Complainant

Respondent

Parties

Kimberly McCraw

Ryanair DAC

Representatives

Ian McDonnell Fórsa trade union

Martin Hayden DC instructed by Fieldfisher Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00048507-001

07/02/2022

The complainant asserts that there were significant contraventions of the Payment of Wages Act; the respondent denies the claim.

The complainant is a directly-employed pilot of the respondent and commenced in the role on the 3rd June 2019. The complainant gave an outline of her 30 years of aviation. While she had been commuting from the US, she moved to Dublin on taking up this role and her family came too. The complainant obtained a Critical Skills Employment Permit, which was renewed. The Permit stated a guaranteed minimum payment.

The complainant outlined that her pay was cut at on onset of the pandemic in March 2020. She was marked as having four unpaid days in March 2020 and her pay was reduced by 50% in April 2020. She was paid €497 net in May 2020 and one cent in April 2020. Her visa meant that she could not work elsewhere. There was no lay-off or short time. The complainant said that she was left in a bind.

The complainant outlined that she did not agree to the emergency agreement imposed by the respondent in June 2020. She said that the respondent provides pilots with a device to access their roster and other documents. This includes ‘compulsory reads’ which the user must confirm they have read to access the rest of the device. She disputed that the presentation on her screen was the same as exhibited by the respondent. She said that marking the document as read constituted consenting to the emergency agreement. She did this and her roster still displayed no hours.

The complainant outlined that section 5(2)(c) required prior consent in writing to any deduction and an electronic signature could not amount to written consent in accordance with the Act. It was also submitted that the complainant’s pay could not be reduced below the guaranteed minimum payment set out in the employment permit.

The complainant said that hours were unevenly distributed. Flying hours were given to contractor pilots and not those directly employed. While the hours increased over 2021, her hours and pay were still reduced. The respondent was training new cadets and she had flown with the first new cadet in August 2021. The complainant raised the issue of disparity with Mr Whiteside.

In cross-examination, the complainant agreed that her complaint related to breaches back to March 2020, and that the complaint form cited the 29th March 2020 as the date of the first deduction. She raised the visa issue from the off and accepted that this was first raised in writing on the 16th November 2021. She had made the respondent aware that she could not avail of PUP. The complainant did not agree that clause 24 of the contract of employment regarding ‘excess capacity’ applied as the respondent was hiring pilots but was paying the existing pilots zero hours. She said that the pilots had been tricked into signing the agreement.

The complainant said she did not accept the agreement. The respondent had told the pilots that there would be no flying other than under the emergency agreement. The complainant had not given informed consent to the agreement. She had not accepted either the March or June 2020 agreements. She said that she had initially read the compulsory read and then clicked ‘I read and understood’ the document. It was put to the complainant that she had clicked ‘I accept’ on the 29th June and this was her deliberate act; the complainant replied that she had to click to access the roster. She said that there was a huge difference between click ‘I accept’ and a signature. It was put to the complainant that the respondent was trying to avoid making redundancies.

The complainant said that the trick was that once she had clicked, it made no difference as there were no hours on her roster. It was put to the complainant that she could view the roster after confirming reading the document but before accepting the agreement. She replied that her roster was still blocked. It was put to the complainant that in June 2020 she was not disagreeing with the agreement but with the roster.

It was put to the complainant that it was only in the meetings with Mr Whiteside in October 2021 that she had said she was against the agreement. She replied that she had raised this in the corrections statement to the minutes. In the grievance, she raised how her earnings were below the guaranteed minimum in the employment permit. She was bleeding out wages as set out in the spreadsheet. It was put to the complainant that the terms of the employment permit did not preclude a person taking a lower wage; she replied that the scheme was for high earners.

It was put to the complainant that she had the benefit of the agreement for 16 months and now wanted to be paid for everything. The complainant replied that the agreement was forced onto the pilots, and they needed to work. She had challenged the pay cuts as they happened and had not consented to the agreement. It was put to the complainant that full pay restoration was to happen as part of a conciliation process at the Workplace Relations Commission in December 2022.  

Evidence of Brendan Jacobs

Mr Jacobs is a directly-employed pilot with the respondent. He outlined that it was made clear that if a pilot did not accept the agreement in June 2020, they would be deemed not to have accepted the agreement. It was also clear that only those pilots who had accepted the agreement would be rostered. The basis of the agreement was to protect jobs. While the agreement suggested that they would preserve 80% of their income, the reduction was far greater than this. It was reduced rates on top of reduced work.

In cross-examination, Mr Jacobs said that on completing a compulsory read, you could access the roster. He said that in respect of the agreement, clicking the mandatory read did not mean accepting the agreement. No other airline had imposed put cuts on top of reduced work. The contract of employment guaranteed a basic salary but not a guarantee of flying hours.

Evidence of Robin Kilroy

Mr Kilroy outlined that it was clear from the webinars with the respondent that there would be no job if they did not accept the respondent’s condition. The reductions were greater than 20% and he incurred significant financial loss. He said that under the agreement, you did not get paid if you did not fly.

Evidence of Jessica Murphy

Ms Murphy outlined that you had to click the mandatory read in order to access the roster. She said that she initially thought she had accepted the agreement on clicking the mandatory read, but after the webinar it was clear that she had to also accept the agreement. Her pay was significantly reduced, and she had lost hours to cadets. She felt that it was this agreement or redundancy.

Closing of the complainant

The complainant did not give informed consent to the emergency agreement and raised issues and objections at an early stage. She required full-time employment to remain in Ireland per the employment permit. The agreement had been forced on the pilots with no other options. The agreement disappeared from the devise on the 10th July. The agreement was exploitation as it was not just a 20% cut but much more than that. The complainant said that the list of other pilots did not include certain contractors and this group was allocated more hours.

The respondent outlined that an electronic signature suffices for section 5 of the Payment of Wages Act. It referred to case law where an online ‘I accept’ or ‘I agree’ button would suffice as a signature. The complainant had agreed to the terms of the emergency agreement by clicking an ‘I accept’ button the 29th June. The respondent submitted that section 23 of Employment Permits Act, 2006 covers certain types of deductions but does not apply in this case.

Evidence of David O’Callaghan

Mr O’Callaghan explained his role in software development at the respondent. He outlined that a user had to click a mandatory read to access the full website, including a roster. The acceptance letter had different functionality to the mandatory read. There had been no discussion about adding in an e-signature to the acceptance letter.

Evidence of Jason Whiteside

Mr Whiteside outlined that he is a Flight Ops manager. He spoke with the complainant about her hours and pay and she never raised the agreement. She did not say that the respondent could not pay her less than the minimum related to the employment permit. The complainant mentioned that she was unable to avail of PUP or the wage subsidy. The complainant did not give specific examples of other pilots were flew more. Mr Whiteside said that it was in their interest to keep as many pilots as possible flying. Pilots were paid for the days they worked.

Mr Whiteside said that the complainant’s concern was always about the uneven distribution of work, and it was only on the 9th October 2021 that she said she had not signed the agreement.

In cross-examination, Mr Whiteside said that they recruited cadets in 2021 and accepted that August 2021 could have been when the first cadet flew. He accepted that pilots saw their income reduced in the ‘hard times’ of the pandemic.

Evidence of Neil McMahon

Mr McMahonis Director of Operations and described the pandemic as being catastrophic. The respondent wanted to keep as many employees as possible in employment during the pandemic, as well as keeping planes ready to fly. Other airlines made pilots redundant, and none were at the respondent. Clauses 3.2 to 3.4 in the emergency agreement were put in place in case the schedule did not recover during 2020. It was clear from the agreement that that the pilot surplus provisions would apply from the 1st November.

In cross-examination, Mr McMahon said that the only jobs that were available in June 2020 were for those who signed the agreement. The agreement was a reduction of 20% and a spread of available work. The understanding was that there would only be pay, including fix pay, for days flown. The pandemic lasted for much longer than expected and had a devastating effect on business.

Closing of the respondent

The respondent outlined that this complaint was confined to the cognisable period and there was no basis to extend time. On the 9th October 2021, the complainant had mentioned taking a case to the WRC. It was clear that the pilots could access their roster on confirming the mandatory read and not after accepting the agreement. It was submitted that the complainant’s initial account had been an untruth.

It was submitted that the complainant had signed up to the agreement and then sought to renege the agreement. Section 5 of the Payment of Wages Act required consent ‘in writing’ but did not require a signature. It referred to the case law regarding the electronic confirmation of acceptance, for example Ryanair v On the Beach [2013] IEHC 124. It was submitted that the WRC does not have jurisdiction regarding the Employment Permits Act and this related to a non-contractual term. There was no evidence of any breach by the respondent, nor a risk of deportation. The deductions set out in section 23 of the Employment Permits Act were not at play here.

The respondent outlined that it had complied with section 5 of the Payment of Wages Act, and these were not unlawful deductions. It distinguished Jones v Aer Lingus PWD2248 as there was consent in the instant case as well as force majeure and the ‘excess capacity’ clauses in the contract of employment. The respondent noted that the Labour Court had made a nil award in Jones v Aer Lingus.

The respondent stated that it was not at fault for the impact of the pandemic on the complainant. The complainant had the benefit of keeping her licence current through the agreement. There was no evidence of differential treatment and the union had access to information about any disparity. The complainant was paid in accordance with the agreement and had never asked for a copy of the agreement.

I appreciate that the pandemic, reduced flying and the terms of the agreement meant that the complainant lost out greatly financially and did not have access to the Government interventions. I must, however, find that the complaint is not well-founded.

First, the ‘guaranteed minimum payment’ on the Employment Permit cannot be read across to the Payment of Wages Act. The Employment Permits legislation is separate to the Payment of Wages Act. Other than the penalisation provision, they are not matters for WRC adjudication. Section 23 of the Employment Permits Act also does not apply.

Second, it is clear that the functionality of the agreement was that it was a compulsory read. The pilot read the document and acknowledged this. The evidence suggests that the user could view the roster, which in June 2020, was blank. The next stage was for the pilot to click ‘I accept’ which the complainant did on the 29th June 2020. This is consent for the purposes of section 5(1)(c).

I appreciate that the agreement meant more than a reduction of 20%. It was not just a reduction of pay but also greatly reduced work. I know the complainant was in a particular bind. The agreement, however, was accepted and implemented.

It follows that the reduced pay were not contraventions of the Payment of Wages Act, and the complaint is, therefore, not well-founded.

CA-00048507-001

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.

Payment of Wages Act