ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029240

Parties:

Complaint(s):

Date of Adjudication Hearing:  23/02/2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Matter

The complainant stated:

The Complainant was informed by email of 6th February 2020 that redacted would be appointed as Flight Operations Manager as and from 1st March 2020. However, the Complainant's position as Flight Operations Manager was in fact terminated on 31st July 2020 on cessation of payment of his salary for that role.

This claim is brought under the Unfair Dismissals Act 1977 as amended.

In a supplementary submission post the hearing concerning unfair dismissal and unlawful wage deductions the complainant stated:

Stage 1

The Respondent legitimately invited the Claimant to a ‘Reflect on resignation’ meeting but then misrepresents the meeting with a non-standard ‘record of conversation’ issued 71 days after the meeting. (See Note 1 – P303)

Stage 2

The Respondent legitimately invited the Claimant to a ‘return to work’ interview but then informed him he had been singled out and selected for redundancy. (See Note 2 – P303)

Stage 3

Having failed to pressurise the Claimant to accepting redundancy, the Respondent turned to the legitimate procedure of investigating disciplinary matters but illegitimately used it as part of their coercion and exit strategy to create a sham investigation all authored by, Exit Strategist redacted at MHC. (See Note 3 – P303)

Stage 4

Once again, having failed to dismiss the Claimant, the Respondent legitimately asked the Claimant for his Class 1 medical certificate as the only condition for returning to flying duties (P182), however when the Claimant presented the certificate, the Respondent refused to accept it (P192) and created a further obstacle. Almost 5 months later the Respondent finally accepts the certifications (P268).

Stage 5

Within the employment contract the Respondent has the legitimate right to ask the Claimant to submit to an examination by a Company Doctor. However, as per the now well-established behaviour, the Respondent proposed a non-medic conduct the medical assessment and uses this position to justify with-holding salary. (See Note 4 – P304)

Stage 6

Finally, the Respondent announces on 12th May 2021 that positions at the Cork base are at risk of redundancy. This was 13 months after the Claimant was singled out and selected for redundancy. The Claimant’s salary was partially re-instated, even though the Respondent had not changed the Claimant’s status of ‘unpaid sickness absence’.

The unfair dismissal claim is made alongside another matter alleging unlawful deduction of wages post the alleged July 2020 termination date:

No Salary or partial salary was paid for a period of six months 21Dec20 - 21May21 inclusive. The amount indicated above is nett and therefore excludes pension contributions

The payment of wages claim detailed loss as follows:

The employee stated in his complaint form to the WRC that his employment ended on the 31st July 2020. It is clear on the facts that what ended on around July 2020 was the complainant’s payment allowance for the position of Flight Operations Manager. However, the employment relationship while varied, did not end.

That complaint was lodged with the Workplace Relations Commission on the 13th of August 2020.

The Act states at Section 1:

“ dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The complainant held the position of Flight Operations Manager and Commercial Helicopter Pilot. Are these two separate employment contracts with the same employer and can it be argued that the Flight Operations Manager in fact was a separate employment contract?

I note the recent Supreme Court Case of Maurice Power v Health Service Executive [ 2021/94] where it was held that the definition in the relevant Act did in fact relate to the “the contract concerned”:

47. In my opinion the reference to “the contract concerned” in s.9(3) of the Act relates to

the contract operative at the relevant time, being the time that a series of two or more continuous fixed-term contracts has caused the aggregate duration of such contracts to exceed four years, i.e. the last fixed-term contract giving rise to that excessive aggregate duration

The Flight Operations Manager position payment ended in July 2020. The Commercial Pilot position terminating by reason of redundancy on or about August 2021.

Solicitor for the respondent stated that this claim is misconceived as the complainant’s employment with the respondent at the date of alleged termination was still in existence. On the facts that is so:

On the face of it, the Claimant appears to acknowledge that his claim relates to the

termination of a role, rather than the termination of employment. Notwithstanding this, his

claim is for unfair dismissal, and he also states in the WRC form that his employment ended,

and that he was dismissed, on 31 July 2020. This is incorrect. The Claimant did step down

(or “resign”) from the Flight Operations Manager role on 1 March 2020 and he did cease to

receive the Flight Operations Manager allowance after 31 July 2020, but he remained in

employment with the Respondent until 4 August 2021. Following the termination of the

contract which was being serviced by the Respondent in Ireland, the Claimant was made

redundant in August 2021 (as were all other Irish based employees of the Respondent who

were not redeployed).

The question that arises was the alleged termination of the Flight Operations Manager payment- which it is denied as the respondent stated the complainant resigned, the termination of a contract of employment or a variation in the term of the employment contract?

The facts do not support the position that there were parallel contracts in place. There was one contract in place. What occurred was either a change by agreement or a unilateral change amounting to a fundamental breach of the contract. However, the contract was never ended as the employee continued to be employed by the respondent and he never resigned or ended his employment based on alleged unreasonable conduct and/or a fundamental contract breach. In those circumstances I determine that this claim is not properly before me and I have no jurisdiction to hear the complaint as the employment contract did not cease as required pursuant to section 1 of the Act:

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

The complainant also alleged that the employer engaged in oppressive behaviour to force him to resign and to take redundancy on or about July 2020. However, the employee did not leave his employment allegedly arising from unreasonable conduct of this employer and/or a fundamental breach of a contract term by his employer. He continued to be an employee until flight operations ceased and along with other employees his contract by reason of redundancy was terminated.

The complainant’s employment was terminated by reason of redundancy on or about August 2021.

Section 6(4) of the Act states:

(4) 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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

The alleged dismissal on or about 31st of July 2020 could not have occurred as the employee continued in the employment of the respondent after this date.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated:   28/04/2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: