Complainant

Respondent

Parties

Jovita  Jocinaite

Ryanair Dac

Representatives

  N/A

Roland Rowan BL instructed by Killian O'Reilly Fieldfisher (Ireland)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039347-001

24/08/2020

The Complainant commenced her employment with the Respondent on 1 September 2007 as a Cabin Services Agent. She alleged that she became entitled to a redundancy payment on 30 June 2020 when the base where she was located at in Kaunas, Lithuania closed. The Respondent disputes this entitlement and asserts that she was offered suitable alternative employment in London, England in accordance with her contract of employment.

The Complainant stated that she was informed in May 2020 that the Respondent would cease operations in Kaunas on 30 June 2020. It was also suggested by the Respondent that all employees in Kaunas could stay there and work the same job for Buzz, which belongs to the same business group as Ryanair DAC.

The Complainant highlighted however that the terms and conditions offered by Buzz were different from the Respondent and alleged that that wages were 50% less. She stated that she was initially informed in a phone call by the Respondent that she had to sign a new contract with Buzz because she was going to lose her job with Ryanair but that she would receive her redundancy payment.

A few days after this call however, she was informed in writing by the Respondent that in order to avoid redundancy, she would be transferred to Stansted airport in the UK in 2 weeks’ time. Given that she was pregnant at the time and had another 2 year old child at home, she asked the Respondent to reconsider the position.

As a result of the Respondent’s refusal to reconsider however, she stated that she had no choice but to sign a new contract with Buzz because she had to support her small child and ensure that she would get her maternity benefit later on when she had her baby. She also asserted that she should have received her redundancy payment from the Respondent.

On 25 May 2020, the Respondent advisedthe Complainant that as a result of the Covid-19 pandemic, 99% of their flights had been grounded and that the airline industry would take 3-5 years to return to pre-Covid-19 levels. As such, it was necessary to closethe Kaunas base where she was based from 30 June 2020. The Complainant was also informed that while there would no longer be Ryanair DAC flights operating from Kaunas airport, a separate group company “Buzz” would operate a base in Kaunas from 1 July 2020 and would have positions available for all crew in the base.

On 5 June 2020, correspondence issued from the Respondent to the Complainant advising that she was at risk of redundancy, that a final decision would be made by 19 June 2020 and that she would be advised on that day of a decision. The statutory entitlement to redundancy was further set out to the Complainant. It was also advised that in respect of any proposed redundancy there would be a consultation period.

On 10 June 2020, the Respondent arranged a consultation call with the Complainant in respect of the cessation of activity on 30 June 2020. The Complainant advised that she had recently become pregnant and that she would like to think about a redundancy payment if one was to be offered. While the purpose of the meeting was to consider alternative options to mitigate redundancy, no alternative options were provided by the Complainant.

On 12 June 2020, the Complainant was advised that following the consultation call, all possible alternatives to avoid redundancy had been reviewed and that instead of making the Complainant’s position redundant, the Respondent was in a position to offer her continued employment in the London Stansted base. It was further advised that the transfer would be effective on 1 July 2020, in accordance with the mobility clause in the contract of employment.

Having been informed by the Complainant on 6 July 2020 that she had signed a contract with Buzz, the Respondent highlighted that she therefore chose to end her employment and start with a new third party despite it being open to her to remain in their employment based in Stansted as per their contractual terms from 1 July 2020.  

THE LAW

Section 15 of the Redundancy Payments Acts 1967 to 2014 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.

FINDINGS

The Respondent asserted that the mobility clause was a central part of the Complainant’s contract of employment and allowed them to move her from one base to another. Specifically, Clause 6 stipulates that:

‘You will be located principally at Kaunas 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 European bases without compensation

It is a condition of your employment that you live one hour travelling time of the designated base station to which you are assigned’

The Complainant asserts however that the offer to work at another base was not reasonable given that she was pregnant, had one small child, was living in Lithuania and was required to move to London to maintain her employment with the Respondent.

Given that the Complainant’s contract of employment stipulates that she “will be located principally at Kaunas Airport and at such other place or places, as the Company reasonably requires”, I must therefore decide whether or not the requirement to transfer to London was indeed reasonable.

In making my decision, I note that in the case of 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 stated that “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”.

Specifically, the Labour Court held that it was reasonable for the employee to refuse to move from a standalone store in the Merrion Centre, Dublin 4 to a concession within a department store in Blanchardstown or St Stephen’s Green, but unreasonable to refuse to move to a standalone store in Wicklow Street, Dublin 2 (a distance of about 6km from the Merrion Centre). The Court held that “there was no significant difference between the working environment she would have enjoyed in Wicklow Street and that she had experienced for the previous twenty or so years of her working relationship with the Respondent.”

The legal test set out in Cinders Ltd v Byrne and Cambridge & District Co-operative Society Ltd v Ruse is therefore that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective perspective of the employee.

In this case, there is no doubt that, objectively, the Complainant was to do the same role but from another airport. However, from her subjective point of view, the role was was very different because she was required to move to a different base in a different country. The Complainant worked for the Respondent since 1 September 2007 and operated from two bases, Hahn and Kaunas. She had worked from her second base Kaunas since March 2010, namely over 80% of her time with the Respondent, and had settled at this location, was pregnant and had started a family.

The legal test as set out by the Labour Court above requires consideration of the objective and subjective elements of the new role offered to the Complainant. Objectively, this was the same role. Subjectively from the Complainant’s point of view, however, it was unsuitable. Specifically, she asserted that the new role was not acceptable to her because she could no longer live in the city where she had settled and would have to move to a country that was a considerable distance away, while pregnant with a small child.

I also examined the case of Burns v Ryanair UD1964/2011 & RP2538/2011 opened to me by the Respondent where the EAT held that a pilot was not unfairly dismissed or made redundant when the base he was assigned to in Marseille closed in 2011. I note that the EAT had regard to the fact that the claimant, as 12 of his 13 colleagues did, could have, using a preference system, obtained another base had he chosen to do so. I also note that the Complainant in that matter had started with the Respondent in 1998, had worked in a number of different bases and only moved to Marseille after that base opened in 2006. This was unlike the Complainant in the instant case however who was never asked what other base she might wish to work from, although I recognise that she never made any proposals herself, had only worked in two locations and had spent more than 80% of her time with the Respondent in her latter base.  

Having regard to the legal tests cited above as well as the Complainant’s particular circumstances, I find that it was an unreasonable of the Respondent to require that she move to London.

While I also note that the Complainant signed a new contract with a Ryanair group company on 6 July 2020 and it was never suggested by the Respondent at any stage that the Complainant’s decision to join Buzz should disallow her of a redundancy payment for any reason, I find that, for the avoidance of doubt, and in accordance with s 15 (1) and 15 (2) outlined above, this was not a suitable alternative offer of employment even though I recognise that it was one she ultimately accepted.

Bearing all of the above in mind, I find the Complainant is entitled to a redundancy payment.

I allow the Complainant’s appeal and find that she is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2012 based on the following criteria: 

-          Date of commencement:  1st September 2007

-          Date of termination: 30th June 2020

-          Gross weekly wage: €623

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

Change of location; redundancy payment;