Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032218-001

14/11/2019

The complainant's complaint is that his terms and conditions of employment were changed without his consent. The Respondent ceased their operations in Budapest and when they did that, his employment also ceased. The complainant argues that on that basis he is entitled to a redundancy payment pursuant to section 7 of the Redundancy Payment Act 1967. The complainant has had 13 years of loyal service with the Respondent. He has been based in different locations in Europe over that time.

On the 22nd of October,2019 the Respondent announced that it was going to cease its operation in Budapest effective from the 1st of December 2019. From that date onwards a third-party was going to take over from the Respondent. That third party offered positions to the respondent’s employees. The complainant states that he was only given one week to make a life-changing decision. Having considered the offer the complainant decided to reject it. The complainant’s family are all in Budapest. He is settled there now and does not want to move.

The Complainant is currently employed by the Respondent as a Customer Service Supervisor. Since 16th February 2012, the Respondent was based in the Budapest base. The Complainant commenced his employment with the Respondent on the 1st day of July,2007 and has had an uneventful employment prior to the matters the subject of the within complaint.

From December 2006 until July, 2007 the Complainant operated on Respondent aircraft as Cabin crew via a contract agency. On or about the 22nd day of June,2007, the Complainant entered into a contract with the Respondent as a Cabin Services Agent commencing on the 1st day of July, 2007. In accordance with Clause 5 of the Contract of Employment the Complainant was located principally at Dublin Airport. On or about the 1st day of May,2009, the Complainant, continuing in this employment with the Respondent, commenced a position in which he was to be principally located in Trapani Airport.

On or about the 1st day of December,2010, the Complainant’s location transferred to Valencia Airport where he remained until February, 2012.   On or about the 16th day of February, 2012, the Complainant once again transferred, this time to the Respondents base at Budapest Airport.

On the 18th day of October 2019, a memorandum was provided to all Budapest based Cabin Crew, advising of a briefing which was due to take place at 9am on the 22nd day of October, 2019 in the Budapest crew room.

The purpose of the said briefing was to update staff that the Respondent was closing the Budapest base as of the 30th day of November.   The Respondent advised staff that the Company was facing a very difficult winter and a full review of operations was taking place across the network due to a combination of market factors including lower fares, higher costs and Boeing max aircraft delays.

It was further advised that “ZZZ” (commercial airline) were to open a base in Budapest and that ZZZ would be holding a meeting in which they would be offering Respondent crew the opportunity of taking up employment directly with ZZZ operating from Budapest.

If any Respondent cabin crew member did not wish to take up employment with ZZZ, the Respondent advised that they would be transferred to other Respondent bases throughout Europe in accordance with their contract of employment. Respondent closed its operation in Budapest on 30th November 2019.

On or about the 23rd day of October,2019, the Complainant was advised in writing, that Respondent DAC would cease to operate its Budapest base from the 30th November, 2019 and that from the 1st December, 2019, there would be no Respondent aircraft or based operations in Budapest. The said correspondence further advised that “ZZZ” would operate flights from Budapest and that in the absence of accepting an offer from “ZZZ” on or about the 1st day of November,2019, contact would be made to accommodate a new base assignment which would be at another base operated by Respondent.

On or about the 6th day of November,2019, further correspondence was issued to the Complainant advising that in accordance with the letter of 23 October,2019 the Complainant would transfer to one of Respondent’s other bases in Dublin, Birmingham or Edinburgh. The Complainant was requested to confirm his preference in writing no later than 5pm on the 7th November,2019.  

On the 8th day of November,2019, it was confirmed to the Complainant that in circumstances where he had not expressed a preference as to the base for which he was to be appointed that he was being appointed to the Birmingham base effective from the 1st day of December, 2019. This appointment was made in accordance with the Contract of Employment and more particularly the mobility clause contained therein.

A written statement of the amended terms of employment were furnished to the Complainant on the 12th day of November,2019 in accordance with Section 5 of the Terms of Employment. (Information) Act 1994.   The said correspondence was received and read by the Complainant at 15:19hrs on the 14th day of November,2019 via the Respondent’s e-crew platform.

On the 22nd and 29th day of November,2019, the Respondent continued to engage with the Complainant in respect of the transfer to the Birmingham base.

On the 1st day of December,2019, the Complainant failed to report to Birmingham base in accordance with his terms of employment and the notification as provided.

On the 22nd day of November,2019, the Respondent invited the Complainant to meet with the company on the 26th day of November, 2019, however the Complainant subsequently submitted a medical certificate extending his absence until the 23rd day of January, 2020. As a consequence thereof, the Respondent sought to reschedule the meeting to the 5th day of December, 2019. In reply the Complainant sought to impose unilateral terms upon which he was willing to attend the said meeting.

As a result of the failure of the Complainant to attend the meeting of the 5th December,2019, by further correspondence dated the 11th day of December, 2019, a meeting was arranged to discuss the Complainant’s ongoing absence from his employment on the 24th day of January, 2020.

It is clear from the Complainant’s Contract of Employment dated the 14th day of February. 2012 and more particularly Clause 4 that his location would be principally in Budapest Airport or such other place or places as the company reasonably requires:-

“4.1        Respondent’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. You will be located principally at Budapest Airport 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. This would include, for the avoidance of doubt, transfer to any of the company’s bases without compensation. It must be understood that should you be transferred to another base you will paid in accordance with the prevailing salary and flight pay system at that base.” (emphasis added)

By the acceptance of the Complainant of the terms of employment of 14th February 2012, the Complainant expressly agreed and consented to the transfer which has in fact occurred.

Notwithstanding the mobility clause contained in the Complainant’s Contract of Employment, the transfer of staff is necessitated by the nature of the Respondent’s business as an International airline and more particularly the seasonal nature of some routes. During the period 1 January,2019 to 16 January,2020, a total of 2873 cabin crew transfers took place. 1123 of these were permanent transfers with the balance being temporary secondments largely due to seasonal fluctuations. All such transfers occurred in accordance with the express terms of employment of the Respondent.

For, inter alia, the reasons provided in the briefing of 22 October,2019, 26 Respondent bases have closed in the last 2 years with a further 2 bases due to close in March of 2020. In addition to this, a large number of bases have been downsized.

In order for the Respondent to operate its business as an international airline, including the opening and closing of operations based on market factors, and to ensure the continued employment of its employees it is necessary from time to time to invoke the mobility clause. It is for this reason that the mobility clause is included in the contract of employments for cabin crew and pilots, so that they fully understand and accept that they may be transferred to bases within the Respondents base network.   If an individual had any issue with this express and critical term of their employment, then they should not have agreed to commence employment with the Respondent.

For the avoidance of doubt, the Complainant’s complaint issues pursuant to s.7 of the Terms of Employment (Information) Act, 1994.   Notwithstanding this the “Complaint specific details or Statement” furnished by the Complainant failed to disclose any grounds upon which a breach has occurred of the Terms of Employment (Information) Act, 1994, as alleged or at all.

While the Complainant seeks to reference a number of other statutory provisions, he has not identified a breach of the Terms of Employment   (Information) Act, 1994 as amended and in such circumstances the Complainant’s claim is misconceived and bound to fail.

The Respondent has at all times sought to meaningfully engage with the Complainant and in particular complied with their obligations pursuant to the Terms of Employment (Information) Act, 1994 by providing the necessary information required pursuant to the Act under cover of letter dated 12 November,2019.  

Notwithstanding the failure of the Complainant to identify a breach of the Terms of Employment (Information) Act, 1994, the Respondent has at all times acted in accordance with its statutory obligation and the terms of the Complainant’s Contract of Employment.

As a result of the foregoing, the Complainant is not entitled to compensation as alleged or at all.

The complainant states that the Respondent changed the terms of his contract without his consent.

The complainant at the material time was based in Budapest. On the 23rd October,2019 the Respondent notified all employees, who were based in Budapest, that they were ceasing to operate from that location effective from the 30th November,2019 and that from the 1st December,2019 there would be no Respondent aircraft or based operation from that location. The complainant was given a number of options, in relation to his preferred new base. He did not opt for any of the locations offered. In line with the terms of his contract of employment, the Respondent made the decision to base him in Birmingham. The relevant contract is dated the 14th February, 2012. Therein it states at clause 4.1:

“You will be located principally at Budapest Airport and at such other place or places as the Company reasonably requires for the proper fulfilment of your duties and responsibilities under this Agreement. This would include, for the avoidance of doubt, transfer to any of the Company’s bases without compensation”.

The complainant confirmed, when asked, that he had read and understood that clause before he signed the contract.

I am satisfied that when the complainant signed his contract dated 14th February,2012, he gave his consent to be moved to “such other place as the company reasonably required”. The Respondent had ceased its operations in Budapest and therefore there was a requirement to move the complainant to a different location. Based on the documentary evidence produced during the hearing, I am satisfied that the Respondent has complied with all of its obligations under the Terms of Employment (Information) Act, 1994.

The complaint is not well founded and accordingly fails.

The complaint is not well founded and accordingly fails.