Case Number: ADJ-00030074. Workplace Relations Commission

CourtWorkplace Relations Commission
Date01 July 2022
Docket NumberADJ-00030074

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.


The Complainant alleged she was not furnished documentation which complied with Section 3 of the Terms of Employment (Information Act) 1994. (CA-00040002-001)

The Complainant alleged she was not paid public holidays contrary to Section 21 of the Organisation of Working Time Act 1997. (CA-00040002-002)

The Complainant alleged she was not paid public holidays contrary to Section 22 of the Organisation of Working Time Act 1997. ((CA-00040002-003)

The Complainant alleged her salary was reduced without consent firstly by 30% and then 50%. and that this was an unlawful deduction under Section 6 of the Payments of Wages Act 1991. (CA-00040002-004)

The Complainants were received by the WRC on September 21st 2019, therefore the cognisable periods for the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991 are the 6 months prior to that date, commencing on March 21st 2019 or 12 months (September 21st 2018) with “reasonable cause” No case for reasonable cause delay was made by the Complainant.

The Parties made submissions at a number of Hearings including post Hearing submissions.

Summary of Complainant’s Case:

The Complainant was employed on June 5th 1998 and is currently a Cabin Crew Manager.

The Employees salary was reduced in breach of the Payments of Wages Act 1991. There was an agreement with the Union for a reduction of 30% and then the Employer without negotiating with the Union or obtaining the Employees consent reduced matters further to a reduction of 50%. Under Section 6 of the Payment of Wages Act 1991, a reduction in salary can only be consented to by an employee by giving written consent. The Employees hours were reduced on the basis she worked 6 days out of 28. Effectively there was a 30% reduction on March 30th and a further 50% reduction on June 22nd. An argument may be made in respect of the 50% reduction by the Employer that this was covered by a Collective Agreement but that is a matter for the Employer to prove. As regards the additional 30% there was no such consent from the Union so that cannot be covered under a Collective Agreement. There is no provision in the Employees contract for Layoff or Short time.

With regard to the complaints under Section 21 and 22 of the Organisation of Working Time Act 1997 these complaints are dependent on the Payment of Wages claim. If the payment of Wages claim is successful, then each breach in the period of 6 months prior to the date of the complaints being lodged is a separate and distinct claim in respect of which compensation for each can be awarded.

The Complainant alleged she was not furnished documentation which complied with Section 3 of the Terms of Employment (Information Act) 1994.

Summary of Respondent’s Case:

The Complainant is a permanent employee of Aer Lingus Limited (“Aer Lingus”) since 1999. The Complainant is a member of Aer Lingus’ cabin crew with some guest experience instructor responsibilities. In a Complaint Form dated 24 September 2020, the Complainant makes four complaints before the WRC, namely that:

Aer Lingus failed to comply with section 3 Terms of Employment (Information) Act (“Terms of Employment Act”) – CA-00040002-001;

Public holidays were not paid in accordance with section 21 and section 22 of the Organisation of Working Time Act, 1997 (“OWTA”) – CA-00040002002, and CA-00040002-003;

The Complainants salary was reduced without consent, giving rise to a claim under section 6 of the Payment of Wages Act, 1991 (“PWA”) - CA-00040002-004.

The primary representative trade union for cabin crew for collective bargaining purposes is FORSA – a small number of cabin crew are separately represented by SIPTU. FORSA’s engagement with Aer Lingus (through collective bargaining) has led to a number of collective agreements. Ms. Jones is a member of the Forsa cabin crew committee in Aer Lingus although not represented by the trade union in this claim.

As a direct response to COVID 19 the Company was forced to implement hours and salary changes in March 2020 not only to the Complainant or cabin crew generally, but across the board, impacting everyone in Aer Lingus at every grade and level in the organisation. These changes were anticipated to be short-term and temporary in nature for an initial 8 week period until 31 May 2020 to allow the Company to review how the situation might evolve. As the pandemic crisis evolved, these changes were deemed necessary and continued to apply save for certain staff in business / safety critical roles who were required to be rostered to work more than 50% hours. Those employees in this exceptional cohort were paid for their hours worked during this time.

It must be noted that the Complainant is the only one out of all 4000 plus Aer Lingus employees who has challenged the changes to her hours and pay in a third-party hearing.

The Covid19 pandemic has had an unprecedented global impact on air travel and on the aviation industry generally. The impact of the pandemic and the resulting travel restrictions imposed in Ireland and in other countries reduced Aer Lingus’ flying activity in 2020 by greater than 90% year-on-year when compared with 2019. The Company has experienced, and continues to experience, the most difficult and challenging two years in the history of our company. For much of the period since March 2020, the Company’s operations have been at or below 20% of normal levels.

A significant amount of the flying activity that did take place in 2020 and to July 2021 when restrictions on international travel were lifted, was cargo-led and/or was for the express purpose of the collection of PPE for the Irish Government. It is important to note that of those flights that took place during this time, the passenger loads have been extremely low sometimes in low single figures.

Unfortunately, the continued lack of certainty caused by COVID-19, coupled with the ongoing national restrictions and public health measures both in Ireland and in other countries negatively impacted all forward bookings and projected travel activity in both 2020 and for the first half of 2021. This in turn led to a very significant deterioration in revenues as the anticipated levels of forward bookings did not materialise during this time.

It has been Aer Lingus’ policy during this unprecedented period since March 2020 to avoid implementing redundancies and extended lay-offs with a view to maintaining employees on the payroll (albeit with reduced working hours and reduced pay).

The claim that s.3 of the Terms of Employment Act has not been complied with falls outside the requisite statutory time period for bringing the claim and is in any event incorrect. Aer Lingus complied with s3 of the Terms of Employment Act at all times and has the documentation to demonstrate same.

The claims under s.21 and s.22 of the OWTA must also fail as the Complainant received all of her entitlements in line with the OWTA.

The claim under s.6 of the PWA must also fail, as the reduction in pay was lawfully implemented on the basis of well-established (more than 20 years) custom and practice. The existence of a pandemic with huge adverse effects on air travel also leads to an implied term entitling an airline to reduce hours of work consistent with its very limited demand. This custom and practice and implied term facilitated the reduction in the need for lay-offs and involuntary redundancies. It is noted that, The Complainant’ pay was consistently more than what she would have received for the number of hours she had worked over the relevant roster period. Aer Lingus, in implementing pay reductions across the business, has at all times been with a view to trying to maintain direct employment where possible and to avoid large numbers of unpaid lay-offs and/or involuntary severance.

CLAIM UNDER S.3 OF THE TERMS OF EMPLOYMENT ACT Statutory Time Limit: In the Complaint Form, the Complainant states did not receive a document which complied with section 3. Aer...

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