Complainant

Respondent

Parties

Gary  Howard

Ryanair Dac

Representatives

Mairead Carey,                                           Carey Solicitors

Frank Beatty S.C.,                                   Killian O'Reilly Solr.,                           Fieldfisher 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-00041125-001

18/11/2020

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

CA-00041125-002

18/11/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. It took five separate days of hearing to complete this case. On each of the five days the said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was able to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in circumstances where it was possible that there would be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation would be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented.  At the outset, the Complainant was happy to make the appropriate Affirmation to tell the truth. I was provided with a comprehensive submission dated the 6th day of August 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed. The Complainant also asserts that he was deprived of a Bonus payment that was due to him and that this amounted to an unlawful deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent entity was also represented by a number of witnesses who had direct involvement and understanding of the circumstances herein. The Respondent provided me with a written submission. This was dated the 25th of January 2020 and I was additionally provided with a core booklet of documents at that time. An addendum core booklet was provided on the 10th of November 2021.  All evidence was heard following an Affirmation. The Respondent witnesses were all cross examined by the Complainant representative.

The Respondent rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute and in particular the Payment of Wages legislation.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced over five days of hearing.

The Respondent herein accepts that there has been a termination of the employment and the burden of proof therefore rests with the Respondent to establish that the termination was justified and executed fairly. The Respondent asserts this was a genuine redundancy situation.

The Complainant commenced his employment on the 6th of March 2018. He was employed as a flight Operations Officer until his termination on the 29th of May 2020. He worked for just over two years and was therefore entitled to statutory redundancy.

As the burden of proof rested with the Respondent, the Respondent witnesses went first. The first of these witnesses for the Respondent was a Mr K who works within the HR function at Ryan Air. He described the duties and responsibilities of the Operations Officer working within the Operations Control Centre for Ryan Air. In effect, the team in the operation control room monitors and manages the Ryanair schedule across it’s 86 bases across Europe. The staff therein must anticipate and react to any and all developments which arise in the course of each 24-hour shift. This might involve redeployment of crew, reacting to operational issues, managing unforeseen delays, overcoming mechanical issues, sorting local ground crew issues and filling unexpected absences. The staff in the operations control centre have to find solutions and implement solutions so as to ensure that the flights adhere as near as possible to the pre-published schedule. Staff have to be nimble, and solutions driven.

The second witness was Mr. TK the Deputy Director of Ground Operations. He too described the centralised Management function. The entire operation is run out of Dublin. There are between two and three thousand flights a day. At any time, there is a Director or Deputy Director in the Ops Control Centre. Two 12-hour shifts run over each 24-hour period. The Ops Centre is in a constant state of readiness to deal with problems. The Operations Controller in the most important person in the room. The Operations Officer (for example the Complainant) is his deputy. At any time there should be two operations officers in the room supporting the Operations Controller. Nonattendance or lateness on the part of any of these crucial personnel is described by Mr. K as extremely detrimental.

The Complainant was based in the Ryanair Dublin Offices campus close to Dublin Airport. The Complainant commenced his employment on a salary of circa €33,000.00 and he signed his Contract of Employment on the 5th of March 2018. Mr. K brought me through some of the features of the Contract of Employment as well as the associated documents including the rough guide to Ryanair. I accept that the rough guide places a particular emphasises on the need for universal efficiencies. This is the “no frills” airline that is only interested in getting the planes up into the air (without, it should be said, compromising on safety). The rough guide clearly identifies that staff absences and or late arrivals cause major problems to the airline operations and that good attendance and punctuality are essential in all departments. Mr. K said the airline seeks to avoid having to spend time filling those gaps which are unexpectedly created by no show or tardy employees. It should be noted that the said Rough Guide does not purport to differentiate between a lateness or absence caused by illness, accident or sudden death and a lateness caused by (for example) a public transport failure. In evidence the Company witnesses made it clear that this is the policy and all staff are aware of a zero tolerance approach. The Employer, I also note, reserves the right (in the Rough Guide) to consider attendance records when assessing suitability for permanent employment and promotion. Mr. K is confident that the complainant was on notice of the Company’s attitude when it came to lateness and non-attendance.

In March of 2020 all Ryanair activities were brought to an abrupt halt by reason of the Covid pandemic. I was advised that 99% of the fleet was immediately grounded and that the profit levels enjoyed in the previous year fell away for the last three quarters of 2020.

Ryanair was swift to react to its changing fortunes and immediately set about seeking wage reductions across Europe. Mr. K brought me through the in-house financial report prepared in May of 2021 looking back at the finances from March 2020 to March 2021. This document showed a revenue loss of 815M. The Report confirms that during the year the Company looked at a range of options for cutting costs across every aspect of its business.  It needed collective agreements. Where it had to, it spoke to Unions. I understand that all employees on probation were let go. Senior Management took pay cuts. All Government subsidies were availed of. Business partners were squeezed to provide services at lower rates. The Company decided it needed to reduce its cost base in terms of salary and as it had to start somewhere, the Company identified its Office function in Dublin as an obvious place to start reducing staff numbers. There were circa 700 employees in head office at that time. Mr K indicated in cross examination that the company was reacting to the immediate pandemic problems but was also looking to what might be happening three to five years down the line. Ryanair had had profit warnings in 2018 and had committed to purchasing aeroplanes so other factors (outside the pandemic) were also in play. I understand that the model of aircraft purchased had just recently been involved in two big accidents which meant that the company could not know if it’s expansion plans were viable. Mr. K pointed out that the Company had no immediate visibility of where all this left the company.  The Company generally had no idea if and when the pandemic would end or if and when flights would resume in any meaningful way. The Company also had no idea whether the Government was prepared to continue supporting salaries on an ongoing basis. The Respondent was trying to get out ahead of an evolving situation. It had no idea how long the pandemic would last and how long Government supports would be in place. It felt obliged to make efficiencies wherever it could.

By May of 2020 the Company had made 28 members of staff redundant form its Head Office in Dublin. This number included the Complainant. The Respondent had identified a number of areas where it could make jobs redundant in the Office. These included the Finance Department, Fuel Management, Technical Librarian and, of course, the Operations function. Mr TK gave evidence that there were 6 redundancies as well as 5 probation ends in the control room wherein the Complainant worked.

Mr. K detailed that within the operations control centre there were 6 redundancies. Two of these were operations officers (including the Complainant). Two ground operations controllers were also let go, together with one flight planner and one slot desk officer (I understand this latter person manages access to airports). Mr. K was challenged on the decision-making process here. It was put to him that the Government was paying for employees forced into lay off as a result of the pandemic. Surely, it was suggested to him, this was an option that could have been applied to the Complainant and his colleagues. It was put to the witness that the cost to the Company of having employees on state subsidised lay-off was minimal. Mr K disagreed saying that they had no idea if they would ever recover, and the Company believed it needed to reduce costs on a long-term basis. The Company had identified what jobs it could make redundant and had moved to make them redundant. The Company did not agree that it was appropriate to leave an individual on the books where the job was no longer there. Mr. K stated that it wasn’t just about the immediate cost savings it was also about re-structuring in accordance with a three to five year outlook. The Company it seems had accepted what it described as the consensus view that the recovery from Covid could take 2 to 5 years as per the letter sent to the Complainant on the 15th of May 2020. Mr. TK said that they needed to right-size the operation.

Mr. K said that the company devised a Redundancy selection Matrix which purports to ensure that every effected employee was to be evaluated against a key set of relevant criteria to be applied fairly and consistently. Mr. K stated that the criteria selected are standard criteria which it has been custom and practise to use in this workplace.  There are four Criteria almost always used.  These are length of service, punctuality, attendance and performance (which last appears to be measured as days wherein an employee agrees, at short notice, to work a day. This, it seems, demonstrates flexibility and willingness). I was told by Mr. K that these 4 criteria are almost always used across this workplace, and other criteria would only be added where the particular role makes it an obvious criterion to measure employees. For example, a criterion of sales targets might be used for cabin crew.  Attaching any criteria over and above the standard four would need to be justified and fair. The Matrix Mr. TK said was based on facts not on opinions meaning they are objective, easily measurable criteria which have no subjective assessment.

Mr. K confirmed that they did not look at last in first out as a criterion. Nor did they at this time consider the option of voluntary redundancy as this can result in the loss of necessary staff. It should be noted that the evidence is that Ryanair made up to 250 people redundant at this time across Europe. When challenged in cross examination, Mr. K stated that the numbers made Redundant in Dublin meant that this was not a collective redundancy situation as it was 28 people.

Mr. K was involved with the process that made the Complainant redundant. He explained that before ever the final decision was taken to make positions redundant, all staff were notified of the potential for job losses in a memo form a Mr. EW dated the 1st of May 2020. This reference to job losses are, it has to be said, oblique references buried in a memo to staff that has as its title Return to Work Plan wherein it states some departments or sections will return on a phased basis and there will unfortunately be some Airside job losses as we adjust to reduced activity. In his evidence the Complainant says that he was not on notice of the potential for job losses. There was a constant and general stream of communication in the form of memos he says.

On the 14th of May 2020 the Complainant had a face-to-face meeting with Mr. K and a Mr. TK who advised that his job was at risk of redundancy. The Complainant said that he was told about the need for cuts and downsizing. I have had sight of the minutes of this short meeting. The Complainant was advised of the Criterion for the selection Matrix and was told that there would be a two-week consultation process during which alternative solutions might be considered. The Complainant made it known to the two Managers that recent attendances and lates (on his record) might be attributed to issues he had been having with high blood pressure. It seems to me that the Complainant knew that there had been an unusually high number of incidents (of lates and no-shows) in the preceding 3 to 4 months of employment. The Complainant offered to forgo his bonus to keep his employment. The Managers told the Complainant that he did not have to attend the workplace for the next two weeks while final decisions were being considered and made. In fact, the Complainant gave evidence that he never returned to the workplace after this date though he conceded that what he was told was that he was not expected to have to work through, what Management recognised was, a difficult time. The Complainant noted that he had been blindsided by the meeting. He had no representation or support. Right from the start of the process the Complainant felt that the decision to terminate him had already been made.

After the May 14th meeting, the Complainant wrote to Mr K and TK on the 18th of May stating that he had been in a state of shock and required further clarification. He sought information on the selection criteria which had been used to evaluate his position against his colleagues. The four criteria were identified by a return email on the 19th of May. These were (as previously referenced) performance, length of service, attendance, and punctuality.

Mr. K confirmed that on the 22nd of May he had received an email from the Complainant wherein he had proposed a number of alternatives to redundancy. These included suggestions such as flexible working, temporary salary reduction and a freeze on recruitment. None of the proposals gained any traction with management. Mr TK stated that the proposals were all short term and had, in any event already been considered by management. Both Mr. K and Mr. TK defended the length of time they had given over to the consideration of the proposals

It is curious that the Respondent opted not to show or otherwise disclose the full Matrix to the Complainant from the outset. The Complainant was shown (in the course of the two weeks after the 14th of May meeting) a two-line Matrix wherein he was the only person named and scored. He had no idea from that document how many people had been included and how others ranked. He noted in the complaint form that the Matrix provided shed no light. The Complainant became consumed by the unseen content when in fact there was nothing that the Respondent needed to hide. When specifically asked about it in cross examination Mr K said that the Company hadn’t meant to refuse to disclose it, they were just so busy at that time. I note that the Matrix (in redacted form) was only given after a Data Access request was made in July of 2021. This was some eight months after the Complaint form had issued through the WRC and over a year from the date of the termination of the employment.

Mr. K was challenged on aspects of the full Matrix but stood by the Respondent’s stance that the criteria are objective. I cannot but note that the Matrix certainly places great emphasis on the issue of absenteeism with both the number of times being absent and the number of days of absenteeism, being separately assessed. This means a person being absent once for seven days will fare much better than a person absent seven times for a one day period. It is asserted that this is fair as it is in line with the rough guide and the company’s well-known abhorrence of lates and no-shows. It is an unavoidable fact that the Complainant did not score well under these headings. The Respondent, it was suggested to me, does not necessarily seek to punish people who are absent through illness. However, to not acknowledge that an Employee never calls in sick or late is also not fair. TK stated there are no concessions made and an absence cannot become excusable. If it happens it happens and is marked as such. The Complainant in cross examination did accept that it was reasonable to reward an employee who had had no attendance issues.

The Complainant was, it seems, the only member of the staff (considered in the Matrix) who had late letters current on his file. Late letters last a year on file. The letters were opened to me, and the Complainant did not deny that he had received them in the course of his employment. To his mind this inclusion demonstrated an inherent unfairness in the process as he could not accept that all other staff were never late. He believes that he had heard and understood TK to say that others had also received late letters, yet this was not reflected in the Matrix. This was of concern to the Complainant. It is noted, however,  that the Complainant had never appealed the letters on his file when he received them.

Before ever he was made redundant, the Complainant felt compelled to contact a Solicitor to represent his interests. A Solicitor wrote on his behalf on the 23rd of May 2020 stating that the Complainant was concerned that he had been unfairly selected for redundancy and that a recent bout of illness which had caused attendance issues for him, was now costing him his employment. An urgent application to have sight of the Matrix was made by his Solicitor at this time.

Clearly the Complainant was very distressed at this dramatic change in his circumstances. He had been very happy in this workplace and had hoped to achieve Operations Controller level in due course. His Redundancy was confirmed after the two week period.

After the Redundancy had been made the Complainant believed that certain issues called the validity of the redundancy into issue. I would accept that the fact that the Complainant was not scheduled or rostered to work from the May 14th date to the date of his Redundancy looked suspicious. In his workplace relations complaint form, the Complainant stated that this showed that the decision to make him redundant had already been made before the consultation period had ended. However, this fact was explained by the rationale (put forward by TK on behalf of the Respondent) that the Complainant’s position (along with the position of one other person in the section) was deemed to be at risk of Redundancy, and it was not possible to include any such person on the roster. This is standard practise.

The Complainant also made the case that he believed that a Mr. JW was being trained up to replace him as Ops Officer and he gave evidence saying that he had had sight of Rosters for the period post his redundancy which tended to verify this fact. Mr. K denied that the Complainant was replaced within a month. It was put to him that the Complainant had identified a Graduate/Intern (JW) who appeared to have replaced him on the schedule after he had left the company. Mr K stated that there’s a Graduate programme where interns are rotated around different areas within the company for a two-year period. It’s a much-needed talent pipeline. The individual was never comparable with the Complainant and his colleagues. On the roster, JW is clearly defined as being in training and I accept this was the case.

The Complainant also believed at least two other people should also have been included in the pool for consideration i.e. R and O. Mr. TK gave evidence that these two individuals were not part of the ops team dealing with the on the ground reaction to unfolding events. These two individuals had the unique task of pre-planning rosters and operations. The Complainant in evidence did concede that he had not been trained in the pre-planning function though this had been due to happen at some stage. It seems therefore that Robbie and Owen were never part of the pool as their skill set distinguished them from the other Ops officers.

There was conflict on whether the Complainant was or was not denied access to work emails for the period between the 14th of May and the end of May. The Respondent says he had full access the Complainant said he did not. It has to be noted that the complainant did not query this at the time and I am inclined to think that not a whole lot turns on this issue either way.

I note that the Respondent went so far as to prepare edited Matrix outcomes (for the purposes of the case before me) which tended to show that even if the lates were removed or if the Performance measurements were removed the Complainant’s scores continued to put him in line for Redundancy. 

Regarding the issue of bonuses, Mr. K said there is no contractual entitlement to bonuses. These are paid at the discretion of the company. He stated that 50% of the bonus is made up of personal performance whilst 50% of it relates to company performance. In his first year, the Complainant had received €2,046.00 of the €3,000.00 potential as there had been an issue with the company performance which had a knock-on effect on the company performance aspect of the bonus. The Complainant in these proceedings has sought payment of his 2019/2020 bonus. He first sought this after he had already been made Redundant. This would have related to the period March 2019 to March 2020 and therefore was unaffected by the Covid Pandemic. He was advised on the 15th of June 2020 (two weeks after he was made redundant) that “no bonuses for the year ended the 31st of March 2020 are being considered or determined until we have exited the current Covid-19 crisis”. In fact, within a month of this June communication, the company then went on to pay it’s staff the Bonuses due to them (in July of 2020). The Company advised by letter dated the 4th of December 2020 that not only is there no bonus clause in the Contract of Employment but that “all employees are required to be an employee of Ryanair DAC at the time that payroll processes bonuses in order to be paid any such bonus”. The letter further states “I note you did receive a bonus in April 2019 however this bonus was entirely at the discretion of Ryanair and you have no contractual right to same.” Mr. TK gave evidence that the bonus is given by custom and practise and usually after the financial year. It is only at the company’s discretion. The Complainant who gave his evidence over the course of two days stated that he believed that he should have got his bonus and the fact of redundancy should not impact this. After all he had not left voluntarily. The Complainant stated -I put the work in for that period of time and I am entitled to it. The period of time is April 2019 to March 2020. Mr. Beatty for the company indicated that the practise of not paying the bonus to any individual who had left the company operated to keep staff and retain staff. On balance I accept the Complainant’s argument that the bonus was earned for the year prior to the redundancy and that if it was paid to all of his colleagues it should also be paid to him. The Complainant did not leave the Respondent of his own volition and to not pay him his bonus in a redundancy situation operates, I would suggest, as a double punishment. This has amounted to an unlawful deduction.

I have some sympathy for the Complainant herein. In the course of his cross examination, he stated that he simply did not understand how Ryanair’s cost base was affected by his termination. In the context of the annual turnover of this 17,500- person strong behemoth, it is indeed hard to grapple with the point of it. However, the Respondent makes the case that it had to start somewhere. The Respondent had no visibility of what was coming down the track and was determined to be proactive. I am satisfied that there was no personal animosity or dislike of the Complainant. His work record was good, and he had done well with the company and was a generally happy employee. He was just unfortunate with the timing of the selection process as his lates and absentee record at that exact moment in time compromised him. These were objective criteria. If it had not been him, it would have been the next person caught out with a bout of flu or a sick child.

One of the big problems as I see it (and as the Complainant himself identified in evidence) was the fact that the Respondent was not forthcoming with the information.  It is incomprehensible to me that the Complainant was not advised in early course of how exactly the Matrix was being operated (e.g. the negative scoring) and who was to be included in the pool and why. The Respondent witnesses, it is noted, gave comprehensive assistance to me at the WRC hearing some eighteen months after the event. I understood the Matrix and the objective criteria used to measure the pool. The same guidance and assistance were not given to the Complainant at the time of the Redundancy. I have again considered the inter-parte correspondence (e.g. email of May 19th and letter of 29th of May) which purport to have provided explanation of the selection matrix to the Complainant at that time. I simply do not agree that he could have had a clear understanding of the process based on those terse letters. I am mindful of the fact that the Complainant had not seen the redundancy coming and was put out of the workplace pending a final decision. Alone at home, it does not surprise me that he became suspicious of this seemingly opaque selection process. He involved a Solicitor and matters escalated from there.

On the other hand, I do accept that Ryanair was entitled to set about the restructuring process that it did. The Company had determined that the position was no longer necessary. I also accept that the process had to start somewhere and it just so happens the process started with the Complainant and his colleague and 26 others in the Respondent headquarters. The Respondent business was in freefall with no clear end in sight. The position was legitimately made redundant because it was no longer required. This was not a sham or a ruse to get rid of the Complainant. As the Respondent representative put it the business got back on track because of the precautionary measures taken. I am also mindful that this was at the peak of the pandemic and proper norms were more difficult to adhere to.

I accept that the absence of a right to Appeal does not invalidate the legitimacy of the Redundancy process.

The Respondent also presented evidence through it’s witness CJ who is the Operations Recruitment Manager. His evidence went to loss, and he gave evidence concerning the Respondent re-starting a recruitment process from the end of 2020 through 2021. He confirmed that the Complainant did not appear to have applied for any of the roles which had come up between his Redundancy and the date on which he was giving evidence some two years later.

On balance, I am finding that the Dismissal herein resulted wholly from the fact that the Complainant’s position was made Redundant. I am, however, finding that an unfairness attached to the process insofar as the Complainant was left in the dark and had no idea how he had become selected from amongst the candidates. Management failed to provide him with the full information giving rise to a perception of injustice and targeting. In assessing loss I am mindful of the fact that the Redundancy and the selection process were legitimate but the treatment of the Complainant himself was careless and unfair.

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

CA-00041125-002 – The complaint herein is well founded, and I direct the Respondent pays to the Complainant the sum of €2,500.00

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

CA-00041125-001 – The Complainant herein was Unfairly treated in the process of the termination of his employment by way of Redundancy and I award him €5,000.00 compensation for loss.