Unfair dismissal claim rejected

Friday 03 April 2020

A former Aurigny check-in agent who took the airline to court after injuring her back lifting overweight luggage has seen her claim for constructive unfair dismissal thrown out.

Tracy Fallaize appealed to Guernsey's Employment and Discrimination Tribunal, however, her claims were dismissed as she had returned to work following the injury and waited 8 months before resigning, while the tribunal could find no issues with the way Aurigny had handled the situation.

The appeal dates back to a workplace accident that Mrs Fallaize sustained on 2 July 2018.

She had received a call from a passenger that morning who had four bags to collect from the arrivals hall. When she got there, she found four large bags which were labelled as 'heavy', weighing around 32kg each.

Mrs Fallaize said she didn't feel she could just leave them, and had previously been told at the time of the call that everyone else was busy, so attempted lifting the bags onto the trolley only to "feel her back go."

She reported the incident to a colleague and supervisor, who gave her permission to go home before the end of her shift.

After a few days off, she went to the doctor and was signed off for a week. 

Pictured: Mrs Fallaize sent a text message to a colleague saying the injury had been caused by a separate, non-work related incident, but later said in the tribunal - which is classified as a form of court -  that her text was "not an accurate account of what actually happened" and that the luggage accident was the sole cause of her injury.

Mrs Fallaize then returned to work for six weeks, "struggling through" and working in what she described as “excruciating pain” before deciding she could continue no longer. She was signed off with long-term sickness absence on 12 August.   

The months passed and despite efforts from to find her a suitable alternative job within the company, no progress was made.

Mrs Fallaize said a meeting on 21 February 2019  had been the "last straw" and she resigned two weeks later.

However, Employment and Discrimination Tribunal Chairperson Helen Martin said they had been given no indication of what the "last straw" actually was.

"The applicant told the tribunal that both Mr Portsmouth and Ms Hobart [from Aurigny] had treated her with compassion and empathy during their interactions with her.

"Both Mr Portsmouth and Ms Hobart were the only employees in the company managing the applicant's sickness absence which the applicant had asserted had caused her to resign claiming constructive unfair dismissal and therefore by the applicant's own admission as they did not treat her unreasonably the applicant failed to show the tribunal that there was a fundamental breach of contract in relation to the communication about her sickness absence and ongoing employment.

"Notably, in the meeting on 21 February 2019, the applicant had specifically restated that she was keen to return to work with Aurigny. This was incongruent with her subsequent letter of resignation and evidence to the tribunal that there had not been an identifiable 'last straw' event prior to her resignation."

Pictured: Former Aurigny employee Tracy Fallaize said she still did not know whether she should have lifted the passenger's bags or not, citing a lack of training in this area. 

The tribunal concluded that Aurigny had gone "to significant lengths" and had made "genuine attempts" to enable Mrs Fallaize's return to work, including any adjustments that would have to be made.

That she returned to work after her injury and waited eight months before resigning also weakened some of her claims around constructive dismissal.

Ms Martin concluded: "The applicant was a well-liked a valuable employee and the respondent had genuinely wished to enable her return to work.  The tribunal took the view that the claim for constructive dismissal had been made because the applicant wished to seek compensation for an injury at work.

"However, the tribunal was not the correct forum in which to determine liability for personal injury and this could only be determined in the Royal Court.