Complainant

Respondent

Anonymised Parties

An employee

A labour agency

Representatives

 SELF.

Roland Rowan BL instructed by Mark Kelly, Fieldfisher

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00038375-001

25/06/2020

The Complainant was employed by the Respondent who are an agency supplying cabin crew to the airline industry. The Complainant was employed from 02/12/2010 to 25/05/2020.

The hearing of this complaint took place remotely on 14th January and 18th February 2021.

The Complainant was employed with the Respondent company for almost 10 years, as Cabin Crew operating exclusively on Company A aircraft. The Complainant contends that this was a permanent contract based in Lithuania, Kaunas Airport.

On 25th of May the Complainant received an email, stating that Company A would cease to operate

from Kaunas base (Lithuania) from 30th of June, and new carrier Company B would start operating flights in and out of Kaunas from 1st July.

The Complainant was offered the opportunity to accept a new contract if he wished to operate on aircraft owned and operated by Company B. The Complainant contended that this would result in a wage reduction of 60%. The Complainant did not accept the new contract as it would result in not only a wage reduction it was also a contract for a one-year duration.   

The Respondent informed the Complainant that there were very few vacant positions in other bases due to the impact of Covid-19 on the airline industry. The Respondent informed the Complainant that they would make a decision in relation to redundancies. The Respondent informed the Complainant that they would be consulting with him in relation to the possibility of redundancy and asked that he should consider any alternatives to redundancy. They (the Respondent) also asked the

think that there are other ways in which they can avoid having to make his position redundant.

On 17th of June the Complainant received a call from the Respondent and was asked had he thought about alternatives to redundancy. The Complainant informed the caller that no matter how much he loved his job with the Respondent he could not sign a new contract which would entail him working on Company B aircraft unless his terms and conditions of employment remain the same.

The Complainant also explained that a transfer was not an option for him as he was married, a father of 2 kids, parents and grandparents that required his help and also his brother who suffers from depression. The Complainant also informed the Respondent that he has a house mortgage and a car loan.

On 24th of June the Complainant received an email saying that, he was being transferred to London Stansted from 1st of July.

The Complainant believes that this is both unfair and unreasonable.

1.The Respondent provides cabin crew on an agency basis to operate on board Company A aircraft from their 86 locations across Europe.

2. The Complainant was employed as a Customer Service Agent (Cabin Crew) by the Respondent since 2010 and had operated on Company A aircraft during his employment. The Complainant operated out of Kaunas, Lithuania. He had previously operated from Oslo Rygge, Norway in accordance with the mobility clause in his contract of employment. His contract of employment outlined that his place of work is the Republic of Ireland and the contract was subject to the laws of the Republic of Ireland.

3. On 22 May 2020, the Respondent received correspondence from Company A outlining that due to the continued global pandemic, it would no longer be operating aircraft into and out of Kaunas Airport, Lithuania, as a result of which, the services of the Respondent and agency staff would no longer be required, effective from 30 June 2020.

4. On 25 May 2020, the Respondent wrote to the Complainant advising him that Company A would no longer be operating from Kaunas Airport from 30 June 2020. The Complainant was advised that as a result of this, there will be no Company A base in Kaunas. The Complainant was further advised that another airline, Company B, would commence operating from Kaunas Airport on 1 July 2020 and that he would continue to be employed by the Respondent to render services onboard Company B aircraft. Furthermore, the Complainant was advised that he would be issued with a local Lithuanian contract to reflect the changes to the services being rendered by both the Respondent and the Complainant to Company B. If the Complainant did not want to operate on Company B aircraft out of Kaunas, he had the option to discuss if he could be accommodated in another base, where Company A aircraft operated from.

5. The Complainant's contract of employment expressly stipulated that his employment was subject to an ongoing contract for services between the Respondent and Company A. Once the agency agreement was terminated, it was not possible for the Respondent to provide the Complainant with continued employment from Kaunas with Company A.

6. Later that same day, the Complainant was provided (via email) with a Temporary Assignment of Contract document together with a local Lithuanian contract of employment so that he could continue to be a Customer Service Agent operating on Company B aircraft.

7. The terms and conditions of the new Lithuanian contract of employment had an increased remuneration package of approximately €1,500 per annum. The contract also provided for local social security to be paid (in accordance with EU Regulation 1408/71) and that Lithuanian law would apply to the contract of employment.

8. The Complainant refused to sign for reasons unknown to the Respondent.

9. Upwards of 94% of Customer Service Agents employed by the Respondent agreed to move to local contracts of employment and operate on Company B aircraft out of Kaunas airport.

10. By letter dated 10 June 2020, the Respondent advised the Complainant that due to a surplus of crew across the Company A network throughout Europe, it may be necessary to make the Complainant redundant however, the Respondent was looking for an alternative to redundancy.

11. A meeting took place on 17 June 2020, between the Complainant and the Respondent, in which alternatives to redundancy were discussed.

12. On 24 June 2020, it was confirmed in accordance with the mobility clause contained in his contract, that alternative work was available in Stansted and this avoided the need to make the Complainant redundant.

13. Thereafter, the Complainant refused to engage with the Respondent in respect of being assigned to Stansted Airport to operate on Company A aircraft from that location

It should be noted that this complaint has been referred to the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

The European Court of Justice (ECJ) has repeatedly held Directive 77 /187 (now Directive 2001/23) is intended to safeguard the right of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor. The purpose of the Directive is to ensure, as far as possible, that the contract of employment or employment relationship continues unchanged with the transferee, in order to prevent the workers concerned from being placed in a less favourable position solely as a result of the transfer. The rules applicable in the event of a transfer of undertaking or business to another employer are thus intended to safeguard the interest of the employees and, to the greatest possible extent, the existing employment relationships which form part of the economic entity transferred.

In the instant case the Respondent had a commercial contract to supply labour (cabin crew) to Company A (an airline company) who operated a base of operations in Kaunas, Lithuania. The Complainant was not an employee of Company A.  On 25th May 2020, the Respondent wrote to all Cabin Crew based in Kaunas, Lithuania detailing that the client, Company A, would cease all operations in Kaunas, Lithuania with effect from 30 June 2020.

On 1st July 2020 a new company, Company B commenced operations from Kaunas, Lithuania. The Respondent entered into a commercial contract with Company B for the supply of cabin crew personnel who would remain in the employment of the Respondent. The Complainant was offered the opportunity to work with Company B whilst remaining in employment with the Respondent company. The Complainant refused this offer and stated he wanted to remain in employment with the Respondent company and continue with the terms and conditions he enjoyed whilst working for Company A.

On 24 June 2020 the Complainant was informed that the company had identified limited availability in London Stansted base, this would avoid the requirement to make his position redundant. As such, he was transferred to London Stansted effective 1 July 2020, in accordance with the mobility clause in his contract of employment and he was provided with a written statement of his updated terms of employment.

The Complainant did not accept this transfer and his employment ended shortly afterwards.

There was never any question of a change of employer. The Complainant was employed by the Respondent who provided labour to both Company A and Company B. At no stage was the Complainant an employee of either Company A or Company B.

I find that there has been no transfer of undertaking in this instant case and therefore I must declare that as presented under  Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)  that the complaint is not well founded.

I find that there has been no transfer of undertaking in this instant case and therefore I must declare that as presented under  Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)  that the complaint is not well founded.

TUPE