Complainant

Respondent

Parties

Kevin  O'Beirne

Aer Lingus

Representatives

 In person

Séamus Given, Arthur Cox

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-00042609-002

19/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042609-003

19/02/2021

The Complainant was employed by the Respondent from 2000 until 2018. Employment ended when the Complainant’s position with the Respondent was made redundant and the Complainant accepted a Voluntary Severance package.

This complaint was received by the Workplace Relations Commission on 19th February 2021.

Preliminary Issue.

By letter the Complainant has attempted to explain the delay as follows (in his own words).

“I would just like to elaborate further on the issue of the expiration period of 12 months, as stated in your letter. I have provided details, in my original letter, of how I was induced into accepting a voluntary severance deal, in conjunction with settlement in lieu of a WRC hearing in April 2018.

What transpired to be wholly untruthful, in fact 100% lies was the information provided to me regarding the acceptance or rejection of this deal. I was intentionally led to believe that if I did not accept the VS within a short timeframe (a number of days), that it would no longer be available to me. In addition, if I had not managed to secure a permanent role elsewhere within Aer Lingus, I was informed by way of the "Resource Pool Document 2018" that I would be made redundant.

On that information, I reluctantly accepted, and exited the company in May 2018. Believing this information fed to me, which subsequently transpired to be absolutely not the case, it appeared clear that this was the most sensible option to take.

The reason for not contacting the WRC within 12 months, was that I was simply unaware, until a chance meeting with a former colleague, that the VS package was NOT withdrawn, and NOBODY from my department (16 people in total) had been made redundant.

Several former colleagues exited the company by way of voluntary severance many months after I was told it wouldn't be available, (This was provided in writing, and was submitted as part of my original correspondence). All left of their own accord, and there was no threat of being made redundant. Additionally, one former colleague exited the company by way of voluntary severance (exact terms as mine) on June 29th, 2020, over TWO years later. There was no threat of compulsory redundancy in this instance also.

Without doubt, I would have certainly contacted the WRC prior to the 12 months’ timeframe, had I been aware of what I have described above. I was no longer working for Aer Lingus, so was unaware of the complete contradiction, discrimination, underhand, unfair tactics which were demonstrated by Aer Lingus in this instance.

Aer Lingus prides itself on being an equal opportunities employer. I ask, why was I not afforded the equal opportunities which were shown to my colleagues?

In conclusion, I was conned out of my position, by being fed a pack of lies, and was unaware of this tactic until the chance meeting with my former colleague informed me of the truth.

I therefore believe that the 12 month timeframe should not apply in this instance and would reiterate that I would like to be reinstated to my role as a permanent full time employee, who prior to this fiasco had given 18 years loyal service to Aer Lingus”.

Preliminary Issues.

This WRC complaint was furnished to the WRC on 19 February 2021 some 3 years after Mr O’Beirne’s employment with Aer Lingus ended. Without prejudice to the above submission, the claims pursuant to the UD Acts and Equality claims are clearly out of time.

UD Acts Claim

For a complaint to be validly before the WRC under the UD Acts, it must have been submitted within six months of the date of the alleged dismissal (or 12 months if there is reasonable cause to extend). The date of termination by reason of redundancy in this case was 4 May 2018. On this basis, this WRC complaint under the UD Acts is grossly out of time and must be dismissed.

Equality Acts Claim

Any complaint of discrimination or victimisation under the Equality Acts must be submitted within six months of the date of occurrence of the most recent act of the alleged discrimination or victimisation. In his WRC paperwork, Mr O’Beirne has asserted that he has been victimised however he has not particularised that claim in anyway as required by the Equality Acts. Again, it submitted that the claims pursuant to the Equality Act are grossly out of time and must be dismissed.

IR Acts Claim

Mr O’Beirne has submitted an IR Acts complaint which is identical to a previous complaint which he submitted to the WRC in January 2018 and which was withdrawn by Mr O’Beirne in August 2018. The Adjudicator will note that Mr O’Beirne expressly agreed to compromise this IR Acts claim in the compromise agreement reached between the parties in April 2018.

Given that Mr O’Beirne has not worked for Aer Lingus since May 2018 it is submitted that there is no new trade dispute or circumstances that fall within the IR Acts between the parties now that could ground a claim to the WRC. In addition, as detailed below, the compromise agreement expressly signed by Mr O’Beirne expressly excludes any new claims.

Section 8 (2) of the Unfair Dismissals Act 1977 (as amended) reads as follows:

8(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section (17) of Section 41 of the Act of 2015 to the Director General –

a)      Within the period of 6 months beginning on the date of the relevant dismissal, or

b)      Within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.

In the instant case the Complainant was dismissed by way of redundancy on 18th May 2018, some 2 years and 9 months before submitting this complaint to the Workplace Relations Commission.

I do not have jurisdiction under the Act to hear this complaint.

Section 77(5) of the Employment Equality Act 1998 (as amended) reads as follows:

77 (5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

77 (5)(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction ; and, where such a direction is given, this part shall have effect accordingly.

In the instant case the Complainant was dismissed by way of redundancy on 18th May 2018, some 2 years and 9 months before submitting this complaint to the Workplace Relations Commission.

I do not have jurisdiction under the Act to hear this complaint.

For the recommendation under the Industrial Relations Act please see separate document.

Under the Unfair Dismissals Act, 1977 and the Employment Equality Act, 1998 I do not have jurisdiction to hear these complaints.