Complainant

Respondent

Parties

Tara  Fennell

Aer Lingus

Representatives

Mr Tom Mallon BL instructed by Rachel Barry of  Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039637-001

07/09/2020

The Complainant is a senior cabin crew member for the Respondent airline. She has worked for the airline since the 25th of February 1995. Her contract of employment, issued at that time, does not provide for short time or lay off.

In March 2020 the Respondent’s business was greatly diminished by the Covid-19 pandemic. Its operations and income were significantly and suddenly reduced.

The Respondent sought to avoid unpaid lay-off and mass redundancies. As such short time and reduced pay were implemented in the first instance.

The Complainant and her colleagues were reduced to 50% pay and corresponding short time from the 30th of March 2020. The Respondent indicated that further cuts of to 30% would come into effect in June 2020. There were attempts to come to an agreement with unions which failed and the pay cut to 30% went ahead.   

On the 7th of September 2020 the Complainant submitted a claim to the Workplace Relations Commission under the payment of wages Acts. She was one three cabin crew with older contracts and who issued such claims.

A hearing was held on the 9th of December 2022.

One of the Complainant’s colleagues had taken a similar complaint under the same legislation which was appealed to the Labour Court. On the 10th of November 2022 a decision issued (Aer Lingus Limited v Jones PWD2248).

In this decision the Court determined that the Respondent’s move to short time and corresponding reduced salaries constituted an unlawful deduction and a breach of the Payment of Wages Act. However, the Court determined that the most equitable course of action was to make a nil award citing in particular the following facts:

•       The unprecedented impact of a global pandemic on the operations of the Respondent

•       The severe impact of international restrictions on flying across the globe on the operations of the Respondent

•       Policy Interventions by Government in the form of subsidies and supports designed to retain workers in employment through the unprecedented pandemic

•       The measures taken by the Respondent designed to maintain employment and to avoid lay-off and involuntary redundancies.

•       The measures taken by the Respondent affected employees at every grade and level of the organisation

•       The trade unions representing workers in the Respondent company, of which the Appellant was and may remain a senior lay representative, raised no claims with the Respondent as the changes to working hours and pay were implemented.

·        The Appellant was paid for every hour she worked throughout the cognisable period for the within complaint.

The decision then concluded: It is clear and undisputed that the Respondent took considerable steps to protect its business while avoiding involuntary redundancies. It is also clear and undisputed that the steps taken by the employer were applied evenly across the workforce and were, in the unprecedented circumstances which prevailed, acceptable to the vast majority of the entire workforce.

On the first day of hearing the Respondent argued that this case was on all fours with the above case and as such the matter had already been determined by the WRC’s appellate body and a nil award should be made in this case.

While I agreed with the Respondent that I ought to follow the Labour Court in Jones, on review of the Complainant’s arguments I noted that she sought to distinguish her case from that of Ms Jones in two respects.

Firstly, the Complainant suggested the reduction from 50% salary to 30% salary went further than was strictly necessary and was a slap on the wrist for the Unions not agreeing to the salary reduction and seeking to ballot their members.

Secondly the Complainant suggested that the Respondent had failed to sufficiently support staff seeking social welfare payments in 2020.

As these issues were not considered by the Labour Court in their decision I determined that I was required to consider them further before making any decision as to whether or not a nill award was warranted.

In then adjourned the matter so that these net issues could be considered at a resumed hearing. The Complainant had sought for her former Union Official Ms. Ashely Connolly, of Forsa, to attend the hearing and give evidence as to the negotiations with management during the relevant period. Ms. Connolly had indicated that she did not consider this appropriate. The Complainant asked that I direct Ms. Connolly to attend the hearing in line with my powers under Section 41(10) of the Workplace Relations Act 2015. On review of the matter and particularly taking into account the fact that the only other witnesses available would be Respondent’s Employee Relations officials, I considered that Ms. Connolly’s evidence might be crucial to a full and proper hearing of the matter so I granted the request and wrote to Ms. Connolly directing her to attend the next day of hearing.

The hearing resumed on the 4th of May 2023  

The Complainant represented herself at the hearing and gave evidence under affirmation

She was a loyal and long serving member of the Respondent’s staff. While throughout her time working for the airline there had been significant global events which affected the business the Respondent reacted in a fundamentally different manner when Covid-19 struck.

Any other time there had been a downturn the airline involved the Union and negotiated. Proposals were put to members with changes to terms and conditions or increased productivity.  However on the 30th of March 2020 wages were reduced to 50%. This was imposed unilaterally without negotiation.

The cabin crew decided as a group that the normal procedures hadn’t been followed and demanded that the Union ballot. Ballot papers were sent out on the 14th of June on a proposal to maintain the cut at 50%. 

The following day, Ms Mary Montgomery director of inflight services, issued a request that the Union should not to ballot.  On the 15th of June, CEO Sean Doyle, issued online video communication and proposal which he asked staff to accept without a ballot.

At 6pm that day staff were told that the proposal had lapsed as they did not agree to accept the proposal. A further reduction to 30% of salary was implemented almost straight away. It was clearly in response to the staff deciding to ballot. It was a slap on the wrist.

The Complainant sent several emails to the Respondent cc’ing CEO Sean Doyle, outlining that she did not agree with the proposals.

In September 2020 the Complainant was among a number of staff seeking EWSS payments from the Department of Social Protection. The Respondent was unhelpful and was refusing to sign social welfare forms. The Respondent ignored emails of the Complainant and others who sought to raise this.

It took her perhaps two months of emailing, asking HR, and following up with intreo office to resolve matters.

The Complainant took her case because she is concerned that the actions of the Respondent during covid have established a precedent and that she and her colleagues might see their terms and conditions of employment changed unilaterally going forward. During previous mass stoppages of air travel such as the Icelandic ash cloud or the 9/11 terror attacks the Respondent had never resorted to such measures. She is not motivated by recouping lost wages and committed to donate any award to charity.

When the hearing resumed Ms Ashley Connolly of Forsa gave evidence under affirmation.

Ms Connolly was the Assistant General Secretary with responsibility for the cabin crew. She was promoted to National Officer in December 2020 and now oversees a different division of the Union.

She was clear that she was unable to speak to the motivations of the company is moving to a 30% pay cut from 50% in June 2020.

At the time she worked very closely with the elected cabin crew branch executive. They had secured a temporary arrangement whereby their members were receiving 50% salary with the assistance of the TWSS payment. This was due to expire and negotiations to extend the arrangement had broken down. Her understanding was that the Respondent was at that time functioning at about 5% to 20% of normal operations.

Negotiations restarted in June and a proposal emerged. However the Union required a ballot of members to consider the proposal and as such the deadline was missed and the further reduction in pay came into effect.

The proposals considered not just the issue of pay but also of work practices and crewing complements.

There were a variety of views from their members. A lot of people were concerned about the proposals, some wanted ballots and others didn’t want the ballot to continue.  There was lots of concern regarding the future of aviation.

The proposals included a clawback arrangement where if staff were paid at 50% and worked less than 50% hours then that money would be recouped at a later stage. 

These proposals were addressed to all unions in Aer Lingus.

The Respondent was represented by Mr Tom Mallon BL instructed by Ms Rachel Barry Solicitor and Elaine Mettler Aer Lingus In-House Counsel.

Ms Sharon Maurice of the Respondent’s Employee Relations Department gave evidence under affirmation.  At the relevant time she had responsibility for IR engagement with Unions.

She provided detailed evidence on the initial disruption of caused by the sudden onset of the pandemic and the growing list of restrictions. The Respondent’s operations significantly declined and bookings fell to 20%. The Respondent also had to reimburse huge numbers of passengers who could no longer travel.  The Respondent stood down all recruitment efforts, ended fixed term contracts and other contractors. There was intensive engagement with the group of unions.

Initially staff were reduced to 50% hours and a corresponding 50% salary. Though many staff were working less than 50% they were still receiving 50% salary.

The HR department was inundated with queries from staff and were often responding to these though to the middle of the night. They were producing updated guidance and FAQs for staff all the time. It was the busiest period of their career.

From the outset the 50% cut was going to expire on the 12th of June deadline.  When a potential deal emerged it was extended slightly but payroll had a hard deadline on the 15th of June.

The 50% arrangement was not sustainable. The proposal the company arrived at to facilitate it continuing was by creating a collective debt amongst staff. If staff were working less than 50% of their hours the difference would be added to this debt. As the pandemic eased the plan would be to return pay 95% with the remaining 5% deduction remaining in place until the collective debt would be paid.

It was hoped that an overarching agreement could be reached at ICTU level and there would not be a need for a series of ballots. Up until the 15th of June the Respondent’s team were not aware that some unions planned on balloting.

Ms Maurice was clear that the subsequent cut to 30% was not a retaliation for balloting but was instead the default position as the deadline had been reached without the clawback/collective debt arraignment in place. There were also commitments to cost saving and work practice changes in the proposed agreement which were necessary to maintaining the 50% salary rate.

The date that the 30% rate came into place was related to payroll. The Respondent held off until the absolute last possible moment.

The move on to 30% was implemented in late June, it stayed in place until middle of September. At that point things looked like they’d start to improve pay went back to 50%, then 60% and then 80%.

All cohorts of staff given the same offer. The pilots agreed to the proposals as did the craft workers /maintenance staff, but their hours never dipped below 50% in any event.

Other cohorts were either put on further reduced hours/pay or were laid off.  

The Respondent did not delay in assisting staff claim social protection benefits.

The Respondent was actively engaging with the highest levels of the Department of Social Protection and had even sought to pay social welfare through their payroll. When the government brought in the TWSS it was through Revenue rather than the Department of Social Protection. Some details hadn’t been worked through and a situation arose were the TWSS and other jobseekers benefits were being considered incompatible.  

Some people were receiving conflicting advice from local intreo offices and some staff disputed the interpretation of the rules as set out to the Respondent by the highest levels of the Department. Eventually the Respondent was told to complete social protection forms in a certain way by the department. Those forms were rejected. Some people appealed this decision and lost.

There was no delay on the part of the Respondent but rather a dispute between some staff and Revenue and the Department of Social Protection as to what they were entitled to.

As set out at the beginning of this decision, I agree that I ought to follow the position as set out by the Labour Court in Aer Lingus Limited v Jones PWD2248.

That is that cuts to the Complainant’s salary constituted an unlawful deduction contrary to the payment of wages act.

As the Complainant is engaged in an identical position to the employee in the above case and as her case concerns the same central facts and contractual position the Respondent has argued that I am further required to follow the approach taken by the Labour Court and issue a nil award.

I understand parties reasonably expect a degree of consistency in how these matters are determined and also reasonably rely on the WRC having deference to decisions made by the Labour Court.

However, the position that the Court took in making a nil award despite there being an unlawful deduction of wages is obviously exceptional. It was based on the Court’s view of the overall conduct of the Respondent during extremely challenging and unprecedented times, not just for the economy in general but for the Respondent in particular. To apply a nil award, I must be satisfied that the reasons set out for the nil award in Jones also apply in this case.

The Complainant raised two issues which were not present in the decision in Jones and arguably distinguished her case.

Firstly, the Complainant suggested the reduction from 50% salary to 30% salary in June 2020 went further than was strictly necessary and was a slap on the wrist for the unions not agreeing to the initial salary reduction and seeking to ballot their members. This is of course a serious allegation which if proven would fundamentally undermine the case for a nil award. If the Respondent was able to afford to keep staff at 50% salary but chose to go to 30% solely because they could not secure union agreement for 50% then this would suggest the actions of the Respondent were excessive even in the context of the pandemic. However, the evidence of Ms Maurice clarified this position. The Respondent was in a dire financial position and the only basis they saw for maintaining staff at 50% salary at that time was to also secure the collective debt agreement outlined in her evidence. When this was not agreed by the preselected deadline then the further cut became unavoidable.

Secondly the Complainant suggested that the Respondent had failed to sufficiently support staff who were seeking social welfare payments in 2020. This could also distinguish her case from Jones as, if proven, this would show that the Respondent failed to assist staff ameliorate the effects of the salary cuts when it was open to them to do so. The Respondent has provided credible evidence and explanations as to why this is not the case. Indeed, a review of email exchanges served as a reminder that it was not just frontline staff who went above and beyond during the pandemic. The staff of Respondent’s HR department were clearly working well into night dealing with employee queries as best they could. The issues regarding social welfare entitlements were complex and while I understand that staff may have been angry at the Respondent for refusing to stamp certain forms I do accept that this was on advice from state authorities.  I do not think the Respondent caused an unwarranted delay to people receiving their entitlements.  

Having considered the above I am satisfied that I ought to follow the position of the Labour Court in Jones. I conclude that the complaint is well founded but after considering the extraordinary circumstances of the pandemic and the efforts of the Respondent, a nil award is appropriate and equitable.

I find that the complaint is well founded.

 I do not direct the Respondent to pay any award to the Complainant.