Complainant

Respondent

Parties

Caitriona  Jones

Aer Lingus Limited

Representatives

Richard Grogan & Associates

 Tom Mallon BL instructed by Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040002-001

21/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040002-002

21/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040002-003

21/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040002-004

21/09/2020

The Complainant alleged she was not furnished documentation which complied with Section 3 of the Terms of Employment (Information Act) 1994. (CA-00040002-001)

The Complainant alleged she was not paid public holidays contrary to Section 21 of the Organisation of Working Time Act 1997. (CA-00040002-002)

The Complainant alleged she was not paid public holidays contrary to Section 22 of the Organisation of Working Time Act 1997. ((CA-00040002-003)

The Complainant alleged her salary was reduced without consent firstly by 30% and then 50%. and that this was an unlawful deduction under Section 6 of the Payments of Wages Act 1991. (CA-00040002-004)

The Complainants were received by the WRC on September 21st 2019, therefore the cognisable periods for the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991 are the 6 months prior to that date, commencing on March 21st 2019 or 12 months  (September 21st 2018) with “reasonable cause”  No case for reasonable cause delay was made by the Complainant.

The Parties made submissions at a number of Hearings including post Hearing submissions.

The Complainant was employed on June 5th 1998 and is currently a Cabin Crew Manager.

The Employees salary was reduced in breach of the Payments of Wages Act 1991. There was an agreement with the Union for a reduction of 30% and then the Employer without negotiating with the Union or obtaining the Employees consent reduced matters further to a reduction of 50%. Under Section 6 of the Payment of Wages Act 1991, a reduction in salary can only be consented to by an employee by giving written consent. The Employees hours were reduced on the basis she worked 6 days out of 28. Effectively there was a 30% reduction on March 30th and a further 50% reduction on June 22nd.  An argument may be made in respect of the 50% reduction by the Employer that this was covered by a Collective Agreement but that is a matter for the Employer to prove. As regards the additional 30% there was no such consent from the Union so that cannot be covered under a Collective Agreement. There is no provision in the Employees contract for Layoff or Short time.

With regard to the complaints under Section 21 and 22 of the Organisation of Working Time Act 1997 these complaints are dependent on the Payment of Wages claim. If the payment of Wages claim is successful, then each breach in the period of 6 months prior to the date of the complaints being lodged is a separate and distinct claim in respect of which compensation for each can be awarded.

The Complainant alleged she was not furnished documentation which complied with Section 3 of the Terms of Employment (Information Act) 1994.

The Complainant is a permanent employee of Aer Lingus Limited (“Aer Lingus”) since 1999. The Complainant is a member of Aer Lingus’ cabin crew with some guest experience instructor responsibilities.  In a Complaint Form dated 24 September 2020, the Complainant makes four complaints before the WRC, namely that:

Aer Lingus failed to comply with section 3 Terms of Employment (Information) Act (“Terms of Employment Act”) – CA-00040002-001; 

Public holidays were not paid in accordance with section 21 and section 22 of the Organisation of Working Time Act, 1997 (“OWTA”) – CA-00040002002, and CA-00040002-003;

The Complainants salary was reduced without consent, giving rise to a claim under section 6 of the Payment of Wages Act, 1991 (“PWA”) - CA-00040002-004.

The primary representative trade union for cabin crew for collective bargaining purposes is FORSA – a small number of cabin crew are separately represented by SIPTU. FORSA’s engagement with Aer Lingus (through collective bargaining) has led to a number of collective agreements. Ms. Jones is a member of the Forsa cabin crew committee in Aer Lingus although not represented by the trade union in this claim. 

As a direct response to Covid 19 the Company was forced to implement hours and salary changes in March 2020 not only to the Complainant or cabin crew generally, but across the board, impacting everyone in Aer Lingus at every grade and level in the organisation.  These changes were anticipated to be short-term and temporary in nature for an initial 8 week period until 31 May 2020 to allow the Company to review how the situation might evolve.  As the pandemic crisis evolved, these changes were deemed necessary and continued to apply save for certain staff in business / safety critical roles who were required to be rostered to work more than 50% hours.  Those employees in this exceptional cohort were paid for their hours worked during this time.

It must be noted that the Complainant is the only one out of all 4000 plus Aer Lingus employees who has challenged the changes to her hours and pay in a third-party hearing. 

The Covid19 pandemic has had an unprecedented global impact on air travel and on the aviation industry generally.  The impact of the pandemic and the resulting travel restrictions imposed in Ireland and in other countries reduced Aer Lingus’ flying activity in 2020 by greater than 90% year-on-year when compared with 2019.  The Company has experienced, and continues to experience, the most difficult and challenging two years in the history of our company. For much of the period since March 2020, the Company’s operations have been at or below 20% of normal levels.

A significant amount of the flying activity that did take place in 2020 and to July 2021 when restrictions on international travel were lifted, was cargo-led and/or was for the express purpose of the collection of PPE for the Irish Government.  It is important to note that of those flights that took place during this time, the passenger loads have been extremely low sometimes in low single figures. 

Unfortunately, the continued lack of certainty caused by Covid-19, coupled with the ongoing national restrictions and public health measures both in Ireland and in other countries negatively impacted all forward bookings and projected travel activity in both 2020 and for the first half of 2021.  This in turn led to a very significant deterioration in revenues as the anticipated levels of forward bookings did not materialise during this time. 

It has been Aer Lingus’ policy during this unprecedented period since March 2020 to avoid implementing redundancies and extended lay-offs with a view to maintaining employees on the payroll (albeit with reduced working hours and reduced pay).

The claim that s.3 of the Terms of Employment Act has not been complied with falls outside the requisite statutory time period for bringing the claim and is in any event incorrect. Aer Lingus complied with s3 of the Terms of Employment Act at all times and has the documentation to demonstrate same. 

The claims under s.21 and s.22 of the OWTA must also fail as the Complainant received all of her entitlements in line with the OWTA.

The claim under s.6 of the PWA must also fail, as the reduction in pay was lawfully implemented on the basis of well-established (more than 20 years) custom and practice. The existence of a pandemic with huge adverse effects on air travel also leads to an implied term entitling an airline to reduce hours of work consistent with its very limited demand. This custom and practice and implied term facilitated the reduction in the need for lay-offs and involuntary redundancies. It is noted that, The Complainant’ pay was consistently more than what she would have received for the number of hours she had worked over the relevant roster period. Aer Lingus, in implementing pay reductions across the business, has at all times been with a view to trying to maintain direct employment where possible and to avoid large numbers of unpaid lay-offs and/or involuntary severance.

CLAIM UNDER S.3 OF THE TERMS OF EMPLOYMENT ACT Statutory Time Limit: In the Complaint Form, the Complainant states “did not receive a document which complied with section 3”. Aer Lingus submitted that this complaint should be struck out on a preliminary basis as the complaint is time-barred.  A claim taken under s.3 of the Terms of Employment Act must be in accordance with the statutory time limit set out at s. 41 of the Workplace Relations Act 2015 (the “WRC Act”). Section 41(6) provides that a complaint must be brought within six months beginning on the date of the contravention to which the complaint relates. Section 41(8) provides that this time limit can be extended in certain circumstances, but in no circumstances may it be extended by more than a further six months. Therefore, the maximum allowable period for a complaint to be brought from contravention is 12 months (assuming that the Complainant were able to demonstrate “reasonable cause” for an extension from the six month time period, which Aer Lingus disputes and in any event the burden of proof lies with the Complainant to establish).   Accordingly, even if the Complainant were to establish to the satisfaction of the Adjudication Officer that there was “reasonable cause” justifying the extension of the initial 6 month time limit (which the Aer Lingus entirely disputes), the Complainant has a strict outer limit of 12 months from 26 June 2018 (the most recent confirmation of the terms of her employment) to submit any complaint. In the present circumstances, the Complainant did not submit her WRC Complaint Form until 24 September 2020.  On the basis of the above, it was submitted that jurisdiction should be declined as the complaint has been submitted outside the clearly prescribed maximum timeframes for complaints under the Terms of Employment Act. Without prejudice to the foregoing, the Complainant was provided with contracts of employment in compliance with section 3 both with respect to the terms and conditions contained in those contracts and the timings within which they were provided.

Set out below is an overview of the Complainant’ employment history with Aer Lingus and the corresponding documentation provided.  Following a year-long temporary contract dated June 1998, The Complainant was offered a permanent part-time contract of employment as a cabin crew member at the Dublin base on 4 March 1999. The terms and conditions pertaining to her employment were provided to the Complainant at this time, and the Complainant signed her acceptance to the terms and conditions on 19 March 1999. On 21 January 2000, the Complainant was offered a permanent full time appointment as a cabin crew member with a start date of 24 January 2000.  The terms and conditions pertaining to her employment were provided to the Complainant at this time, and the Complainant signed her acceptance to the terms and conditions on 31 January 2000.  On 7 September 2005, the Complainant was promoted to the position of Senior Cabin Crew. On 22 March 2018, the Complainant was promoted to the position of Cabin Service Manager within the In-Flight Services Department.  On 26 June 2018, the Complainant returned to full time working hours having had a part-time arrangement in place and was informed in a letter of the same date that “the terms of your previous full time hours contract will continue to apply, except as stated in this letter”. This letter demonstrates full compliance with s.3 of the Terms of Employment Act.

A copy of the Complainant’ roster from January to September along with a summary of roster codes was submitted and a copy of the relevant collective agreements and the salary scale applicable.

In the Complaint Form, the Complainant claims that Aer Lingus has failed to pay her for public holidays, contrary to s.21 and s.22 of the OWTA.  Before setting out the legal position, it is notable that while the Complainant’ hours and pay were reduced, the Complainant’ pay percentage remained at all times from March to September 2020, significantly ahead of the percentage of hours she worked during that period.  With reference to s.27 of the OWTA, a claim taken under s.21 and/or s.22 of the OWTA must be in accordance with the statutory time limit set out at s. 41 of the Workplace Relations Act 2015 (the “WRC Act”). Section 41(6) of the WRC Act provides that a complaint must be brought within six months beginning on the date of the contravention to which the complaint relates, unless, as stated above, “reasonable cause” can be shown, justifying the extension of time by a further six months. Aer Lingus disputes that any “reasonable cause” can be shown by the Complainant justifying the extension of the six month time limit in this regard. 

Six months prior to the date on which the Complainant submitted the Complaint Form (24 September 2020) is 24 March. During the period of 24 March to 24 September, there were 4 public holidays; Easter Monday, the May Bank Holiday, the June Bank Holiday, and the August Bank Holiday.

Section 21(4) of the OWTA provides that an employee will be entitled to whichever one of the following his or her employer determines namely: 

a paid day off on that day;

a paid day off within a month of that day;

an additional day of annual leave; 

an additional day’s pay.

provided that the employee “has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.”

Cabin crew are compensated for bank/public holidays based on whether they work on the relevant day. They may be rostered a paid day off on a public/bank holiday or generate days in lieu. 

Days in lieu for cabin crew accrued bank holiday entitlements are allocated to them within the agreed timeframes (per Cabin Crew Agreements) or are incorporated into their annual leave entitlements.

In order to consider the Complainant’s claim that Aer Lingus had reduced her pay without consent giving rise to a claim under s.6 of the PWA, the Respondent set out in some detail the background to the pay reductions which took place at Aer Lingus.  The net effect of this severe reduction in flying activity since March 2020 necessitated a review of Aer Lingus’ resourcing requirements. For the vast majority of Aer Lingus employees in operational roles (such as pilots, cabin crew, guest services and ground operations staff) the requirement for their services has been greatly diminished. As flying activity has been reduced by greater than 90% there has been little or no work for many in these operational roles.  In Dublin, whilst operational staff were notionally rostered and paid at 50% of their underlying contract initially at the end of March until mid-June 2020, the reality has been that the work requirement was significantly less than this as can be seen from Ms. Jones rosters from the relevant period. With effect from 21 June 2020, operational employees had their short-time arrangements further reduced to 30% of their underlying contract.  For all those on operational rosters, Aer Lingus assigned mandatory and recurrent training (where such training was available and feasible), Aer Lingus have allocated reserve/standby duties and Aer Lingus have allocated accrued annual leave days.  It must however be noted that in rostering the reserve/standby duties it was anticipated that in the vast majority of cases the employees would be unlikely to be called into work for a duty.  

There have been a considerable number of internal communications to all employees throughout the Covid19 crisis on an almost weekly basis since March 2020 with a view to keeping all Aer Lingus’ staff updated. On 6 April 2020, Aer Lingus wrote to the Complainant (and all other employees across the Company), informing her that Aer Lingus were unable to maintain her contractual hours and deemed it necessary to temporarily place her on short-time by reducing her normal working hours by 50% for the month of April 2020 (from Monday 30 March to Sun 26 April 2020 inclusive).  On 5 May 2020, the Complainant was informed that the temporary reduction in normal working hours by 50% and corresponding reduction in pay would continue for the month of May.  On 3 June 2020, Aer Lingus again wrote to the Complainant, informing her that it was necessary to temporarily further reduce the short time working arrangement by reducing her normal working hours to 30% of her contractual hours from 21 June 2020 until 29 August 2020 inclusive. On 24 August 2020, Aer Lingus wrote to the Complainant informing her that the temporary short-time work arrangement of 30% of underlying hours and pay would continue. On 6 October 2020 the Complainant was informed that her hours of work would be increased to 50% of her normal working hours with effect from 27 September 2020. Copies of these letters were provided at the Hearing. In passing and noting that it postdates the date of the complaint form, with effect from 8 November 2020, cabin crew were informed that their pay would be temporarily increased to 60% from 8 November to 31 January 2020 in response to the increases to the Employment Wage Subsidy Scheme. Employees were informed that they would be rostered to work a pattern of 60% and are expected to be available to work as required by Aer Lingus to 60% of their normal working hours during this time.  For completeness, it should be noted that Ms. Jones’ rostered hours and pay have increased in line with operational requirements in 2021 to 100% with effect from 6 December 2021. 

The Complainant’ roster demonstrates that she worked the following days during that period:

2 March; 3 March; 4 March; 5 March; 6 March; 9 March; 10 March; 11 March; 12

March; 13 March; 16 March; 17 March; 18 March; 19 March; 20 March; 23 March; 24 March; 25 March; 26 March; 27 March; 7 April; 13 April; 14 April; 15 April; 16 April; 20 April; 21 April; 22 April; 23 April; 24 April; 27 April; 11 May; 12 May; 19 May; 21 May; 22 May; 19 June; 20 June; 24 August; 25 August; 26 August; 27 August; 28 August; 31 August; 13 September; 15 September; 16 September; 17 September; 18 September; 3 October, 16 October, 23 October, 4,5,6 November; 9 November; 10 November; 13 November; 14 November, 17 November; 21 November; 22 November. A worked example of how reduction in working hours and pay was supplemented by the EWSS, and if applicable and top-up by Aer Lingus and income supports from the Department of Employment Affairs and Social Protection (“DSP”) was provided.

In responding to this unprecedented Covid-19 crisis and reduced business activity of up to 95% the aim of Aer Lingus at all times has been to try and maintain direct employment where possible and to avoid large numbers of unpaid lay-offs and/or involuntary severance whilst responding to the significant shortfall in anticipated revenues and the resulting cost challenges to the business.

As a consequence, Aer Lingus has utilised a range of workforce measures to try and achieve this aim of maintaining direct employment whilst having no work for the vast majority of Aer Lingus staff for an extended period of time in circumstances where the Covid19 situation has remained fluid and uncertain with no line of sight on when a full restoration of flying might take place.

Aer Lingus in seeking to maintain direct employment where possible sought to balance between:

seeking to retain as many staff as possible for when Aer Lingus emerge from this emergency period;

safeguarding the financial position of the business; resourcing both the proposed remaining operational schedule but also the additional activities that arise in responding to the crisis; and providing staff with certainty on a level of pay and working hours

The following specific measures have been taken since March 2020:

Cessation of all recruitment.

Expiry of FTC and specified purpose contracts

Non commencement of new hires – withdrawal of offers of employment

Suspension of training contracts

Unpaid leave

Temporary lay-offs / Winter lay-offs

Part-time arrangements

Utilisation of Wage subsidies

Extended Career Breaks.

Voluntary Severance Programmes in Support, IFS and Line Maintenance;

Closure of the Shannon cabin crew base

Allocation of mandatory and company training 

Engagement with cabin crew trade union representative on structural change proposals.

All of the initiatives taken by Aer Lingus to place employees on short-time working arrangements and/or other reduced working hours have been temporary in nature. The nature of this pandemic and crisis have extended far beyond what was originally contemplated by the vast majority of employers in mid-March 2020.  Aer Lingus has kept every initiative and reduced working arrangement under continuing review and where possible, every effort has been made to increase working hours/pay arrangements as soon as has been feasible and where operationally required. This is demonstrated by the pay increases that were notified to the Complainant in November 2020 and December 2021. 

Aer Lingus have been open and clear with staff on this issue, by way of general and individual communications and have repeatedly explained the situation facing the Company and the consequences for all employees. Aer Lingus have published detailed information on the staff intranet to include “Frequently Asked Questions” on a range of topical issues to include reduced hours, wage subsidy schemes, social welfare forms etc.

Aer Lingus has had continuing engagement with internal stakeholders, having issued regular internal communications both company-wide and in local areas. They have engaged with trade union representatives and their national leadership in individual unions and ICTU.  Aer Lingus have engaged directly with staff by way of email and letters relating to their working hours and their pay and have sought advice from the Revenue Commissioners and the DSP in relation to the various wage subsidy schemes and social welfare supports available during this time.

Under the s.11 of the Redundancy Payments Acts 1967-2014, short-time occurs where an employee's hours of work or pay are reduced to less than 50% of normal weekly working hours or normal weekly pay. In such cases, the employer must (i) reasonably believe that the situation will not be permanent and (ii) must give employees notice to this effect. The legislation does not stipulate a minimum period of notice. Exceptional circumstances, such as the COVID-19 pandemic, clearly justify a short notice period. The employer's reasonable belief regarding the temporary nature of the period of layoff or short-time will be construed in accordance with the circumstances prevailing when the decision is made.

An employer has an implied right to reduce pay in accordance with an established custom and practice of laying-off employees without pay (in circumstances of economic downturn or other periods of financial hardship, for instance). It is hard to envisage any set of circumstances which had an adverse effect on the airline business than those brought about by Covid-19. The collapse in air travel brought about by the existence of the pandemic and multi government interventions both in respect of those leaving countries and those arriving in countries must lead to a reasonable interpretation that the contract of employment can either be temporarily suspended or reduced. The implied term does not just arrive in custom and practice because there is of course no custom in which one can draw for a comparable set of factors.   This implied right has been confirmed in decisions relating to similar claims brought under the PWA. The decisions outlined below demonstrate that even where no contractual right to impose lay-off exists and there is no evidence of custom and practice in the employment concerned, the employer may still be permitted to lay off employees without pay. In an Employee Vs  Employer  PW674/2012, (Appendix 14) the adjudication officer noted:

“At common law there is no general right to lay- off without pay. However it has always been accepted that there are some limited circumstances wherein there will be such a right. This right has been implied in the past in cases such as Browning and Others V Crumlin Valley Collieries (1926) 1 KB 698. In that case the Court found that there was an implied term that a mine owner could lay off miners without pay while repairs are effected through no fault of the mine owners. Furthermore, it is a well-established practice in this jurisdiction that lay-off without pay is operable where an employer can demonstrate it has been the custom and practise of the trade and/or workplace and that the custom must be reasonable, certain and notorious.”    The paragraph was quoted with approval in a decision of the EAT in Employee Vs Employer PW664/2012 (Appendix 15).

A claim taken under s.3 of the PWA is a claim for an “unlawful deduction”. The facts outlined above demonstrate that no unlawful deduction has been made, rather the Complainant’ salary has been reduced lawfully and in accordance with established custom and practice.  Furthermore, at all times, the Complainant received at a minimum the pay properly payable to her in the context of/relative to the hours she was required to work per the working arrangements in place at any material time. 

If Aer Lingus did not take the steps taken, there is a strong likelihood that it would have been forced to make a large number of employees compulsorily redundant.  It has been Aer Lingus’ policy to avoid implementing redundancies and layoffs with a view to maintaining everyone on the payroll (albeit for reduced working hours and reduced pay).

In summary, the claim that s.3 of the Terms of Employment Act has not been complied with is unfounded, inaccurate and in any event falls outside the requisite statutory time period for bringing the claim.  The claims under s.21 and s.22 of the OWTA must fail, in the first instance as the Complainant has failed to adduce any evidence that she has not received her accrued entitlements. The claim under s.6 of the PWA must fail, as what is at issue is a pay reduction (rather than an “unlawful deduction”, which was lawfully implemented on the basis of established custom and practice. Furthermore at all times the Complainant received at a minimum all pay properly payable to her in the context of the reduced working hour arrangement which applied to her and her grade at any material time.

Terms of Employment complaint (CA-00040002-001)

The Law

Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides as follows:-

“41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

With regard to the complaint under the Terms of Employment (Information) Act 1994 the Complainant alleged she did not receive a document which complied with Section 3 of the Act, although no specific term was detailed in the complaint form as to what was not complied with. At the Hearings the Complainant set out that the employment contract did not include the location of her employment in contravention of the Act. The Complainant received an updated contract of employment dated March 22nd 2018 for the position of Cabin Service Manager. She accepted this offer on March 28th 2018. The within claim was presented to the Workplace Relations Commission on September 21h 2019. No application was made for an extension of time. The cognisable period commenced on March 22nd 2018 for a 6 month period. The complaint was presented out of time and is consequently statue barred and fails accordingly.

CA-00040002-004 Payment of Wages complaint

Prior to setting out my Findings it is important to stress that each case under the Payment of Wages Act stands or falls on its own specific circumstances combined with the requirements of the Act.

The Law

Section 5 of the Payment of Wages Act 1991 provides in part as follows: “(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The Complaint

The core issue for decision under the Payment of Wages Act is was the Complainant entitled to be paid her full wage when she was not offered/at work for a significant number of hours each week due to the Pandemic. In other words was her full wage during the Pandemic “properly payable” and that the reduction implemented by the Respondent was in contravention of the Act.   There was a discussion as to whether the change was made by means of a deduction or a reduction in pay. However, this is not key as I discuss below. The Complainant alleged that lay off or short time were not clauses in her contract and therefore the Respondent acted illegally by putting her on short time and reducing her pay accordingly.  The Respondents position was that the short time was due to having no work available, that short time was an implied term of the contract and that the situation created the need for the implementation of that implied term, was or had become “custom and practice” and was covered by a collective agreement/understanding with the Trade Unions and Congress and therefore as a member of a Trade Union involved in the agreement/understanding was bound by the agreement/understanding.  The Complainant alleged she should have been paid 26,789 Euros during the relevant period and was paid 13,369 Euros and is seeking a payment of 13,420 Euros.

The Complainants employment history and contractual situation regarding hours of work

The contracts submitted in evidence show the Complainant starting work in June 1998 on a pre selection course.  In March 1999 the Complainant was offered a part time position as Cabin Crew member. In January 2000  the Complainant was made permanent as a Cabin Crew member. In September 2005 the Complainant was appointed as a Senior Cabin Crew member. As regards hours of work the contract stated the maximum hours of work as normally 70 hours per fortnight and details regarding hours of work could be found in the Aer Lingus Cabin Crew Agreement. In March 2018 the Complainant became Cabin Service Manager on a pro rata contract (FTE.5). There is no mention of hours of work in the letter of confirmation.  In June 2018 the Complainant returned to full time working hours and the contract states the following “The terms of your previous full time hours will continue to apply, except as stated in this letter”.  It goes on “The return to full time hours will take effect from July 23rd 2018 and will continue indefinitely” and under Hours of Work it states ”The standard full time working week is 35 hours exclusive of all break, calculated over a period commensurate with your roster schedule”.

There is no specific provision in the Complainants contracts for lay off or short time. From evidence submitted, the Complainant is the only Aer Lingus employee disputing the reduction in earnings as applied equally to all staff. The contract clearly states the “return to full time hours will continue indefinitely” and this is a persuasive argument in the assessment of the Complainants case, the issue of the implied term, force majeure and the collective agreement regarding the reduction in hours has to be very persuasive to override this term of her contract.

The Complainants practical hours normally per week

No persuasive argument was put forward that the Complainant was not paid for the hours she worked (and sometimes paid more than the hours she worked).  The Complainants contract was for a maximum of 35 hours per week and she worked various hours per week doing different duties during the relevant period.  The Complainant was either paid 30%, 50% or 60% of her normal salary during various times of the relevant period. In the six months relevant to the complaint the Respondent stated the Complainant was paid for 29% of the time when she was not required to work and did not work for more than the hours paid. While the Complainant went into some detail about various issues regarding her work hours it was not clear from her submission how many actual hours she worked during the relevant period. Either way, this is not critical to go into the detail as the core issue is the complaint relates to the deduction/reduction from what was expected to be paid (properly payable) to what was actually paid to the Complainant during the relevant period.

The Redundancy Payments Act

The implementation of lay off/short time when there is no work available is covered by the Redundancy Payments Acts.  However, this was not invoked by the Respondent as it, along with the Trade Unions, wanted to maintain as many possible jobs as possible during the pandemic.  In this regard I note that Section 11(1) of the Redundancy Payments Act provides that lay-off exists where, “…an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do.” It is clear that the Respondent was unable to “provide the work for which the employee was paid to do” at this time but by choice and with Trade Union “encouragement” did not pursue any redundancies at the time.  This issue is not significant to the decision in this complaint.

Reduction v Deduction

The issue of a reduction of pay as compared to deductions from pay has been much disputed over recent years. In essence, it was argued by the Respondent that the Payment of Wages Act only regulates “deductions” and therefore an employee cannot claim for wages owed under that Act where their pay has been “reduced”. The Complaints Solicitor set out compelling and comprehensive case law to support their case.

This issue was the subject of a key decision of the High Court in (Earagail Eisc Teoranta -v- Doherty & ors [2015] IEHC 347). Reductions -v- Deductions.  The Payment of Wages Act regulates “certain deductions made… by employers” and does it refer to “reductions”. This issue was first explored by the the High Court in 2010  in the case of McKenzie -v- The Minister for Finance and Others [2010] IEHC 462 that the Payment of Wages Act “has no application to reductions as distinct from ‘deductions’.” As such, employers could seek to reduce an employee’s pay and the employee could not successfully claim under the Act.  The EAT applied the High Court’s comments in Santry Sports Clinic -v- 5 employees (PW251/2011) and in a subsequent High Court Appeal the employer appealed the EAT decision. Firstly, the High Court expressly determined that the previous McKenzie case only dealt with travel expenses and subsistence and that there was no reason why the Payment of Wages could not regulate pay reductions as compared to pay deductions. Therefore, the High Court has firmly closed the door on the argument that an employee cannot claim for compensation under the Payment of Wages Act on foot of a pay reduction. However, secondly the High Court went on to state that the EAT made an error in the law by stating that prior written consent was required for any pay reduction. The Court noted that the Act states that an employer may make a deduction where “(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” On the basis of this, the Court essentially stated that the Act permits an employer to deduct pay where it is authorised by a term of the employee’s contract “or” where the employee has consented to it. The word “or” is essential here as it means one or the other is sufficient to make the deduction and that you don’t require both. Recent cases have likely put to bed the long-running debate regarding "reductions" of pay versus "deductions" of pay.  A number of decisions from the EAT, Labour Court and High Court since 2015 (Earagail Eisc Teo v Doherty, Hogan v HSE, McDermott v HSE, and Cleary v B & Q Ireland Limited) started the move away from the McKenzie line of reasoning. Two recent events have now arguably ended the logic in the McKenzie decison. First, on 20 January 2017 the High Court gave its decision in the case of Petkus & Ors v Complete Highway Care Limited [2017] IEHC 12 ("CHC"). The High Court emphasised that the part of the McKenzie decision differentiating between "reductions" and "deductions" was obiter and therefore not legally binding as a precedent. The Court therefore held that the 10% reduction in wages in this case was not outside the jurisdiction of the Act and the matter was referred back to the EAT to reconsider. Secondly, in the EAT cases of Hogan v HSE and McDermott v HSE two hospital consultants claimed that the HSE had breached the Act by withholding (i.e. "deducting" under the Act) salary agreed as part of a deal struck in 2008 with all consultants. The EAT did not apply the McKenzie reasoning and found in the consultants' favour.  The HSE lodged an appeal to the High Court but then announced on 25 January 2017 that it was withdrawing its appeal.

The Complainant’s position is that the amount properly payable to her during the relevant period was her normal wage irrespective of hours worked. The Respondents position was that there was both an implied term to allow the reduction, that it was custom and practice, that it was a reduction and not a deduction and therefore not covered by the Act and  that a “collective agreement” was in place to allow for the reduction. The Adjudicator must first decide whether the claimed unlawful deduction was in fact properly payable to the Complainant. In Dunnes Stores (Cornelscourt ) v Lacey and Nuala O’Brien[2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant. Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. The Labour Court have adopted this principal in dealing with similar cases albeit given certain criteria regarding the legitimacy of the deduction by either a term of the contract, by agreement or by statue. There is a substantial case law on this issue and the core issue is whether the reduction is permissible under a section of the Act by either a term of the contract, by agreement, statue or in this case by a collective agreement applicable to the contract of employment.  Of core importance here is the High Court stating that the reduction could be supported by “a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment”. The “Collective Agreement” reached with the Trade Unions (specifically Forsa) and Congress was in force at the time and therefore became a term of the Complainants contract of employment as Forsa had represented all Forsa staff in the negotiations/discussions.

Implied Term and Force Majeure

The issue of whether or not there was an implied term for short time/lay off in the contract of employment was discussed by the Parties and it is a contractual issue that can be debated either way. Case law can support the Respondent’s position that, by not having work it was legitimate to not pay the Complainant, as it is an implied term. The non-existence of a specific term for lay off/short time in the Complainants contract, when other employees contracts have one, is more favourable to the Complainants argument. Either way it is not decisive in the assessment of this complaint. What is decisive is the fact that of the 1841 Cabin Crew staff employed, 1840 have accepted the short time pay arrangement during the pandemic as an implied term of their contract thereby establishing custom and practice. The two tests for implied terms are that of the ‘officious bystander’, seeShirlow v. Southern Foundaries Ltd. 91939) 2K B 206, whereby an officious bystander, if shown a term that should have been, self-evidently, written into a contract would exclaim ‘oh, of course’. This test was expanded upon inSweeney v. Duggan (1997) ILRM 221, in which it was held that an implied term must be necessary to give effect to the contract. The second test is ‘custom and ‘practice’, see O’ Reilly v. Irish Press, and is a term that is so notorious, so well-known and acquiesced to, that it can be taken as a term of the contract. In could be argued that by “acquiescence”  by both the Trade Unions, Congress and all other affected staff, the acceptance of the reduction in hours and pay during the pandemic became an implied term of the complainants contract due to her membership of the Trade Union that “accepted” it. It is inconceivable in the crisis situation that arose and with so many affected staff the Respondent would be expected to engage individually with staff on individual changes. It engaged with Congress and Forsa and other affected Trade Unions and both parties reached a mature and reasonable “agreement”.

A term of a contract can become frustrated when it becomes impossible, illegal or so radically different from what the parties had originally contracted to hold the Parties to their contract would be unjust. A force majeure situation may also apply when the non-performance of a term arises due to unforeseen events beyond the control of a party, for a given period of time. While the Complainants permanent contract had specific hours in it the provision of work as intended was both frustrated by events and was a force majeure. Both of these situations meant the provision of work as intended was not possible.

Collective “Agreement”

The issue of whether a collective agreement contained a clause for lay or short time was discussed and the none of the collective agreements contained this clause allowed for short time nor did they prohibit it. The Respondent in post Hearing submission argued there was precedent with its Shannon Cabin Crew for such short time but did not provide any evidence to support this claim.

What is critical in the assessment of this complaint is the attitude and engagement by the Trade Unions representing staff at Aer Lingus, and by implication the Complainant, as she is an active  member of FORSA at the company.  It appears from correspondence that Congress took a lead role in the discussions/negotiations with the Respondent on what terms would apply to staff during the pandemic. The letter from Congress dated  March 19th to all staff working in Aer Lingus who were members of Connect, Forsa, SIPTU and Unite states  the following ”Aer Lingus, for the month of April 2020, will implement measures that will see a reduction in working time and earnings across the airline. This will result in your earnings been reduced by 50%. Aer Lingus have stated that the reduction in earnings will be implemented equally across all parts of the company and all grades including senior management will see a 50% reduction. What is being proposed by the company is short time working and therefore you will quality for a payment from social welfare… Aer Lingus have assured the Unions that these are emergency and temporary measures and that normal collectively bargained terms and conditions of employment will be restored once the situation has normalised”. In addition and crucially, the Forsa Trade Union wrote to members on March 19th 2020 stating “The Union has been in intensive talks with Aer Lingus management over the last few days with the aim of minimising the impact of this crisis on jobs and incomes. Given the impact of the public health crisis on the airline industry, we’re relieved that we have been able to keep everyone in a job”. On May 8th  Congress again wrote to the Chief Executive stating they were “representing the non pilot grades in Aer Lingus”. They stated they had worked with Aer Lingus to maintain employment in the company and “to protect as much of our members income as possible” and “it is our strong view that whatever is done is response to the current crisis should reflect the temporary nature of the challenged we face.. and we are committed to working with the company to find creative and effective solutions that achieve this objective”. The Unions approach was to ensure that the “measures implemented were applied equally across the company” and finally “we want to restate our continued commitment to our collective agreements and to use these to address the issues that will inevitably arise”. On May 22nd a Congress Official, in a note to Members discussing the arrangements for pay beyond May 2020, stated the changes will continue until June 21st 2020. It states that beyond this the company will take unilateral that will include lay offs and further reductions in hours. The letter advises members that the company must continue to honour collective agreements and that any proposed measures must conform with the terms of those agreements.

The reason for outlining the above correspondence is to show that Congress and the Trade Unions were active in engagement with the Respondent to find pragmatic, reasonable and the best solution to the situation for affected staff, that protecting employment and equality amongst all staff was key for the Trade Unions and while regrettable, the Trade Unions accepted that the Respondent had limited work available and was losing about a million euros per week. In effect, the Trade Unions and the Respondent worked together to achieve the best possible collective “agreement” or outcome for all affected staff. The fact that the reduction in hours and pay continued for a long period without an industrial dispute or third-party referral by a Trade Union involved implies reluctant acceptance of the situation.  If one Trade Union member were to be exempt from this “agreement” that would be both unfair to all other staff who accepted the situation and could cause considerable damage to the financial position of the company and the very objective the Trade Unions were trying to avoid, namely redundancies. The Forsa Trade Union accepted the uniqueness of the situation and that unique but practical solutions/agreements were required.

While there were subsequent discussions and issues surrounding this reduction in working time and payment it is clear that the change had been “accepted” by Congress and Forsa (of which the Complainant is a member and on its Committee) and was in the best interests of maintaining employment while the unprecedented crisis unfolded. It is clear from these letters that Congress and the affected Trade Unions were taking a responsible approach to the issue and accepted the unprecedented nature of events. In effect, the discussions became a once off agreement between the Employer and the Trade Unions and therefore the Complainant is bound by the agreement.

Custom and Practice

With regard to comparable staff 50% had no lay off clause in their contracts of employment, 30% had a clause allowing for temporary lay off of up to 8 weeks in the first five years of employment and 20% had a lay off clause. It would not reasonable to say that a custom and practice exited prior to the pandemic to cut wages by either 70% or 50% for all staff. No such situation existed in the past and is unique to the pandemic. However, custom and practice can be established by where the vast majority of the worldwide airline industry shut down, a large proportion of Irish employees were temporarily laid off due to the pandemic and 99.95% of the Aer Lingus workforce accepted the custom and practice being established for this type of extraordinary situation, which hopefully never reoccurs. This acceptance by 99.95% of Aer Lingus staff and not by the Complainant is no reflection whatsoever on the Complainant; she is entitled to make her complaint and have it adjudicated upon.

The fact that the lay off/short time was not in the majority of Cabin Crew contracts but was yet “accepted” by the staff in this unique situation established the short time work as the normal practice. I stress that this “acceptance” is unique to the Pandemic and the Respondent cannot (nor did it seek to) “extrapolate” any precedent in normal times from this assessment and the existing collective agreements remain in force. To be fair to the Respondent no such position was put forward by them at any stage and the Adjudicator sets out this clarification on my own accord to avoid any misunderstanding or misinterpretation of my assessment by any third party reading this of the “Collective Agreement” reached.

In PW674/2012 the EAT stated “Furthermore the Tribunal finds that there is a notorious custom and practice in this jurisdiction that employees will not be paid during a period of lay-off. Lay-of itself is an instrument of statue”.  This complaint applies to short time working and the general principals of lay off do not apply in this case.

Conclusion

The simple basis for the Complainants complaint is that prior to the Pandemic she earned an average weekly income of approximately 2240 Euros per fortnight for a contracted 35 hour week and that this level of salary was properly payable to her during the Pandemic and the Respondent could not unilaterally reduce her income to either 30% or 50% without her consent. However, the complaint does not succeed on either a singular and combined logic; the change/reduction introduced was an implied term of her contract, the change had the effect of a collective agreement, the unique circumstances of the Pandemic brought a force majeure/frustration of contract situation into play and the “acceptance” by 99.95% of staff established the reduction in pay as custom and practice for the pandemic circumstance only.

Organisation of Working Time complaints (CA-00040002-002 and CA-00040002-003)

With regard to the complaints under the Organisation of Working Time Act the Parties agreed that this depended on the outcome of the decision on the Payment of Wages complaint. Therefore, as the Complaint under the Payment of Wages Act is not well founded so too are both complaints not well founded under the Organisation Of Working Time Act.

I find that the Complaint under the Payment of Wages Act is not well founded (CA-00040002-004).

I find that the Complaints under the Organisation of Working Time Act 1997 (CA-00040002-002 and CA-00040002-003) are not well founded.

I find that the Complaint under the terms of Employment (Information) Act 1994 (CA-00040002-001) is statue barred and therefore not well founded.

Reduction in Pay