EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Patrick Burns – claimant UD1964/2011
RP2538/2011
Against
Ryanair Limited – respondent
Under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr F. Moloney
Mr. J. Dorney
heard this claim at Dublin on 14th April 2014
and 16th September 2014
and 17th September 2014
and 10th November 2014
Representation:
_______________
Claimant(s): Mr Michael Landers
Impact
Nerneys Court, Off Temple Street, Dublin 1
Respondent(s): Mr Frank Beatty BL, instructed by:
Mr Killian O'Reilly
McDowell Purcell, Solicitors
The Capel Building, Mary's Abbey, Dublin 7
The determination of the Tribunal was as follows:-
Background:
Dismissal was not in dispute. The claimant was a pilot for a low cost airline. He was dismissed for failing to report to a new base in Kaunas, Lithuania after his old base in Marseille, France was closed. The respondent pointed to the claimant’s contract employment which included a clause which allowed the company to move the claimant to any base in its network. The claimant did not wish to move to Lithuania as he had just purchased an apartment near Marseille and was planning to get married and settle there. He invoked the grievance procedure concerning the lack of consultation by the company regarding the move. His grievance was not upheld. He was dismissed by letter of 6th April 2011 for gross misconduct and paid three months’ salary in lieu of notice.
Summary of Respondent’s Case:
The respondent opened a base in Marseille in 2006. The company had approximately 45 bases in 2011 and approximately 70 bases at the time of hearing throughout Europe. The airline serves 170 destinations in 30 countries. Pilots reside at the base locations and planes are overnighted there. Pilots are contractually obliged to live within one hour of their base. The Chief Financial Officer (CFO) gave evidence that all the pilots who work for the airline are employed under Irish contracts. Exception was taken to this in France where employees and employers pay much higher rates of tax and a case was taken against the respondent to bring the base employees in line with French tax rates. The respondent defended this action and declared that it would vacate the Marseille base in the event that the action was successful.
During this time the company held a number of meetings with the employees of the Marseille base. The claimant chose not to attend these meetings. The pilots were asked to complete a form on the ‘crewdock’ internal communication system to express their first and second preferences for an alternative base. 12 of the 14 pilots based in Marseille completed the preference form on crewdock. The claimant and one other pilot did not post any preferences. The claimant’s contract allowed for the claimant to be transferred to any of the company’s European bases without compensation and paid in accordance with the prevailing salary and flight pay at that base.
On 13th October 2010 the staff at the base were informed that the base was to close on 11th January 2011. On the same day the claimant was issued with a letter informing him that he was to transfer to Kaunas. The claimant initiated the company’s grievance procedure.
The issue of loss was dealt with at length. The claimant had resided in several different countries since his employment ended with the respondent. In question was his employment based in Belgium directly after his dismissal. His contract there stated he was paid a net figure, however, he contended that this was a gross figure and he was liable for a large tax settlement in Belgium. There was also focus on the perks he received in that employment (such as base accommodation, generous per diem payments and insurance) compared to his role with the respondent. His contract with the Belgian based carrier ran from June to November 2011. He was informed by the carrier that he would be contracted again the following March and so he decided not to seek work for the winter months. He was planning his wedding during this time. He had purchased an apartment in Marseille prior to the base closure. He then rented out that apartment for €1700 per month.
The parties were requested to make submissions to the Tribunal by 15th October 2014 in advance of the last day of hearing.
He was surprised that the claimant’s flight log was so neat and in the same pen. There was no stamp from the respondent which surprised the witness as most pilots required this for new employers regardless of how their employment with the company ended.
There only vacancies for pilots at the time were in Kaunas. The claimant and another pilot, who later resigned, were assigned there.
The claimant had to be assigned to a base as per company policy and he required a contract to remain with the company. He could not have a contract for Marseille as there was no longer a base there. It was not an option for the claimant to take unpaid leave until a new base opened which was preferable to him.
The claimant had previously used the crewdock system to move to Marseille.
The company does not publish various base salary rates but employees are free to contact base captains to enquire.
Marseille reopened as a destination, but not as a base, in 2012. They could not legally base anyone there.
He disputed having a phone conversation with the claimant on 14th October 2010. He denied ever giving the claimant any undertaking that he would be taken care of.
He agreed that he had two phone conversations, due to interrupted service, with the claimant on 27th October 2010. The witness made a note of the call immediately afterwards as the claimant became annoyed towards the end of the call. The claimant did not want to move to Kaunas. The witness suggested that he move to Kaunas and apply for redeployment later through crewdock.
The claimant invoked the grievance procedure because of unreasonable and unfair changes to his contract of employment without prior consultation. The witness heard the initial meeting on 2nd December 2010. During the meeting the claimant kept repeating a question he read from a piece of paper. He kept asking the witness to acknowledge that he admit that unreasonable changes had been made to his contract of employment. The witness asked if there was anything else the claimant wished to discuss but the claimant continued to repeat the question over and over and did not engage.
The witness was also involved in the disciplinary process following the claimant’s failure to report for work in Kaunas. The claimant requested to bring a trade union representative but the company only allows a colleague to accompany.
The CEO had granted unpaid leave to the claimant in an attempt to avoid an absence, though not requested by the claimant.
Following the claimant’s failure to appear for work in Kaunas as scheduled on 16th and 17th March 2011 he was invited to attend an investigation meeting followed by a disciplinary meeting with the then Flight Operations Bases’ Manager. He had not met the claimant before the meeting. The claimant chose not to bring a colleague. The claimant would only agree to attend for work if he could be positioned or based in Marseille. This was not a possibility. The claimant was trying to reopen the grievance process which had finished. The Manager believed that the claimant had no intention of attending for work in Kaunas. The claimant was informed of his dismissal at a further meeting on 6th April 2011. The claimant appealed the dismissal but was not successful in this regard.
The claimant’s initial appeal of his grievance went to the Ground and Flight Operations Director. However the claimant complained that this meeting had been acrimonious. The Ground and Flight Operations Director apologised by letter and recused himself from the process. The company decided that the previous meeting would be removed from the claimant’s record and that the CFO would hear the appeal afresh. The CFO communicated to the claimant that he would hear the appeal from scratch and had no knowledge of anything that had gone before. The claimant was unhappy about this and requested the minutes of the meeting a note taker had taken in a red-backed notebook. The CFO then discovered that the red notebook had been destroyed. He was surprised by this and requested that a note of the meeting be created from memory. This was presented to the claimant but he expressed his dissatisfaction with its accuracy.
The claimant told the CFO that he had been too busy to attend the meetings at the base regarding the possible closure. The claimant felt badly treated by the company. He believed after a (disputed) phone conversation with Deputy Director of Flight Operations (DDFO) on 14th October 2010 (the day after the closure announcement and the claimant’s notice of going to Kaunas) that the company would take care of him as DDFO had reassured him as he was ‘old stock’. However the DDFO denied this when questioned by the CFO later. The claimant never referred to two phone calls with the DDFO. Crewdock is the only means to request a transfer.
The claimant’s grievance concerned the lack of consultation, however, his contract did not call for consultation when implementing transfers. The claimant had attended the meeting on 13th October 2010 when the closure was announced. He had not expressed a preference through crewdock as he did not believe the closure would happen. He admitted that if he had posted a preference he would not be where he was. The claimant did not wish to go to Kaunas and instead wanted to be somewhere commutable to Marseille. The CFO did not uphold the grievance neither did the CEO who heard a further appeal and communicated his decision on 4th March 2011.
Summary of Claimant’s Evidence:
The claimant joined the respondent company as a First Officer in 1998. He was initially based in Dublin flying the Boeing 737 200 series. In 1998-1999 he had often been sent to work from other bases in the UK and Belgium and on these occasions the company had provided accommodation. In 2000 he had the opportunity to train on the new Boeing 737 800. He was told that they would mainly be based in Stansted, UK, and so he moved there for career progression. Crewdock was not available then; the Chief Pilot completed a form for him. He was promoted to captain in 2002.
While in Stansted he often met the DDFO informally in the coffee dock. On one occasion the DDFO spoke to the claimant about a new base opening in Marseille and encouraged the claimant to apply. There was an opportunity to become a pilot trainer there which attracted a supplement of €12,500 pa. He was promoted to Line Training Captain (LTC)when he went to Marseille.
He was happy in Marseille. He purchased an apartment and his fiancé moved to live there. He knew that the base meetings had occurred and he spoke with colleagues, but through friends he had come to believe that the Mayor of Marseille would make an agreement to avoid the base closing. He first knew of the planned closure at the meeting on 13th October 2010. He was given a letter instructing him to report to Kaunas. He was deeply shocked that no one had enquired into his circumstances.
The following day, 14th October 2010, he phoned the DDFO as they had a good relationship. They had a relaxed conversation. The DDFO said they had to put something down for the claimant. He asked to meet with the DDFO as he had heard of other possible base openings in the Canaries and Santander. He hoped to take unpaid leave until a more convenient base opened. He expressed interest through crewdock. At the end of the call the DDFO told him he was ‘old stock’ and that they would take care of him. He felt quietly confident after the call.
He was in Stansted later that month and sought a meeting with the DDFO, however, he was on a bus in Ireland. The DDFO told him to sign the contract for Kaunas and was quite short with him in manner which was unusual. He felt he was being forced to accept the Kaunas move without knowing what the base terms and conditions were. Also he was only guaranteed his LTC allowance until April 2011. He did not know anyone there and was looking at a possible sector and salary pay cuts. Thereafter he invoked the grievance procedure.
The DDFO heard the initial grievance meeting. It was heard in a customs room without windows. He did keep asking the same question as the DDFO would not answer him. He asked if it was fair that the respondent company had changed his terms and conditions without discussion. The DDFO could not understand why he had not filled in the crewdock preference form, but did not want to know why. His grievance was not upheld so he appealed.
If you apply for a transfer you automatically accept the terms and conditions of the new base without knowing what the terms and conditions are. Normally those terms go down rather than up. He wrote to the company on 11th February 2011 seeking the base rates for bases where his salary would increase but was refused.
He took unpaid leave in January and February 2011 and later in April the CEO sanctioned unpaid leave without his request.
He attended a meeting with the Flight and Ground Operations Manager in Dublin. There were 2 or 3 others there. The Manager was an aggressive individual who the claimant felt made clear that he was wasting the Manager’s time. He pointed at the claimant and said he knew that the base was closing. The claimant felt that he was being bullied and pointing back. The Manager told him not to point at him. The Manager made belittling comments as the claimant tried to take notes and compared the claimant to a child or student several times. He knew that the claimant had been in contact with a trade union and was very unhappy about that. The Manager said that nobody liked him in Marseille. He called EW to attend the meeting when the claimant asked about the company’s mobility clause. EW explained that he needed a new contract to reflect the new base conditions. Ultimately the Manager slammed a folder down on the table, announced that the meeting was over and stormed out. He made a note immediately after the meeting.
The claimant complained and sought the minutes which he was told had disappeared. The Manager recused himself and apologised. He could not believe that the meeting would be struck from the record as it showed how the company did business. He did not deserve to be treated like that. He wanted the next Manager hearing his appeal to know how he had been treated. At the next meeting the CFO simply focused on his contract. The claimant did not think that his grievance greatly concerned the CFO. He believed that the decision was made after the previous meeting. He felt there were no options available at that point. He asked if there were any bases he could go to where he would get a salary increase but the CFO was unfamiliar with the various base rates. He found out at this meeting that the DDFO had denied giving the claimant reassurances.
He then appealed to the CEO. Initially the meeting seemed positive. The CEO looked at his Ipad to look at different bases. But it became clear that there was no option but Kaunas. The CEO became irate when the claimant asked about the base rates and pointed towards IALPA and said ‘they will never get that information’. After that meeting he felt he had no options. He informed Operations the night before he was due to report to inform them that he would not be available. He was dismissed following a disciplinary process. He appealed unsuccessfully.
Determination:
Having considered all of the evidence adduced the Tribunal finds by majority decision that the claimant was not unfairly dismissed.
The claimant had ample opportunity to apply for a base of his choosing in the event that the Marseille base would close, which it eventually did, and he did not do so. The majority of his colleagues engaged in the process and had no difficulty getting the base that they wanted. The claimant was of the view that he had a contract for Marseille and that the issue of its closure was speculative and therefore he did not need to apply and therefore did not apply. The result was that the base was chosen for him.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
There was no question that a redundancy situation existed and the claim under the Redundancy Payments Acts, 1967 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)