Complainant

Respondent

Parties

Philip  Kelly

Swissport Ireland Limited 

Representatives

Dermot O'Loughlin

Ciaran Loughran IBEC

Act

Complaint 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-00040120-001

28/09/2020

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

CA-00040976-001

13/11/2020

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

CA-00040976-002

13/11/2020

Swissport Ireland Limited is based at Dublin Airport. The company provides ground services for airline passengers and handles freight. The respondent employs 650 in Ireland. At the time of the layoff 546 employees were on layoff.

The complainant stated that he was unfairly selected for lay-off. The company failed to engage in any meaningful consultation with him. He had more experience and service when compared to those that were retained. The obligation is on the employer to be reasonable and not to arbitrarily and subjectively retain who it wishes and lay-off those who it wishes without reasonable cause. The procedures applied for off ramp staff and at the other Airports was entirely different and objective. Service played a key factor in determining who was kept on in those other work areas. The company stated that there was consultation with the Union on how the selection would take place and that it was agreed with the Union. That is not true. At the time the Union at local level had a view that the lay-off would be for a very short period; however, there was no consultation about the criteria that would be applied to lay-off staff and to decide who would stay.

The complainant put in issue the contractual right of the employer to place him on lay-off. He requested a copy of his contract so that he could confirm if such a term existed. No contract has been provided to date.

Mr Kelly was a senior ramp operative, while he was not a team lead he was capable of meeting many of the tasks detailed in a skills matrix used by the company to make decisions concerning who would be retained and who would be placed on lay-off. The matrix applied by the company was deficient and contained a huge number of errors that clearly led to prejudice concerning selection.

Mr Kelly has been a member of SIPTU and the company agreed terms and conditions with SIPTU on his behalf. He never declined the benefits agreed and improvements made as part of those collective agreements. The company/union agreement specifically provides for layoff. It is also a fact that contracts of employment also contain that lay-off provision. In this case the contract has been misplaced. Despite best efforts it cannot be found.

The company applied a valid and reasonable process to select staff. The fact was the services that the company provided to Airlines was in meltdown arising from lockdown during Covid-19. It was a highly uncertain and rapidly changing environment. The company compiled a matrix of the skills and experience that it believed employees possessed and double checked that understanding with line managers of the relevant staff groupings. In the first instance the decision was made to retain Team Leads and to select based on proximity to the Airport and the requirement for maximum flexibility and the ability to meet requests to attend onsite at very short notice.

The complainant was not a team lead nor had he the most relevant skill set and experience regarding the mainstay of flights at that time which related to cargo flights.

At the earliest possible time the complainant was requested to return to work. On or about the 28th of August 2021 he was requested to return to work initially on reduced hours of 28 hours per week as it was not possible to work on the pre-lay-off shift pattern as flights had not fully recovered. On or about the 10th of November 2021 he was requested to return on his full contracted terms and conditions. He continuously declined to return to work.

CA-00040976-001 Terms of Employment (Information) Act, 1994

The complainant stated that he was not notified in writing of a change to his terms of employment.

The claimant stated that he was advised on or about the 20th of March 2020 that he was being temporarily laid off contrary to his terms and conditions as detailed in his contract of employment. The complainant stated that there was no lay-off clause in his contract.

The complainant has been a member of SIPTU and there is a collective term agreed between the parties as follows:

“The company reserves the right to introduce short-time working or lay off employees without pay if the company’s trading position warrants it following consultations with the Union.”

In O’Reilly v Irish Press [1937] 71. I.L.T.R. 1904 it was held that a custom and test practice would be applied where it was held that practice was so well known and would be accepted in the absence of agreement in writing.

In Goulding Chemicals v Bolger [1977] I.R. 211, where Kenny J. held that a party who consistently opposed- such an agreement cannot be forced to be bound by it. However, that is not the case here. On the balance of probabilities, the complainant agreed that his terms would be amended through collective representation.

The fact is a term did exist that provided for lay-off and the claim is opportunistic rather than based on merit relying on the employer’s inability to find his individual contract with that clause. The fact that the contract is misplaced does not negate the fact that a lay-off clause did pertain in this case.

The circumstances of this case cannot be ignored, and the fact was that the company had no choice but to lay-off staff as its business had collapsed.

Section 7 of the Act requires that I make a finding as provided for under the Act.

I determine that it was a term of the complainant’s contract that he could be placed on short time or on lay-off without pay and therefore the complaint is not well founded as no change in his terms of employment had occurred that would require him to be notified in writing of such a change.

CA-00040976-002 Payment of Wages Act

The complainant amended his complaint form in November 2020 to include a payment of wages claim. The original complaint was lodged with the WRC in September 2020; that amendment is consistent with narrative as originally submitted. Therefore time runs for this complaint from the 2nd of April 2020.

The complainant amended his complaint form on the 13th of November 2020 to specify a payment of wages claim. That complaint was contained in the narrative of the original complaint form that was lodged with the WRC on the 28th of September 2020. The amended form stated that the contravention occurred on the 2nd of April 2020 and as the narrative is consistent with what had been detailed originally, I determine that the complaint is in time as the amendment was administrative and did not constitute a new complaint.

The complainant maintains that no meaningful consultation has taken place and arising from the employer’s unreasonableness the decision to place him on lay-off was in breach of his contract.

The complainant stated that the fact that a skills matrix was used only became evident when evidence under oath was given by the senior manager tasked with the decision who she would retain and who she would place on lay-off.

The respondent employer stated that the Union was involved in consultation and yet an email from the shop steward and evidence given at this hearing by that shop steward demonstrated that little or no consultation occurred.

The employer retained employees who had less experience and service than the complainant.

The senior manager who made the decision gave evidence surrounding the circumstances that prevailed when she was forced to decide to lay-off most of the service workers in her large operation. That was a very difficult decision and was necessary as the company had few Airlines to service based on the severe flight restrictions that were imposed on or about March 2020. The situation was volatile and literally changing by the hour. Cargo flights would continue and that informed who would be required to be retained initially. Team Leaders who were authorised to work on such flights in the first instance gave the company the greatest flexibility. The fact that flight times and volumes was also volatile meant that proximity to the Airport was important and the commitment from the employee to be flexible. The company compiled a skills matrix to assist in the making the right operational decisions. That matrix was not perfect; however, the line management who knew their staff also informed who should be retained and who should be placed on lay-off. The fact was a lot of support staff were already offsite arising from the public health regulations. The information while not complete was checked and balanced with line management’s knowledge of the crews that would be kept on and those employees who would be placed on layoff. Dublin is a much more complex Airport than the other areas cited by the complainant, where service would appear to have been the main criterion to be used. That criterion could not be use in Dublin based on the necessity to match skillset and experience to the actual flights landing at the Airport.

Consultation did take place with the Union and while management made the decision regarding who would be retained and who would be placed on lay-off the Union knew lay-offs would be required. Other companies did respond differently. However, this company based on its operating model could not sustain the haemorrhaging of cash and its best route to survival was to exercise its right to place staff on layoff.  This employee was offered reduced hours in August 2021 and refused to accept those hours and again refused to return to work on their full contract terms in November 2021. That refusal was based on a premise that until the company could fully honour his contract terms he was not bound to return to work. That is an argument with little merit nor does it reflect what is contractually the case.

Section 5 of the Payment of Wages Act provides for the following:

5.— (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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on say that

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

The evidence of the senior manager who was tasked with overseeing the retention of staff and the laying off staff was credible and honest. Based on the test as elaborated upon in the case law, I do find that the manager had a discretion to lay off the complainant. She exercised that right properly and also met the threshold as set down by the courts that it was within the band of reasonableness, as it cannot be sustained that no reasonable employer would have acted as the defendant did faced with the exceptional challenges imposed by Public Health Regulations.

The facts show that the employee refused to return to work when reduced hours were available and later refused to return to work on full hours. That behaviour is inconsistent with the proposition that the company failed to allow him to continue working in March 2020 rather than placing him on lay-off, when that would have been conditional on flexibility and no guarantee regarding hours of work. The employee’s position is not credible when the facts show that he was subject to a layoff clause without pay and that the senior manager tasked with making that decision having regard to all the circumstances acted reasonably.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

The matter in dispute relates to non-payment of wages arising from a claim that the complainant was unlawfully placed on lay-off without pay. I have determined that the employer had in fact a contractual right to place the employee on lay-off without pay and exercised that discretion reasonably.

I determine that the complaint is not well founded as no deduction has been made from the wages of the complainant that were properly payable to him for the period claimed commencing on the 2nd of April 2020.

CA-00040976-001 Terms of Employment (Information) Act, 1994

The fact is a term did exist that provided for lay-off and the claim is opportunistic rather than based on merit relying on the employer’s inability to find his individual contract with that clause. The fact that the contract is misplaced does not negate the fact that a lay-off clause did pertain in this case.

The circumstances of this case cannot be ignored, and the fact was that the company had no choice but to lay-off staff as its business had collapsed. A term did exist in the complainant’s contract as provided for under the collective agreement and also was so well known and self evidently a term in his employment conditions that it formed part of his contract.

Section 7 of the Act requires that I make a finding as provided for under the Act.

I determine that it was a term of the complainant’s contract that he could be placed on short time or on lay-off without pay and therefore the complaint is not well founded as no change in his terms of employment had occurred that would require him to be notified in writing of such a change

CA-00040976-002 Payment of Wages Act

The evidence of the senior manager who was tasked with overseeing the retention of staff and  laying off staff was credible and honest. Based on the test as elaborated upon in the case law, I do find that the manager had a discretion to lay off the complainant and that she exercised that right properly and also meet the threshold as set down by the courts that it was within the band of reasonableness as it cannot be sustained that no reasonable employer would have acted as the defendant did.

The facts show that the employee refused to return to work when reduced hours were available and later refused to return to work on full hours. That behaviour is inconsistent with the proposition that the company failed to allow him to continue working in March 2020 rather than placing him on lay-off when that would have been conditional on flexibility and no guarantee regarding hours of work. The employee’s position is not credible when the facts show that he was subject to a layoff clause without pay and that the senior manager tasked with making that decision having regard to all the circumstances acted reasonably.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

The matter in dispute relates to non-payment of wages arising from a claim that the complainant was unlawfully placed on lay-off without pay. I have determined that the employer had in fact a contractual right to place the employee on lay-off without pay and exercised that discretion reasonably.

I determine that the complaint is not well founded as no deduction has been made from the wages of the complainant that were properly payable to him for the period claimed commencing on the 2nd of April 2020.

Layoff