Worker

Employer

Anonymised Parties

A Pilot

An Aviation Company

Representatives

Marianne Byrne, Organic HRM

Ercus Stewart, SC instructed by  Holmes O'Malley Sexton Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038590-002

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00038590-004

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 4(1) of the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007

CA-00038590-005

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00038590-006

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00038590-007

07/08/2020

The Complainant commenced his employment with the Respondent on 26th August 2019 pursuant to a fixed-term 14-month contract.  He referred a number of complaints against the Respondent to the Director General, as listed above.

The Respondent’s representative raised a preliminary matter in respect of CA-00038590-002, CA-00038590-004, CA-00038590-005, CA-00038590-006, and CA-00038590-007. The Respondent requested that, on the basis of insufficient detail and failure to adhere to the WRC procedures the Adjudication Officer dismisses the complaints above.

The Respondent submitted that the letter dated 5th August 2020 related to “other issues that could not be included in the complaint form without my making a new complaint. I did not want to do this as the complaint is all part of the 1st complaint”.

The Respondent argued that the WRC procedures state that a Complaint Form, available on the WRC website, should be used where a claimant submits a complaint to the WRC. The Respondent argued that the Complainant has failed to use the Complaint Form in the lodging of complaints CA-00038590-002, -004, -005, --006 and -007.

The Respondent argued that anything submitted after the initial Complaint Form had been referred to the WRC forms supplemental addition but not a new complaint. The Respondent argued that the WRC has no jurisdiction to deal with the complaints as they were not submitted on an official form.

The Complainant’s representative submitted that the Respondent was getting petty about what went in and on what forms. Ms Byrne submitted that she inadvertently sent the first form to the WRC with the initial complaint. To save confusion, she sent an email on 7th August 2020 with additional complaints. It was argued it was made in an error and it was very clear what the matter related to.

The Complainant submitted a claim bearing the reference number CA-00038590-001 to the Director General of the WRC on 8th July 2020. This claim was submitted under the Industrial Relations Act, 1969 and is considered under a separate ADJ number. On 7th August 2020, the WRC received correspondence from the Complainant’ representative outlining a number of additional complaints. This correspondence was copied to the Respondent on 20th October 2020. On 12th February 2021, the WRC wrote to the Respondent informing of the additional complaints/disputes received by on 7th August 2020 and a copy of same was enclosed. The reference numbers CA-00038590-002, CA-00038590-003 (considered under a sperate ADJ number), CA-00038590-004, CA-00038590-005, CA-00038590-006, and CA-00038590-007 allocated to the complaints/disputes were listed in the WRC correspondence.

In considering the matter I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that:-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this decision that this can only be done so long as "the respondent.... must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:-

“It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

I also note the dicta of MacMenamin J. in the Supreme Court in Louth/Meath ETB v Equality Tribunal[2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the claims it faces. In the present case, the additional complaints were outlined in the Complainant’s representative’s correspondence received on 7th August 2020 that was copied to the Respondent. On 12th February 2021, the Respondent was advised that these additional complaints have been referred to the Director General of the WRC, and the relevant reference numbers as assigned by the WRC were provided to the Respondent. I am thus satisfied that the Respondent was on notice of the claims.

Having considered the matter I, therefore, find that I do have jurisdiction to investigate the complaints as listed above.

The Complainant submits that the Respondent did not furnish him with the grounds for dismissal.

The Complainant submits that his representative requested “a written statement of the reason for his dismissal” in her correspondence to the Respondent of 13th April 2020 (exhibited at the adjudication hearing).

The Complainant’s representative submits that this was the least the Complainant was entitled to but never received. There was no apology or acknowledgement of the fact that the dismissal was reconsidered two months later and turned into a question of redundancy.

The Respondent submits that the Complainant is in receipt of a full detailed response from the Respondent dated 10th March 2021 (exhibited at the hearing). He and his representative are aware that he was in fact made redundant, but by reason of his very short service had no entitlement to redundancy payment under the legislation, which remains the case.

Section 14(4) of the Unfair Dismissals Act provides as follows:

“14(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.”

The section imposes various obligations on employers but does not provide remedies or redress in the event that the employer does not comply with the particular obligation. Accordingly, I have no jurisdiction to hear this complaint.

I have no jurisdiction to hear this complaint.

The Complainant submits that he was penalised for complying with or making a complaint under the legislation.

Ms Byrne, on behalf of the Complainant submits that the Complainant was not allowed to report health and safety issues and was then penalised for this. The Complainant told the CEO of the Respondent, Mr A that he could not report because he was not “released to command” and the Complainant was told by the CEO that he did not want “this type of non-reporting calibre of pilot” flying his aircraft. He also stated that this lack of action on the Complainant’s behalf would be commensurate to his non continuing employment with the Respondent.

Ms Byrne submits that a crash had occurred with one of the other pilots. The Complainant had told his Captain previous to this about the unserviceable landing lights. The Complainant was so concerned for his safety after near engine failures that he purchased a life insurance policy to cover the debt of his camper home he had purchased for his work and to protect his family in the event of a fatal accident occurring.

The Complainant submits that he filmed engine fluctuations to get these remedied by the mechanics. His Captain showed the problem to the mechanics and the aircraft was pulled from service. The Complainant asserted that aircraft parts were moved between the newly grounded aircraft and the aircraft that later crashed. The Complainant submits that he complained to Mr A that the aircraft instrumentation was unsafe. The Complainant submits that Mr A’s response was that the instrumentation was not necessary according to the minimum equipment list (MEL) required. The Complainant was concerned with having to fly dangerously, descending through cloud with no working navigation instrumentation only having his personal navigation equipment. The Complainant submits that the Respondent then suspended flying due to the landing lights issue.

The Complainant argues that, by not being allowed to report engine problems and then being told that instrumentation was not necessary, this left the Complainant in a situation of being penalised for trying to follow the correct procedure for flying.

In response to the Respondent’s submission that “the Complainant made no complaint about safety up to this date and time. [The Complainant] reacted unhappily and during the conversation made vague reference to unsafe maintenance.”, Ms Byrne submitted that the Complainant was not allowed to make complaints and, therefore, it is understandable that he was hesitant and vague when referencing the unsafe maintenance to his boss.

Direct evidence of the Complainant and cross-examination

In respect of the within claim, the Complainant said that he got fired because he exposed maintenance issues. He confirmed that he never flew the aircraft the alleged issues related to.

In response to the Adjudication Officer’s query if the Complainant did make a complaint, the Complainant said that he was not allowed to make one, he was not allowed to report. He said that he went to the mechanics, but they told him not to say anything. He said that any defects would have been reported by his Captain.

The Respondent denies any alleged penalisation of the Complainant.

The Respondent submits as follows. As far as the Respondent is aware, no formal complaint was made by the Complainant to any governing body regarding safety at the Respondent company. The Complainant was informed by the management around 5th December 2019 that, as a consequence of the withdrawal from service of one aircraft, the Respondent may be forced to reconsider its aerial survey operation. The Complainant made no complaint about safety up to this date and time. The Complainant reacted unhappily and during the conversation the Complainant made vague references to unsafe maintenance. The Complainant was asked to explain and expand on his concerns, and he eventually raised a number of issues and was told that the complaints would be fully investigated. As part of the investigation the maintenance personnel including the Maintenance Manager and the other pilots were interviewed. The issues raised had been previously addressed via the maintenance management systems or by the pilots, in accordance with the aircraft manufacturer and engine manufacturer instructions which are approved data (IAA-EASA and US FAA) and the Respondent’s procedures and approvals.

For the avoidance of doubt, the Respondent is approved, overseen, and governed by statutory bodies: the Irish Aviation Authority (IAA), European Aviation Safety Agency (EASA), Commission for  Aviation Regulation, Department of Transport, Department of Communications, the Health and Safety Authority, and the Airport Authority. The roles of the regulatory bodies are all encompassing, and the Respondent is the subject of regular surveillance audit. Compliance, health, and safety of the employees and the public are central aspects of the Respondent’s operation. The Respondent employs a professional management team and encourages and requires reporting through its Safety Management System Manual (SMSM) amongst other forums. The Respondent is in full compliance with all standards, rules and regulations which apply to its operations, evidenced by the continued licencing arrangements in place.

The Respondent submits that the Complainant offers no explanation of the penalisation he alleges. It is extremely difficult for the Respondent to defend these allegations. The Respondent believes that there was not, nor was it  aware of, any formal complaint made to any governing bodies regarding the Respondent, its operations or its safety by the Complainant so is completely in the dark regarding these allegations.

Direct Evidence and cross-examination of the CEO, Mr A

Mr A said that the Respondent company is only as good as its safety ethos and record. The business is heavily regulated and for good reason.

Mr A clarified that pilots are obliged to report any concerns they might have. He said that there are prepaid envelopes that can be used, the complaint does not have to pass through his desk but can go directly to the IAA. He said that once the Complainant raised an issue, he invited him to the boardroom and made detailed note of the matters raised.

Mr A said that the Respondent and aviation, in general, operate a Just Culture environment, where reporting on issues of safety is encouraged and there are several channels opened to employees and managers to report, these include Chief Pilot, Safety Manager, Maintenance Manager, Accountable Manager, Regulator- EASA, Regulator – IAA. The associated reporting channels are contained in the Employer’s manuals pretraining to Part Special Purpose Operations (SPO) including Part SPO manuals, Safety Management System Manual, European Coordination Centre for Accident and Incident Reporting Systems (ECCARS) Safety Occurrence Tracking System (SOTS). The forms and manuals are issued to the crew member along with instructions to report. Also, forms are available in the Pilot room library should they be required. Mr A provided detailed description of the relevant  manuals that the Respondent has in place which are approved by the IAA.

Mr A said that the Respondent was previously audited by EASA directly as part of its oversight programme of the Irish regulator, the IAA. The EASA established no findings against the business.

In addition, the Respondent issues periodically Safety Bulletins to its personnel, it routinely revises its manuals in line with the latest regulations, and employs a highly experienced and professional management team of aviation personnel.

Mr A provided relevant extracts from the Respondent’s Safety Policies in respect of policy and procedure for dealing with defects and matter of safety.

Section 27of the Safety, Health & Welfare at Work at provides as follows.

“Protection against dismissal and penalisation.

(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes–

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for–

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The Labour Court has given detailed consideration to the meaning of penalisation for the purposes of Section 27of the Act in determination in O’Neill v Toni & Guy Blackrock Limited [2010] 21 ELR 1 where the Court stated:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

In the same Determination, the Court considered the issue of the allocation of burden of proof in cases of penalisation contrary to the Act and held:

“having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case.

Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant’s dismissal.”

The Complainant in the within case argued that he was not allowed to report his health and safety concerns and then was penalised for not reporting them. He asserted that he was, in fact, told by the CEO of the Respondent that he would not want “this type of non-reporting calibre of pilot” flying his aircraft. It, therefore, appears from the Complainant’s submission that he was not precluded from reporting any health and safety matters. It appears that he was told that non-reporting is not acceptable.

The Complainant said also that he had told his Captain about unserviceable landing lights and that he filmed engine fluctuations to get these remedied by the mechanics. He submitted that his Captain showed the problem to the mechanics and the aircraft was pulled from service. He also said that he complained to Mr A that the aircraft instrumentation was unsafe. The Complainant submits that Mr A’s response was that the instrumentation was not necessary according to the minimum equipment list (MEL) required.

The Complainant made series of very serious allegations in respect of the Respondent’s alleged failures in respect of health and safety at the adjudication hearing. On the one hand, he argued that he did not report his concerns and he was penalised for not being allowed to report problems. He said that he “was not flying because of not reporting”. On the other hand, he argued that he did report some issues to his Captain, and these were remedied. He also argued that he reported some issues to the CEO and was told that the relevant instrumentation was not required. He also argued that he was dismissed because he did report some failures.

When asked by the Adjudication Officer to clarify did he or did he not report any health and safety issues, he said that he only spoke to the mechanics, and they told him not to say anything.

The Respondent submitted that the Complainant made no complaints until 5th December 2019 when he was informed that the Respondent may be forced to reconsider its aerial survey operation. He made vague references to unsafe maintenance. The Complainant did not dispute the Respondent’s assertion that these were fully investigated and addressed. The Complainant’s representative argued that it was understandable that the Complainant was hesitant and vague when referencing the unsafe maintenance to his boss.

Despite somewhat confusing arguments on part of the Complainant as to whether he was or was not allowed to report, and whether he did or did not report his concerns, I accept that, on the balance of probabilities, the Complainant made reference to concerns he had on 5th December 2019. The Complainant did not dispute that the CEO invited him to a private room and inquired about his concerns. He did not dispute that the CEO  interviewed the relevant staff members. It appears that the CEO took the matter seriously and addressed the issues raised by the Complainant.

Having considered the matter, I find that there is no evidence proffered by the Complainant showing any causal link between his having reported his concerns to the CEO and his dismissal some 5 months later. I have considered the dismissal of the Complainant in a separate recommendation under a separate ADJ. I am of the view that the Complainant was dismissed by way of redundancy, and he did not establish that his complaints were an operative consideration leading to his dismissal.

I declare this complaint to be not well founded.

European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007 stipulate that:-

“9(4) An employer shall not subject an employee of the employer to any prejudice because the employee has, for the purposes of these Regulations, made a report of an incident of which the employee may have knowledge.”

The Complainant did not proffer any evidence that he had made a report of an incident of which he may have had knowledge to the relevant authority.

I declare this complaint to be not well founded.

The Complainant submits that his representative was not consulted in relation to a proposed collective redundancy which affected him.

The Complainant submits that he was asked to come up with some ideas and then suddenly without negotiations he was told in an email of 29th April 2020 that he was being made redundant. A copy of the email and Ms Byrne’s response of 21st May 2020 were exhibited at the adjudication hearing.

The decision to make the Complainant redundant was appealed by email issued on 11th June 2020. The CEO of the Respondent replied to the email on 15th June 2020 expressing disappointment that the Complainant’s representative wrote again in this manner. Ms Byrne contends that she was merely quoting government papers on the matter of not having enough service for redundancy and alternatives for employers. Ms Byrne submits that the CEO replied repeating that the Respondent had no legal obligations in that regard.

In response to the Respondent’s submission that no collective redundancy scenario existed, Ms Byrne replied that if there was no collective redundancy, then the Complainant seems to be the only one singled out for redundancy.

The Respondent submits that there was no collective redundancy. Therefore, the Respondent submits that this claim is irrelevant.

Collective redundancies are defined in section 6 of the Protection of Employment Act 1977 which provides:

“(1) For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is —

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 in an establishment normally employing at least 50 but less than 100 employees,

(c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment normally employing 300 or more employees.”

The Complainant referred his claim alleging that his representative was not properly consulted in relation to a collective redundancy that affected him. The Respondent confirmed that the implementation of redundancies in February 2020 was not treated as a collective redundancy. The undisputed evidence of the CEO was that there were 27 employees and two were made redundant at the relevant time. I, therefore, find that no collective redundancies took place and the instant case does not relate to a collective redundancy situation.

I declare this complaint to be not well founded.

The Complainant submits that the Respondent failed to inform him (a fixed-term employee) of opportunities for permanent employment and of appropriate training opportunities.

In her written submission Ms Byrne, on behalf of the Complainant contended that the Respondent have flouted both these rules. She argued that the Complainant was not given any alternative employment or opportunity. Further, Ms Byrne argued that the Complainant asked for training on a number of occasions and was not given it. Furthermore, this was cited as a reason for dismissal.

Ms Byrne contended that the Complainant was given a fixed-term contract which stated that the contract would continue unless the Complainant is guilty of certain actions which were of no relevance to the Complainant’s case. The contract included a probationary period and, according to the Complainant’s appraisal of 29th October 2019, the Complainant had passed this with distinction.

The contract stated that “On the 14th month anniversary of this contract [the Complainant’s] employment will become permanent and indefinite”. There was no provision for redundancy in the contract.

In response to the Respondent’s submission in respect of the ground operations role that the Complainant “was not suitable for this role nor, considering the time, expense and reduced business activity, was the provision of training a reasonable step for the Respondent to take”, Ms Byrne submitted that the Complainant’s unsuitability for the role was decided by the Respondent without consulting the Complainant.

The Respondent submits as follows.

No permanent employment opportunities arose whilst the Complainant’s employment with the Respondent was ongoing and for which he was deemed suitably qualified. Following the loss of one aircraft and the loss of a key contract in late 2019 / early 2020, the Respondent was forced to reorganise its staff. This reorganisation was further compounded by the economic downturn brought about by Covid-19 in 2020. During this time, a member of staff was redeployed from pilot duties to Ground Operations because of his experience in this particular business segment of the Respondent company. The Complainant’s representative questioned this redeployment, and a detailed response was provided to her (copy of the correspondence was exhibited at the hearing).

The Respondent submits that the Complainant was not suitable for this role and, considering the time, expense, and reduced business activity, the provision of training was not a reasonable step for the Respondent to take.

The Complainant was provided with all the requisite training at the Respondent’s expense in order to perform his duties and responsibilities, in accordance with his contract of employment, up and until the time of the withdrawal from service of one aircraft. At the time the remaining aerial survey aircraft was grounded and no pilot training was undertaken in this period.

Protection of Employees (Fixed-Term Work) act, 2003 stipulates as follows:-

“10. Information on employment and training opportunities

(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.”

The Complainant alleged that the Respondent failed to inform him of opportunities of permanent employment and of appropriate training opportunities.

The first issue I must consider relates to the Complainant’s claim that the Respondent contravened the provisions of section 10(1) of the Act by failing to provide him with information in relation to vacancies which became available during his tenure and thereby denying him the opportunity to convert his status to that of a permanent employee.

In relation to the permanent opportunities, the Complainant alleged that another person was given a ground operations role and the Complainant was not.

The Respondent submitted that between January and July 2019, the Respondent employed 2 pilots. When one of the pilots indicated his intention to leave in May 2019, the Respondent recruited another pilot to replace him in advance of his departure. Subsequently, in August 2019, the Complainant was recruited as the third pilot. In November 2019, Mr T who was previously employed was rehired as a pilot. However, due to the circumstances related to the aircraft being withdrawn from service in early December 2019,  a staff member leaving on a very short notice, and Covid-19 restriction, Mr T who had previously fulfilled the role as Ground Operations assistant, was redeployed to Ground Operations. The Complainant was not qualified for the position and, given the circumstances it was not reasonable for the Respondent to train the Complainant.

Section 10 obliges an employer to inform fixed-term employees of permanent vacancies.  In Aer Lingus v A Group of Workers [2005]  E.L.R 261, the Labour Court held as follows in relation to section 10: -

“The first limb of the subsection clearly obliges an employer to inform fixed-term employees in relation to vacancies which become available. The second limb describes the object or purpose of this requirement as being to ensure that fixed-term employees have the same opportunity to secure a permanent position as other employees. It is noteworthy that the obligation created is not just to inform the employees in question of vacancies for permanent positions but of vacancies which may enable them to obtain permanent positions. Thus it is wide enough to cover a situation in which a position may be initially temporary but will be subsequently made permanent. “

I note the Respondent’s argument that the Complainant was not suitably qualified for the role. However, this does not discharge the obligation placed on the employer by Section 10 of the Act to inform a fixed-term employee of a permanent vacancy and to provide training where practicable.

There was no dispute that, in the relevant time, a position in Ground Operations became available with the Respondent organisation. There was also no dispute that the Respondent did not communicate this vacancy to the Complainant. Having carefully considered the matter, I find that the Respondent did not comply with Section 10 of the Act. Given the particular circumstances of this case, I have decided that compensation is the appropriate redress.

I declare this complaint to be well founded. Given the circumstances, I require the Respondent to pay the Complainant €2,000 in compensation.

Penalisation – health and safety- aviation- dismissal- fixed term employee -