EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Joyce Marchione - Claimant UD854/2015
against
Stobart Air - Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
- (Division of Tribunal)
- Chairman: Mr. T. Ryan
- Members: Mr. L. Tobin
- Mr J. Flannery
heard this claim at Dublin on 14th December 2016 and 8th February 2017 and 21st March and 3rd May 2017 and 29th June 2017
Representation:
Claimant: Mr. John Geary, J.V. Geary Solicitors, Linenhall Street, Castlebar, Co. Mayo
Respondent: Mr Alastair Purdy, Purdy Fitzgerald Solicitors, Block 1, GFSC, Moneenageisha Rd, Galway
The determination of the Tribunal was as follows:-
Background:
he respondent is a regional airline that has locations at Dublin and Cork with previous locations at Galway, Shannon, Waterford and Cardiff. Following examinership a group of new investors took over the operation and a number of cost cutting exercises were put in place. In November 2014 the viability of Shannon came into question and a decision was made to close that base. The claimant contends that she was made redundant instead of being given an opportunity to move to Cork. Respondent’s Case:
SD the Head of Human Resources gave evidence.
In August / September 2014 members of management, include SD and HMcM (Cabin Operations Manager) attended the Shannon base to advise staff there would be a slowdown in operations due to one aircraft being relocated to Dublin. Ten staff were affected by this relocation including the claimant.
Of the ten staff affected, one relocated to Southend, two relocated to Cork (Ms. U and Ms. M), two to Dublin, three finished out their fixed term contracts and it was agreed the claimant and a colleague job shared a post in Shannon.
In November 2014 it was decided at board level to close the Shannon base. On the 10th of November 2014 senior management, including SD and HMcM arrived at the Shannon base to inform staff the base was to close on the 5th of January 2015. A consultation process regarding the base closure began between the respondent and the staff representative (S). This agreement was signed off on the 21st of November 2014.
A letter dated the 28th of November 2014 was submitted to the claimant advising her of the base closure and enclosed a copy of an agreed document between management and the employee’s representatives. Three options were available to all staff:
“In brief the options are (a) relocation to another base. (b) redundancy, (c) avail of extended unpaid leave with the option to relocate or accept redundancy at a later date.”
The claimant was asked to read the document carefully and in full.
The letter also stated:
“Flight operations management have also invited expressions of interest in job sharing from all crew at all bases in recent weeks with a view to creating additional relocation opportunities. Should you be interested in job sharing you should advise your manager as soon as possible, if you have not already done so.”
The claimant was advised that her estimated redundancy calculation was €18,170.00.
On the 30th of November 2014 the claimant emailed SD, HMcM and the Human Resource Officer (NS)
regarding the Shannon base closure. She stated:
“I would like to acknowledge firstly your email of the 28th inst. and confirm to you that [a colleague] would like to take the option of agreed redundancy figure as outlined in your email of the 28th inst. I would formally also like to give you my months’ notice from the 5th of January. If you require me to operate for this months’ notice can you kindly let me know at your earliest convenience as I will need to have childcare arrangements in place for my children. In the event I am not required to operate I would kindly also like to know at your earliest convenience as I will be actively trying to seek alternative employment.”
HMcM acknowledged receipt of the claimant’s email and advised her she would contact her as soon as possible.
On the 4th of December 2014 SD wrote to the claimant following a telephone conversation they had the previous day. In this letter SD advised the claimant that the original redundancy sum quoted was incorrect and this was due to a computer error. The correct sum was €7,000. Apologies were given for the error and the claimant was advised to contact HR if she had any further queries.
On the 13th of December 2014 the claimant emailed SD querying the calculation of the redundancy. SD replied confirming her redundancy calculation was based on her working full time albeit she was temporarily work sharing. SD told the Tribunal there was no mention of relocation to another base in this email.
On the 24th of December 2014 SD again emailed the claimant regarding her redundancy calculation giving a detailed calculation of her redundancy and her final pay. On the 1st of January 2015 the claimant emailed SD requesting a reference. SD replied the following day.
SD told the Tribunal that the respondent constantly reviewed the headcount within the company. On the 11th of February 2015 a Staff Requisition form was compiled. Twelve staff were required to fill posts. Three of these posts were in Cork to be temporarily filled with staff on fixed term contracts to cover staff on long term sickness. The advertisement was posted. The claimant did not apply for a post.
Under cross-examination SD stated that the two staff members who relocated to Cork following the aircraft relocation to Dublin were offered full time contracts. SD agreed that one of these contracts was signed off during the consultation process between management and S regarding the Shannon base closure.
SD told the Tribunal that she found the claimant to be very good hardworking employee who not only worked as Cabin Crew but also as a Trainer. The respondent was sorry to see her and other staff leave.
SD refuted the claimant had raised the issue of relocating to Cork with her and HMcM. The claimant had cited her preference to avail of the redundancy package and had never even raised the issue of relocation in any correspondence.
When put to her she had told the claimant that there were no positions available in Cork SD replied that she could not recall.
When asked why the positions advertised in February 2015 were not raised with the claimant or other staff in November 2014 SD replied that the respondent was not aware of the availability of these positions until February 2015.
HMcM (Cabin Operations Manager) gave evidence of her employment role within the respondent.
The witness told the Tribunal that she had attended two meetings in the Shannon base with SD and other management and staff representatives on the 10th and 24th of November 2014 regarding the closing of the base. The first meeting was held in the crew room, the second in a conference room in a hotel. They were group meetings.
HMcM told the Tribunal that she recalled speaking to the claimant at the second meeting in the hotel. During this conversation the claimant told the witness that she would be unable to relocate as she her children to consider. HMcM told the Tribunal that she was aware the claimant had working in the Cork base previously.
HMcM told the Tribunal that she had no further meetings with the claimant. On the 30th of November 2014 the claimant emailed the witness, SD and the Human Resource Officer (NS) regarding the Shannon base closure and confirming she wished to avail of the redundancy package. The witness replied to the claimant stating:
“I acknowledge your decision to take the redundancy option once the SNN base closes on the 5th January 2015.
I will be in touch in relation to the arrangements for your notice period shortly as I appreciate you would like this information as soon as possible.”
HMcM told the Tribunal that she was not surprised at the contents of the claimant’s email as she was aware the claimant did not want to relocate to another base.
Under cross-examination HMcM said that no specific availability of posts were discussed at meetings. The witness refuted she had told the claimant that there were no vacancies in Cork.
When asked about a staff member (KL) relocating to Southend and his position being “held” for him in Cork, the witness replied that KL had moved to Southend for a short period but his position in Cork had not been kept open for him. KL had recently relocated back to Ireland.
HMcM agreed she had told a colleague of the claimant’s that a position had been available in Cork around the 25th of November 2014.
When asked when it was decided to advertise twelve positions in the respondent company, she replied that it had been in early February 2015.
When asked had it occurred to her to contact the claimant regarding these new posts she replied that it had not.
Claimant’s Case:
The claimant gave evidence. She was employed by the respondent company as Cabin Crew and later additionally as Line Trainer from the 12th of April 2011 until the 6th of February 2015. During her tenure she worked predominately from the Shannon base but had job shared during three winter periods in the Cork base. She was in receipt of a contract of employment which she had signed on the 12th of April 2012.
On the 10th of November 2014 senior management arrived at the Shannon base to inform staff the case was to close. The claimant requested to speak to HMcM (Cabin Operations Manager) in person. The claimant told the Tribunal that she asked HMcM were there any positions available in Cork and was told no. Two colleagues of the claimant were also present during this conversation.
The claimant told the Tribunal that a colleague of the claimant’s approached her asking if she would be interested in job sharing with him. She agreed and he said he would discuss it with management.
On the 24th of November 2014 the claimant attended a second meeting with SD and HMcM in the crew room. At this meeting the claimant said she asked to speak to SD and HMcM privately and later did so in the Base Manager’s office. The claimant said that she told them she was “disappointed to leave” and again mentioned the possibility of positions being available in Cork but again was told there were none.
The claimant told the Tribunal that she was under no illusion at that point that there were no positions available in Cork.
On the 28th of November 2014 SD wrote a detailed letter to the claimant regarding the base closing and quoting a redundancy payment. The letter quoted there were three options available. Relocation to another base, to avail of redundancy or to take extended unpaid leave. SD requested the claimant reply with her preferred option.
On the 30th of November 2014 the claimant emailed SD with to inform her she would take the redundancy based on the figures quoted to her in the letter of the 28th of November. The claimant told the Tribunal that she felt she had no option but to accept the redundancy as she had already been informed that there were no positions available in Cork and she did not want to relocate to Dublin or Southend for family reasons. Her request was acknowledged.
Around this time she was made aware of a colleague who was employed from March that year on a fixed term contract being offered a full time position in Cork. The claimant told the Tribunal that she had found that “hard to believe” as she felt this position should have been offered to a more senior member of staff.
On the 4th of December 2014 SD again wrote to the claimant advising her that the original redundancy sum quoted was incorrect and this was due to a computer error and cited the correct amount payable. Apologies were given for the error and the claimant was advised to contact HR if she had any further queries.
On the 13th of December 2014 the claimant wrote to SD querying her redundancy payment which she received in January 2015.
The claimant gave evidence of loss.
Under cross-examination the claimant stated that she had accepted the redundancy payment as there was no alternative as she had been told by management there were no positions available in Cork.
When asked why she had not applied for the new positions advertised by the respondent company in 2015, she replied that she felt she could not, as she had accepted a redundancy payment from them.
The claimant stated that had there been positions available in Cork at the time in question she would have moved there and not taken the redundancy package.
Determination:
Having considered the totality of the evidence, the Tribunal finds, by a majority decision, that the claimant was unfairly selected for redundancy. However, due to the fact the claimant was unfit for work, after the date of dismissal, the maximum award the Tribunal may make is four weeks loss of earnings.
Accordingly, the Tribunal awards the sum of €2,027.52 (two thousand twenty-seven euro and fifty-two cent only) under the Unfair Dismissals Acts, 1977 to 2007. This award is in addition to the redundancy payment the claimant has already received.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)