Complainant

Respondent

Parties

Artis Lapins

Sba Flight Support Services Ltd.

Representatives

  Self Represented

Alex Ledwick BL instructed by RDJ Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055686-001

23/03/2023

The Complainant was made redundant and alleged his selection for redundancy was flawed on the basis that Last In First Out was not used (LIFO) and the process of consultation was flawed.

The Complainants job title in the contract was Accounts Administrator at Accounts Department and it never changed even until he was dismissed on 26/09/2022.

The Complainant stated he was doing work for two related companies.

The Complainant stated there was one more employee at Finance Department where he was working and that person was on maternity leave at the time when the redundancy issue arose, however she was still called in on the March redundancy meeting and advised that her position may be affected at work also and that SBA will be in touch accordingly. The Complainant stated that employee was made redundant at least 2 months after the Complainant was let go, which he alleged was unfair, as the person had served for SBA noticeably lesser years of service than the Complainant, however she was working or got paid at least for a period while she were servicing the notification period of 1 month once returned from maternity leave.

The Complainant stated the first proposal for the selection for the redundancies received after the very first meeting in March seemed to be correct and following LIFO rule at the time. The Complainant alleged there were a high number of employees left at SBA who served for the SBA noticeably less than the Complainant but still were left at SBA or secretly moved to another entity called "Shannon Air Ground Handling Europe Ltd." (also called as SAGHE). The Complainant alleged there was at least one person secretly transferred to SAGHE while redundancy negotiations were ongoing and the person was affected and should be made redundant after the 1st redundancy meeting in March.

Also when we asked is there any positions available to take over at SAGHE, employees were told that there were none available, but however that was no issue for some employee with lesser years service to get transferred there.

When the Complainant started to work for Finance Department - finance control/credit control at "Shannon Air Link Ltd." on 2014, every single employee from finance control/credit control department was forced by management to perform double employment, respectively they were performing exactly that same accounting tasks for another entity called "Shannon Air Ground Handling Europe Ltd." (also called as SAGHE). The staff had to allocate the payments, issue invoices, send invoices, resolve issued and deal with clients queries and so on, as at the time both entities were using the same software and all it needed was just to use right credentials for right entity to log into system. Once the Complainant was raising a question regarding position availability in SAGHE instead of being let go by redundancy, he was informed by a Director that: "It is not lawfully possible to "bump" an employee out of an existing role which is not proposed for redundancy in order to maintain another person affected by a redundancy in employment. That said, the company is open to consider whether anyone within the accounts function is open to a voluntary form of redundancy such that any vacancy that may then arise might also be open to consideration as an alternative to a redundancy within the credit control functions. That process would obviously have to be balanced against that requirement of the company to maintain key employees within key positions." The Complainant submitted copies of a printout handed to staff by a Director, dated 28/07/2022 where staff were objecting unfair selection for redundancy and raising concerned questions regarding redundancy, seeking for answers. The Complainant also submitted a printout handed out to staff  by a Director, dated 28/07/2022 containing 3 pages, where staff were raising questions and objection against unfair selections which did not comply with LIFO rule at this stage already and which discussed any position availability at SAGHE entity, but the Complainant alleged the Director had already a solution in her mind, to transfer a person to SAGHE who were just a few years within the company.

The Respondent relied on its written submission for its case. The Respondent is an aviation services company that specialises in providing ground handling and aviation fuel supply, as well as all related services, worldwide, to commercial air carriers, general aviation and government aircraft. The Company’s operations and customers base have been severely impacted by travel restrictions now in operation across European and Russian airspace, such that a very sizeable portion of the customers and contracts that underpin its operations have been severely impacted. The Respondent denies the totality of the allegations contained within the complaint form and in particular refutes any allegation and/or insinuation that the Complainant was unfairly dismissed.

The Complainant in his complaint form outlines that “…FIFO rule was never followed correctly and I believe that this was unfair selection for redundancy and therefore I’m claiming unfair dismissal”. (In later ancillary communications the Complainant clarifies that he intended to reference ‘LIFO’). The Complainant is therefore taking issue with his selection for redundancy and the process that the Respondent utilised in effecting his redundancy. The Respondent strongly rebuts the Complainant’s claim that he was in any way unfairly dismissed.

First Collective Redundancy Process

By email dated 22 March 2022, the Respondent’s managing director, Marette O’Sullivan (McDonald) notified employees of an urgent town hall meeting to be held on 22 March 2022 at 1 pm.

On 22 March 2022 a notification of collective redundancies was sent to the Minister of Department of Employment Affairs & Social Protection, Damien English. The Notification letter was sent to employees on 22 March 2022.

A meeting was called on 22 March 2022 at 1 pm.

On 30 March 2022 a Notice letter was sent to Staff Representatives.

On 04 April 2022 a letter was sent to the Minister of Department of Employment Affairs & Social Protection, Damien English confirming the selection of 5 Representatives and informing the Minister that the First Consultation Meeting took place. Notification sent to the Staff Representatives was attached to the letter of 04 April 2022.

It was proposed that anything up to 13 employees would be made redundant. This figure was subject to the outcome of the consultation process. The roles at risk comprised of the following;- 3 out of 6 account personnel roles in the Accounts Department, 2 out of 2 contracts administrative reception roles in the Contract/Administrative Department, 2 out of 6 credit controller roles in the Credit Control Department and 6 out of 8 operator roles in the Operations Department.

The Respondent decided to initiate other financial control measures (including an office move) and close out the collective redundancy process. On 26 April 2022 a letter regarding the Close-out Process was sent to the Minister of Department of Employment Affairs & Social Protection, Damien English.

Second and Separate Collective Redundancy Process

Due to the much changed and challenging environment the Respondent began a second and separate collective redundancy process. On 18 July 2022 Notification of Collective Redundancies was sent to the Minister of Department of Employment Affairs & Social Protection, Damien English. The number of employees normally employed within the Company was 20. It was proposed that anything up to 6 of those employees would be made redundant. The roles at risk comprised of the following:- 5 roles were at risk in the Credit Control Department and 1 role was at risk in the Operations Department.

On 21 July 2022 an email was sent to the Staff Representatives. The Schedule of Information attached to the email of 21 July 2022 provided that the criteria proposed for the selection of workers to be made redundant shall be as follows:-

Where selection concerns a single redundancy effecting the sole worker who holds that post, it is proposed that the worker who holds that post would be selected;

Where selection concerns a number of redundancies arising within a pool of workers all of whom hold that grade and post, it is proposed that the criteria of Last in, First Out (LIFO) will be applied across the pool of workers who operate in the same grade and post effected.

On 25 July 2022 an update was sent to Minister of Department of Employment Affairs & Social Protection, Damien English confirming selection of 8 Representatives and First Consultation Meetings having taken place on 21 July 2022.

The Respondent decided to remove all 5 credit control functions outside of the Manager function.

The Complainant was one of 5 credit controllers made redundant.

All 5 credit control functions (with the credit controller Manager function being retained) were made redundant and thus selection from within that pool of 5 did not arise.

Full & Fair Consultation Process

The Respondent engaged with the Complainant in a full and fair consultation process. The consultation undertaken consisted of the following:-

The first consultation meeting went ahead between the parties at 1 pm on 19 July 2022.  The Notification Letter was sent to employees following the first consultation meeting on 19 July 2022.

The Complainant was nominated as a Staff Representative and the first Staff Representative meeting was held at 1 pm on 21 July 2022.

A Staff Representative Meeting was held on 28 July 2022.

On 12 August 2022, managing director Marette O’Sullivan (McDonald) responded to queries posed by Staff Representatives following the meeting of 28 July 2022.

Legal Submissions

The Respondent’s position was that the Complainant was fairly dismissed arising from the genuine redundancy of the Complainant’s role, in accordance with Section 6(4)(c) of the 1977 Act which provides as follows:-

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the redundancy of the employee”.

In that regard, it is submitted that there are statutory grounds for genuine redundancy in this case, pursuant to Section 7(2)(b) and (c) of the Redundancy Payments Act, 1967 (The 1967 Act) on the basis that:-

The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased/diminished or are expected to cease or diminish and

The fact that his employer had decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise”.

In summary, it was the Respondent’s position that the Complainant was fairly dismissed in accordance with section 6(4)(c) of the 1977 Act. The decision to make the Complainant’s role redundant was as a result of the impact of travel restrictions now in operation across European and Russian airspace, such that a very sizeable portion of the customers and contracts that underpin its operations have been severely impacted. The Complainants role was genuinely redundant in accordance with section 7(2) of the 1967 Act and there were no alternative roles available. The Respondent at all times acted in good faith and it is submitted that redundancy was the only reason for dismissal. As a result, the Respondent submitted that the claim against it brought under the provisions of the 1977 Act be dismissed on the basis that the dismissal of the Complaint was a genuine redundancy and effected fairly.

The Respondent acted reasonably and applied fair procedures in effecting the Complainant’s redundancy. The Complainant was afforded the opportunity to input. Alternatives to termination of employment were considered by the Respondent.

The Complainant was paid the sum of €9,565.33 in respect of the termination of his employment. If, notwithstanding the Respondent’s defence to this claim, the Adjudication Officer determines the Complainant was unfairly dismissed it was submitted that the clear position established by case law is that redundancy payments received by the Complainant must be set off against any award of compensation. The Respondent relied upon the case of Anthony Cusack -v- Dejay Royale Alarms UD 1159/2004 as authority for the fact that sums paid by way of redundancy must be offset from any actual loss incurred by an employee. The Respondent sought evidence of the Complainant’s actual loss at the hearing of this matter and evidence of his attempts to mitigate his loss.

The Complainant was asked by the Adjudicator at the start of his evidence were any employees in the grade and post similar to him retained and he advised “no.” The Complainant stated his claim was for unfair selection for redundancy. He advised he was not happy with the process followed and there were only two meetings. He stated the CEO said that the Shareholders would be informed of all questions staff put but it was the CEO who gave the answers. He advised there is still a credit control function at the firm and it could be found under a different CRM. He advised they never got a direct answer to why the Respondent decided to close the credit control function. He advised there are two different business entities and he alleged that a relation of a long serving staff member was moved to that entity secretly to protect him

He advised employees covered both companies’ business. He queried whether the shareholders were involved in the redundancy process and why it took 14 days to get an answer to a question. He advised a person with less service than him was retained in operations. He stated that the cost of paying redundancy to that employee would have been less than the cost of his redundancy and that was not saving the company money. He advised one of the staff were out on maternity leave (who had less service than him) and came back and was kept on for a month or two after they returned.

The Complainant stated he heard there were two staff social functions and this was not saving money.

The Complainant was cross examined on his evidence by the Respondent Representative and was asked was he a participant in the redundancy process as a Staff Representative and involved in the end process for the redundancy. The Complainant advised he was but some time later after his redundancy he met someone and they gave him an insight regarding different people retained that changed his view of the situation. The Complainant was asked was he an employee in the group made redundant and the Complainant advised no that’s not right. The Complainant was asked did all the credit control staff finish and he advised the Manager was kept on and the function stilt exists.  The Complainant alleged that the function was still happening elsewhere. The Complainant was asked did he accept there was no credit control being done at the company by credit control staff and he advised its credit management now and the Manager is there. The Complainant was asked did he have any evidence that the credit control function was being done internally now and he advised he had a copy of an email dated 21/3/2023 about the credit control CRM. The Complainant was asked why he did not take up the right of appeal internally as was available and he stated he wanted to go to the WRC

The Respondent Representative stated there were separate collective redundancy processes and both had been communicated formally to the Minister although the second redundancy did not have to be under the 1977 Act. He advised there were 6 employees involved in the redundancy that affected the Complainant and two categories of employees (Credit Control and Operations) and that all the employees involved in Credit Control were made redundant, except the Manager, as the company had decided to outsource the credit control function as the company was severely impacted by the war between Russia and Ukraine. He advised the Respondent operated a LIFO method of selection within the grade and post of the group of employees affected.

In assessing this case the Complainant has not established that he was unfairly selected for redundancy. All the Credit Control staff were made redundant except the Manager who was retained to manage the outsourced credit control service. The Complainant was a Staff Representative during the redundancy process and seems to have picked up some snippets of personal disgruntlement some time after the redundancy took place and tried to rely on these to justly his complaint. None of the suggestions made by the Complainant regarding a lady returning from maternity and being kept on a month longer than hm (due to possible notice implications), another operations staff member with less service and allegations of favouritism with some staff members counter the straight forward fact that the Respondent decided to outsource the complete credit control function and the staff working within it. The rule regarding selection for redundancy of “LIFO” was not broken by the Respondent. The fact a different CRM may exist to contact the Respondent on credit queries is not evidence the function continues to be done by staff internally.

Overall, I find the Respondent has shown it had justifiable and substantial grounds to terminate the Complainants employment by reason of redundancy and it did so in accordance with a stipulated and fair redundancy process.

I find the Complainant was not unfairly dismissed.

Unfair Dismissal