Complainant

Respondent

Parties

James Brady

Aer Lingus Limited

Representatives

Ruairí Creaney, Fórsa

Séamus Given, Arthur Cox LLP

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-00064278-001

24/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064278-002

24/06/2024

The complainant commenced employment with the respondent in February 2016 as a first officer.  In December 2023, he was promoted to the role of captain.  In the respondent’s submission, I was informed that Aer Lingus employs 410 first officers and 379 captains.

Chronology Leading to these Complaints

Following an application in May 2018, the complainant was appointed to an internal training position as safety and emergency procedures (SEP) instructor.  I understand that there are eight SEP instructor positions held by first officers at any one time.  The role involves classroom-based training of colleagues in safety and emergency procedures and crew resource management.  I understand from the evidence of the complainant that, in addition to their flying duties, instructors are rostered to deliver training for an average of one and a half days per fortnight.  First officers appointed as SEP instructors are paid an annual allowance of €13,758, equivalent to 12.5% of the top point of the first officers’ pay scale.  The allowance is paid in monthly instalments of €1,146.50 on top of basic salary.

A copy of the letter of appointment to the SEP instructor role was included in the respondent’s book of documents for the hearing.  This shows that the complainant was appointed to the position on May 16th 2018 for two years which “may be extended by mutual agreement.”  After two years, in addition to his duties as a first officer, the complainant continued working as a SEP instructor.  In 2023, he applied for a promotion to captain. 

The complainant’s final assignment as a SEP instructor was on Saturday, October 7th 2023, when he delivered training from 06.00 until 14.00.  After that date, he was unavailable because he was engaged in the command upgrade process, the assessment for suitability for promotion to the grade of captain.  On December 7th 2023, he was promoted to the rank of captain on the Airbus A320.

On December 26th 2023, the complainant sent an email to the manager of training and standards, Captain Brian O’Sullivan, who gave evidence at this hearing.  In his email, the complainant asked to continue his duties as a SEP instructor.  He said that he made this request due to the high turnover of personnel on the SEP instructor team and “in the interests of team resilience and continuity of corporate knowledge.”  Having made this request formally to Captain O’Sullivan, the complainant forwarded his email to the chief instructor, Captain Stephen O’Reilly, with the single comment, “Hail Mary pass made…”   Captain O’Reilly replied an hour later and wrote,

“I'd be delighted if this worked James.

 I'm not confident.  They cost it by not having you in the left seat of a 320.

See how he responds.  I appreciate the effort.”

The complainant’s appointment as a SEP instructor ended with the final payment of the allowance on January 2nd 2024.  This is in accordance with the Consolidated Training and Checking Agreement (“CTAC Agreement”) between Aer Lingus and IALPA which provides that payment of the allowance ceases two months after the commencement of “left seat line check” in the process of promotion to captain.  The complainant commenced this process on November 2nd 2023.

When he received his monthly wages on January 26th 2024, the complainant received just €190.02 as his SEP instructor’s allowance whereas, he normally received between €1,100 and €1,300.  He received no SEP allowance in February 2024, and none since.  In March, he wrote to the HR department asking why he was removed from his SEP instructor duties.  He received no response to his email and no response to further enquiries in April and June 2024.  Due to the respondent’s refusal to engage with him on this issue, IALPA / Fórsa lodged a complaint with the WRC on June 24th 2024.

It is the complainant’s case that he was employed in the role of SEP instructor on a fixed-term basis and, as he continued in the role for more than four years, in accordance with s.9 of the Protection of Employees (Fixed-term Work) Act 2003, he is entitled to a contract of indefinite duration.

In contravention of s.5 of the Payment of Wages Act 1991, the complainant claims that the failure of the respondent to pay him the SEP instructor allowance after January 2024 is an illegal deduction from his wages.

In a submission he provided in advance of the hearing of these complaints, Mr Creaney claimed that the complainant “has been unfairly deducted between €1,100 and €1,300 per month since January 2024.”

Mr Creaney said that the complainant performed the role of SEP instructor from May 16th 2018, when he was a first officer, until October 7th 2023.  He said that, when the complainant was appointed to the role of captain in December 2023, he was removed from the SEP instructor rota “without explanation” and without advance notice.  Mr Creaney submitted that,

“There is also nothing in writing – either in his original offer letter or in subsequent correspondence – stating that the role would be taken away in the event of promotion to captain.”

CA-00064278-001:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

The complainant’s role as a SEP instructor on a fixed-term basis was confirmed in the letter issued to him on May 16th 2018 which states,

“On successful completion of probation, you will continue in this role for a period of two years subject to continuous satisfactory performance.  This period may be extended by mutual agreement.”

Mr Creaney submitted that the SEP instructor role meets the definition of a fixed-term employee as that term is defined in at s.2(1) of the Fixed-term Work Act as,

…a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…

Mr Creaney argued that, having performed the duties of a SEP instructor for more than four years, the complainant is entitled to a contract of indefinite duration, as provided for under s.9 of the Fixed-term Work Act.

Mr Creaney referred to the decision of the High Court in Maurice Power v Health Service Executive[1].  Mr Power was a permanent employee of the HSE in the role of chief financial officer of the Saolta Hospital Group.  In 2014, he was appointed on an interim basis to the position of chief executive officer on an acting up basis.  He continued in that role until 2018, when he was unsuccessful in his application for the permanent post of CEO.  Mr Power claimed that, by October 2018, he had an entitlement to a contract of indefinite duration because, at that point, he had held the fixed-term post for more than four years.

Taking issue with the findings of the Labour Court on this matter, it was held in the High Court that persons in acting up arrangements are not expressly excluded from the Fixed-term Work Act, and that the Labour Court was incorrect to interpret the nature of the employment relationship and the acting up contract in a manner which effectively deprived such persons from the benefit of that Act.

On appeal to the Supreme Court in 2022,[2] Mr Justice Woulfe agreed and stated that,

“It seems to me that the correctness of the trial judge’s conclusions is reinforced by considering the overall effect of the appellant’s submissions.  The effect would be to remove the application of the Act from one entire cohort of employees, i.e. employees who are already in a permanent relationship with their employer, but who agree to ‘act up’ in a higher role on a temporary basis.   The Framework Agreement, however, and the Irish legislation giving effect to same, contain no express exclusion of such employees, and it seem to me that very clear language providing for any such exclusion would have been necessary.”

The union’s position is that the complainant’s role as a SEP instructor meets the definition of fixed-term as set out in the High Court and Supreme Court rulings in Power v the HSE and that he is therefore entitled to the protection of the Act.  Mr Creaney concluded his submission on behalf of the complainant by asserting that the respondent failed to provide the complainant with a written statement setting out the objective grounds for their failure to offer him a contract of indefinite duration.

CA-00064278-002:  Complaint under the Payment of Wages Act 1991

The union submitted that the respondent made unlawful deductions from the complainant’s wages on the 26th day of each month from January until September 2024 and that the total amount deducted is €10,318.50.  I should point out that this complaint was submitted to the WRC on June 24th 2024 and therefore, the limit of my jurisdiction for consideration of a complaint ended on that date.

Mr Creaney claimed that, by not providing a written explanation for the deduction, and by not obtaining written consent from the complainant for the deduction, the respondent has breached ss. 4 and 5 respectively, of the Payment of Wages Act.

Conclusion

The union is seeking the reinstatement of the complainant in the role of a SEP instructor.  They also seek the payment of €10,318.50, which it is claimed was illegally deducted from his wages.  Mr Creaney submitted finally that the complainant should be compensated by €1,000 per month for each of the allegedly illegal deductions from January 2024.

At the hearing, Mr Creaney addressed the respondent’s position that the complainant is not a fixed-term worker.  He said it was good to have that matter clarified and that it would have been helpful to know the respondent’s position before this hearing at the WRC. 

Mr Creaney said that the complainant was taken off the roster for SEP instruction when he was training as a captain, but he continued to be paid the allowance.  This is the reason that the complainant had a reasonable expectation of continuing in the role.  When it was clear to him that he wasn’t rostered for the training, Mr Creaney said that the complainant looked to continue with the training duties.  When he got no response to his first email in March 2024, he wrote to the head of HR.  Then IALPA wrote to the head of HR in his behalf, but he got no response to the termination of his instructor role.

Mr Creaney referred to page 4 (Appendix B) of the CTAC Agreement and the provisions for an instructor resigning or being stood down.  He said that there is no provision in the Agreement for the dismissal of an instructor.  Mr Creaney said that, based on the precedent of two previous captains, the complainant had a reasonable expectation that he would continue in the instruction role.

Direct Evidence of the Complainant

The complainant said that he delivered his first session of SEP training in September 2018.  He was on a panel of two captains and five first officers who were delivering the training at that time.  He said that it was his understanding that he would “bring the job to the left seat.”

Appointed instructors are required to deliver training for an average of one and a half days per fortnight.  The complainant described the subjects covered in the training: crew resource management instruction, handling dangerous goods, type training, aviation security and survival. 

The complainant said that he sent an email to Captain Brian O’Sullivan to affirm his desire to stay in the SEP instructor job.  He found out that the job was gone when the SEP allowance was removed from his wages.  He said that he was never informed that he wouldn’t continue in the role.   He said that two colleagues remained on as SEP instructors after they were promoted.  He said that one of these, “AB,” continued as a SEP instructor “well into the pandemic” and then left of his own volition.  The other person was removed from SEP duties “to his surprise.”  The complainant said that he got no formal notification that the role had come to an end.

Cross-examining of the Complainant

Mr Given referred to the letter of May 16th 2018 which confirmed the complainant’s appointment to the role of SEP instructor.  He agreed that he didn’t receive any other letter about his appointment after the letter of May 16th 2018.

The complainant agreed with Mr Given that his command training commenced on Saturday, October 7th 2023.  He said that he couldn’t recall having a conversation with the chief instructor, Captain Stephen O’Reilly, about the SEP instructor allowance falling away.

Mr Given referred to Captain AB, who, was mentioned by the complainant as a captain who continued in the role of SEP instructor after he was promoted.  Mr Given said that the respondent’s evidence will be that AB ceased to be a SEP instructor when he attained command in 2019 and then came back in 2020 during the Covid-19 pandemic. 

Mr Given referred to the email that the complainant sent to Captain Brian O’Sullivan on December 26th 2023, and he suggested to the complainant that he knew that his job as an instructor was coming to an end in January.  Mr Given suggested that the tone of the complainant’s email doesn’t express an entitlement or an expectation that the role would continue and that the operative clause is, “I would like to request the continuance of my duties as a FC SEP instructor.”  The complainant replied that he was affirming his desire to remain in the role.  Explaining why he sent a copy of the email to Captain Stephen O’Reilly, the complainant said that he “wanted Stephen to be aware.”

Mr Given referred to the expression used by the complainant in that email, in which he described his request to Captain O’Sullivan as a “Hail Mary pass,” a term used in American football.  The complainant said that this is the first time he heard of the expression being used in the way described by Mr Given.

Mr Given put it to the complainant that it was “slightly odd to be writing this email” on December 26th, a public holiday, when he knew that the allowance would come to an end in January.  The complainant replied that December 26th “was just another working day.”  Mr Given suggested that the email was “a last gasp effort at hanging on” to the allowance.  The complainant replied, “not where I was coming from.”

The complainant agreed with Mr Given when he asked him if he knew that the SEP instructor role he held was assigned to another first officer.  He said that he understood that eight new instructors were appointed when he finished up.

Mr Given asked the complainant what he understood by Captain O’Reilly’s comment that “They cost it by not having you in the left seat of a 320.”  He said that he understood that this meant the cost of his salary as a captain.

CA-00064278-001:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

Under the heading of the complaint under the 2003 Act, Mr Given submitted that the complainant commenced in the SEP instructor role on a two-year, fixed-term basis and that he continued in the role on a non-fixed-term basis for a total of five and a half years from May 2018 until October 2023.

Mr Given submitted that s.9 of the Act does not apply because the complainant’s fixed-term contract was not renewed and instead, he continued working in the SEP instructor role on an indefinite basis. 

After May 2020, the complainant held the SEP instructor appointment on a non-fixed-term basis.  Mr Given submitted that the union has reached the same conclusion, albeit by a different route.

Mr Given argued that the complainant’s circumstances are distinguished from those examined in Power v the HSE, because Mr Power was issued with numerous fixed-term contracts and was acting up into a different role and, while he was doing so, he wasn’t performing his “underlying permanent duties.”

For this reason, Mr Given submitted that the complainant’s case under the 2003 Act must be rejected for want of jurisdiction, because he wasn’t a fixed-term employee at any time since May 2020.

Mr Given suggested that a parallel can be drawn between the case at the WRC of Linda O’Regan and the Health Service Executive (HSE South)[3].  From May 2000, Ms O’Regan was a temporary attendant in a centre that cared for people with disabilities.  After May 2000, she was not issued with any contract and she lodged a complaint under the 2003 Act in September 2022.  My colleague adjudicator, Ms Patsy Doyle, held that Ms O’Regan held a contract of indefinite duration by May 14th 2004, when she had completed four years of service.  Ms Doyle decided that Ms O’Regan “does not have the standing of a fixed-term worker necessary to advance this case under the chosen Act.”

Mr Given then referred to the decision of the Labour Court in Blackrock College v Valerie Coyle[4] .  Ms Coyle had been employed as a part-time art teacher from 1984 and on a full-time basis from 1988.  She referred her complaint to the WRC in January 2017.  Finding that her complaint was out of time, the chairperson of the Labour Court stated,

“As the Complainant acquired a contract of indefinite duration by operation of law with effect from 1 September 2004, she ceased to be a fixed-term employee of the Respondent as of that date.  Section 14 of the 2003 Act, as amended, provides that the procedure for bringing complaints in relation to alleged contraventions of the [2003] Act is now regulated by section 41 of the Workplace Relations Act 2015.  Section 41(6) of the 2015 Act provides:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Having regard to section 41(6), the latest date on which the Complainant could have brought her complaints alleging breaches of sections 6, 8 and 10 of the 2003 Act was, therefore, 28 February 2005.  As stated previously, the Complainant did not refer her complainants under the 2003 Act until 16 January 2017.  The Complainant, therefore, appears to have been manifestly out of time in referring her complaints.”

It is unclear from the complainant’s submission why he selected September 2022 as the date on which he became entitled to a contract of indefinite duration.  Mr Given submitted that he ceased being a fixed-term instructor in May 2020.

Having regard to s.41(6) of the Workplace Relations Act 2015, the latest date on which the complainant could have brought his complaints under the 2003 Act was November 2020, being six months after the date on which his only fixed-term contract came to an end.  Even if I accept his contention that he became entitled to a contract of indefinite duration in September 2022, the latest date for submission of a complaint was March 2023.  His complaint is therefore manifestly out of time and Mr Given submitted that I have no jurisdiction to proceed with an investigation.   

CA-00064278-002:  Complaint under the Payment of Wages Act 1991

Mr Given referred to s.6 of the Payment of Wages Act and the reference to wages “properly payable.”  Where the total amount of wages that are properly payable to an employee are not paid, the 1991 Act considers this as a deduction made by the employer from the wages of the employee.

Mr Given referred to the decision of the high Court in Dunnes Stores (Cornelscourt) v Margaret Lacey and Nuala O’Brien[5] where the President of the High Court, Mr Justice Finnegan stated that, to make a determination under the 1991 Act, the former Employment Appeals Tribunal (EAT),

“…ought first to have regard to the remuneration properly payable to the employee.” 

In the judgement of the High Court in Marek Balens v Tesco Ireland Limited[6], the Court held that the Labour Court, before deciding if there has been a deduction from wages, must first determine the amount of wages that are properly payable.  It is then for the Court to decide if the wages that were actually paid are less than the amount properly payable.  If such a conclusion is reached, then, the difference could be held to be a deduction within the meaning of the 1991 Act.  If it is established that a deduction within the meaning of the Act has been made, then it is for the Court to consider whether that deduction was lawful.

This test was set out by the Labour Court in its determination in A Government Department and A Worker[7] as follows:

“The issue to be decided by the Court in this preliminary matter is whether, at the material time, a rate of pay was properly payable to the Appellant higher than that which was actually paid to him.  If no such rate of pay was properly payable to the Appellant at the material time then the Act at Section 5(6) can have no application insofar as the pay received by the Appellant was in accord with that which was properly payable to him.”

The Worker in the Government Department case claimed an entitlement to an acting up allowance.  The Labour court found that the Department did not follow any procedure that would create a rate of pay properly payable to the complainant other than the pay he received at the material time.  In the case of the complainant in the instant case, Mr Given submitted that there is no amount properly payable to the complainant other than that which was paid to him.  His union has not explained how the SEP instructor allowance was properly payable to him during the cognisable period after that position ceased as a consequence of his promotion to captain.

Mr Given suggested that a similarity can be drawn between this case and the Labour Court decision in Tesco Ireland Limited and David Coleman[8].  Mr Coleman moved from a night shift to a day shift and complained that Tesco Ireland was in breach of the Payment of Wages Act because he was no longer paid the night premium.  The Court held that there was no unlawful deduction when Mr Coleman wasn’t paid a night premium when he was working days.  The complainant was not working as a SEP instructor and could not have done this work during the period encompassed by this complaint and Mr Given submitted that he is not entitled to payment for work not done.

More importantly, Mr Given asserted that the complainant was aware that he couldn’t remain in the role of a SEP instructor because, in his email of December 26th 2023, he stated, “I would like to request the continuance of my duties as FC SEP Instructor.”  This email clearly demonstrates that the complainant knew that he could not continue as a SEP instructor because he had been promoted to captain.  Mr Given said that it is untenable for the complainant to state that he believed the SEP instructor allowance to be properly payable while at the same time, acknowledging that he had no entitlement to continue as a SEP instructor.

Mr Given submitted that the complainant must be deemed to have consented to the removal of the SEP instructor allowance because, as is clear from the email referred to above, he knew or, from the standard practice, he ought to have known, that,

“…the logical consequence of securing his promotion to captain is that he would no longer be eligible for SEP instructor role and therefore, no longer eligible for SEP instructor allowance.”

As is set out in the memo to “AskHR” on December 7th 2023, the subject of which is, “Promotion to rank of Captain,” with effect from that date, the complainant was in receipt of a captain’s salary.  Mr Given asserted that “he cannot approbate and reprobate.”  He cannot seek to be a captain on a captain’s salary while also seeking to retain the first officer’s SEP instructor’s allowance.

Mr Given submitted that the Payment of Wages Act does not admit the possibility of an employee securing an unfair advantage through an allegation that an unlawful deduction has been made in circumstances where the obvious result of securing promotion is that a different salary and circumstances are applicable.

Conclusion

Mr Given concluded by asserting that the complainant has failed to demonstrate that there has been an illegal deduction from his wages during the cognizable period.  As he was paid the wages properly payable to him, his complaint under the Payment of Wages Act must fail.

Evidence of Captain Brian O’Sullivan, Head of Training at Aer Lingus

Captain O’Sullivan said that he joined Aer Lingus in 1988 and became a captain in 1996.  He then progressed to a role as a training captain and an A320 captain.

Captain O’Sullivan described the training roles that are assigned to first officers:

§  SEP instructor role

§  Multi-crew co-ordination role

§  Type rating instructor

In this regard, Captain O’Sullivan referred to page 5 of the CTAC Agreement, and the schedule of training positions which are assigned separately to first officers and captains.

Mr Given asked Captain O’Sullivan about the complainant’s contention that Captain “AB” was permitted to remain in the SEP instructor role when he became a captain.  Captain O’Sullivan replied that Captain AB was requested to remain in the role because of Covid-19.  He had been promoted in 2019 and he lost his SEP instruction job.  When the pandemic hit, he was asked to do return to SEP training and when the pandemic restrictions were eased, he ceased the training. 

Mr Given asked Captain O’Sullivan for his opinion on the complainant’s email of December 26th 2023.  Captain O’Sullivan said that he drafted a response to the complainant’s email when he received it, but he didn’t send it.  In the draft email, he said that he thanked the complainant for his time spent as an instructor and he said that there would be other training roles available to him as a captain.

Captain O’Sullivan said that the allowance is stopped two months after the left side seat check.

Mr Given referred to page 4 of the CTAC Agreement and the reference to an instructor being “stood down.”  Mr Given asked Captain O’Sullivan if the complainant was stood down when he became a captain.  Captain O’Sullivan replied that the custom and practice is that this is what happens.

Cross-examination of Captain O’Sullivan

Mr Creaney asked Captain O’Sullivan if he knew the complainant.  He said that he wouldn’t have interacted with him on a daily basis, but that he would meet all the instructors during the year.  Captain O’Sullivan said that he has legal responsibility for training, and technically, all the instructors report to him.  He said that he has chief instructors and that they have daily interactions with staff.

Captain O’Sullivan said that it is custom and practice and “a given,” that, when a first officer is promoted, they cease carrying out the first officer role of SEP instructor.  He said that this is not communicated to individuals, but that it is understood from the CTAC Agreement.  Captain O’Sullivan said that no one ever got written communication about this, and that he wouldn’t have expected the complainant to remain on as an instructor.  He said that he agreed that the CTAC document could be worded better.

Mr Creaney asked Captain O’Sullivan if the complainant was informed that he was stood down from the role of instructor.  Captain O’Sullivan replied that the expectation is that he would understand that he was stood down when he was promoted to captain.

Mr Creaney referred to Captain AB, who was requested to stay on as a SEP instructor after he was promoted.  He then referred to another Captain, “CD,” and he asked Captain O’Sullivan if he was aware of a deal between CD and the respondent.  Captain O’Sullivan said that he was aware that CD wanted to stay in the role, but that he didn’t.  He said that he knows that a settlement was reached.

Mr Creaney referred to the cost of keeping a captain “on the ground” to do the instruction role.  Captain O’Sullivan said that the complainant applied for a new primary function, which is the role of captain.

Mr Creaney referred to the letter of offer of May 2018 for the instructor position in which there is no reference to the role ceasing on promotion to captain.  He said that there was no communication with the complainant after he was in the role for two years.  Asked by Mr Creaney if he would be surprised if he wasn’t kept on, Captain O’Sullivan said that “this happened to me.”  

Responding to re-direction from Mr Given, Captain O’Sullivan said that, by not confirming that he was permanent in the role after two years, and by not informing him that he would lose the position on promotion, the complainant wasn’t treated any differently to anyone else.  He said however, that this is something he will address with the HR team.

Evidence of Captain Stephen O’Reilly

Captain O’Reilly joined Aer Lingus in 1997.  He has held every instructor position in the airline and is now in the role of chief instructor.  He is a member of the flying team and he spends 50% of his time as a pilot.  In his second year as a first officer Captain O’Reilly said that he was appointed to the role of SEP instructor.  He was a type rating instructor on the change from the A320 to the A330 fleet.  He lost his position as a type rating instructor in 2007, when he was promoted to captain.  He said that “this is always the way it was.”

Captain O’Reilly said that the airline is “all about cost containment.”  He agreed with Mr Given that he had conversations with the complainant about the SEP instructor role.  He said that the complainant “was one of our best instructors” and he was sorry to see him stood down.  He said that he had a conversation with the complainant multiple times about the fact that his role was costed based on the left seat of an A320.

When he received the email at 09.20 on St Stephen’s Day 2023, Captain O’Reilly said that he wasn’t surprised.  He said that it was an extension of conversations he had with the complainant.   He said that there was a mutual understanding that he would be stood down.

Captain O’Reilly said that his understanding of the phrase “hail Mary pass” is that the proposal has a 50/50 chance or a very slim chance of success.

Mr Given asked Captain O’Reilly about Captain AB.  Captain O’Reilly said that Captain AB was promoted to captain in the class before the complainant.  On promotion, he was almost immediately appointed as a line training captain, a training assignment confined to the rank of captain.  Captain O’Reilly said that pilots were on a 50% roster during the Covid-19 pandemic and there was a requirement to maintain licenses.  The airline tried to keep everyone flying in simulators.  As an emergency measure, AB was asked to do SEP instruction. 

The allowance for the SEP instructor is based on 12.5% of the highest point of the first officer scale.  Captain O’Reilly said that, of the three roles that are available, a first officer can only hold one training appointment.  He said that, on promotion, a first officer moves from their point on the first officer’s pay scale to the equivalent point on the scale for captains.  For example, a first officer who is at point 8 of the pay scale (€111,000) being promoted to a captain, moves to point 8 of the captain’s scale (€125,000).

Mr Given asked Captain O’Reilly about the issue of cost.  If a SEP instructor is a captain, they must be replaced on flying duties by a captain.  Captain O’Reilly said that SEP training is not regulatory training and that, if the cost became prohibitive, it could be assigned to cabin crew.

Cross-examining of Captain O’Reilly

Captain O’Reilly said that he is the chief instructor with responsibility for flight teams and cabin crew.  He agreed that it would be a massive change for cabin crew to do SEP training.

Mr Creaney asked if it was wise that there was nothing written down with regard to the fact that the SEP training is confined to first officers.  When he arrived in the role, Captain O’Reilly said that there were three SEP instructors and there was no need for written confirmation that, when they were promoted, they relinquished the role.

Mr Creaney said that there is no indication in the letter of May 2018 that, when he was promoted, the complainant would have to cease doing his SEP instruction job.  Captain O’Reilly replied that “command is a promotion” and that SEP instructors do not resign.  In terms of status and pay, he said that the role of captain is “far higher.”

Mr Creaney said that it isn’t written down anywhere that the position must be relinquished.  Captain O’Reilly said that the CTAC Agreement is not new and that it is based on a traditionally old agreement.  Mr Creaney said that nowhere in the Agreement does it state that you lose the SEP instruction role on promotion.  Captain O’Reilly replied that nowhere is it stated that you lose the first officer role.

Captain O’Reilly said that AB wanted to finish with the SEP instructor role and to proceed with other training.  The training unit wanted to get others trained. 

The Legal Framework

As pointed out by Mr Creaney in his submission, under the heading “Interpretation” at s.2 of the 2003 Act, a fixed-term employee is defined as,

…a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…

It is apparent from this that, apart from a temporal appointment with a fixed start and end date, a fixed-term employee may be employed for a specific purpose that has no end date, or, they may be employed, as in Power v the HSE, until the occurrence of a specific event such as a permanent appointment.  In the case under consideration, I must examine the status of the complainant’s fixed-term contract which is stated to be “for a period of two years subject to continuous satisfactory performance” and which “may be extended by mutual agreement.”

The genesis of the Fixed-term Work Act is Council Directive 1999/70/EC concerning the framework agreement on fixed-term work.  Clause 1 of the framework agreement states that the purpose of the Directive is to:

(a)  improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b)  establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

It is clear therefore, that the Directive is intended to provide protections for fixed-term workers and to prevent abuse where employers might seek to offer temporary assignments to a succession of employees, or to resist making a permanent appointment.  Clause (b) above has been transposed into Irish law by section 9 of the 2003 Act which addresses the issue of successive fixed-term contracts:

(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.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous

The union’s case opened with an argument that, in his role as a SEP instructor, the complainant was entitled to a contract of indefinite duration.  Early at the hearing, it became apparent that this argument had been superseded by a concession on the part of the respondent, and Mr Given was clear in his position that, by virtue of s.9 of the 2003 Act, the complainant had acquired a contract of indefinite duration.

Consideration of the Complainant’s Case

The complainant’s case is that, in accordance with s.9(1) above, he became entitled to retain his appointment as a SEP instructor when he had been in the role for four years.  This occurred on May 16th 2022.  The respondent’s position is that he was employed as a SEP instructor on an indefinite basis when his two-year fixed-term contract wasn’t renewed on May 16th 2020.  Regardless of the route taken, the parties agree that, at the very latest, by May 16th 2022, the complainant was a SEP instructor on an indefinite basis.  It seems to me therefore, that the issue I have to consider is how a contract of indefinite duration can be consistent with the respondent’s position that the assignment came to an end (and was not therefore indefinite) when the complainant was promoted.

We know from the judgement in Power v the HSE that an employee holding a permanent post may also be a fixed-term employee.  While the circumstances in Power are different to those of the instant case, the finding of the Supreme Court that an employee may be a fixed-term worker “and in a permanent employment relationship with their employer” (paragraph 56) is useful.  As Mr Given pointed out, the critical difference between Power and the complainant is centred on the fact that Mr Power stepped out of his job as CFO of the Saolta Hospital Group and, for five years, he undertook the role of CEO on an interim basis.  The complainant was a first officer who was appointed to a training role in addition to his permanent role. 

The complainant is seeking a decision that he was employed as a SEP instructor on an indefinite basis and that he was entitled to continue in the role indefinitely.  The respondent supports the complainant’s contention that he had a contract of indefinite duration, but they also argue that the SEP instructor role ended when he was promoted to captain.  I have given this matter some consideration and it is my view that, if it was acceptable to bring the SEP instructor contract to an end when he was promoted, it is not possible to hold the position that the complainant was a SEP instructor on a contract of indefinite duration.

Returning to the definition at s.2 of the 2003 Act, and, relying on the ordinary meaning of a contract of employment determined by the occurrence of a specific event, it is my view that, concurrently with his permanent position as a first officer, the complainant was a fixed-term employee as a SEP instructor until October 2023, when he was line checked for promotion to the rank of captain. 

Page 5 of the CTAC Agreement lists 11 instructor posts, one of which is defunct, three of which are allocated to first officers and seven which are allocated to captains.  The Agreement is not clear about this allocation, but the distribution of the posts was clarified at the hearing.  Given that the SEP instructor position is one of three that is confined to first officers, it must be the case that appointment to a SEP instructor role is indefinite only as long as the post-holder remains a first officer.  The logical conclusion therefore, is that the complainant was a fixed-term employee until October 2023, when his post as a SEP instructor came to an end by the occurrence of the specific event which was the commencement of his training for promotion to the rank of captain. 

Conclusion

We know that the objective of the 2003 Act is to improve the quality of fixed-term work and to prevent abuse by the issuing of successive fixed-term contacts.  Keeping that overriding premise in mind, the Act does not make it unlawful to issue a fixed-term contract that ends on a specific date, is for a specific purpose, or for work that ends on the occurrence of a specific event, as long as the employee is informed about the circumstances that bring the contract to an end.  Section 8(1) addresses this provision:

(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is -

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

Section 9 is activated only when an employer proposes to renew the fixed-term contract after one of the circumstances at (a), (b) or (c) has been arrived at.  This was not the situation in which the complainant found himself.  His contract was never renewed, but continued until he was promoted.  He could not have raised this complaint if he had been informed in writing that his contract as a SEP instructor would cease on promotion.

Subsections (2) and (3) of s.8 are not relevant for the issue under consideration here, but s.8(4) addresses the absence of a written statement:

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act -

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

At the hearing, Mr Given agreed that the complainant could have been informed in writing about the effect of promotion on his fixed-term role.  Regardless of the lack of written clarity, it is my view that, at all times, the complainant knew that the SEP role was a first officer assignment.  This is evident from his email to Captain O’Sullivan on December 26th 2023 in which he asked if he could continue in the role and in his remark to Captain O’Reilly that, in sending that email, he had made a “Hail Mary pass.”

I accept that the CTAC Agreement and the complainant’s letter of appointment are unclear about the specific occurrence that brings an end to the contract for the role of SEP instructor.  I am also cognizant of the evidence of the respondent’s witnesses that, for the last 25 years, apart from two specific exceptions, every time a first officer holding a SEP instructor role was promoted, they lost the instructor job and the allowance.  The complainant mentioned the two exceptions in his evidence, indicating that he understood that the role is confined to first officers.  It is my view that, based on the notorious understanding of the policy, the omission of a written statement did not disadvantage the complainant and that there was no abuse of his status as a fixed-term worker.

I learned also from the witnesses that, on promotion to the rank of captain, there is an opportunity to apply for a higher-level instructor position, on a percentage of the top point of the salary of captain.  It follows therefore, that the respondent has decided that the SEP role (and two other instructor positions) is a component of the job of a first officer and that there are seven different instructor positions available for captains.  While an arrangement that becomes accepted by custom and practice may not be equivalent to law, it is my view that respondent’s practice of removing the SEP instructor role when a first officer is promoted to the rank of captain is an executive decision about the allocation of duties and is a valid legal position.

Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I have examined the complainant’s claim that he was entitled to remain in the role of SEP instructor after he was promoted to the rank of captain in October 2023 and I have concluded that he was not so entitled.  Based on this conclusion, it follows that the allowance that the complainant claims for the months in which he did not carry out the role of SEP instructor is not properly payable. 

CA-00064278-001:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

As I have reached the conclusion that the respondent did not contravene any provision of the Protection of Employees (Fixed-term Work) Act 2003, I decide that this complaint is not well founded.

CA-00064278-002:  Complaint under the Payment of Wages Act 1991

I have concluded that the wages claimed by the complainant were not properly payable and that there has been no illegal deduction from his wages.  Based on this finding, I decide that this complaint is not well founded.

Fixed-term work, successive fixed-term contracts, specific occurrence, wages properly payable