Complainant

Respondent

Parties

Kinga  Mcinerney

Emirates  Airline

Representatives

  Self

Mr Owen Keany, BL, instructed by Leman Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041973-001

14/01/2021

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

CA-00041973-002

14/01/2021

The complainant was employed as an Airport Services Agent with the respondent.   She commenced employment on 11/02/2016 and was dismissed by reason of redundancy on 15/12/2020.  She was paid €2,270 gross (€1,850 net) per month.  She submitted her complaint to the Workplace Relations Commission on 14/01/2021.

The complainant commenced employment with the respondent as an Airport Services Agent on 11/02/2016. She worked in a department known as EKAS and was paid at a Grade 4 level.  She was dismissed by reason of redundancy on 15/12/2020 and the reason given by the respondent was that there was a reduction in the business as a direct result of COVID-19.  The complainant withdrew her complaint, CA-00041973-002 at the hearing.  She outlined that her complaints were submitted by a former representative and she did not wish to pursue this complaint.

The complainant outlined that she submitted her complaint under the Unfair Dismissals Act as she felt that the respondent “did not conduct a fair and objective redundancy process”.  The respondent failed to engage in a meaningful consultation process with her and also in relation to the collective redundancy process.  The complainant feels that that “the outcome of the redundancy process was predetermined”.  The complainant submitted that the matrix used by the respondent was designed in such a manner that it could be easily manipulated.  The complainant feels that the consultation process “was nothing more than a box ticking exercise”. 

The redundancies were announced on 22nd October 2020 and there were two departments affected:   Commercial and Airport Support which is more commonly known as EKAS.  The employees were advised that 60% of staff were facing potential redundancy.  The complainant feels that before a consultation process started there was evidence that the process would be unfair, subjective and not transparent.  She cited the example of where two Grade 6 employees who were both performing the exact same duties were not going to be considered for redundancy and there was no explanation for this.  When the respondent first stated its Dublin operation in 2012 there was only a need for one Grade 6, and this was increased to two in December 2020.

The complainant outlined her concerns about the consultation process.  She was not permitted to have any form of professional representation in order to assist her with the legalities of the process.  This also included trade union representation and the respondent confirmed that they do not recognise trade unions. 

The respondent had decided that the EKAS department would “bear the brunt” of the redundancies and the commercial department would be less affected but there was no explanation behind the rationale for this decision.  It was the complainant’s position that the manager who led the redundancy programme also leads the commercial department and works very closely with the staff there.

The complainant and her colleagues submitted two job saving proposals and both were rejected.  One of these was that a job sharing/part time working options could be looked at.  The employees were advised that a decision in relation to this being unacceptable was made by the Dubai office but there was no paperwork shared to confirm this.  The complainant submits that this also shows that the outcome of the process was predetermined.

The complainant further submitted that at a fourth consultation meeting concern was expressed that the planned individual meetings and the matrix scores would not be conducted objective.  The complainant noted that some of the team members made a complaint about their superiors in 2019 and there were not taken seriously.  One of these managers was now involved in the matrix scoring process and they had concerns about his objectivity and fairness.

Because of their concerns the employees sought assistance from the conciliation services of the WRC, but the respondent declined to participate.

The complainant also submits that the respondent did not provide any financial information in relation to its operation in Ireland or any evidence about what other steps they had taken to reduce costs.  The respondent did not confirm what alternatives to redundancy they had explored.

During the consultation process the respondent claimed that wage costs were substantial.  The complainant and other employees had taken pay reductions ranging from 25% 5o 50% over a seven-month period.  The wage subsidy scheme was used by the respondent and this scheme was introduced to help business retain staff.

The complainant submitted that the matrix was one of her main issues.  For the purposes of the redundancy the commercial department was divided into two pools whereas the department she worked in, EKAS, all staff remained in the same pool.  The complainant believes that this was not correct as the EKAS department was always divided into two sections.  The effect of this was that by leaving all employees in the same pool one group automatically had an advantage.  The complainant noted that they failed to get this point across to the respondent and yet they were accused of not making any constructive input to the matrix.

The complainant outlined her concerns about the individual consultation meetings.  They were told that each employee would have three individual consultation meetings before a final decision was made.  The complainant submitted that the top two scorers were told that they did not need to attend any other meetings at their posts were no longer at risk of redundancy.  It is the complainant’s position that if the respondent claimed that “no decision had been made” then the only reason these two employees did not have to attend any further meetings was that they were picked from the start of the process and therefore it did not matter how other employees improved on their scores.  In that context the scores of the top two employees remained unchanged throughout the process while others increased and in some cases by 30%.  It is the complainant’s view that this was due to the incompetence of the people doing the scoring.

The complainant provided examples of where her scores were altered.  Although she had excellent performance reviews, she was told that the matrix was not measuring performance but skills and experience.   Some of her scores were given by a person who had no experience in the systems she used, and he was not qualified or trained to use them.  She also gave an example of a score in one of the areas where she was marked at “2” which indicates that “I could execute the task but may require supervision”.  She came to work for the respondent from another airline where she had nine years’ experience and was considered highly proficient in this area.  The complainant questioned the scorer’s awareness of her skills and his competence to conduct a fair and reasonable scoring process.

At her individual meetings the complainant was not allowed to have any representation or be accompanied by a work colleague.  She was only allowed representation at the third meeting.  She was also denied the right of appeal the redundancy.  At her second meeting her line manager displayed intimidating behaviour and she had to raise a formal grievance in relation to this matter.

The complainant confirmed that the redress she is seeking is compensation and that she took up alternative employment on 02/02/2021.  As she did not provide any details of the attempts to mitigate her loss and details of her current earnings the Adjudicator agreed to facilitate the production of this no later than one-week post hearing and the respondent would be facilitated with a similar period of time to revert following receipt of this submission.  The complainant provided the documentation which showed her applications for various posts and confirmation that she obtained employment on 02/02/2021. The complainant also provided details of her current salary.

The complainant was cross examined.  She was asked if she disputed the fact that the redundancies were due to the impact of COVID-19 on the respondent’s business.  She accepted that it did but that it was used by the respondent in an unfair way.  The complainant was asked to confirm that there was interchangeability in relation to the roles in EKAS.  She said that there was but that there were no opportunities to train in some of the roles, so some people could not undertake other roles.  The complainant explained that there were two distinct areas within the EKAS department and that these had different skills.

The complainant was asked to explain her understanding of why there was no reference to the 2019 incident she referred to during her submission.  She explained that there were a lot of things missing from those minutes.  She was asked if he made any effort to correct the minutes and she said they mentioned it at some of their meetings.  In relation to her concerns about representation the complainant was asked if she took part in the process to elect staff representatives and she confirmed that she did.  She was also asked if was made aware that she was entitled to take advice from the external representative that the staff representatives were dealing with, and she confirmed that that was the case.

The complainant had a witness and he provided evidence at the hearing.  Mr G was a former colleague of the complainant’s, and he was one of the elected employee representatives during the consultation process.  He confirmed that he was always rostered for the ticked desk and was never rostered for another area.  He did not agree with the respondent that there was such flexibility that they were all the one team.  Mr G was asked to outline his understanding of the matrix used.  He outlined that it was clearly unfair and would only benefit one category of employee.  It was also not fair to people who were on leave such as carer’s leave.  Mr G outlined that it was clear to him that the matrix was designed to keep the top two scorers and it had a lot of leeway to allow this.  Of the nine people in the matrix process 78% had their scores changed and this clearly indicates that there was a problem with the way the scorers used it.  Mr G said that as part of the consultation process they complained about the matrix but were not listened to.  He would strongly refute the allegation that they would not participate.  It was up to the respondent to come up with an alternative matrix, but they did not do so.

Mr G was also asked to outline his concerns about the one-to-one meetings and the link to the 2019 complaint.  He confirmed that they were not allowed to bring a colleague to the first two meetings.  Mr G gave evidence that they requested that a staff representative would be allowed attend every meeting and they were always given a “flat no”.  Mr G said in evidence that he was satisfied that they engaged with the respondent and did not accept the respondent’s position that the staff representatives did not do so.  He also did not agree that the redundancies were unavoidable due to the impact of COVID-19 on the business.  He cited several examples of where the respondent’s organisation became a major sponsor of many sporting events during the pandemic as evidence that there were in a sound position financially.  Mr G confirmed that the representative group got external assistance in preparing a number of documents which they submitted to the respondent. He denied that the intention of the representatives was to prolong the process.  Mr G outlined that they did not get satisfactory answers to their questions, and it was clear that was because the respondent’s representative, Mr C, was not the decision maker.  Mr G said that he would highlight that they not only lost their jobs with the respondent, but they also lost the concessions that they had built up.

The respondent is the national airline carrier for the United Arab Emirates.  The Irish operation commenced on 12/01/2021 and prior to the redundancy situation they employed 31 people.  As a result of the redundancy process, they currently employ approximately 20 employees.  The COVID-19 pandemic had a profound and lasting impact on the respondent’s business as well as the entire airline industry.  The operated 14 flights per week from Dublin airport this had reduced to 4 in January 2021.  Many of the destinations to which the respondent had flights were closed and there were no immediate plans to open the borders until the end of 2021.

Following the imposition of COVID-19 restrictions in March 2020 the respondent was forced to take immediate cost saving measures.  These included 25% salary reduction from 01/04/2020 until 30/06/2020.  This was followed by a 50% pay reduction from 01/07/2020 until 30/09/2020.  The complainant provided consent to these reductions.

On 22/10/2020 the respondent announced that full pay would be restored from 01/11/2020 as a collective redundancy process would commence.  The approach taken by the respondent was similar in all its worldwide operations.  In addition to this the respondent operated its rosters, in so far as was possible, to reflect the overall reduction in pay.

Despite these measures the respondent had to make difficult long-term decisions in order to ensure the viability of the Dublin operations.  On 22/10/2020 the respondent announced that due to the loss of millions of euro each week they could not support the current cost base and headcount.  The respondent was considering reducing its workforce by 60% and in that context a consultation process with employees would be established.  The respondent also indicated that staff carrying out similar roles would be assessed using a matrix which would be designed to measure proficiency across a number of skills, past performance and days absent.  Each group of employees were advised that they were entitled to elect staff representatives to participate in the collective redundancy process.  The respondent issued relevant documents explaining the process.

The respondent wrote to the complainant o 22/10/2020 confirming details of the position outlined and attached a further FAQ document which provided further details.  The relevant Minister was also informed of the position.  There were two categories of employees affected by this proposal.  The commercial staff and the airport staff which are more commonly referred to as “EKAS”.  The complainant’s role was in the EKAS division.  Two representatives from each division were elected.

A meeting with these representatives took place on 02/11/2020 and the respondent outlined the reasons which required them to embark on a redundancy consultation process including the category and number of employees suggested to be made redundant and sought suggestions on ways to minimise redundancies.  The respondent also made a presentation on the event of redundancies being required.

The respondent was contacted by the staff representatives the following day and expressed their disappointment that the redundancy on offer was statutory redundancy and requested a reflection on this.  Further meetings were held with the employee representatives and the respondent responded to any questions submitted by the representatives.  A request from an employee representative service to meet with the respondent was not agreed to.  The respondent continually emphasised that as no final decision was made regarding the proposed redundancies it was open to discuss any suggestions made by the employees as to how the proposed redundancies could be minimised.  The respondent confirmed that any proposals would have to meet the operational requirements.  The EKAS representatives did not put forward any constructive input into how the scoring matrix might be amended or improved.  The EKAS representative submitted that it should be the respondent and not the employees who should offer suggestions.  The respondent noted that the approach from the EKAS representatives was in contrast to the commercial representatives who offered direct input on the matrix and selection process criteria.  This input was accepted and implemented by the respondent.

The respondent had further meetings with the representative and also further exchanges of written queries.  The respondent received a document on 27/11/2020 which contained suggestions on avoiding redundancies.  These included short-term reduction of working hours and also lay-off.  As these assumed a recovery within the business by April 2021 the respondent felt that these would not have addressed the difficulties they faced in the medium to long-term.  The respondent provided a written response which outlined its reasons why these proposals would not obviate the need for redundancies.  The respondent again noted that the representatives were “unwilling to have a substantive discussion on the methodology and detail of the matrix until the later phase of the consultation process”.   The respondent was requested to postpone the individual meetings to facilitate a conciliation process at the WRC.  The respondent has declined the assistance of the WRC’s conciliation process.

Following concerns raised by the representatives the respondent amended the weighting on some of the matrix scoring. 

The respondent proceeded with a series of separate individual consultation meetings and met the complainant on 03/12/2020.  At the first meeting the complainant was provided with the full details of how she scored under the various headings on the matrix.  The breakdown and rationale for each of these scores was explained to the complainant.  The complainant raised some concerns regarding the scoring in respect of some of the skills categories as she felt that these did not reflect her skills and experience.  At the second individual consultation meeting on 08/112/2020 the complainant was advised that her scores under two of the skills categories were increased as a result of her observations at the first meeting.

The respondent’s representative, Mr C, advised employees that he would attend the third individual consultation meetings.  The respondent received a grievance from the complainant in relation to what she described as “the negative manner and tone” of one of the respondent’s managers at the previous meeting.    She requested that Mr C attend the final consultation meeting and he agreed to this.  Mr C met with the complainant and a colleague the following day.  He explained the process followed and emphasised that the scoring was conducted in a manner which was fair and reasonable to all employees.  He also confirmed to the complainant that if there was an improvement in the business within the next 12 months which required it to increase staff levels the complainant and any employees who were made redundant would get preferential treatment in any recruitment process.

The termination of the complainant’s employment by reason of redundancy was confirmed by the respondent on 12/12/2020.

The respondent provided the hearing with a submission in relation to the legal principles and noted in particular that Section 6(4) of the Unfair Dismissals Act states:

“Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    …

(b)    …

(c)     … the redundancy of the employee”.

It was submitted on behalf of the respondent that the onus is placed on them to justify the dismissal and in circumstances where the respondent seeks to rely on the redundancy defence then case law has determined the criteria that must be met:

(a)    That a genuine redundancy situation must have arisen

(b)    That fair selection criteria were applied

(c)     That a consultation process was established and that alternatives to the redundancy were explored.

It is the respondent’s position that each of these requirements were fully met.  There is no doubt that a genuine redundancy situation existed due to the prevailing circumstances.  The selection of the complainant “was itself the product of a rigorous matrix/scoring system which was applied objectively by the respondent’s management under the headings ‘Performance Management Reviews’, ‘Absences; and ‘Skills’.”

The decision to terminate the complainant by reason of redundancy followed an extensive and lengthy consultation process consisting of meetings with the elected representatives and followed by individual consultation meetings.  The complainant and the elected employee representatives were invited to put forward their own alternatives to redundancy.  The proposals submitted were given full consideration, but these would not address the underlying conditions which necessitated the implementation of the collective redundancies by the respondent.

The respondent’s country representative, Mr C, provided evidence of the impact of COVID-19 on the business.  He outlined that the impact was unprecedented not just on their business but on the aviation business worldwide.  He gave evidence of the process in relation to the various rounds of pay reductions and other savings they initiated with suppliers.  The reality was that they had too many people employed for the number of flights that they were operating.  A redundancy programme was launched in Dubai and in October 2020 he announced the collective redundancy programme.  Mr C gave evidence of the four divisions in the Irish operation:  EKAS, Cargo, Commercial and Finance.  The redundancies were proposed for the EKAS and Commercial divisions.  Mr C confirmed that here was no subdivision of the EKAS roles but there were in the commercial division.  This was because there were different roles and skills.  Mr C reviewed the correspondence exchanged and notes of the various meetings with the elected representatives as part of the consultation process.  Mr C said that at all times he explained the rationale behind the decision and in particular the effects of the pandemic.  Mr C noted that the scoring matrix was closed off by the commercial division at their second meeting whereas the EKAS representatives continued to raise issues but did not put forward any constructive suggestions.  The matrix was designed to be as broad as possible with particular emphasis on the skills that the business would require in the new scenario.  He did not complete the scoring, but he was satisfied that it was done fairly and objectively by the mangers assigned to this task.  Mr C that the selection criteria were different to a performance review.  Performance review is concerned about assessing performance against a set of competencies whereas the selection criteria is a measurement of skill in the various areas.

In his cross-examination Mr C clarified why there were only one meeting with the two top scorers whereas the process indicated that there were to be three meetings.  It was put to Mr C that this indicated that the outcome was predetermined.  Mr C explained that the top two employees were informed of their scores in the same manner was every other employee including the complainant.  At their first meeting they were advised of where they stood in the scoring ranking.  However, if that changed then further meetings would be required with these employees.  This did not indicate anything other than the state of the rankings at that point in time and it was always subject to change if there were any subsequent revisions. 

Mr C also outlined how he dealt with the grievance submitted by the complainant and confirmed that this was dealt with in a separate meeting from the complainant’s consultation meeting.

Mr C also provided the hearing with an update on the respondent’s current position, and he outlined that there are still only 7 flights per week and about 40% seat capacity.  He expects this to be the position for some time.

It is not disputed that the complainant was dismissed by reason of redundancy on 15/12/2020.  The backdrop to this case is that the respondent was experiencing trading difficulties as a result of the COVID-19 pandemic.   Having carefully considered all the evidence adduced and the respective submissions of the parties, it is clear that while the complainant contends that redundancy process was flawed, the respondent submitted that the termination of the complainant’s employment constituted a dismissal by reason of redundancy as it needed to restructure and reorganise to cope with the challenges the business was facing.

I have to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.

Section 6 (1) of the Unfair Dismissals Act, 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal.”

Section 4 (3) (c) of the Unfair Dismissals Act, 1977 further clarifies the situation in relation to redundancy by stating, inter alia, that:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this act, not to be an unfair dismissal if it results wholly or mainly from ... the redundancy of the employee…”

Section 6 (7) of the Act states as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

(a)         To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…”

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy.  Arising from this, the burden of proof rests with the respondent to establish, in the first place, that the dismissal was wholly connected to redundancy, and having done so, to justify the selection process whereby the employee in question was selected for redundancy. 

There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy.  In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.”

In the within case the redundancy proposed by the respondent would see the complainant’s role removed and as the evidence presented indicates that this was one of four similar roles within the respondents EKAS division. 

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the respondent needs to show that fair process and procedures were applied when conducting the redundancy process.

I also have regard to the Employment Appeals Tribunal in the matter of Gillian Free v Oxigen Environmental UD 206/2011, where it was noted that:

“When an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy … and where there is no agreed procedure in relation to selection for redundancy … then the employer must act fairly and reasonably”.

I accept that the respondent was entitled to restructure and/or redefine its business model in order to maintain its position and ensure efficiencies in response to the challenges which were developing due to the impact of COVID-19.

The complainant has highlighted a number of concerns about the selection criteria.  I accept that the application of such criteria has to be done in a fair an objective manner.  The respondent provided the complainant with the outcome of her scores in the various categories.  This was done in a clear and transparent manner.  While the complainant is entitled to feel aggrieved at the scoring achieved, she has not provided any evidence that this was done in such a manner that it was designed in such a manner as to prejudice her final outcome.  I note that the respondent did revise some of her scores when the complainant raised a concern.

I am satisfied that the respondent representatives applied the selection criteria fairly and consistently.   Accordingly, I do not consider that there was a breach of Section 6(1) and that a redundancy situation arose in relation to the role the complainant was engaged in.

I must have regard to the provisions of Section 6(7) of the Act (as amended) and consider whether the conduct of the respondent in relation to the dismissal was reasonable.  In making a decision on this, I have examined firstly the process surrounding the notification and whether or not there was a meaningful consultation process.

The details of this process are summarised in the parties’ positions outlined above.  The following are the key timeline dates:

·       25/03/2020:  Respondent’s operations at Dublin airport suspended following the imposition of restrictions.

·       09/04/2020: 25% pay reduction from 01/04/2020 to 30/06/2020.

·       22/06/2020: 50% pay reduction from 01/07/2020 to 30/09/2020.

·       15/09/2020: the 50% pay reduction reduced to 30% from 01/10/2020 to 31/03/2021.

·       22/10/2020: Virtual Town Hall Meeting: (a) Full pay restoration from 01/11/2020 and (b) a collective redundancy process initiated.

·       22/10/2020: Complainant notified of position and likelihood of redundancies.

·       02/11/2020: Meeting No 1 with elected employee representatives.

·       12/11/2020: Meeting No 2 with elected employee representatives.

·       20/11/2020: Meeting No 3 with elected employee representatives.

·       27/11/2020: Meeting No 4 with elected employee representatives.

·       03/12/2020: Individual Consultation meeting 1 with complainant.

·       08/12/2020: Individual Consultation meeting 2 with complainant.

·       12/12/2020: Individual Consultation meeting 3 with complainant.

·       15/12/2020:  Redundancy process with complainant confirmed and concluded.

I find that the redundancy process in this case was conducted in line with the requirements of impersonality and change.  Redundancy means that a particular role is discontinued, and I accept the evidence that this is the case.

In all the circumstances I am satisfied that the process was fair and in accordance with the principles of natural justice and I find no evidence which would render the dismissal by reason of redundancy unfair from a procedural perspective.

I find that the decision to dismiss the complainant on the grounds of redundancy was not unfair.

Redundancy.  Selection criteria.