ADJ-00020231

Complainant

Respondent

Anonymised Parties

An air steward

A provider of cabin crew

Representatives

Hoban Boino Solicitors

Frank Beatty SC instructed by Fieldfisher (Ireland)

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00026724-001

01/03/2019

The complainant asserts an entitlement to a redundancy lump sum payment following a period of lay-off. The respondent denies the claim and relies on a contractual mobility clause to assert that the complainant had a reasonable offer of employment to work for the respondent from a different location.

The complainant outlined that his employment with the respondent started in 2008. He worked an air steward and the respondent supplies cabin crew to an airline. The complainant has been based at a particular base since 2012. The complainant said that he was placed on lay off on 29th December 2018 and this continued until the 26th January 2019. He served the redundancy form on the respondent on the 28th January 2019, who responded on the 8th February 2019. The complainant submitted that this was outside the statutory time limit as it was not returned within seven days. He said that Part C of the form referred to work being available from 28th January 2019. The complainant said that the respondent emailed him the letter of the 18th January 2019. He replied on the 21st January 2019 saying that he was settled, and the offers made by the respondent were unreasonable. The complainant outlined that there could be up to 10 stand-by days per month, when the complainant had to be within one hour of the base airport. As a result, he had to be within one hour of the airport for at least one-third of the month. This meant that he had to live within one hour of the airport and this was implied in clause 5 of the contract. He submitted that clause 5 is of no benefit to the employee and allows the respondent to require that the employee move. The clause imposes a requirement on the employee and does not confer any right. The complainant outlined that he previously worked at different locations. When he joined the respondent, he was initially promised a posting at one base, but was assigned to another. He worked there for 10 months. He then worked from two further bases for periods of one year each. In 2012, the complainant sought and was assigned a particular base. He had told the respondent that he would resign if he was not offered this base. He is now settled there and has two children, one of whom is due to have surgery. He has bought property and his parents live there. He outlined that his whole life is now at this location. The complainant applied to an agency also based at this base who now assigned cabin crew to an airline flying under the same banner as the client airline he had worked with. This application was refused. The complainant outlined that in 2018 he was offered fives bases. He was initially advised that there could be a role with a different agency and working for the same airline. He signed a contract with this agency but was later told that there was no position available for him. The complainant outlined that Part B of the RP9 indicates that he was not offered work between the 29th December 2018 and the 26th January 2019.

Cross-examination

In cross-examination, the complainant said that he started working for the respondent in 2008. Prior to this, he worked a stock control administrator. The complainant accepted that he had worked at different locations for the respondent. It was put to the complainant that the airline industry is seasonal and fluctuates across bases. It was put to the complainant that the client airline will move resources to accommodate the demands of the different bases and this requires the movement of staff. He replied that he was aware the mobility clause was important. He accepted that the client airline operates on a point to point basis, so that the aircraft returns to base every night. It was put to the complainant that the respondent seeks to facilitate staff regarding their base of choice. It was put to the complainant that it was entitled to place him at the first base he worked even though he had asked for another base. The complainant accepted this as he was new to the company and it suited him to improve his English. The complainant said that he never saw the Rough Guide document exhibited by the respondent. It was put to the complainant that he had signed confirmation of receiving the document. The complainant accepted this but said that he never received the document. It was put to the complainant that he was aware from the time he moved to the second base that the respondent could move him. He replied that he stayed there for one year and moved another location when the client airline opened a base there. He married in December 2011 and bought a property. He asked to be assigned to the client’s new base at this location. There were 60 posts and 600 people applied. He said that he signed a new contract at every base as the pay conditions differed between bases. It was put to the complainant that the respondent retained the same operational requirements after the closure of the bases in 2018 to before. It was put to the complainant that the letter of the 12th October 2018 refers to him declining a post with the other client airline; he denied that he had been offered the role. The complainant was asked why he had not replied to correct this statement, for example in his correspondence of the 21st January 2019 and the email of the 8th February 2019. He replied that he had spoken with his supervisor and signed a contract with the other agency. It was put to the complainant that this agency never refused him a contract; he did not accept that this was the case. It was put to the complainant that his email of the 8th February 2019 does not state that the agency has refused his application. He replied that in this email he had been answering the question put to him. It was put to the complainant that he was not saying he was refused by the agency, but he does not say that he had informed the respondent that they had misunderstood the position. He replied that he spoke with the manager in the client airline in November 2018 and applied for the position at the agency. He signed a contract with the agency in November 2018 in a self-employment position. He said that the offer was withdrawn as he was a member of a trade union. He said that he had no right of action for this penalisation. It was put to the complainant that the letter of the 12th October refers to the transfer being per the mobility clause; he said that this was not something he wanted. He said that his last day of work was the 7th December 2018. He did not reply to the offers set out in the email of 18th January 2019 because he did not want to move. He wanted to stay with the respondent and also to remain at the same location. He said that the offer to move bases was unreasonable. It was put to the complainant that he had previously threatened to resign if he did not get the base he requested, and that the respondent was being consistent. He replied that he had moved to suit his family, for example his siblings had also lived at other locations. It was put to the complainant that he had agreed that the respondent was entitled to send him to the various bases and now they wanted to move him again; he said that the differences were now his family and his circumstances. It was put to the complainant that the respondent’s operational requirements were the same and there was no obligation on respondent to organise their bases around people’s circumstances. He replied that the respondent’s offer was unreasonable because of his circumstances and he had always moved to suit his family. The complainant accepted that the respondent had offered him a job at a different base and that this was a permanent role with the same conditions. He replied that there would have been a different contract. The complainant accepted that the RP9 stated that there was work available for him from the 28th January 2019. The respondent also wrote to the complainant on the 1st February 2019. The letter of the 8th February 2019 enclosing the RP9 shows that the RP9 was replied to on the 1st February 2019. It was put to the complainant that there had been engagement with him in March 2019 regarding a post. He said that he was then doing a course and did not reply to the March and April 2019 letters as the respondent had not replied to the RP9. The complainant was asked why he had not submitted a grievance regarding the change of base; he replied that the offer was unreasonable, and he had raised this with his line manager. He accepted that he had not referred this in writing per stage 2 of the grievance process. He said that they raised issues with line managers, and he had done everything he could. He relied on the supervisor to pass on the information and he had also signed the contract with the other agency. It was put to the complainant that he did not want to leave this location as he considered that the employer was being unreasonable; he replied that for him it was unreasonable. In re-direction, the complainant referred to the client airline’s email of the 29th November further to his email. He said that he submitted a signed contract to the other agency, but this was not returned to him. He chased this up with the supervisor of the client airline. The other agency had not made an offer to him prior to the 12th October. He referred to the letter from the agency of the 5th December 2018, declining his application.

The respondent submitted that there is no redundancy in this case as there was an offer of employment made to the complainant. The contract of employment provides that the employee can work throughout Europe and this was a term availed of by the complainant in moving bases. It submitted that the complainant benefitted from the mobility clause and the respondent is now seeking to rely on the same clause. It submitted that this was an entirely different situation to that of Heavey v Casey Doors RP1040/2013. It submitted that the business of the respondent is to provide services to several airlines. The client airline operates services across Europe and must have a mobility clause to post staff. The respondent outlined that a different contract of employment was provided at each base. It referred to Burns v Ryanair UD1964/11 & RP2538/11. It submitted that the complainant could have negotiated a different base and could have lodged a grievance. It submitted that the nature of the respondent’s business was travel. There was authority to contradict the authorities advanced by the complainant. It submitted that the contract principle of a mobility clause allows the employer to offer a different place to work. This contrasts with the factual assessment of where the complainant was living, and it is a characteristic of those cases that the employee always worked in one place (which is not the case here). In this case, the complainant has been employed at different bases and enjoyed the mobility facility. The nature of aviation is that the service is point to point and the role requires flexibility. The respondent submitted that clause 5 implies that the employee must be based one hour from the airport. This is formally stated in Clause 10 regarding stand-by days. The rate of pay changes per base and the complainant was offered a base which attracts higher pay. It stated that the respondent had no other client at the location where the complainant worked. It stated that there are 5 stand-by days depending on a month.

The HR Manager

The HR Manager outlined that the respondent was established in 2004 and she had been the HR manager since 2007. The respondent provides HR outsourcing to clients. It employs cabin crew and pilots to the client airline and to other airlines (through the group company). The respondent has no presence other than the client airline, who operate point to point from one base airport. The airplane starts and finishes at the same base. She outlined that employees must be flexible and work from any base in the network. There is no entitlement to any one base. The respondent must ensure that employees are flexible to accommodate seasonality but there is less demand in the winter. The amount of work could reduce, or a base could be temporarily closed, and a person could be assigned work from a different base. In respect of clause 5, the HR Manager emphasised the reference to “such other places” as the business of the agency was to provide services to the client. There was no exclusive entitlement to anyone location. Clause 5 also says “it is a condition of your employment that you comply with any such requirement.” The HR Manager referred to clause 32, which sets out grievance procedure. It was also their practice to send employees the rough guide. She submitted that flexibility is part of the contract, for example the complainant was first placed at one named base. She said that the respondent tried to accommodate expressed preferences but filled vacancies identified by the client. She said that clause 5 allows the respondent to fill such vacancies. It encouraged employees to apply for vacant posts. The HR Manager outlined that the client airline engaged the respondent, which provided services in there until December 2018. The service was now proved to a different entity via another agency, with which she had nothing to do with. The HR Manager outlined that, in respect of the letter of the 12th October 2018, the respondent considered the complainant to remain an employee. This letter was sent to all employees who had not accepted a role with the other agency. She wrote to the complainant on the 18th January 2019 setting out the vacancies in other bases. This provided employees a choice and the complainant could also have engaged to get a base closer to home. The HR Manager said that she replied to the complainant’s letter of the 28th January 2019 on the 1st February 2019. This assigned the complainant another base from the 1st February 2019. She sent the further reply on the 8th February 2019 and enclosed the RP9. The HR Manager said that she was not aware of the complainant’s grievance made to the supervisor of the client airline. The complainant had not sent the grievance to the respondent and the policy included a right of appeal. The respondent also invited the complainant to two investigation meetings. She outlined that the client airline had informed her that the complainant refused the offer from the agency. She accepted that she relied on what the client airline had told her, and this could have been incorrect. The HR Manager was asked how many times the respondent had invoked clause 5; she replied that it was open for both parties to invoke the clause and it allows employees to move around the network. The clause allows the respondent to move people for operational requirements. The complainant was aware that he could be moved around bases in line with the requirements of the business. She said that she enquired about existing vacancies in the new airline. It was put to the HR Manager that the letter of the 18th January offered a limited choice of five bases; she replied that the complainant never responded and did not propose an alternative base. It was put to the HR Manager that the complainant’s email of the 21st January 2019 said it was unreasonable to move to any of the five bases and he asked for an alternative. The HR Manager replied that the complainant referred to staying at this location, but the respondent had no positions as stated in the email of 21st January 2019. It was put to the HR Manager that there were bases in a neighbouring jurisdiction; she said that the respondent could have considered this request, but the complainant only considered this location. She said that the respondent listed the vacancies then available but could have looked into a particular bases, on request. She said that the complainant never asked for an alternative base. The HR Manager was asked if she advised the complainant about availing of the grievance procedure; she said that the grievance procedure was available to him but that she did not specifically mention it to him. It was put to the HR Manager that she had returned the RP9 on the 8th February, while the requirement was for the letter to be sent within seven days; she replied that she had sent a comprehensive letter on the 1st February. The HR Manager was asked why she had sent the RP9 again if the letter was so comprehensive; she replied that she did so as the complainant mentioned not receiving the RP9 back and because they had informed the complainant of other vacancies. It was put to the HR Manager that there was no reference in the letter of the 8th February to the “comprehensive” letter of the 1st February. She replied that the letter refers to “trusting you note the position”, i.e. where they stood. In re-examination, the HR Manager said that clause 5 was invoked for the placements of the complainant at different bases. She said that the only bases available in January 2019 were the five stated in the letter.

The complainant worked as a member of cabin crew. His employer, the respondent, provided cabin crew and pilots to a client airline. Staff were assigned to base airports and the complainant worked from four bases and was latterly assigned to a base where he bought accommodation and settled down. He worked there from 2012 until the end of his employment with the respondent.

Conflict in evidence

On the 31st December 2018, the client airline closed its bases in this country, including the base where the complainant worked. The respondent had no other employment opportunities in this country. Another company within the same client airline group now operated from this base and used a different agency to provide cabin crew. The complainant said that he signed a contract to work for this other agency, but this was withdrawn by the agency. The respondent stated that it had been informed by this other agency that the complainant had refused an offer from it. While there was conflicting evidence whether the offer of employment from the other agency was withdrawn by the agency or refused by the complainant. This, however, is clearly not an offer from a new employer within the ambit of section 9 or an associated employer within the ambit of section 16. The other agency is a separate employer to the respondent, even if they provide the same service, i.e. the provision of cabin crew to client airlines, in this case client airlines within the same parent group. As neither sections 9 or 16 apply, it is not, therefore, necessary for me to resolve this conflict in evidence.

Continuity of service

The complainant commenced employment in August 2008. He worked from different bases, employed by the respondent and assigned to the client airline. The rates of pay differed per the base. The complainant signed a new contract at the outset of his assignment to a particular base. The complainant, for example, signed a contract commencing on the 9th August 2017 to end on the 8th August 2020. The contract states that it is a fixed-term contract and there is no reference to the complainant’s previous service with the respondent. There is a statutory presumption that employment is continuous, unless the contrary is provided (see section 10 of the Redundancy Payments Act, 1971). As a matter of law, I find that the complainant had continuity of service from the commencement of his employment with the respondent in August 2008 to its end. The complainant had a contract of indefinite duration and was not a fixed-term worker.

Jurisdiction

Clause 5 states ‘As the Client’s aircraft are registered in the Republic of Ireland and as you will perform your duties on these aircraft your employment is based in the Republic of Ireland’. Clause 37 of the contract is explicit that the contract of employment is subject to Irish labour law. This specifically references the complainant’s redundancy entitlements. In pursuing this claim, the complainant engaged a solicitor in Ireland and attended this adjudication. Applying the terms of the contract of employment, I find that the complainant ‘ordinarily worked’ in Ireland and I have jurisdiction.

The notice of intention pursuant to section 12

The complainant served the RP9 form on the 26th January 2019. He claimed an entitlement to a redundancy payment arising from a lay-off starting the 29th December 2018.

Section 12(1) provides:

(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. It is clear that the complainant was on a period of lay-off starting the 29th December 2018. There is also no doubt but that the complainant served the notice of intention per section 12(1) and that the period of lay-off was of at least four consecutive weeks. Section 13 provides that the employer has the right to serve a counter-notice. It states:

(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled. Section 13 provides that the employer can contest liability for the redundancy. First, there must be a ‘reasonable expectation’ that within four weeks from the date of service of the notification that the complainant could enter a period of employment of at least 13 weeks. Second, the employer must give notice to the employee within seven days that it will ‘contest any liability to pay … a redundancy payment’. In the letter of the 1st February 2019, the respondent set out its position regarding the change on the part of the client airline. It recited that the other agency had offered a position to the complainant (which he contested). It recites that the complainant had not accepted a base offered to him and was presumed to have accepted relocation to a named base, per the mobility clause. This letter does not specifically contest the respondent’s liability to pay the redundancy lump sum payment, although it referred to the offer from the other agency and the employment opportunities available with the respondent at other bases. The respondent completed ‘Part C’ of the RP9 and sent this to the complainant on the 8th February 2019. While the letter does not specifically contest the entitlement to a redundancy lump sum, it does challenge the basis of any redundancy entitlement. It refers to the alternative offer of employment and the respondent’s offer to work from other bases. It is, therefore, necessary, to assess the case on its merits.

Entitlement to a redundancy lump sum payment

The complainant asserts that the offer to work at another base was not reasonable and the mobility clause was too broad. The respondent asserts that the mobility clause was a central part of the contract of employment and one that the complainant availed of during his employment. Clause 5 provides ‘You will be initially located at [name] and at such other place or places, as the Company reasonably requires for the proper fulfilment of your duties and responsibilities under this Agreement. It is a condition of your employment that you comply with any such requirement. Our client airline operates aircraft from various locations and the number of aircraft in each location can change throughout the year. For the avoidance of doubt, you must be flexible to transfer to any of our Client’s bases at any time without compensation.’

Section 15 provides as follows:

(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if –

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment, (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract, (c) the offer constitutes an offer of suitable employment in relation to the employee, (d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and (e) he has unreasonably refused the offer. In Cinders Ltd v Byrne RPD1811, the Labour Court held that the issues to be considered were “(i) the suitability of the offers of alternative employment made … on behalf of the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances.” Relying on Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, the Labour Court referred to “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. In Cinders Ltd v Byrne, the Labour Court held that it was reasonable for the employee to refuse to move to a concession within a department store, but unreasonable to refuse to move to a standalone store in the city centre (a distance of about 6km). The Labour Court held that “there was no significant difference between the working environment she would have enjoyed in [the alternative store] and that she had experienced for the previous twenty or so years of her working relationship with the Respondent.” I note the case of Burns v Ryanair UD1964/2011 & RP2538/2011. The EAT held that the employee (a pilot) was not unfairly dismissed or made redundant when the base he was assigned to closed. The EAT had regard to the fact that the claimant could have obtained another base. In assessing the evidence of this case, I note that the complainant was a member of cabin crew. He operated from a base and returned to that base at the end of the working day. He could either work rostered hours or be on stand-by. On a stand-by day, the complainant had to be at the base airport or within an hour of it. There was a conflict whether there were five or ten stand-by days per month. It is not necessary to resolve this conflict; there may have been some months where the complainant was required to be on stand-by for 10 days and other months, where the requirement was for fewer stand-by days. It is clear that the complainant had to live in proximity of the base he was assigned to. The legal test set out in Cinders Ltd v Byrne andCambridge & District Co-operative Society Ltd v Ruse is that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective prospective of the employee. In this case, there is no doubt that, objectively, the complainant was to do the same role but from another base airport. However, from a subjective point of view, this was very different. The complainant was required to move to one of five bases across three countries. He was later assigned to one base. While there was discussion at the adjudication of other roles in another country close to the complainant’s base, there was no such discussion or offer in early 2019. Being a member of cabin crew is intrinsically a job where you travel a great deal; however, in this post, the complainant started and returned to the same point. There were rostered days but also stand-by days, where the complainant had to be within an hour of the airport or on site. To continue as an employee of the respondent, the complainant would have had to drop everything and move to another country. The complainant worked for the respondent for about a decade and operated from four bases. He worked from his last base for several years, i.e. over 50% of his time with the respondent. He settled at this location, having a family and buying a property. While the complainant travelled for a living, he was very much based at one location. He availed of the opportunity to work from four bases over the decade, but he signed several contracts to continue to work from the latter base. Undoubtedly, the complainant settled from 2012. The legal test requires consideration of the objective and subjective elements of the new role offered to the complainant. Objectively, this was the same role. Subjectively, however, it was very different. The nature of the role was that he could no longer live in the city where he had settled. There was no option to commute, work from home or some other accommodation. He had to leave the place he settled and live a great distance away. Having regard to the above legal test and the complainant’s circumstances, I find that it was not unreasonable for him to turn down the alternative bases put to him by the respondent. Given this finding and the other findings made above, it follows that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act. The criteria are drawn from the complainant’s start date, the most recent period of lay-off (there was no evidence of any other period of lay-off in the preceding three years), the date the notice of intention was served, and the gross weekly wages stated in the complaint form. The relevant termination date in a case arising from lay-off or short-time is the date the notice of intention to claim relief is served (see Leinster Cleaning Services v Muningus RPD199).

The following criteria apply:

Date of commencement: 9th August 2008

Period of lay-off: 29th December 2018 to the 26th January 2019

Date of notice of intention to claim relief (the date of termination): 26th January 2019

Gross weekly remuneration: €500

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00026724-001

I decide that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act, in accordance with the following criteria:

Date of commencement: 9th August 2008

Period of lay-off: 29th December 2018 to the 26th January 2019

Date of notice of intention to claim relief (the date of termination): 26th January 2019

Gross weekly remuneration: €500

Redundancy Payments Act

Notice of intention to claim relief

Mobility clause