ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001968

Complaints for Resolution:

Date of Adjudication Hearing: 19/07/2016

Parties:  A Technical Employee  v  Aircraft Leasing Company                                                 

At:  Workplace Relations Commission, Dublin 4

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant was employed by the Respondent from 2^nd December 2013 as a VP Technical. He was provided with a written statement of his Terms and Conditions of Employment in December 2013 – copy provided to the Hearing. The Complainant’s position was made redundant by the Respondent by letter dated 30^th April 2015 – copy provided. Notice was to expire on 4^th October 2015.

The Complainant referred 5 complaints to the Workplace Relations Commission on 12^th December 2015 alleging the Respondent had breached Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.

The Respondent owned and controlled 14 Aircraft which they leased to a named European Airline. The Complainant was employed as the Technical Person dealing with the 14 Aircraft. His duties included, in summary as follows –

• Supervision of the aircraft fleet contracts

• Ensuring compliance by the lessee with the lease agreement and compliance with the regulatory obligations

• Technical Team Management

• Asset review and forecast analysis

• Lease agreements review and amendment negotiations

• Negotiations of technical contracts with third parties

• Maintenance Reserves management and claim approval

• Inspection of the aircraft to ensure compliance by the lessee

• Liasing with the Irish Aviation Authority and other Authorities

• Aircraft registration and deregistration

• Fleet acquisition negotiations.

All of the 14 Aircraft were sold to three named Companies. The evidence shows that 4 aircraft were sold to the first named Company between 2^nd July 2015 and 7^th July 2015 according to letters issued to the Irish Aviation Authority dated 23^rd June 2015 by the Respondent. The evidence shows that the Respondent sold 6 Aircraft to a second named Company between 26^th June 2015 and 1^st July 2015 according to letters issued to the Irish Aviation Authority on 23^rd June 2015 and the evidence shows that 4 Aircraft were sold by the Respondent to a third named Company between 25^th June 2015 and 8^th July 2015 according to letters issued to the Irish Aviation Authority on 23^rd June 2015.

The Complainant continued to work with the Respondent until his employment terminated on 4^th October 2015 although both Parties confirmed to me that the Complainant was on “garden leave” effective from 12^th June 2015.

The Respondent argued at the Hearing that in the Leasing Industry TUPE does not apply to the selling of Aircraft.

The Complainant argued that TUPE does apply and that the Complainant was dismissed by the Transferor because of a Transfer of Undertaking. The Complainant and his legal representatives also suggested that the Adjudication Officer should stay the proceedings and refer the issue to the Court of Justice of the European Union for a Preliminary Ruling.

Regulation 5 provides as follows;

1. The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by the transferor or a transferee, is prohibited.

2. Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

Findings

On the basis of the evidence I find as follows:

The first named Respondent owned 14 Aircraft which they leased to a named European Airline.

The first named Respondent sold these 14 Aircraft to three named Companies according to correspondence between the named Respondent and the Irish Aviation Authority and the evidence was that these Companies continue to lease these 14 Aircraft to the same named European Airline.

The evidence was that the Irish Aviation Authority requires the owner of Aircraft in Ireland to have a technical employee with responsibility for the management and control of the fleet of aircraft. Following the sale of the 14 aircraft the Complainant’s position became redundant.

There is no relevant case law either from the Court of Justice of the European Union or other courts in relation to the selling of aircraft between companies. In the decision of the Court of Justice of the European Union in the case of Spijkers v Gobroeders Benedik Abbattoir CV, and Alfred Benedik en Zonen BV the CJEU held as follows: “a transfer of an undertaking, business or part of a business does not occur merely because its assets are disposed of. Instead it is necessary to consider, ….whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities”.

Likewise in the CJEU Decision in the case of Suzen and Zehnacker Gebaudereinigung GmbH Case C-13/95 the Court held as follows: in order to determine whether the conditions for the transfer of an entity are met, it is necessary to consider all the facts characterising the transaction in question , including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and moveable property are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried out before and after the transfer, and the period, if any, for which those activities were suspended.”

On the application of these two Decisions of the Court of Justice it is clear both the alleged Transferor and the 3 named alleged Transferees are involved in the same business of buying Aircraft and leasing them to airlines. Both the Alleged Transferor and the alleged Transferees continue with the same activities after the sale of the 14 Aircraft in June 2015. None of the employees of the alleged Transferor transferred to the named alleged Transferees. The only assets that transferred were the 14 aircraft in June 2015.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded. There was no Transfer of Undertaking under Regulation 5 of the Regulations of 2003.

Rosaleen Glackin

Adjudication Officer

Date:     02/12/2016