foster an appropriate and co-operative teamwork environment in keeping with the principles of CRM which is an alleged breach of the Operations Manual Part A Cabin, Issue 1, Revision 7.9, reference 1.13.1. Specific responsibilities of the SCCM.

C. that you escalated the situation with the customer instead of seeking to manage and de-escalate the situation in line with expectations of a SCCM.

D. that after the flight, when you came into contact with the customer, you behaved in an inappropriate and confrontational manner towards the customer, whilst you were in uniform and representing the company.

I am satisfied that your actions were contrary to section 14 of the Company Disciplinary

Procedure pertaining to:

• Acts or omissions detrimental to the reputation, image or interests of Aer Lingus, our

employees, and/or our customers.

• Conduct that is prejudicial to safety.

I am satisfied that your actions were also contrary to the Operations Manual Part A Cabin

(PAC), Issue 1, Revision 7.9 Reference 1.13.1. Specific responsibilities of the SCCM) which

include:

• The co-ordination of the cabin crew team to ensure a safe, efficient, and effective

cabin operation and cabin service delivery.

• Promoting and fostering an appropriate and co-operative teamwork environment in

keeping with the principles of CRM and Aer Lingus policies regarding Respect and

Dignity.

In light of the above, I find that through your actions, you have breached the policies and

procedures of Aer Lingus in a manner which amounts to gross misconduct.”

Under cross-examination Ms. Fegan accepted that she included additional findings in her conclusion which had not been included in the original charges communicated before the Investigation commenced. She also accepted that she did not specifically put to the Complainant that his conduct was “prejudicial to safety” even though her conclusions included this phrase in the additional text.  Ms. Fegan accepted that there was no mention in any of the witness statements or any of the other evidence of a safety concern or that the flight was considered unsafe. However, she did say that the witness statements did mention threatening body language.

It was put to Ms. McHugh that the same issue arose with allegation that the Complainant’s conduct was “prejudicial to safety”. the issue of Safety as had arisen in the Investigation and that the relevant paragraph from the Investigation finding was cut and pasted into the outcome of the Disciplinary procedure even though it had not been formally put to the Complainant. Ms. McHugh said that she covered this issue in the disciplinary process and she put to the Complainant that people on the flight didn’t feel safe. She gave the Complainant an opportunity to respond and she considered his responses.

Ms. Walsh accepted that that the Scope of the investigation “naturally grew” from the more general charges set out in the suspension letter to the more specific allegations which were the subject of the investigation because the nature of the investigation examined the more general allegations on a higher level and this process led to further more detailed allegations being put at the investigation stage. The allegations were based on the customer complaint as corroborated by the statements taken from the other members of the cabin crew.

Following the Appeal hearing Ms. Walsh made the following finding in relation to this issue:

“7. Concerns about ‘conduct that is prejudicial to safety’ was never identified in any earlier process and as such Aer Lingus cannot use a ground in the disciplinary outcome which was never identified, highlighted or investigated in earlier processes.

It was established in this process that your conduct amounted to conduct that was prejudicial to safety contrary to a disciplinary policy and warranting a disciplinary sanction. The investigation clearly established a number of safety concerns by your conduct both with the customer who experienced the escalation with you, with the other customers who witnessed these escalations and interactions both onboard and outside the terminal building and the facts establishing that your cabin crew colleagues were not comfortable in raising their concerns about this matter with you, as operating Senior Cabin Crew. I am satisfied that you have had adequate opportunity to address these matters in the process.”

Given the nature of the Investigation process which as its name suggests was a process designed to gather all available information it is not surprising that as the Respondent drilled down into what had occurred and spoke to witnesses, that the allegations grew form the more general allegations set out in broad terms in the suspension letter to the more specific and detailed ones which were the basis of the investigation. When the issues were discussed in detail with all parties the evidence thereby gathered informed the inclusion of additional issues which were added to the conclusions. These additional issues, including the allegation that the Complainant’s conduct was “prejudicial to safety” were not invented but were derived from the investigation process in the sense that they were formulated from the information gleaned and were put on the bass that there was a “case to answer”. A finding that there is a “case to answer” is not the same as a finding of fact or a conclusion that the behaviour had occurred and this being so I cannot agree that the process whereby the additional charges emerged from the investigation process constituted a breach of fair procedures or the maxim audi alteram partem.  That maxim of course did apply to the disciplinary process. Ms. McHugh’s evidence was that safety was discussed at the disciplinary hearing and the Complainant had a full opportunity to address issues related to safety. In doing so she noted (as reflected in the minutes) that the Complainant stated that “The aircraft was safe, I was safe.”. However, she also recalled that the Complainant’s representative said that there was no dispute as to what had happened.

The notes of the disciplinary meeting on the 7th of August 2024 do record the following exchange starting with Ms. McHugh asking the Complainant:

 “When you were aware of [redacted - personal Isse referenced] did you not consider standing yourself down?

To which the Complainant replied:

“At the time I was happy to continue. The aircraft was safe, I was safe.”

A brief discussion ensued regarding the encounter between the Complainant and the Passenger after deboarding which involved the Personal Issue following which Ms. McHugh asked the Complainant if he wished to add anything else for consideration. At this point the Complainant’s representative made a contribution starting with the phrase

“There is no dispute that it happened, and that Alan may have handled it better….”

In her findings Ms. McHugh stated:

“It is expected of a SCCM, to defuse a situation, to calm difficult interactions whilst representing the company and leading your crew and I do not find this was what occurred on this date. Whilst I note you state that your actions were safety focused, I believe that in a safety critical environment the priority is to de-escalate matters and ensure both you as the SCCM and other passengers and cabin crew, remain calm. You had a responsibility as SCCM to recognise your own emotional state and where necessary to step away from the situation and to request a colleague to take over.”

My overall conclusion based on the entirety of the interviews with the Complainant is that he was afforded a full and fair opportunity to respond to the charges relating to safety and this is so even if the actual phrase “conduct prejudicial to safety” was not specifically read to him. The Complainant was aware that this charge had been included in the terms of reference for the Disciplinary meeting and based on the records of the meetings and the evidence available, I am satisfied that there was no breach of fair procedures or the maxim audi alteram partem as alleged.

In her evidence Ms. Walsh said that the evidence was that the customers felt unsafe and wanted to get off the aircraft. She took the view that the Complainant could have and should have deescalated the situation or delegated the situation to another member of the cabin crew or if necessary, he could have stood himself down altogether. As regards the way in which the disciplinary hearing had been conducted, she said that she may have done it differently to Ms. McHugh, but she insisted that at the Disciplinary meeting and in her own meeting at appeal stage the Complainant did have an opportunity to challenge the allegation that his conduct was prejudicial to safety.

I find that even if the wording of the charge was not specifically read to the Complainant at the disciplinary meeting, he was aware that the charge was being considered in the process. Although the actual words “conduct prejudicial to safety” were not read out specifically to the Complainant at the Disciplinary meetings the substance and basis of the allegation were discussed, and the Complainant was given a reasonable opportunity to respond, and this opportunity was provided again and availed of again at the appeal hearing. I find that there was material available from which the decision on this issue could reasonably have been made and the fact that the actual words of the charge were not read to the Complainant is not a flaw in the procedure of such a fundamental nature as to undermine the procedure or its outcome.

Additional Reason for Not Upholding the Appeal – The “factually Inaccurate” Report by the Complainant

A further submission was made in relation to the basis of the decision made at appeal stage in that Ms. Walsh identified as one of the reasons for not upholding the appeal was that the Complainant had made a report which was factually inaccurate. This submission was based on the cross-examination of Ms. Walsh where she stated that one of the reasons for upholding the dismissal was the fact that the Complainant had submitted a report which was not factually accurate. It was put to her that this allegation was never set out in the disciplinary charges and the Complainant was never given a chance to answer this charge at the disciplinary hearing but yet it was included as a reason for upholding the dismissal. 

I have reviewed the minutes of the Investigation Meeting conducted by Ms. Fegan with the Complainant The minutes of the appeal meeting reflect that the issue of the factual accuracy of the report was discussed as per the following extract:

Ms Byrne (“CB”) who was assisting Ms. Fegan asked:

CB: But for what occurred on this flight, without the DIP1 and what was reported, a ban would never have been considered therefore I do believe it is relevant to ask your opinion – you do not need to answer the question if you do not wish to do so but I would like to ask based on what happened on this date do you believe the customer ought to have been banned from travelling with Aer Lingus?

AON: I understand. The passenger was using language towards me. Crew are there for safety, not there to be cursed at.

AON: The passenger was using foul language.

LC: This is outside the scope.

CB: Alan didn’t issue a Dip 1?.

AON: That is not a decision for me to make. It is the captain’s decision.

CB: Would any decision made by the captain not be reliant on what you stated to him as the senior. Based on the information you provided, do you believe it was warranted?

AON: I was in a state of fear. I was genuinely fearful.

The Investigation Report dated the 23rd of July 2024 made reference to the issue as follows: 

“Ms Byrne informed you that based on the report you submitted about the passenger, that he was banned from travelling with Aer Lingus and she asked if you think what happened to this passenger was warranted in the circumstances. You responded, “that was nothing to do with me and was not for me to decide”. Ms Byrne highlighted that the ban imposed on the passenger followed the passenger being issued with a DIP 1 and the subsequent report submitted by you. Ms Byrne asked you if you believe based on what happened on 9 April 2024 the passenger should have been banned from travelling with Aer Lingus. It should be noted that Ms Byrne also afforded you the right not to answer this question if you did not wish to do so.

You replied the passenger was using foul language. You stated that crew are therefor safety, not to be cursed at. Ms Connell asserted that the question posed by Ms Byrne was outside the scope of the investigation. You claimed that the DIP 1 was not a decision for you to make, you stated it is the captain’s decision. Ms Byrne reiterated that the decision made by the captain to issue a DIP 1 is reliant on what you stated to him as the operating Number 1. Ms Byrne further asked you if based on the information you provided to the captain, if you believe the DIP 1 issuance was warranted. You responded you were in a state of fear.”

In the Conclusions section of the Report the following appears:

“It should be noted, at no point during the investigation meeting did you take responsibility for the part you played in the passenger incident or did you demonstrate any remorse towards how the passenger was treated. Additionally, at no point during the investigation meeting with you, did you show any regard for the fact that as a result of the incident on your flight and the reports you submitted the passenger subsequently received a ban from travelling with Aer Lingus. It is a matter of fact that this escalation of the incident derived from the issuance of the DIP 1 and your subsequent report of the matter on the basis that the company is reliant that the information you provided was a true reflection as to what occurred on this date.”

The issue of the inaccuracy of the report submitted by the Complainant was discussed in the Investigation Meeting and was referred to in the final report of the Investigation. However it was not specifically included in the charges which were formulated by the Investigator, and which formed the basis of the disciplinary charges. There is no record of a discussion of the issue in the minutes of the disciplinary meetings. However in the decision following disciplinary meeting the following is stated by Ms. McHugh:

“This letter does not intend to reference all matters discussed at the disciplinary hearing or indeed the overall process, which are recorded elsewhere in meeting minutes and the Investigation Outcome Report.

…

“I am satisfied that the witness statements in totality demonstrate that your actions were perceived by others as aggressive, disproportionate and that you escalated the matter with the customer beyond a level considered appropriate culminating in you issuing the customer with a DIP1 form and subsequently reporting him such that a ban was (temporarily) imposed on him from travelling with Aer Lingus (which has since been rescinded).”

The minutes of the appeal meeting reflect that the issue of the factual accuracy of the report was discussed as per the following extract:

[“MW” is Ms. Walsh and “LC” is the Complainant’s representative]

“MW. [Reading Relevant paragraph of the Complainant’s appeal letter] “16. Aer Lingus banned the passenger who Mr O’Neill interacted with on the day, and of which this incident revolves around. Aer Lingus initially deemed the incident in such a serious light that it was required that the passenger would be banned from future flights. This demonstrates that Aer Lingus affirmed Mr O’Neills actions, and again, the decision for dismissal is acting in total contradiction to earlier Aer Lingus decisions

LC: This coupled with the fact Alan continued to work for a month and also contact his OCM afterwards. The decision was made to ban the passenger confirms Aer Lingus deemed the passengers behaviour as unacceptable. The approach being taken contradicts itself. It demonstrates that there were passenger issues on the day, to ban the passenger.

MW: That decision was based on what was documented on the Flight Report the on duty team received. The Flight Report is a legal document. We based that on a factual statement on trust and honesty. We trust our number 1 on the flight to give a factual account of what happened.

LC: It seems as though the company are out of culture to earlier actions.

MW: Your Dip 1 form, we expect the truth is being documented from that flight. The complaint was received and reviewed and actioned based on what you documented and reported.

LC: We are not saying that there wasn’t breaches made from the passenger, there was. There were safety issues onboard with the passenger. From our perspective Alan completed the report on that. Mitigating circumstances the interaction with the passenger on that day. In terms of the ban on the passenger that was agreed by the company.

MW: Yes, based on the report from the Senior from that flight. It demonstrates we place a level of trust in our Senior on the flight.”

The Appeal Findings at paragraph 16 dealt with the issue as follows:

“16. [Paragraph of Appeal Letter quoted - as above]

Aer Lingus banned the customer based on what was initially reported by you as operating Senior Cabin Crew which transpired was not the case. It is noted that you yourself apologised for your actions in the appeal hearing. It is reasonable for Aer Lingus to place a high level of trust in our Senior Cabin Crew and to accept their Flight Reports as accurate and truthful. In this context, what was reported by you to the Captain and on the Dip1 form and Flight Report was accepted on the day. However, the subsequent process that has taken place and the acknowledgements you have made in the course of this process has now highlighted that the reports made by you on the day were not accurate or representative of what occurred onboard.

The factual situation is that the Complainant was aware that his report led to the Passenger being banned for life and that this ban was subsequently rescinded. The issue was discussed in the Investigation and a conclusion on it was drawn albeit that that conclusion did not make its way into the disciplinary charges. The issue was not discussed at the disciplinary hearing, but it was referenced in the decision which issued following the disciplinary hearing. When the issue was raised by the Complainant as a ground of appeal it was discussed and this time it was cited in the appeal outcome letter as a reason to uphold the decision to dismiss.

I find that the issue of the inaccurate report was not included in the charges which preceded the disciplinary hearing and was not discussed at either of the disciplinary meetings which indicates that the finding reached at the disciplinary stage insofar as it relates to this issue has a procedural flaw.

In the present case the issue of the making by the Complainant of a report which was factually inaccurate was discussed and a conclusion was reached at both the Investigation and Appeal stages and thus it cannot be said that the issue was never discussed or that the Complainant never had his say on the issue. Moreover, no evidence was given by or on behalf of the Complainant nor was any specific submission made as to the nature and extent of the prejudice to the Complainant arising from the procedural flaw identified. Bearing in mind that the issue was canvassed prior to the Disciplinary and picked up again after it at the Appeal stage, I cannot see how the flaw could have been so fundamental and so prejudicial to the Complainant as to undermine the fairness of the entire dismissal to take it beyond the band of reasonableness. Accordingly, I find on the evidence available in relation to all the circumstances, that this flaw in the procedure is not sufficiently serious to undermine the reasonableness of the dismissal.

There are a number of authorities to support the above finding but in the present case I have had regard to those cited in the Respondent’s original legal submission as follows:

“Aer Lingus must demonstrate that the decision it took was within the band of reasonable responses. Aer Lingus submits that its decision in this instance clearly falls within such band. Aer Lingus acted reasonably in deciding to dismiss Mr O’Neill based on the circumstances. In this regard, Aer Lingus relies on Loftus and Healy v An Bord Telecom [1987] IEHC 40 where it was held that it was not a question of whether the ex-employees were deprived of procedures to which they were entitled, but:

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish… [the basis of its dismissal] as the whole or the main reason for justifying their dismissal”

It is submitted that if the Adjudication Officer identifies any flaws in the procedures applied by Aer Lingus, which Aer Lingus denies is the case, any such alleged procedural flaws were not of a degree that should render the dismissal unfair. In support of its position, Aer Lingus relies on the decision of the Employment Appeals Tribunal in Burke v Egan t/a Little Sunflowers Creche & Montessori UD902/2012 This claim related to a dismissal on the grounds of gross misconduct where the Tribunal had been critical of the failure of the person running the disciplinary hearing not inviting the claimant or her representative to make submissions in relation to the dismissal. However, it concluded that “the dismissal was fair and while the respondent’s procedures were flawed, they were not so flawed to render the dismissal unfair”.

In the present case, it is submitted that a reasonable employer, acting reasonably, would have made a decision to dismiss Mr O’Neill for gross misconduct. “

The Cabin-Crew Witness Statements Being Treated as Accusations

It was alleged that the cabin crew members were never informed that their statements would be used as complaints against the Complainant and that they wrongly became accusers or complainants rather than just witnesses.

To this the Respondent’s counsel replied that such suggestions were put to the Respondent’s cabin crew, yet the Respondent had no opportunity to challenge that challenge. Aside from this, the Respondent’s evidence was that the witnesses were and remained just witnesses and it is well established and understood that cabin crew who make statements internally can be called to give evidence in subsequent external proceedings, for example if an unruly passenger is arrested and subsequently prosecuted.

Apart from the submissions of the parties, I have also had regard to the evidence of Ms. Carmel Byrne who stated under cross-examination that she was certain that all witnesses were informed that their statements would be relied upon in any disciplinary proceedings. Ms. McHugh gave similar evidence. Both witnesses denied that the witnesses were transformed into accusers. It was reiterated that the witnesses provided information which was investigated and that all evidence gleaned was put to the Complainant.

I find that the witnesses were and remained witnesses and that they were informed that their statements would be relied on in disciplinary proceedings which logically would extend to the present proceedings. I also find that the mere fact that the witnesses gave evidence which was adverse to the Complainant does not elevate them to the status of accusers. I do not find any unfairness or breach of fair procedures arising from the description of the role of the cabin-crew as contended for on behalf of the Complainant.

The Submission That HR Drafted the Disciplinary Outcome

In the course of the hearing the Complainant sought additional documentation from the Respondent inter alia including the communications between Ms. McHugh and the Respondent’s HR Department. The Respondent voluntarily prepared a substantial booklet of additional documentation which was provided to the Complainant’s team and to me. Email communications were put to Ms. McHugh which, it was suggested, established that her decision was written for her by HR.  Ms. McHugh said that she sought and obtained guidance from HR including assistance in drafting her outcome letter, but she denied the allegation that HR had drafted the report for her and she insisted that the decision which she made was hers and hers alone and that she stood over it in its entirety.

In any case where a disciplinary hearing is to be conducted it is not only permissible but advisable for the person conducting the process to have access to advice and support, provided that he/she personally conducts the process and makes the decision independently. I find that Ms. McHugh did no more than seek appropriate guidance from HR which included assistance with the drafting of her outcome letter. I also find there is no credible evidence to establish that the decision to dismiss the Complainant was made by anyone other than Ms. McHugh.

Accordingly, I find that this aspect of the Complainant’s closing submission is not well-founded.

The Proportionality of The Sanction of Dismissal

The Complainant and his representatives disclosed certain information of a personal nature relating to the Complainant. Due to the sensitive nature of this information, it was agreed that no detail would be discussed at the hearing beyond a reference to “The Personal Issue” and this phrase is similarly used in this decision. Appropriate redactions have been made to quotations from evidence, submissions or minutes of meetings.

In the Investigation Meeting, detail of the Personal Issue was provided to Ms. Fegan and the Complainant’s representative made the following submission:

“LC:Alan has outlined he has worked for Aer Lingus for the past eleven years. He has received compliments from passengers and CSM alike. He has never been in a process. This is a standalone issue with mitigating circumstances. He has [TAKEN STEPS] to make sure he can deal with it. This will never happen again. Alan is taking it very seriously and dealing with it. On the witness statements, no crew member told Alan that his behaviour was unprofessional. It was raised locally. From a Forsa perspective this should have been dealt with on the day with crew.”

The Investigation Report stated the following:

“I fully appreciate that you have raised extremely difficult circumstances which {Redacted]… had an impact on you on the day, and that it was not your best performance. You have not however stated that you recognise anything wrong with how you behaved on this date other than stating it wasn’t your best performance. You have not stated any aspect of how you behaved was disproportionate to what occurred, and you firmly believe that your actions and reactions were all warranted in the circumstances. Whilst I am most sympathetic to the circumstances you have raised and I do appreciate that you state you have made efforts to ensure this does not occur again in the future; this is a fact-finding investigation and not a disciplinary hearing and my role is to seek to establish the facts, based on the evidence available, as to what occurred on the date and whether or not the behaviour falls within what is acceptable when operating as a senior cabin crew member.”

The Issue was raised again at the Disciplinary Meetings with the Complainant and his trade union representative. I have read and considered those minutes, and they are already quoted in redacted form elsewhere in this decision and do not need to be repeated. The submission based on the Personal Issue was that it caused the Complainant to have an unusual and unprecedented reaction to the Passenger which caused the Complainant to be very fearful. This had never happened before in the eleven or so years of the Complainant’s service with the Respondent. On and following the day of the flight the Complainant reflected on the experience and took steps to address it. Those steps were already in progress by the time of the Investigation Meeting and were continuing throughout the remainder of the process. The Complainant and his representatives offered assurances that the effects of the Personal Issue on the day of the flight would never happen again.

The following submission was made by the Complainant’s trade union representative

“There is no dispute that it happened, and that Alan may have handled it better. Two of the witnesses were down the back so didn’t see what occurred and the pilot advised he didn’t see it. The punishment of being suspended and trying to explain to his kids and telling them he is doing project work. This has never happened before, and it won’t happen again going forward as Alan is [redacted…taking steps]. If Aer Lingus wish to [take steps], he is willing …[] He has been in the industry since 1996 and nothing like this has ever happened and it won’t happen again.”

It was also contended that the Passenger’s own conduct was challenging and unacceptable and needed to be addressed and that the Complainant did his best to address the behaviour within the parameters of the chain of command and the necessity to observe safety protocols onboard. Whilst the Complainant acknowledged that “It was not his best performance” he contended that he had full situational awareness. He said that he was assertive but not aggressive.

The findings included the following (with redactions):

“[The Complainant’s trade union representative] stated on your behalf that there is no dispute that the incident happened and that “in hindsight you should have dealt with the situation in a different way”. However, he noted [Redacted - reference to Personal Issue and steps being taken]…He gave assurances that nothing like this would ever happen again. Whilst I acknowledge the sensitive personal circumstances that you divulged to us and I appreciate that you have [Redacted – taken steps], the fact remains that there is no guarantee that can be given that a similar incident of this nature would never happen again.

…

In the course of the disciplinary hearing, you have raised extremely difficult circumstances  [Redacted] which you state had an impact on you on the day, and you have acknowledged that it was not your best performance. You have not however stated that you recognise anything wrong with how you behaved on this date. You contend that you were assertive and not aggressive. You have not stated any aspect of how you behaved was disproportionate to what occurred, and you firmly believe that your actions and reactions were all warranted in the circumstances. Whilst I am most sympathetic to the circumstances you have raised, and I do appreciate that you state you have made efforts to ensure this does not occur again in the future, I cannot accept that your reaction to this customer was warranted – in my view it was unacceptable.

In an operational environment encountering members of the public every day, there is an

expectation that all Aer Lingus cabin crew will manage and regulate their emotions

appropriately despite the circumstances to deliver a professional and customer-focused

service.”

Having made a finding of gross misconduct Ms, McHugh then turned to the sanction in the following terms:

“Our consideration now turns to whether any explanation provided by you during the

disciplinary process contained any mitigating factors in respect of the above breach. We have

taken into consideration your comments regarding your personal circumstances, your

unblemished record and the effect this is having on you. While we are sympathetic to these,

they cannot be excuses for your actions towards a customer who was in visible discomfort

and distress.

We then moved to consider the appropriate sanction to apply in all of the circumstances. We have also taken into account your previous service and record with Aer Lingus. Whilst we have considered alternative lesser sanctions, it is our view that through your actions you have broken the bond of trust and confidence that your employer is entitled to have in you as a SCCM, an onboard leader of cabin crew. You are employed in a role where you are entrusted to engage with customers every day and where you are expected to represent our brand and our business with the highest standards. As you are employed in a safety critical role, CRM, communication, and conflict resolution are a key part of the function of cabin crew and it is concerning to note that your actions and behaviours were in direct contrast to this and that throughout this process you have failed to acknowledge this. We pride ourselves in Aer Lingus in delivering professional, warm, and exceptional service to our customers and your actions on 7 April were contrary to this in every way.

Accordingly, and in light of all of the above I have decided that I have no alternative other than to move to terminate your employment on grounds of gross misconduct from the date of this letter.”

In cross-examination it was put to Ms. McHugh that the Complainant had been employed since 199 and was a Senior Cabin Crew Member with an unblemished record who shared an incredibly personal reason for what had occurred and in all of those circumstances the sanction of dismissal was grossly disproportionate. Ms. McHugh agreed that the Complainant had shared sensitive information and she was compassionate and did take it into consideration and in doing so she considered other sanctions. However, the Complainant’s responsibility was to remove himself from engagement which he could have done, or he could have stood himself down from the flight. She said the personal information was considered but, in its entirety from the first engagement through to the engagement at the terminal building what happened was like a domino effect. The Complainant had not listened to his crew and did not manage his emotions. It wasn’t just one isolated engagement but continued throughout the flight and it led to the Passenger being banned.

The Appeal Meeting was preceded by the Complainant’s letter of appeal which raised the issue, and it was discussed at the meeting. The exchange (as redacted) was as follows:

“MW: [Reads the relevant ground from the Appeal Letter]

LC (Complainant’s Trade Union Representative): This all comes down to Alan having one bad day in his 11 years. This is a once off. Alan has given commitment that this is something he is apologetic about and he [REDACTED is taking steps to address the Personal Issue]. Outcome was reached regarding one bad day in the company. There are mitigating circumstances. Alan’s work standards and performance didn’t seem to have any consideration when reaching the outcome.

The Complainant: These past 4 months have been torture on me and my kids. I wake up every morning not knowing if I am going to receive an email. The kids see me crying. I have never lied to my children. I want it noted that it has had a huge impact on my life. I have waited and waited with no information and then just to receive an email with 24 hours or 48 hours’ notice.

LC: Just the point in the disciplinary outcome letter, it was stated that Alan did not recognise any wrongdoing of what occurred. Here today, Alan took full responsibility and [REDACTED is taking steps re the Personal Issue].

AON: I am so sorry it happened. It is not who I am, if you put those passengers in front of me today I would apologise from the bottom of my heart. “

The Outcome relative to this issue was as follows:

“While I wish to acknowledge your long-standing career with Aer Lingus, ultimately, your actions onboard flight EI515 undermined our brand, our reputation and our expected standards onboard. It is clear from the witness evidence that you engaged in a way with the customer which was completely unacceptable which other customers witnessed and complained to the operating crew with the initial written complaint. To reduce a customer to tears onboard, not allowing the customer to use the lavatory when he could have, then sending CCM2 down to the customer before landing to inform the customer not to communicate and leave it at that is completely inappropriate behaviour and is not part of disruptive passenger procedure.

“Alan then told me to go down to the passenger to tell him not to say anything whenever he's getting off, that it will cause more disruption to what already has been caused. So, I went to the passenger and explained this to him. The passenger was very appreciative of me saying it to him. He just said he was very embarrassed about how Alan had treated him on the flight.”

You then proceeded to approach the customer again after the flight outside the terminal building and threw your bag on the ground and a fellow cabin crew colleague had to intervene to stop you engaging further. Again, you were in uniform representing Aer Lingus when you chose to behave and reengage with the customer in this manner, long after there was any cause to do so. This is unacceptable and it is not lost on me what could have happened if your colleague was not there to intervene.”

Ms. Walsh concluded as follows:

“The decision to dismiss an employee is not one that is taken lightly by Aer Lingus. I have carefully reviewed all of your grounds of appeal.

Your responsibility as a Senior Cabin Crew member coupled with your experience and seniority onboard carries a requirement for a high level of trust and confidence that you will represent the Company to the highest professional standards onboard and will lead the operating cabin crew with strict adherence to process and with integrity. I have considered alternative lesser sanctions however in my view, your conduct has fundamentally damaged the relationship of trust and confidence that is imperative in every employment relationship but especially with the role of Cabin Crew, which is frontline with our customers and is safety critical and where you work airside with associated safety and security obligations.

I believe it is appropriate to uphold the original decision to impose a disciplinary sanction of dismissal in the circumstances.”

In evidence-in-chief Ms. Walsh said that what happened should never have happened. The Complainant was in a position of authority and he could have delegated. The customer (the Passenger) wanted to use the lavatory and the Complainant did not permit him to do so. Other customers were unhappy and so were the other crew members. The Respondent is proud of its cabin crew, and this was not what should have happened. As regards the Personal Issue Ms. Walsh did not believe that to have been an excuse. After boarding, which took about twenty minutes, the situation continued into a two-hour flight and even afterwards. As regards what happened outside the terminal building and the Complainant saying “Real Mature Bud” to the Passenger that should never have happened, and the Complainant should have gone on his way and he should have reported what happened. There could have been no justification for that sort of interaction by a uniformed cabin crew member with a passenger who had alighted from the aircraft. Ms. Walsh did consider alternatives including demotion but that would not have taken away the risk. She also had to think about other cabin crew members, the Respondent’s customers and the potential for reputation/brand damage. Demotion would not have removed that risk.

In cross-examination Ms. Walsh was asked whether she considered arranging a medical assessment of the Complainant given that he said that what had occurred was a ‘one off’ and would not recur. She said that the Complainant never said that he was unfit and that he was [taking steps to address the Personal Issue]. She added that if any medical issue had been raised, she would have provided medical support. It was put to Ms. Walsh that the dismissal was completely unreasonable given the Complainant’s length of service to which she replied that she completely disagreed. This occurrence was one too many and the customer was denied a basic human need to use the bathroom. [Thereafter questions were put as to whether the toilet could be used at the discretion of the Number 1 when the ‘fasten seat-belt’ sign is on.  I will not rule in this issue as it was not raised in the closing submission form the Complainant’s counsel and the Complainant did not give evidence]

Counsel for the Complainant in his submission focussed on the fact that the Complainant was a long-standing employee with an unblemished record. It was submitted that what had occurred was a single incident and the sanction, on the Respondent’s own evidence, was grossly disproportionate. As to whether what occurred was a single incident or a series of incidents which occurred on one day is debatable, but the latter description is probably more accurate given that a separate interaction occurred after the flight outside the terminal building. Leaving aside what was said and by whom (in respect of which there were two conflicting accounts) the Complainant clearly admitted that he did speak and thus he interacted with the Passenger on that occasion. This fact lends considerable credibility and plausibility to the view taken by the Respondent that the incidents – even if they did occur on one day – were cumulative in nature. Moreover, it is clear that the Complainant accepted that he should not have interacted with the Passenger after the flight at all. Even though it was, as contended by the Complainant, accepted that the Complainant had an unblemished record from eleven years of service this fact alone does not exclude the possibility that a single incident (or series of incidents occurring on one occasion) can have the effect of undermining trust and confidence.

The concept of trust and confidence was described by Finnegan J in Berber v Dunnes Stores [2009] IESC 10 as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.”  

I am satisfied that in all the circumstances the Respondent had reasonable grounds for deeming the Complainant’s behaviour on the day in question, taken in its totality to have been capable of undermining the bond of trust and confidence and that this was so notwithstanding that no similar incident or for that matter any incident had occurred previously in the preceding eleven years. That said a breach of trust and confidence does not automatically justify a sanction of dismissal.

Situations may arise in employment where the incident which caused the breach of trust and confidence arose from circumstances which were unique and require particular consideration from the point of view of clemency in the imposition of a sanction. An example might include a situation of extreme provocation which, although it does not excuse the employee’s reaction might nonetheless be considered as a factor justifying a penalty other than dismissal. In this case the Complainant did make reference to being sworn at on several occasions by the Passenger but the Respondent took the view that such occurrences are a regular feature of the job of cabin crew who are specifically trained to de-escalate situations of conflict. The Respondent took the view that the Complainant failed to de-escalate the situation and in fact he did the opposite to the extent that a further interaction occurred after the flight outside the terminal building. The Complainant’s attitude to this issue as expressed in the meetings was not consistent. In answer to the question as to whether he should have stood himself down; in the Investigation meeting the Complainant said “In hindsight, yes, I should have stood myself down” whereas his answer to the same question at the Disciplinary stage was “From a safety perspective I was on point. I had full situational awareness.” and “At the time I was happy to continue. The aircraft was safe, I was safe.”.

My assessment from the material available is that it was reasonable for the Respondent to take the view as it did that there were options available to the Complainant to avoid conflict which, despite his training, he did not take and that even if the Passenger’s behaviour was challenging, it was not so challenging as to justify the Complainant’s reaction. Accordingly, I do not find that the circumstance of this case are analogous to one where an employee overreacts in the face of extreme and unforeseeable provocation.

The other factor which was raised in the meetings is the role played by the Personal Issue. This issue was introduced at various stages in the meetings and in various contexts and it is difficult to see whether it was intended to be viewed as a reason for the behaviour or as a partial defence to the allegations of gross misconduct. However, in the context of the issue representing an explanation for an isolated occurrence which would not recur, the Disciplinary outcome specifically stated, “the fact remains that there is no guarantee that can be given that a similar incident of this nature would never happen again.” At that stage the only information which the Respondent was given was the Complainant’s statement that he was taking steps to deal with the Personal Issue. Despite the flagging of this specific concern in the disciplinary decision the Complainant did not provide any further detailed information which would have addressed the concern on the part of the Respondent that the issue would not recur. The contribution from his trade union representative at the appeal meeting was that the information had been provided “to allow the company to have overview as to why and how his interaction with that customer on that day was out of the ordinary and wouldn’t happen again”. There was a statement that the extraordinary interaction “wouldn’t happen again” but no further assurance or information was given to support this assertion. In such circumstances I find that it was reasonable for Ms. Walsh to have been left with the concern that there remained a risk, and I also find that it was reasonable in the circumstances for her to conclude that demotion, which she did consider, would not remove that risk.

From the Complainant’s side it was asserted that the sanction was grossly disproportionate but there was no evidence and very limited submissions regarding how and in what way a sanction short of dismissal would have been workable. It is noteworthy that no other alternatives were put to Ms. Walsh in cross-examination. Given the kind of work which the Complainant was doing I find that it was reasonable for the Respondent to have needed a reliable and reasonable guarantee that the behavioural issues generated or contributed to by the Personal Issue would not recur and that the Respondent reasonably formed the view that no such guarantees had been provided. 

My conclusion on the evidence before me is that the sanction of dismissal was proportionate in all the circumstances.

Summary

In addition to considering the oral evidence from the adjudication hearing I have reviewed the extensive material available relating to and documenting the investigation, disciplinary and appeal processes which were undertaken including the contributions made by the Complainant and his representatives such as they were recorded. The latter are of particular significance given that there is no evidence available from or on behalf of the Complainant.

Judging the actions of the Respondent by the standards of the reasonable employer I find as follows:

Based on the material available to it including the representations and statements made by and on behalf of the Complainant such as they were, as recorded in agreed minutes, I find that the Respondent had reasonable grounds to find as it did that the Complainant was guilty of gross misconduct arising from the manner in which he interacted with the Passenger during the flight and after deboarding.

Those reasonable grounds arose from the three-staged disciplinary process conducted by the Respondent in which the Complainant participated fully and with representation from start to finish. He was presented with all the evidence against hm and was given a full opportunity to respond and to make representations at every stage. I find that the process in the circumstances was fair and reasonable and that any imperfections or flaws which were identified by the Complainant (in the absence of any evidence), were not sufficiently serious as to undermine the overall fairness of the outcome from the point of view of the reasonable employer.

I am satisfied that the Respondent gave reasonable consideration to the Complainant’s length of service and previously unblemished record and to his personal circumstances of the Complainant to the extent that and in the manner in which the latter were presented to the Respondent by and on behalf of the Complainant. I further find that notwithstanding those circumstances as presented, the sanction of dismissal was warranted and was a reasonable and proportionate response to the gravity of the misconduct and the need to avoid its recurrence.

In all the circumstances therefore, I find that the dismissal fell within the band of reasonableness and was not unfair. Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00067029-001 – The Complainant was not unfairly dismissed

Unfair Dismissals Act 1977 (as amended) – Gross Misconduct - Section 6 (1), 6 (4), 6 (6), 6 (7), Section 7, Section 8 (6) - Workplace Relations Act 2015 (as amended) – Section 41(5) – Section 41 (13 and (14) - Section 41 (17) - Memorex World Trade Corporation v. The Employment Appeals Tribunal [1990] 2 I.R. 184 - Harte and others v. The Labour Court and North Western Health Board [1996] E.L.R. 181;  [1996] 2 I.L.R.M. 450 - White -v- Cadbury (Ireland) Ltd. (UD44/1979) - Bunyan v United Dominions Trust[1982] ILRM 404 - British Leyland UK ltd v Swift [1981] IRLR 91, Bank of Ireland v Reilly [2015] IEHC 241 - Mullane v Honeywell Aerospace Ireland Limited UD 111/2008 - Code of Practice on Grievance and Disciplinary Procedures    (S.I. No. 146/2000), paragraph 7 – Proportionality – Trust and Confidence - Loftus and Healy v An Bord Telecom [1987] IEHC 40 - Berber v Dunnes Stores [2009] IESC 10 - Burke v Egan t/a Little Sunflowers Creche & Montessori UD902/2012