BA Strike - Your Thoughts & Questions II

[Diplome]

BASSA and Duncan Holley have gone too far..my God.

http://www.pprune.org/cabin-crew/418...f-only-94.html

Duncan Holley has named a non-striking member of BASSA on their forum because the individual disagreed with Mr. Holley's recent communication.

This is the same Mr. Holley who represented in his recent communication:

We have an open forum where all opinion is welcome but also be aware, it’s double edged. Your managers read it every single day, they analyse and thrive on every negative comment; any disillusionment simply plays into their hands.

I would offer that it is not managers that BASSA members have to fear, but their own leadership.

Each and every member who voted to accept BA's offer or voted in the on-line procedure where identification was required should be running from this Union as quickly as possible.

Mr. Holley has decided upon a scorched-earth policy against many of BASSA's own members. Incredible.

[Juan Tugoh]

SOSR

Lets revisit what SOSR is and what the legal proofs required are.

In defending a claim for unfair dismissal, an employer must first establish that the dismissal was for one of five potentially fair reasons: capability or qualifications; conduct; redundancy; contravention of statute; or some other substantial reason of a kind such as to justify the dismissal of the employee (Section 98 of the Employment Rights Act 1996). “Some other substantial reason” (SOSR) has been interpreted to mean a “sound good business reason” (Hollister v National Farmers’ Union (1979), Court of Appeal) and is frequently used to justify dismissals resulting from business reorganisations falling short of redundancy.

The proof that has to be applied as to this 'sound good business reason" is not the perview of the court - the court does not decide what is and is not a sound good business reason.

The Employment Appeal Tribunal (EAT) upheld the appeal, finding that the Tribunal had applied the wrong legal test. SOSR did not have to be a reason that the tribunal considered to be sound, merely one that the employer considered (on reasonable grounds) to be sound

Millions in losses over several years and a group of employees unwilling to change their working practices to allow the business to attempt to stop such losses, certainly falls within this category.

SOSR can cover other things of relevance here too, and this case is worthy of some thought:

the Court of Appeal found that an employee’s personality, of itself, cannot be a potentially fair reason for dismissal. However, the way in which an employee’s personality manifests itself (in this case, with the employee making accusations against a witness, HR Director and the Chief Executive) can give rise to a potentially fair reason for dismissal on the grounds of conduct or SOSR, if it leads to an irretrievable breakdown in the working relationship.

Some of the things said and done by some crew at Bedfont could easily fall within this category - WW as Hitler etc.


The point is, legally BA have a cast iron bottom line. As BASSAs own QC said in court, BA could have just issued new contracts - take it or leave it. Those who refused to sign would have been effectively resigning. This would not necessarily mean reducing pay, just formalising whatever deal BA wished to impose upon the CC at the time. Luckily for BASSA, despite and contrary to their repeated protestations BA IS committed to a negotiated settlement and has not ridden roughshod over the union. This even though they could have legally done it.

What matters is that BA would have to prove in a court of law that it was not down to a global financial meltdown, so no, it isn't.

A global financial meltdown does not need to be proven, just the company having financial difficulties for any reason is sufficient. MF or not , if the company is losing money quarter on quarter, they have ground to use SOSR as a justification for dismissal. Let us not pretend that a court really decides what is a good sound business reason - it is the company that does that.

[pvmw]

Duncan Holley has named a non-striking member of BASSA on their forum because the individual disagreed with Mr. Holley's recent communication.

It would seem an ideal opportunity to have a public face of the PCCC. If he has already been "outed" by the BASSA thugs - and even better is apparently an ex BASSA Rep. - then he has nothing to lose and everything to gain.

[Lotpax]

It is a perfectly legitimate subject, and you keep bringing it up, but every time I ask you to give an example of an action BA management took that has extended this dispute unnecessarily, you have avoided answering.

It is not so much a question of any action that prolonged the dispute, as any inaction that did not hasten the end, is it?

My thesis is simple, let me re-state it, the union has been awful in this dispute, but it takes two to tango and I cannot see how the senior management team can escape without questions being asked.

This dispute is nearly 9 months old, that is a very long time and it cannot be helping the brand in a hard market.

PS: Juan Tugoh

Many thanks for saving me a long typing job on SOSR

[ExecClubPax]

Lotpax

Let me make it simple for you. The BA leadership team have the full backing of the Board and Shareholders. Consequently, there are no questions being asked of it so there is no need for answers.

BTW, during all this has it escaped your notice the LT has begun sorting out the company's pension scheme (with UNITE backing), concluded a merger agreement with Iberia, neutralised transatlantic anti-trust action for the BA-IB-AA link up and secured agreement with all other employee groups for an across the board reduction in costs.

It might not seem like much to you but I'd say the LT has played a blinder in the current circumstances. No wonder the Board and Shareholders are happy!

[Shack37]

My thesis is simple, let me re-state it, the union has been awful in this dispute, but it takes two to tango and I cannot see how the senior management team can escape without questions being asked.

But this union has consistently refused to tango. Should Willie Walsh be on the dancefloor by himself?
Holley's latest outburst really is beyond the pale, he really is desperate now.

[ExecClubPax]

Question now is, will the UNITE leadership sit back or will they do something about this latest outrage. Indeed, it was TW who after the first injunction bemoaned "its a sad day for democratic unionism" or something like that.

The Animal Farm analogy is quite apt. "All animals are equal, but some are more equal than others." Who in their right minds would wish to belong to such an organisation where dissenting voices are hounded out?

[ChicoG]

A global financial meltdown does not need to be proven, just the company having financial difficulties for any reason is sufficient. MF or not , if the company is losing money quarter on quarter, they have ground to use SOSR as a justification for dismissal. Let us not pretend that a court really decides what is a good sound business reason - it is the company that does that.

I'm sorry JuanTugoh, but why use SOSR when redundancy is a perfectly sound reason? After all, it is the usual business process when employees are no longer required due to a "business reason".

I think BA ruled out SOSR when they failed to do this.

Don't get me wrong, SOSR probably would have been an excellent step.

But again, When you offer a new contract, you are going to penalise some more than others, aren't you? Opening a completely different can of worms.

Or why use SOSR when you can simply make people redundant?

If SOSR was as simple as many claim, there is no reason for BA not to have done it. The fact that it isn't is probably why they haven't.



Lotpax:

This dispute is nearly 9 months old, that is a very long time and it cannot be helping the brand in a hard market.

I think you'll find it's a bit older than that.

I mean this was when it was already well in full flow (like 5-6 months IIRC....)

BA passengers face summer of strike chaos as boss demands further cuts in 'fight for survival' | Mail Online

[JayPee28bpr]

Lotpax

This dispute is nearly 9 months old, that is a very long time and it cannot be helping the brand in a hard market.

BA share price is outperforming the market by 17% over the last year. The latest broker comments on the stock are pretty much all positive. Last week, for instance (per Barclays Wealth):

British Airways is flying high after both Citigroup and Royal Bank of Scotland raised their price targets for the airline. Citi raised its target price by 12p to 295p after expressing 100% confidence in British Airways’ joint venture with American Airlines going ahead. The bank thinks the synergies in the joint venture are worth 25p per share.

Everyone outside the BA bubble sees the dispute as over and has moved on.

[Juan Tugoh]

ChicoG

I'm sorry JuanTugoh, but why use SOSR when redundancy is a perfectly sound reason?

A perfectly sound reason to do what? Redundancy is not a reason, it is a procedure, a way of reducing staff. BA has not recently been looking to get rid of staff, indeed it is recruiting so why would redundancy even be legal under these circumstances. I did not suggest that SOSR was an alternative to redundancy. SOSR is a reason to dismiss someone.

The fifth category of dismissal reasons that capture those scenarios that cannot fall within misconduct, performance, ill-health or redundancy. The most common of which are either a fundamental breakdown in the working relationship or third party pressure that can't be linked to the employee's misconduct.

It has therefore not been ruled out, and it would be naive in the extreme to plan your life on such a notion. The SOSR defence is certainly not an easy option, if for no other reason than PR. CC have very little public support at the moment but mass sackings would certainly engender feelings of anger within the union community - and rightly so. However changing working practices to which an individual objects can fall into this category, and has been upheld at an IA.

Scott and Co v Andrew Richardson (2005)

Facts

Scott and Co were a debt recovery firm based in Scotland. Due to legislative changes, they were required to undertake more of their work in the evenings and consequently sought to change the shift pattern of their employees. Mr Richardson objected to the changes, arguing that the new shift system denied him the opportunity to earn overtime payments for working in the evenings. Mr Richardson was dismissed and brought tribunal proceedings for unfair dismissal. Scott and Co argued that his refusal to accept the new shift system amounted to SOSR of a kind such as to justify the dismissal under s 98(1) ERA.

Decision

The Employment Tribunal initially found in Mr Richardson’s favour, holding that Scott and Co had not demonstrated that the new shift system gave the business a “discernable advantage”. Scott and Co appealed.

The Employment Appeal Tribunal (EAT) upheld the appeal, finding that the Tribunal had applied the wrong legal test. SOSR did not have to be a reason that the tribunal considered to be sound, merely one that the employer considered (on reasonable grounds) to be sound. Accordingly, the tribunal had erred in substituting its own opinion of whether the shift system gave Scott and Co and discernable advantage. All the employer had to do, when establishing SOSR for dismissal, was provide evidence supporting a genuinely held belief that it had a substantial reason which was not ‘whimsical or capricious’.

So altogether I'm still not sure what you are getting at here. I have presented some facts of what SOSR is and how it has been used and what proofs are used when it is utilised as a defence and who has to apply those proofs.

I personally don't care whether you take this onboard or not, but crew should be very wary of legal advice from BASSA. Muddled barrack-room lawyering has already caused BASSA some serious embarrassment; the 12 Days of Christmas was prevented because La-la Malone was willfully ignorant of the law, and the latest window blinds fiasco could have cost crew their jobs for illegal wildcat IA. Ultimately it is upto the individual to research these things themselves.

Rgds

JT

[Ancient Observer]

Let's move on from the legal stuff.

ChicoG

Juan is right. Can't we just leave it there and move on?
SOSR can be used any time by any employer, and it is the employer's business judgement that counts - the Court may not/are not allowed to substitute their judgement for the employer's judgement.
SOSR is also a hell of a lot cheaper than redundancy, given BA's daft, expensive, redundancy package.

Please - Move on from this boring legal technicality.

[oggers]

The 'outing'

It is very difficult to make a succinct response to the action of BASSA in outing this dissenting member. Vindictive, dictatorial, hypocritical and generally nasty.

[Mariner9]

It would seem so Oggers, but in the interest of balance I would like to have seen the post by the "outed" individual to see if DH had any justification for getting his knickers in such a twist.

I can't really see how a post reportedly compaining about Vietnam/ABBA newsletter on their own forum can put strikers like the latest suspended rep "at risk" as DH claims, but I am prepared to consider the matter.

[ChicoG]

ChicoG

Juan is right. Can't we just leave it there and move on?
SOSR can be used any time by any employer, and it is the employer's business judgement that counts - the Court may not/are not allowed to substitute their judgement for the employer's judgement.
SOSR is also a hell of a lot cheaper than redundancy, given BA's daft, expensive, redundancy package.

Please - Move on from this boring legal technicality.

AO,

I never raised the subject again (I was asked "Do you know what SOSR is?"; while it's on the table I think it merits discussion. Since when did you decide what is boring on here and what is not? I think we can leave it to the mods, OK?

I have asserted in response that if BA were going to use SOSR then the SOR better be S.

I'm yet to be convinced simply by a definition of what SOSR is, and a few examples of where it has been used, that BA are in a position to use it, or use it "cheaply" as you say. If it were cheaper and bulletproof, why not do it?

Much water has gone under the bridge since this was first mooted on the first iteration of this discussion on the CC thread.

I for one am interested in seeing how the events of the last, say, 12 months have influenced BA's ability to simply "pull an Aer Lingus".

If you have no interest in the subject, please skip past my messages.

Until the mods rule it off topic, I think I am allowed to discuss it. Should they rule it no longer relevant, I will of course comply.

For example,

All the employer has to do to establish an SoSR dismissal is put forward evidence to support a genuinely held belief that the changes are necessary for the good of the business - they don’t actually have to result in an improvement.

And further:

* The SOSR category is a 'catch all' category designed to cover dismissals which do not fall into any of the above categories but which are nevertheless potentially fair.
* Examples include:
o dismissing a temporary employee when the permanent employee returns from maternity leave (provided the temporary employee was informed in writing at the start of the job that their employment would terminate in this way)
o expiry of a temporary contract
o dismissal because of personality conflicts
o dismissal because of third-party pressure to dismiss
o where there is no actual 'redundancy' situation but an employer wants to introduce new terms and conditions for sound business reasons

All of that makes SOSR sound like a piece of urine.

So surely it begs the question:

Why have BA not done it?

It is a valid point in this argument; after all it's been hanging over CC's heads since BA "imposed", either they are too stupid to understand it, or they believe that they have some legal protection against it.

Surely the point of this forum is to debate such things.

It might be a "legal technicality" to you, but to several thousand people it determines whether or not they're going to be employed for the next several years (if ever).

[Diplome]

Mariner9:

I believe when Mr. Holley was referring to "risk" he was simply stating that any non-striker was putting strikers jobs at risk.

In any event, there is no circumstance where the selective outing of a member on a confidential forum by BASSA is appropriate.

BASSA has repeatedly complained regarding its members being identified by third-parties....and now this. If I was a member who didn't agree with 100% of BASSA's actions I'd be very nervous at the moment.

[Mariner9]

I don't disagree that outing was inappropriate whatever the circumstances Diplome, but remain intruiged as to what was written that so annoyed DH.

[west lakes]

It is worth knowing that in the early stages of this whole mess that members were being ejected from the union for not agreeing with the majority.
I understand that this even extended to a rep at one of the bases, this was done by the simple expediant of not notifying the individual of meeting arrangements and then removing them from the commitee after a certain number of meetings had not been attended, as laid down in the rules.

In the cases of those that were ejected from the union the proceedure laid down in Unite's rules had not been followed - it was merely a decision by BASSA, a decision they, according to Unite's rules, are not allowed to make.
An appeal to Unite, as allowed by the rules, was suggested at the time, I don't know if this was done.

[Snas]

I’m sorry but I had to smile when I saw DH say….

We know who these people are, but no action has been taken as yet to eject them.

So now I know, all this time after my partner cancelled her BASSA membership (Feb) she has been calling and writing recorded delivery letters in an attempt to get them to acknowledge her departure and stop sending her ballots etc.


Now we know all she had to do was log onto the forum and type “I disagree” and bingo, you’re out. Live and learn eh.

[oggers]

The 'outing'

In any event, there is no circumstance where the selective outing of a member on a confidential forum by BASSA is appropriate.

Yep. One shamefully ironic aspect to this is the way in which DH is comfortable performing summary executions in this manner. No agreed procedures here, no members' rights. No need for BASSA to be hampered by any of the checks and measures they would demand of BA.

I think what we are witnessing are the death throes of DH in his role at BASSA, lashing out in a somewhat spiteful and predictable manner.

[Hipennine]

One can't help but consider that this "outing" has more serious implications for BASSA/Unite.

BA has a duty of care to all its employees - hence the disciplinary action against various individuals for bullying, etc. In this case however, the act has been done not by an individual emplyee, but by the union itself through its appointed officer. Does that require BA to take action against the Union (as opposed to individuals) in order to protect its employees ?