Complainant

Respondent

Parties

Joanna  Haque

Aer Lingus Ltd.

Representatives

Mr. Glen Lynch BL, instructed by E.M. O'Hanrahan Solicitors

Ms. Elaine Mettler, Aer Lingus Limited

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-00038916-001

27/07/2020

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

CA-00038916-002

27/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038916-003

27/07/2020

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

CA-00038916-004

27/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00038916-005

27/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038916-006

27/07/2020

The Complainant commenced employment with the Respondent on 3rd April 2018. At all times, the Complainant’s role was described as that of “catering assistant”. The contract of employment came to an end on 28th March 2020.

On 27th July 2020, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that she was summarily dismissed without notice on 30th March 2020. The Complainant submitted that she was ostensibly dismissed on the grounds of the expiry of a fixed term contract, however she further submitted that at time in question, she was employed under a contract of indefinite duration. The Complainant submitted that this occurred in order to prevent a transfer of undertaking that was due to take place. In denying this allegation, the Respondent submitted that her employment terminated on the expiry of her fixed term and contract and in accordance with the exclusion contained within the Unfair Dismissal Acts. They further denied any liability arising under the additional complaints submitted by the Complainant.

A hearing in relation to this matter was initially convened for 14th February 2022. As the matter did not finalise on this date, the matter was listed for a further day of hearing. Following a series of adjournments, the matter was re-listed for, and finalised on 20th February 2023. These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued substantial submissions in advance of the hearing, and expanded upon the same in course of the hearing. The Complainant gave evidence in support of her complaint, primarily in relation to the mitigation of her loss of earnings. All evidence was given under oath or affirmation was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent on 3rd April 2018. At all times, the Complainant was engaged as a “catering assistant” by the Respondent. Throughout her employment, the Complainant was engaged on a series of fixed term contracts, being issued four such contracts in the course of her employment. The final fixed term contract offered by the Respondent justified the proposed extension on a fixed term basis as the purpose of the same was to, “meet revised resourcing requirements for the catering period of the winter of 2019/2020”.

On 8th October 2019, the Respondent announced its intention to outsource the provision of their catering services to a third party. In January 2020 the Respondent entered into negotiations with a trade union of which the Complainant was a member regarding this proposed transfer. Following the same, a body of “eligible employees”, which included the Complainant, were presented with three alternatives. Firstly, they had the option of a secondment to the third party. Secondly, they could apply for redeployment to other operational areas within the Respondent organisation. Finally, they could avail of a voluntary redundancy scheme. This agreement specifically referenced fixed-term employees, stating that that also were permitted to transfer to the third party, with such transfer taking effect for the remainder of their fixed-term.

On 14th February 2020, the Respondent corresponded with the Complainant, advising her of these three options and stating that the transfer was to be the default position in the absence of an election of the other two. This correspondence further stated that the Respondent anticipated being in a position to renew her fixed-term contract until September 2020.

On 10th March, the Complainant indicated that her preference was a potential re-deployment within the organisation. Thereafter, on 30th March, the Respondent informed the Complainant that her fixed term contract had expired. They submitted that as a consequence of the restrictions arising from the Covid-19 pandemic, the anticipated business of the Respondent been vastly reduced. In such circumstances they stated that they would not be in a position to maintain the employment of the Complainant.

On 9th July 2020, the Complainant received an email from the Respondent advising that the proposed transfer was only available to persons that remained in the Respondent’s employment on the date of the proposed transfer.

By submission, the Complainant’s representative submitted that the options presented to the Complainant on 14th February 2020 were incorporated into her contract of employment. She submitted that on foot of the same, she was entitled to redeployment should the same be available. The Complainant submitted that the Respondent issued successive fixed term contracts to the Complainant with the purpose of avoiding their obligations under the Unfair Dismissals Acts. She further submitted that the objective justification relied upon by the Respondent was insufficient and as a consequence of the same, the Complainant was engaged on a contract of indefinite duration on the date of her dismissal. The Complainant submitted that the Respondent failed to ensure that the Complainant’s contract of employment transferred in accordance with the relevant regulations. Finally, the Complainant submitted that the Respondent failed to pay statutory notice on the termination of the Complainant’s employment.

From the outset, the Respondent denied the various complaints made by the Complainant. Notwithstanding the same, it was submitted that there was no material dispute as to the relevant factual matrix.

It was accepted that the Complainant was engaged on a series of fixed term contracts. The Complainant received four such contracts in the course of her employment, commencing on 3rd April 2018 and finishing on 28th March 2020.

On 8th October 2019, the Respondent entered into an agreement with a third party in relation to the provision of catering services. In this regard, it was proposed that the Respondent would transfer their catering staff to this third party, with an anticipated commencement date of 1st June 2020. As part of their duties in respect of such transfers, the Respondent entered into a period of consultation with the representative of the relevant employees. Following the same, an agreement was reached between the parties. Said agreement was ratified by the relevant employees by means of an internal ballot.

Central to the agreement reached between the parties, was the stipulation that the employee was to be deemed to be an “eligible employee” on the date of the transfer, 1st June 2020. In such circumstances, an eligible employee could elect to transfer, to be considered for redeployment or be made redundant on a voluntary basis. Again, all offers were expressly conditional on the employee continuing in employment with the Respondent as of 1st June 2020, the anticipated date for the transfer of services.

In advance of the same, the Respondent fully expected to continue to engage the Complainant on an ongoing basis. This position was confirmed by way of correspondence dated 14th February 2020. It is agreed that the Complainant indicated a preference for re-deployment, a position that was noted by the Respondent.

Whilst the aforementioned process was underway, the situation regarding the spread of the Covid-19 virus developed into a global pandemic. As a consequence of the same, almost all air traffic was suspended from 12th March 2020, with the Respondent operating at approximately 5% of its former capacity thereafter. As a consequence of the same, the Respondent made a business decision to not renew any fixed term contract across all of their operations thereafter. Unfortunately, this decision had implications for the Complainant, who was informed that her fixed-term contract was not to be renewed on its expiry date of 28th March 2020.

Having regard to the foregoing, the Respondent submitted that the Complainant ceased to be eligible any of the options under the overall catering project when her fixed term employment ended on 28th March 2020. They submitted that any such consideration was predicated on the Complainant remaining in the Respondent’s employment on that date. While it was initially expected that the Complainant would remain in the employment of the Respondent by 1st June 2020, the imposition of the restrictions arising from the Covid-19 pandemic intervened and unfortunately led to the non-renewal of the Complainant’s fixed term contract in advance of the same.

By submission, the Respondent stated that the exemption set out in Section 2(2)(B) of the Unfair Dismissals Act was applicable to the present case. Regarding the allegation that they utilised fixed-term contracts to avoid their obligations under the Act, the Respondent again denied the same. They submitted that the rationale for the non-renewal of the same was the dramatic reduction in business activity and the consequence reduction in demand for catering services. They submitted that the objective justification contained in the contract was robust and reasonable. Notwithstanding the same, they submitted that the Complainant did not have the requisite service to be considered for a contract of indefinite duration. In addition to the same, they submitted that no statutory notice payment arises on the expiry of a fixed term contract. They accepted that the Complainant would be entitled to statutory redundancy, however they submitted that the Complainant had not acquired appropriate service in respect of the same.  

Regarding the complaint under the TUPE Regulations, the Respondent submitted that as the Complainant was not employed by the Respondent on the date of the proposed transfer, these did not apply to the instant case.

CA-00038916-001 Complaint under the Unfair Dismissals Acts

The Complainant has alleged that her dismissal of 28th March 2020 was unfair within the meaning of the impleaded Act. In this regard, she submitted that she was entitled to a contract of indefinite duration at this time, that the Respondent issued fixed term contracts in an effort to avoid their obligations under the Act and that the Complainant enjoyed a contractual right to transfer on 1st June 2020. The Respondent denied each of these points, stating that the exemptions set out in Section 2(2) of the Act applies to the instant case.

In this regard, Section 2(2) of the Act provides that,

“…this Act shall not apply in relation to…(b) dismissal where the employment was under a contract of employment for a fixed term…and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

In the present case, it is accepted that the relevant contract is in writing, is signed by the Complainant and set out an expiry date of 28th March 2020.

Notwithstanding the same, the Complainant submitted that the fixed term element of the contract is void, as the is entitled to a contract of indefinite duration by operation of law. In this regard, Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 provides that,

(1)    “Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2)    Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.”

Regarding the instant matter, it is common case that the duration of the Complainant’s tenure was 23 months and 25 days. In this regard, the Complainant was issued with four fixed-term contracts, with the final such contract being issued on 27th October 2019 for a fixed term of five months and one day. Having regard to the foregoing, it is apparent that the above-mentioned protections do not apply to the Complainant. As a consequence of the same, the Respondent’s objective justification for the renewal of the fixed term contract does not fall to be considered.

The Complainant further submitted that she enjoyed a contractual right to transfer to the third party, notwithstanding the non-renewal of her fixed term contract some months previous. In this regard the agreement, under the heading “Employee Options”, states that,

“…in the absence of a signed statement of objection from an impacted employee, the default position will be that he/she will transfer to the new supplier under TUPE on the agreed date (1st June 2020)”

Under the sub-heading “TUPE”, the agreement provides that,

“…those entitled to a TUPE Right are those Eligible employees who are wholly or mainly assigned to the provision of the Catering Services to Aer Lingus that will be transferring to the new Catering Supplier”

Under the heading “Options for Fixed Terms Staff”, the agreement states that,

“Fixed term staff at the time of transfer have a TUPE Right to transfer to the new supplier. The duration of the transfer will be in line with their current contract.”

In this regard, Regulation 4(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides that,

“The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

The combined effect of the above, is that the agreement created a right for the Complainant to transfer to the third party in the event that her contract of employment was in existence on the date of transfer. In a situation whereby the contract of employment terminated some months earlier no such right existed.

The foregoing position is further confirmed by the Respondent’s correspondence of 14th February 2020. Herein, the Respondent set out the various options for the Complainant arising from the agreement, and in this regard defines “Eligibly Employees” as “all those who are wholly or mainly assigned to the sectors of the catering business in scope at 1 June 2020”. In this regard, it can be seen that this correspondence expressly states that an eligible employee must be assigned to the catering business on the date of the transfer in order to be considered for the same.  

Finally, the Complainant submitted that Section 2(2A) of the Unfair Dismissals Act (as amended) operates to so to prevent the issuing of multiple short-term contracts in an effort to avoid liability under the Act. The Complainant submitted that in consideration of this provision, the Complainant had sufficient service so as to enjoy standing under the Act.

In this regard, Section 2(2A) of the Act provides that,

“Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) (‘the prior contract’) without the term being renewed under the contract or the cesser of the purpose of the contract—

(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee (‘the subsequent contract’) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(b) the employee is dismissed from the employment,

(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(d) in the opinion of the adjudication officer…the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,”

In the event that these four criteria are met,

“(i) this Act shall, subject to its other provisions, apply to the dismissal, and

(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.”

The first point to note in relation to the same is that the provision is subject to the other provisions, including the exclusion set out in Section 2(2). In addition to the same, the effect of the provision is that an employee engaged on successive short-term contracts will have required service to bring a complaint, provided the qualifying criteria are met. Regarding the instant matter, the Respondent has accepted that the Complainant has almost two years of service and this matter was not in contest. Rather, it is apparent that the exclusion set out in Section 2(2), which applies in this case, renders the matter of service moot.

Having regard to the accumulation of the foregoing points, I find that the Complainant was not unfairly dismissed for the purposes of the impleaded Act.

CA-00038916-002 Complaint under the Payment of Wage Act

This complaint was not pursued that the hearing and is consequently deemed to be not well-founded.

CA-00038916-003 Complaint under the Minimum Notice and Terms of Employment Act

Regarding this particular complaint, the Complainant submitted that she did not receive a statutory notice payment on the termination of her employment. While the Respondent accepted that the Complainant did not receive such a payment, they submitted that in circumstances whereby the contract of employment terminated on the expiry of a fixed term, no such payment accrues.

In the matter of QQI v- Claire O’Neill MND1914, the Labour Court held that,

“The essence of a fixed-term contract is that it comes to an end without the intervention of either party (See Nerney v Thomas Crosbie Holdings Limited [2013] 24 E.L.R 238). Consequently, there is no requirement for notice prior to its expiry as such notice is given at the commencement of the contract.”

In such circumstances, and in consideration of the earlier finding that the contract terminated on the expiry of a fixed-term, I find that no statutory notice payment arises and the complaint is consequently deemed to be not well-founded.

CA-00038916-004 Complaint under the Payment of Wage Act

This complaint was not pursued that the hearing and is consequently deemed to be not well-founded.

CA-00038916-005 Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003

In this regard, Regulation 4(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides that,

“The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”

In circumstances whereby the Complainant was not employed by the Respondent for some months prior to the transfer, I find that this complaint is not well-founded.

CA-00038916-006 Complaint under the Redundancy Payments Acts

While the Respondent accepted that the termination of the Complainant’s employment would be subject to a payment of statutory redundancy, it is common case that the Complainant did not have the requisite 104’s weeks service in order to qualify for the same.

Having regard to the foregoing, I find that the complaint is not well-founded and the Complainant’s appeal fails.

CA-00038916-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed.

CA-00038916-002 Complaint under the Payment of Wage Act

I find that the complaint is not well-founded.

CA-00038916-003 Complaint under the Minimum Notice and Terms of Employment Act

I find that the complaint is not well-founded.

CA-00038916-004 Complaint under the Payment of Wage Act

I find that the complaint is not well-founded.

CA-00038916-005 Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003

I find that the complaint is not well-founded.

CA-00038916-006 Complaint under the Redundancy Payments Acts

I find that the complaint is not well-founded, consequently the Complainant’s appeal does not succeed.

Expiry of Fixed Term, Exclusions, Contract of Indefinite Duration