EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Lisa Coyne - Claimant UD868/2015
against
Stobart Air- Respondent
- under
- UNFAIR DISMISSALS ACTS 1977 TO 2007
- I certify that the Tribunal
- (Division of Tribunal)
- Chairman: Mr. T. Ryan
- Members: Mr L. Tobin
- Mr J. Flannery
- heard this claim at Dublin on 14th December 2016 and 8th February 2017 and 21st March 2017
- Representation:
- Claimant: Mr. John Geary, J.V. Geary Solicitors, Linenhall Street, Castlebar, Co. Mayo
- Respondent: Mr Alastair Purdy, Purdy Fitzgerald Solicitors, Block 1, GFSC, Moneenageisha Rd, Galway
- Background:
- The respondent is a regional airline that has locations at Dublin and Cork with previous locations at Galway, Shannon, Waterford and Cardiff. Following examinership a group of new investors took over the operation and a number of cost cutting exercises were put in place. In November 2014 the viability of Shannon came into question and a decision was made to close that base. The claimant contends that she was made redundant instead of being given an opportunity to move to Cork.
- Respondent’s Case:
- SD told the Tribunal that this was not the first time a base had closed and all staff were represented by the SAPG group. An agreement was reached and signed off on, on 21st November and staff were written to on 28th November. Staff were given until 10th December to confirm a base preference for re-location or opt for a redundancy package. All preferences had to be in writing so the respondent could try to fill the gaps that existed and know how many staff wanted to leave the company.
- A letter dated the 28th of November 2014 was submitted to the claimant advising her of the base closure and enclosed a copy of an agreed document between management and the employee’s representatives. Three options were available to all staff:
- “In brief the options are (a) relocation to another base. (b) redundancy, (c) avail of extended unpaid leave with the option to relocate or accept redundancy at a later date.”
The claimant was asked to read the document carefully and in full.
The letter also stated:
“Flight operations management have also invited expressions of interest in job sharing from all crew at all bases in recent weeks with a view to creating additional relocation opportunities. Should you be interested in job sharing you should advise your manager as soon as possible, if you have not already done so.”
The claimant was advised that her estimated redundancy calculation was €34,955.00.
On Sunday 30th November SD received an e-mail from the claimant stating that she wanted to take redundancy. She replied the next day stating that that was ok and that HR would be in touch. SD said that all staff requests would be looked at after 10th December, it was only after that date that an entire picture would materialize and staff would be accommodated if possible. The claimant did ask if a position was available in Cork but she could not be dealt with on an individual basis.
On the 30th of November 2014 the claimant emailed SD, regarding the Shannon base closure. She stated:
“as per the e-mail I received from the company last Friday and working from the figures offered to me by the company I wish to inform you that I am taking redundancy”.
She also asked at which base she would work out her notice.
SD acknowledged receipt of the claimant’s email, said she was sorry to hear she was finishing and HR would be in touch regarding notice.
On the 4th of December 2014 SD wrote to the claimant following a telephone conversation with SB had the previous day. In this letter SD advised the claimant that the original redundancy sum quoted was incorrect and this was due to a computer error. The correct sum was €22,000. Apologises were given for the error and the claimant was advised to contact HR if she had any further queries.
On the 24th of December 2014 SD again emailed the claimant regarding her redundancy calculation giving a detailed calculation of her redundancy and her final pay.
SD told the Tribunal that the respondent constantly reviewed the headcount within the company. She stated that it was never clear until the New Year and new scheduling as to how many employees would be required. On the 11th of February 2015 a Staff Requisition form was compiled. Twelve staff were required to fill posts. Three of these posts were in Cork, to be temporarily filled, with staff on fixed term contracts to cover staff on long term sickness. The advertisement was posted. The claimant did not apply for a post.
Claimant’s Case:
The claimant gave evidence of her previous experience in the airline business. She commenced employment as Cabin Crew in May 2002, first located in Dublin. In 2004 she relocated to Galway. In 2011 it was announced the Galway base was to close. The options open to the claimant was to take redundancy or, because of her seniority, she could relocate to Shannon. The claimant opted for relocation.
On the 10th of November 2014 senior management arrived at the Shannon base to inform staff the base was about to close. The claimant was not present as she was mid-flight. She later became aware of the situation through her colleagues. HMcM (Cabin Operations Manager) had tried to contact her but to no avail.
A consultation process regarding the base closure began between the respondent and the staff representative (S). This agreement was actually signed off on the 21st of November 2014.
On the 13th of November 2014 the claimant rang HMcM to enquire if there were any positions available at the base in Cork. HMcM informed her that the base was fully crewed. The claimant told the Tribunal that she also enquired with her representative S and was informed there were no positions available.
On the 24th of November 2014 S submitted two emails to their colleagues. SD (Head of Human Resources) and HMcM would be in the base that day to discuss the situation with the staff. The claimant said that she was working at the time and did not see the emails until she switched on her phone after landing. She finished her shift at 2p.m. and expected SD and HMcM to be in the crew room as previously advised by S. They were not there. She made two calls to HMcM, speaking to her on the second one. HMcM advised her they had “just popped out for a sandwich” and they would leave her paperwork in her drop-box. The claimant said that by this time she was in her car and having had an early start and long shift she left to drive the journey home to Oranmore.
On the 25th of November 2014 the claimant emailed SD to enquire if there were any positions available in Cork and to enquire what her exact redundancy entitlement would be. She did not receive a reply to her email.
The claimant told the Tribunal that following a data request after the termination of her employment she became aware emails crossed between SD and HMcM regarding Cork that same morning but she did not receive any information from SD. A position was available in Cork but was being held for a colleague (K) who was based in Southend.
On the 28th of November 2014 SD wrote a detailed letter to the claimant regarding the base closing and quoting a redundancy payment of €34,995 (approx.). The letter quoted there were three options available. Relocation to another base, avail of redundancy or to take extended unpaid leave. SD requested the claimant reply with her preferred option.
On the 30th of November 2014 the claimant emailed SD with to inform her she would take the redundancy based on the figures quoted to her in the letter of the 28th of November. The claimant told the Tribunal that she felt she had no option but to accept the redundancy as she had already been informed by two sources that there were no positions available in Cork and she did not want to relocate to Dublin or Southend. SD acknowledged her request the following day.
The claimant told the Tribunal that she received a letter comprising of personal details which should have been sent to the correct person, her colleague JM. She tried to contact SD about the matter but SD was unavailable. She contacted the then CEO of the respondent company and informed him. He said he would look into the matter and get back to her. He never did.
SD contacted the claimant on her day off to inform her that the calculation given for her redundancy in the letter of the 28th of November was incorrect. The claimant was not happy. She found it very stressful and attended her doctor who deemed her medically unfit for work.
On the 4th of December 2014 SD wrote to the claimant advising her of the error and informing her that the correct calculation for her redundancy was €22,000 (approx.). The claimant told the Tribunal that at this point she felt she had no choice but to accept the redundancy.
The claimant requested she work her notice in Cork. It was agreed but the shifts allocated to her were not acceptable and the claimant decided not to work her notice.
On the 24th of December 2014 SD emailed the claimant with the details of her final payments.
On the 17th of February she received a call from her representative S who enquired if the offer of a position had arisen in her talks with management. When she asked why, he replied “Ah, no reason”. The following day she had sight of a staff email (she still had access at this time) regarding cabin crew position available in Cork.
The claimant accepted her redundancy payment.
The claimant gave detailed evidence of her efforts to mitigate her loss of earnings following the termination of her employment.
Under cross-examination she said that she could not really understand why she had been let go but felt management wanted to get rid of senior staff.
The claimant told the Tribunal that she became aware a colleague of hers (N) in Shannon was offered a permanent position in Cork. The contract was dated the 19th of November 2014 and this was during the consultation process between S and the respondent regarding the Shannon base. (The claimant produced this contract to the Tribunal at the hearing)
The claimant told the Tribunal that she was aware it was not company policy to “hold” positions for staff but a position had been held in Cork for an employee who was based in Southend. The claimant said she felt she should have been offered this position because of her seniority.
When put to her that she had not waited on the 24th of November to speak to SD and HMcM, she replied that she had waited for half an hour, she had started very early that morning and wanted to drive home to Oranmore.
When put to her that there were other options open to her instead of redundancy including relocating and she herself and decided to take the redundancy package she replied that she had been informed by management and her representative that there were no positions in Cork. Relocating to Dublin or Southend were not viable for her.
Determination:
Having considered the totality of the evidence, the Tribunal finds, by a majority decision, that the claimant was unfairly selected for redundancy.
Accordingly, the Tribunal awards the sum of €15,000.00 (fifteen thousand euro only) under the Unfair Dismissals Acts, 1977 to 2007. This award is in addition to the redundancy payment the claimant has already received.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)