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

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00038590-001

08/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00038590-003

07/08/2020

The Worker commenced his employment with the Employer on 26th August 2019 pursuant to a fixed-term 14-month contract. He alleges that he was unfairly dismissed by the Employer. The date of dismissal was in dispute.

The Worker submitted his initial claim to the Director General of the WRC on 8th July 2020. This claim was submitted under the Industrial Relations Act, 1969. On 7th August 2020, the WRC received correspondence from the Worker’s representative outlining an additional dispute. This correspondence was copied to the Employer on 20th October 2020. On 12th February 2021, the WRC wrote again to the Employer informing of the additional dispute received on 7th August 2020 and a copy of same was enclosed. The relevant reference numbers allocated to the disputes were listed in the WRC correspondence.

The Employer’s representative raised a preliminary matter in respect of the second dispute bearing reference number CA-00038590-003 referred to the Director General of the WRC on 7th August 2020. The Employer requested that, on the basis of insufficient detail and failure to adhere to the WRC procedures the Adjudication Officer dismisses the complaint.

The Employer 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 Employer argued that the Worker has failed to use the Complaint Form in the lodging of the second dispute. The Employer argued that anything submitted after the initial Complaint Form had been referred to the WRC forms a supplemental addition but not a new complaint. The Employer argued that the WRC has no jurisdiction to deal with the dispute as it was not submitted on an official form.

The Worker’s representative submitted that the Employer was getting petty about what went in and on what forms. She 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. She argued that it was very clear what the matter related to.

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 Employer knows the claims it faces. In the present case, the additional complaints were outlined in the Worker’s representative’s correspondence of 7th August 2020 that was copied to the Employer. On 12th February 2021, the Employer was informed 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 Employer. I am thus satisfied that the Employer was on notice of the claims.

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

The Worker alleges that he was unfairly dismissed. The Worker’s representative submits as follows.

The Worker was employed on 26th August 2019 on a fixed-term contract for a period of 14 months. The contract contained a 26 weeks’ probationary period and, according to the Worker’s representative’s submission, he passed this with distinction on 29th October 2019.

On 12th February 2020, the Worker received an email from the Employer saying that “There will be no flying on the Aztecs for now. I will be in touch with an update when I have one. Given the present circumstances (pretraining since December) I release you from your commitment to [the Employer]. I appreciate and accept the uncertainty isn’t helpful for all the reasons you reference below.”

The Worker claims that he understood that the intention of this email was to dismiss him. The Worker asserted that he was dismissed on 12th February 2020 and was given three months’ notice, that is to 13th May 2020.

The Worker’s representative contended that the Worker was unfairly dismissed because his fixed-term contract of 14 months duration was broken with no good reason. The Worker was appraised on 29th October 2019 under various headings with 41 scores Grade 1 and six Grade 2. He passed with distinction.

The Worker feels that he got no proper correspondence, communication, discussion on the fact that he was being dismissed. He claims that he went to the Employer’s offices on 13th February 2020 to ask for his payslips and he was not let into the building. Then on 9th April 2020 he was asked to put forward ideas on what the Employer should do in light of the fact that it had to make some staff redundant. This was very upsetting for the Worker who was dismissed on 12th February 2020 and then on 9th April 2020 it seems like he was re-instated.

The Employer is not denying the Worker’s dismissal on 12th February 2020 because every communication from that date to the Worker stated that his termination date was 13th May 2020 (three months’ notice). Because the Employer had now changed the dismissal to redundancy, it was obliged to give the Worker 2 months redundancy notice and he was then paid to 29th July 2020.

The Worker was unclear as to what did he consider the dismissal date. He first said it was 12th February 2020, then 30th May 2020, 13th May 2020, 29th April 2020, or 29th July 2020.

In response to the Employer’s submission  that “a pool was formed, a consultative approach was taken with the selected pool members and feed back sought from those affected”, the Worker’s representative replied that the Worker did not know anything about this pool, it would seem that it was because he had already been dismissed.

The Employer rejects the claim. The Employer submits that it engaged and attended the adjudication hearing out of respect to the WRC.

The Employer submits as follows.

The Worker commenced employment with the Employer on 26th August 2019 by way of contract of employment dated 8th July 2019.

The Worker worked for the Employer for approximately four months and was paid for months when there was no work available, and, furthermore, was paid three months in lieu of notice, which was ample time to mitigate his loss. The Worker was dismissed by reason of redundancy. The Employer provided clear and unambiguous reasons in writing for the necessary redundancy to him and his representative and also communicated the reasons for redundancy verbally.

The Employer was forced to cut costs following the withdrawal from service of an aircraft,  the temporary loss of a key client, and the pandemic. All cost reduction measures were considered before a reduction in staff numbers was determined as necessary. Due process and fair procedure were followed at all times, a pool was formed, a consultative approach was taken with the selected pool members and feedback was sought from those affected. The management team considered the feedback received and arrived at what is considered the only viable outcome. The objective was to arrive at a decision in the best interest of the company as a whole and to give the business the best opportunity to survive. Following the damage to one aircraft, from December 2019, although no work was available, the Worker was paid full salary up until termination, and 3 months’ notice was paid. The Worker’s advisors attempted to seek further compensation for his dismissal after the fact. The Employer engaged with the Worker’s representative prior to and after the dismissal. The Worker was not entitled to any redundancy payment due to insufficient service. The Employer did not accede to the suggestions to “make an offer”.

The Worker was aware that the Employer, and the industry, were in dire situation, necessitating action, to save the company and the jobs, and the Employer treated the Worker fairly throughout.

The aviation industry and the Employer’s business continues to remain very negatively impacted by the pandemic. The restrictive policies deployed by the governments across the world have directly resulted in many hundreds of thousands leaving the industry for good. The Employer continues to survive only as a direct result of Government financial support, cost reduction measures and reduced headcount. The business for which the Worker was employed, aerial survey, continues to be affected with just one aircraft operational (requiring just one pilot). Whereas two aircrafts operated when the Worker was employed requiring four pilots. The Employer’s published Financial Statements evidence this statement.

The Worker is in receipt of a full detailed response from the Employer dated 10th March 2021 (exhibited at the adjudication hearing). The Worker and his representative are aware that he was in fact made redundant but by reason of his very short service had no entitlement under the legislation.

The Employer notes that the Worker emphasises the work “dismissal”, but redundancy requires termination/dismissal, and the Employer does not know why the Worker labours this point.

The Employer asserts that the Worker was not dismissed 8 weeks prior to the email referring to redundancy on 9th April 2020 from the Employer to the Worker. The email correspondence that issued to the Worker on 12th February 2020 which noted that the Worker was “released from their commitment” referred to a release from his training bond, in the context of no flights for many months, no revenue, etc. The Employer’s intention was for the Worker to understand that he would not be held to a training bond commitment, should he be able to find alternative employment. The Employer made the same offer to the other pilots affected.

The Employer asserts that fair procedures were applied leading to the Worker’s redundancy and every attempt was made to engage with him fully in this regard. 

The Employer paid the Worker his three months’ notice pay together with any outstanding payments and has no additional contractual or other obligations to make any further payments to the Worker.

The Employer asserts that the Worker was given notice of termination on 29th April 2020 outlining that that the Employer cannot pay in lieu of two weeks’ notice expiring on 13th May 2020. However, the Employer will pay in lieu of the remaining notice period and the termination date was 13th May 2020.

Submission of Mr A, CEO

Mr A said that the impact of the aircraft crash was directly felt by the business as the client immediately suspended flight demand for the other remaining serviceable aircraft for the foreseeable future. This decision left the Employer severely impacted financially, as the contract was a significant part of its business matrix. The client did not commence aerial survey missions on the remaining aircraft until 1st July 2020 (some 7 months later), although a very small number of flights occurred prior to the commencement of the lockdown. The work on the damaged aircraft continues today, more than a year later. The reason for the delay is largely the pandemic, the associated lockdowns and Brexit, all of which paralysed the business objective in fixing the aircraft. The costs associated are significant and continuing.

Mr A said that the Employer has considered the impact of the pandemic, has made adjustments and continues to monitor and review daily. Mr A provided detailed comments of the CEO of Eurocontrol in respect of the downturn in the aviation sector in general and the government aid to specific airlines.

Mr A said that there was 78% reduction in aerial survey in 2020 as compared to 2019; 55% reduction in non-aerial flights; and 43% reduction in transit aircraft (there was 78% reduction in December 2019, January and February 2020).

Mr A said that out of 27 employees 19 staff were retained, 4 of whom are on a short time. 8 staff are no longer employed and will not return to the Employer. Those remaining in employment are all affected (earnings, reduced hours and/or leave).

Mr A said that he spoke with the Worker on 14th February 2020. Mr A said that he made calls to the Worker and the others. He said that with his best wishes if the Worker could find a job that will give him security, Mr A would release him from his commitments toward the Employer as he had no confidence in the operation of the business. Mr A explained that the Worker (and another named pilot) was bonded to the Employer by Training Bond. His email in respect of training released the Worker from this arrangement if he found another job.  Mr A said that he had hoped that they will fly again, but as lockdown was introduced in March 2020 and all flights were suspended, the Employer could no longer carry the cost of operation.

Mr A said that the Employer has no different financial model than other airlines. Flying people privately requires the same licensing as other airlines.

Mr A clarified that 2 employees (pilots) were made redundant at the time and three were put on short time. Nine staff members left voluntarily between April and September/October 2020. Mr A clarified that the Worker had no experience in ground operations and was not suitable for the role.

Mr A said that during his conversation with the Worker on 5th December 2019,  the Worker made loose reference to safety concerns. Mr A said that he pressed him to expand. Mr A invited the Worker to a private room and asked him to report any concerns, this was part of the Worker’s job, Mr A said that defects can occur and reporting is crucial. Mr A said that he pressed the Worker to report any issues as it was his professional responsibility, but the Worker said that he didn’t want to.

Having carefully considered the submissions of the parties and any supporting documents the parties referred to, I find as follows.

The Worker claims that he was unfairly dismissed by the Employer. The Worker argued that he was unfairly selected for redundancy and/or dismissed because he exposed safety issues within the organisation. The Employer asserts that the Worker was made redundant.

The correspondence that ensued between the parties provides some clarification of the events. I will, therefore, consider the main points raised therein.

There was no dispute that an incident occurred on 2nd December 2019 as a result of which one of two aircrafts was withdrawn from service and the client in question suspended flights on the other aircraft. As of the first week in December 2019, the Worker did not attend work, except for two days training until the cessation of his employment. The Employer continued to pay the Worker his salary until his dismissal.

On 12th February 2020, the Worker emailed the CEO inquiring about recurring flying that was necessary for his licence. The CEO  replied as follows:

“There will be no flying on the Aztecs for now. I will be in touch with an update when I have one. Given the present circumstances (pertaining since December) I release you from your commitment to [the Employer]. I appreciate and accept the uncertainty isn’t helpful for all the reasons you reference below. I will call you tomorrow.”

On 9th April 2020, the CEO emailed the Worker saying that he had tried to contact the Worker over the phone and email. He went on to explain the challenged the Employer was facing. The CEO informed the Worker that the company “was considering measures to reduce costs including the possibility of making some staff redundant.” The CEO said  that the company is considering the role of pilots where the work for such roles has ceased. The Worker was formally notified that his position is at risk of redundancy and was asked to respond with suggestions of alternatives to the redundancy.

On 13th April 2020, the Worker’s representative wrote to the CEO requesting clarification of the CEO’s emails and a written statement of the reasons for the Worker’s dismissal, if there was a dismissal. The CEO replied on 22nd April 2020 confirming that the Worker has not been dismissed and that the company is considering the roles of the aerial survey pilots. He again invited the Worker to proffer his suggestions of alternatives to the possible redundancies. The Worker’s representative replied with three suggestions: repair the aircraft and keep the staff, implementing last in-first out policy, or everyone “taking a hit, wages, annual leave, working extra hours” until everything is back to normal.

The CEO wrote to the Worker on 29th April 2020 confirming that the Employer considered the alternatives proposed by the Worker. However, the Employer informed the Worker that, the company intends to carry on the business with fewer employees due to the reduction in business activity due to the aircraft unavailability and Covid-19 restrictions. The Worker was informed that his position was made redundant. The Employer clarified that one pilot will be retained as, due to his experience he had been previously redeployed to Ground Operations duty and he will remain in the role as long as economically viable. The Employer clarified that the notice period of 3 months incorporates 2 weeks of statutory notice (until 13th May 2020) that cannot be paid in lieu. The remaining notice would be paid in lieu.

The Worker’s representative wrote back to the CEO raising a number of points and requesting the Employer to come back with “a reasonable offer”. The CEO responded on 2nd June 2020 clarifying the points raised.

The Worker’s representative wrote further on 11th June 2020 requesting a reasonable offer, in the absence of which she would seek a third-party intervention. The CEO replied restating the Employer’s position.

Firstly, in relation to the email exchange of 12th February 2020, I find that the there is no suggestion of a dismissal in the CEO’s email. I note the reference to releasing from the commitment to the Employer. However, in that regard, I accept the Employer’s explanation with respect to the training bond arrangement that was contained in the Worker’s contract of employment. The Worker confirmed at the hearing that the implications of the training bond were “if I chose to leave, I pay”.  In any event, the Worker continued to be paid his salary, even though due to the lack of demand he was not required to work. It is, therefore, beyond my understanding why would the Worker consider himself dismissed.

While the Worker asserted that the Employer was not bound by the Covid-19 restrictions implemented by the Government, he offered nothing to substantiate this assertion. I find the Employer’s submission that following the incident in December 2019 and with Covid-19 restrictions implemented in March 2020, the Employer found itself in a position where it could not justify retaining three pilots and commenced consultations in respect of redundancies plausible. The Employer contacted the Worker and explained the circumstances. The Employer engaged in correspondence with the Worker and the Worker’s representative. It was clarified at the hearing that of three pilots two were made redundant, including the Worker. The pilot that remained in employment had previously worked in Ground Operations and had experience the Worker did not have. The Worker’s representative wrote to the Employer with an appeal and further clarification was provided to her.

Having carefully considered the written and oral submissions of the parties on the substantive issue, I accept the Employer’s contention that the Worker’s employment was terminated by reason of redundancy. I find that the Employer engaged in consultation process in relation to the proposed redundancy with the Worker and his representative and gave the Worker prior notice that his position was in jeopardy.

Having considered the  matter, I find that the dismissal of the Worker was not unfair.

I do not recommend concession of the Worker’s claim in this dispute.

The Worker submits that he was subjected to bullying and harassment in the workplace.  The Worker gave examples of bullying and harassment.

The Worker confirmed that he received and signed his Contract of Employment which contained Grievance & Disciplinary Procedure, Harassment / Bullying in the Workplace Policy, training bond, leave requirement, and expenses. He confirmed that he was given the opportunity to consider the document and ask any questions he might have had. The Worker, however, asserted that some parts of the signed document did not apply to him.

The Employer submits as follows.

The Employer denies that the Worker was bullied during the course of his employment. The Worker received and signed for the Employer’s Bullying & Harassment and Disciplinary & Grievance Procedures when he commenced employment. The Employer did not receive a complaint of bullying and harassment from the Worker during the course of his employment. It is asserted that an employee should use internal procedures as the Employer has no other facility to use to assists its employees. The Worker did not make or raise any complaint or allegation and did not use the procedures available.

The Employer notes that in the correspondence of 13th April 2020, the Worker’s representative said that the Worker was “extremely happy working with [the Employer] and was looking forward to a long and promising career”” which does not fit with what he alleges about bullying.

The Employer asserts that the Worker did not experience bullying at any time during his employment.

The CEO said that the Worker never intimated any issue of bullying. He said that he met with the Worker on 29th November 2019 at 7pm. He asked the Worker how he enjoyed flying the aircraft (a new aircraft to him). The Worker responded positively, said he enjoyed it. He raised no concerns.

The Employer referred to the definition of bullying as per the Industrial Relations Act 1990 (Code of Practice detailing procedures for addressing bullying in the workplace)(Declaration) Order 2002 and referred to the Ruffley v The Board of Management of Saint Anne’s School [2017] IESC 33.

The Worker claims that he was bullied and harassed. The Employer rejects the claim.

I note that the Worker has signed and received a copy of his contract of employment which contains Harassment / Bullying in the Workplace Policy and Disciplinary & Grievance Procedures. The policy provides for mechanism to deal with complaints as they might arise.

I wish to make it clear that I am not in a position to carry out an investigation or make any findings of fact into the allegations of bullying and harassment. However, I am obliged in reaching my conclusions in this matter to take cognisance of the rights of all parties to the natural justice and fair procedures.

In this regard, I note that the Worker did not raise a grievance at any stage during his period of employment under the procedures in place in relation to the alleged bullying and harassment and did not instigate the internal procedure. In the circumstances, I am satisfied that the Employer was not afforded any opportunity to deal with the Worker’s allegations prior to the termination of his employment.

In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal procedures have been fully exhausted.

I do not recommend concession of the Worker’s claim.

Dismissal-redundancy- bullying - harassment