Complainant

Respondent

Parties

Jonathan  Gallagher

 Emirates Airline

Representatives

  Self

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-00042169-001

27/01/2021

The complainant was employed as an Airport Services Agent with the respondent.   He commenced employment on 31/07/2014 and was dismissed by reason of redundancy on 15/12/2020.  He was paid €2,587 gross per month.  He submitted is complaint to the Workplace Relations Commission on 27/01/2021.  The respondent denies that the complainant was unfairly dismissed by reason of redundancy.

The complainant commenced employment with the respondent on 31/07/2014.  He worked a 37.5-hour week as a Senior Ticket Desk Agent.  As part of a redundancy programme the complainant was made redundant.  He acted as one of the staff representatives during the process.  The complainant submits that:

a)       The respondent acted unlawfully as not everyone in the process was treated equally

b)      The selection matrix used by the respondent was completely flawed and non-transparent

c)       While the respondent submits that they fully took part in the redundancy process they did not take into account any suggestions put forward by the employees

d)      The respondent had already predetermined what was to happen and any meeting that took place was pointless and amounted to a “box ticking exercise”

e)      The respondent did not allow “proper representation” and only allowed the elected staff representatives (of which the complainant was one) to represent.  This was a role that they were completely untrained for

f)        The respondent did not engage with a referral to the WRC and the complainant believes if they had done so this could only benefit all parties and would have resolved all matters

g)       The complainant has found this whole proves very stressful and he had many sleepless nights as he was worrying about his role as a representative in addition to his own situation.

h)      The complainant spent a considerable amount of his own time trying to develop possible solutions and organising meetings in order to try and save some jobs.  He now believes that this was a complete waste of time as the respondent did not properly participate in the negotiations and had already decided everything even before the first meeting.

The complainant outlined some of the applications he has made for other jobs and he attended five interviews.  He done come volunteering work with a care centre for special needs and as a result of this he has decided to change career and is currently undertaking a QQI Healthcare Level 5 course in order to obtain employment in this sector.

During cross examination the complainant confirmed that he agreed to all the salary reductions that were proposed by the respondent. These were a 25% pay cut for the period 01/04/2020 to 30/06/2020 and 50% from 01/07/2020 to 20/09/2020.  From 01/10/2020 to 31/03/2021 the pay cut was 30%.  The complainant was a participant in the town hall meeting on22/10/2020 at which the respondent outlined that they would be engaging on a collective redundancy programme and that they would follow the process as set out.  The complainant confirmed that he was one of the representatives and that he undertook this role with reluctance and he had no training in relation to this.  He submitted that the process would be better if the respondent allowed professional representatives to attend the meetings.  He was his view that the respondent was not engaging properly by not allowing representation and not attending the WRC.

The complainant confirmed that he had three staff meetings and at the first meeting the matrix that was to be used as the basis for decisions in relation to redundancy was presented and staff were given an opportunity to review this.  He and his colleagues were front line in the airport and dealt with passengers on a worldwide basis.

He submitted that they tried to suggest everything possible in order to retain jobs.  Suggestions such as job sharing, and lower wages were not listened to as the respondent wanted to get rid of some employees.

The matrix was clearly not fair.  The complainant confirmed that he knows the ticketing system from an operational point of view and yet he was ranked at  6 out of 7 places.  He said that he felt completely let down by the airline and local management.

The complainant was asked if he felt that there was no need for redundancies.  He felt that there should not have been redundancies at that time but accepted that there may have been a need for redundancies at a much later stage.

The respondent is the national airline carrier of the United Arab Emirates and commenced their Irish operation on 09/01/2012.  The Dublin operation employs in the region of 31 employees and be reason of the situation which the respondent found itself in it now employs approximately 20 employees.  The COVID-19 pandemic had a profound and lasting impact on the respondent’s business as well as the airline industry as a whole.  The respondent ran 14 flights per week from Dublin and this was reduced to 4 flights per week. On 25/03/2020 following the imposition of COVID-19 restrictions the respondent’s operation in Dublin airport was suspended.  The respondent wrote to all employees requesting a reduction in basic salary of 25% from 01/04/2020 until 30/06/2020.  The complainant consented to this reduction.  Due to the increased difficulties the respondent wrote to all employees outlining the need to extend this pay cut to 50% from 01/07/2020 to 30/09/2020.  The complainant consented to this reduction.  On 15/09/2020 the respondent again wrote to all employees indicating that the pay reduction 50% would be reduced to 30% from 01/10/2020 to 31/03/2021.  The complainant consented to this reduction.  On 22/10/2020 a town hall meeting was convened, and employees were told that full pay would be restored from 01/11/2020 and that a collective redundancy process would now take place.  The respondent outlined that its global capacity had reduced to 20% and the current cost base and headcount could not be supported.  It as proposed to reduce the size of the Irish workforce by up to 60% of its current level.

The respondent undertook to follow the collective redundancy process and in that context employees in each of the affected groups would be entitled to elect staff representatives to participate in the process on behalf of the employees.  Following this meeting all employees were written to outline details of the process and were issued with a detailed FAQ.  Voluntary redundancy was also offered to staff.  The Respondent notified the Minister for Enterprise Trade and Employment on 29/10/2020 that it was considering implementing approximately 11 redundancies in the Commercial and Airport Support (“EKAS”) divisions.  The complainant’s role fell within the Airport Operations category.  This category elected two staff representatives one of which was the complainant.

In his evidence at the hearing the Country Manager for Ireland (Mr A) outlined the series of meetings held with the staff representatives.  The first was held on 02/11/2020 where the underlying reasons for embarking on a redundancy programme were outlined and explained.  It was also emphasised that part of the process was to explore possible ways to minimise redundancies.  A presentation of the proposed matrix/selection criteria was also given at this meeting.  Mr A confirmed that it was proposed to have a minimum of three meetings before any final decision or notice of redundancy would issue.  The employee representatives wrote to the respondent following this meeting and asked that the offer of statutory redundancy be reconsidered.  Mr A confirmed that he replied to that letter and confirmed that they were not in a position to offer anything extra beyond the statutory redundancy.

A further meeting took place on 12/11/2020.  One of the categories confirmed that their queries were responded to satisfactorily and the group which the complainant was a member (“EKAS”) submitted a series of further questions shortly before the meeting.  The respondent provided answers to these questions and Mr A confirmed that the selection matrix would be done by EKAS Management and the Airport Services manager to ensure that the process was objective, fair and transparent.  A third meeting took place on 20/11/2020 and the respondent dealt with all queries that had been raised.  Mr A said that the employee representatives expressed dissatisfaction with the process, including the scoring mechanism, but they did not offer any constructive input.  There was further engagement with the employee representatives in relation to the postponement of the individual consultation meetings.  A fourth collective consultation meeting took place on 27/11/2020.  Mr A confirmed that he specifically invited the representatives for their input to the matrix, but they did not do so.  Following the meeting the representatives furnished a document which made two proposals which included a reduction of hours and laid off.  Mr A said that these proposals were predicated on a presumed recovery of the aviation business by April 2021, but these proposals would not have addressed the respondent’s position in the medium to long term.  However, following the representations made by the complainant the weighting in some of the categories was increased.

A series of individual consultation meetings took place.  Three took place with the complainant:  2nd, 7th and 10th December 2020.  Mr A confirmed that the complainant took issue with the scores he was given in some categories and in relation to one category expressed his concern about the score given.  The scores of some categories were revised and presented to the complainant at the second meeting.   At the final meeting on 10/12/2020 the complainant was informed of the circumstances which led to implementation of the collective redundancy process and the process followed by the respondent.  Mr A confirmed to the complainant at that meeting that his position would be made redundant with effect from the 15/12/2020.  This was confirmed by letter to the complainant on 11/12/2020.

Mr A confirmed that the ticket desk closed on 15/12/2020 and as of the date of the hearing (25/01/2022) it has not reopened.  The respondent has not recruited any staff since 15/12/2020.

Under cross examination by the complainant Mr A outlined that the basis for the division of EKAS and Commercial was that the cargo was the lynchpin of their business.  The focus was on the commercial side and this division had an entirely different skill set to those in the EKAS division. 

Mr A confirmed that the scoring matrix looked at performance reviews over the previous three years, absence over the last three years, excluding any statutory leave and skills and experience. 

Mr A was asked if it was confirmed that there would be three individual consultation meetings with each employee and he confirmed that was what was planned.  Mr A was asked why this did not happen with two employees who were subsequently not made redundant.  Mr A explained that as these two employees had a high score a third meeting was not necessary until all the individual consultation meetings had taken place.  He rejected the idea that this indicated that a decision had already been made from the outset to retain these two employees.  All employees “were in the scope of redundancy” and the third meeting did not happen due to the scores. Mr A was asked to explain why this was not explained to the representatives and Mr A clarified that all employees were told at the town hall meeting on 22/10/2020 that those at risk of redundancy would have three individual consultation meetings. Mr A confirmed that the scoring matrix was the mechanism used for all employees and those who scores were at the top were deemed not to be at risk of redundancy.  It was put to Mr A that the top two scores were so far ahead that no one could reach them.

Mr A was asked to explain why he made several references or comparisons to the fact that the Commercial Employee Representatives were happy with their discussions and the EKAS representatives were not.  Mr A said that he felt that the Commercial Employee Representatives engaged constructively and provided input whereas the EKAS representatives did not.

Mr A was asked if there was a transparent approach to the individual meetings as there was no visibility on the overall scores.  Mr A outlined that this was a sensitive and difficult process for everyone.  The letter each employee received after their first consultation meting showed their place in the overall ranking.  It would be inappropriate to share individual scores with anyone.

This is a claim for unfair dismissal under the Unfair Dismissals Act 1977-2015.  The complainant takes issue with his selection for dismissal by reason of redundancy.  Section 6(1) of the Act states:

“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 were substantial grounds justifying that dismissal”.

Section 6(4) of the 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:

[…]

(c) the redundancy of the employee”.

It is important therefore to look at the definition of redundancy as outlined in Section 7(2) of the Redundancy Payments Act 1967-2003 as amended:

(2) “For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry o that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The role of the Adjudicator in an unfair dismissal/redundancy case is to apply the law to the facts. It is not the role of the Adjudicator to determine if the business decisions made by the respondent were prudent or otherwise.  There are a number of questions that I must consider:

a)       Was there a downturn in the respondent’s business?

b)      If yes, what was the respondent’s response to that downturn?

c)       Was that response within the band of reasonable responses to the circumstances?

d)      Was the decision to make the complainant redundant mainly to reduce staff numbers or was it for other non-business-related reasons?

The burden of proof is placed on the respondent to justify the dismissal and in this case the respondent seeks to rely on the redundancy defence.  It is well established in case law that the respondent, in these circumstances,  must demonstrate that it has met a number of criteria:

a)       A genuine redundancy situation must have arisen

b)      Fair selection criteria were applied

c)       The employer must show that they consulted and explored alternatives to redundancy.

It was very clear that the respondent’s business was severely impacted as a consequence of the COVID-19 pandemic.  A reduction from 14 flights per week to 4 represented a 70% reduction.  It was not just the respondent’s business that was affected.  There was an unprecedented downturn in the demand for air travel globally and this was likely to continue for some time.  Significant loses were incurred by the industry.

In response to this the respondent undertook a series of pay cuts and obtained employee consent to an initial reduction of 25% for a three-month period followed by a 50% reduction for a further three months.  After a period of time it was decided to reduce this to 30% for a longer period of time.  The respondent’s approach was consistent with its worldwide operations and during this time the respondent operated a “drastically reduced roster in Ireland” to reflect that the hours worked would reflect the overall reduction in pay. When it became clear that these measures would not resolve its difficulties the respondent had to consider longer-term measures to ensure that its operations in Ireland remained viable.  At that time the respondent decided that it was necessary to reduce its workforce by up to 60% and as there were approximately 31 employees working in the Dublin operation.  Given the situation as presented and the need for a long-term solution I find that the decision to engage in a collective redundancy programme was within the band of reasonable responses available to the respondent.

As this was a collective redundancy programme it was mandatory for the respondent, under the provisions of the Protection of Employment Acts, 1977-2014, to engage in an information and consultation process with employees’ representatives and to notify the Minister for Enterprise, Trade and Employment of the proposed collective redundancy.  The Act also prohibits an employer form issuing any notice of redundancy during the mandatory information and consultation period and until 30 days have elapsed from the date the Minister was notified. The consultation with employee representatives and the notification period for the Minister can run concurrently.  The Act defines “Employee Representatives” as a trade union, staff association or excepted body or in the absence of any of those a person or persons chosen (under an arrangement put in place by the employer) by such employees from amongst their number to represent them in the process.  During the information and consultation process an employer is expected to provide certain information in writing.  This includes:

a)       The reason for the proposed redundancies

b)      The number, and description or categories, of employees whom it is proposed to make redundant

c)       The number, and description or categories, of employees normally employed

d)      The period over which it is proposed to implement the redundancies

e)      The criteria for the selection of employees to be made redundant

f)        If there is to be a payment other than the statutory redundancy payment, the method of calculating such payment must be set out.

Section 9 of the Protection of Employment Acts, 1977-2014 requires employers to engage in a consultation process with the relevant representatives and allow the representatives an adequate opportunity to consider the proposals and information and to make constructive proposals in response to this information.

The selection criteria were the source of much disagreement on the part of the complainant in relation to this system.  I am satisfied that the complainant had an opportunity to provide input to this before it was finalised.  The respondent made some changes on the basis of feedback received.  The complainant was given feedback on his scores and as a result of this some of his scores were revised upwards.  This would seem to be a fair, transparent and reasonable response by the respondent.  While the complainant submitted that this was never going to improve his place in the ranking this does not automatically lead to a logically conclusion that the process was predetermined and designed  to achieve a particular result.

Having considered the submissions and evidence adduced at the hearing I find that the employer embarked on a collective redundancy programme for the business reasons outlined.  In doing so I find that the respondent has complied with the legislative provisions of the Acts and therefore I find that the complainant was not unfairly dismissed by reason of redundancy.

For the reasons outlined above I find that this complaint is not well founded.

Collective redundancy.  Selection criteria.