The 38'ers

[tamalai]

So, with 11 re-employed and the others who accepted the offer taking the money those who are "Continuing Legal Action" are gonna look pretty silly trying to argue why they didn't accept the companies offer in court...........any reasonable judge will probably award them, what ?? 3 months salary !!!!

[Engineer]

One assumes that is a personal opinion and not based on any legal knowledge. Unless of course you know the judge personally and have inside information :O

[tamalai]

well, actually you'll find that the law is based on "reason" and the outcome of most litigation depends upon the availability of "a reasonable remedy" and as the defendants in this case have now provided what is obviously "a reasonable remedy", not only proposed but also actioned, it makes those that are continuing "Unreasonable" in the eyes of the law, and hence the judge is obliged to look upon the remaining plaintiff's in this light.

Of course I am only qualified to practice law in the UK, but I cannot imagine the outcome will be any different in other jurisdictions.....................

[Engineer]

As someone stated on another thread

"well, logically, there will be all sorts of huffing and puffing, and various factions will "Continue court action" but it will all fade into obscurity and in three years time not many people will recall the events surrounding this sorry affair..........................

on the plus side will come fairly rapidly no doubt .........

retirement at 60 (or 55+ anyway) which will hopefully be tied to a fairly substantial pay increase, when was the last one 2001 ?
4% x 4 years = 16% so ask for 30% and work back ...............

Various other agreements that are outstanding and (Hopefully) a new era of Cx/AoA co-operation......................

Cathay will continue to expand as fast as possible and will process the re-application of those who wish to go through this somewhat demeaning process, ................

No doubt the freighter boys are waiting with bated breath to welcome the first returning 49'er to the right handseat !!!"

What more can one say
:ok:

[Wizofoz]

tamalai,


If either the Australian or British courts find that the dismissals under their jurisdictions were unlawful (as opposed to unfair), they will be voided, meaning the company must immediatley re-instate the employee in his previous position, seniority intact, and pay him for the entire time he was out.

The fact that CX was willing to re-interview the 49ers damages any case they have that the sackings were justified.

Surley it is up to the individual to decide wether a particular offer is just.

[tamalai]

Unfotunately the court CAN find that the dismissal's were UNFAIR it cannot find that they were UNLAWFUL, so your argument fails on that point, so re-instatement with full benefits is not a possibility. What the courts will look at is that there has been a disagreement to which 70% of those involved have found a REMEDY and 30% are now being UNREASONABLE but keep funding the action if it makes you feel better !!!

[Wizofoz]

tamali,

I'm not funding jack!! I am but an interested outsider.

Genuine question, on what do you base the assertion that the dismissals cannot be found unlawful?

[tamalai]

quite simply there is no law that compels any person or corporate body to employ any given person, hence the dismissals CANNOT be UNLAWFUL, the company can be found to be in breech of contract, but the dismissals in the UK will be dealt with by an EMPLOYMENT TRIBUNAL as established by the proceedings to date, i.e: the VETA employee's had to be employed "In the UK". An employment tribunal has limited powers .

To put it simply you cannot be forced to work for someone whom you do not wish to work for, equally someone (Body corporate or individual) cannot be forced to employ someone they do not wish to have working for them. Hence the ONLY remedy available is COMPENSATION for breech of contract. The court/tribunal will generally take the stance "What is reasonable"/how best to settle this argument (remember in litigation no one EVER wins). It will look at the settlement of those who acceptedthe offer and probably deem it to be reasonable, accordingly they will probably take a dim view of those who failed to settle.

Most litigants are convinced they will win, they also twist the facts to suit their own side of the story. most leave court disappointed !!!

[Engineer]

From the Times

COURT OF APPEAL
Published May 31, 2005
Crofts and Others v Cathay Pacific Airways Ltd and Others
Before Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Waller and Lord Justice Maurice Kay
Judgment May 19, 2005

An employment tribunal had jurisdiction to determine unfair dismissal claims brought by international airline pilots employed by Hong Kong companies since their contracts of employment required them to be based in England.

They were therefore employed in Great Britain for the purposes of section 94(1) of the Employment Rights Act 1996. Similarly the tribunal had jurisdiction to hear contractual claims brought by those pilots in respect of their dismissals.

The Court of Appeal so held by a majority, the Master of the Rolls dissenting, when, inter alia, allowing the appeals of five pilots employed by Veta Ltd, a subsidiary of Cathay Pacific Airways Ltd, against the decision of the Employment Appeal Tribunal (sub nom Dickie v Cathay Pacific Airways Ltd (2004) ICR 1733) and remitting their unfair dismissal and breach of contract claims to the employment tribunal for determination.

The appeals of six pilots employed by Cathay Pacific against the dismissal of their contractual claims and an appeal of a pilot employed by USA Basings Ltd were dismissed.

Mr David Griffiths-Jones, QC and Miss Joanna Heal for the pilots; Mr Christopher Jeans, QC and Miss Anya Proops for the employers.

THE MASTER OF THE ROLLS, dissenting, said that Cathay Pacific was Hong Kong's major airline. Until the early 1990s all Cathay Pacific pilots were employed by Cathay Pacific Airways Ltd.

Then there was a change of policy to enable some pilots to live in countries other than Hong Kong. Pilots could be allocated a base area from which their flight cycles would start and at which they would end. One such home base was London Heathrow.

Pilots for whom Europe was the base area entered into contracts of employment with Veta Ltd, a subsidiary of Cathay Pacific registered in Hong Kong, which was little more than a shell company.

The contracts of employment of all the pilots were governed by Hong Kong law. Their salaries were paid into Hong Kong bank accounts. They held Hong Kong professional pilots' licences. All training, disciplinary and grievance procedures took place in Hong Kong, from where flight instructions were issued.

Five Veta pilots and six Cathay pilots complained of unfair dismissal and breach of contract. The employment tribunal held that it had jurisdiction to entertain the unfair dismissal claims of the Veta pilots as their employment had a substantial connection with Great Britain and Heathrow was to be regarded as their principal place of work, but it had no jurisdiction to consider the unfair dismissal claims of the Cathay pilots.

It had jurisdiction to consider the contractual claims of both, but whereas the contractual claims of the Cathay pilots should be stayed on the ground of forum non conveniens, those of the Veta pilots should not.

Before the hearing in the Employment Appeal Tribunal, the Court of Appeal gave judgment in Lawson v Serco Ltd (The Times January 30, 2004; (2004) ICR 204) on the ambit of application of section 94(1) of the 1996 Act.

The Cathay pilots abandoned their challenge to the decision on unfair dismissal. The Employment Appeal Tribunal dismissed all appeals in respect of the contract claims.

Applying Serco it decided that the Veta pilots' case on the 1996 Act was borderline and should be remitted to a fresh tribunal for rehearing, which should also consider whether the Veta pilots' contract claims should be stayed on the ground of forum non conveniens.

Section 94(1) of the Employment Rights Act 1996 formed part of Part X of the Act, which was concerned with unfair dismissal. Section 196 excluded from the ambit of the Act certain employees engaged in work wholly or mainly outside Great Britain.

The wording of section 196(2) might have been read as excluding from the application of Part X international pilots who necessarily spent most of their working hours outside Great Britain.

However, in Todd v British Midland Airways ((1978) ICR 959, 965) Lord Denning, Master of the Rolls, considering the predecessor of section 196(2), held that a man's base was the place where he ought to be regarded as ordinarily working, even though he might spend days, weeks or months working overseas.

The whole of section 196 was repealed by section 32(3) of the Employment Relations Act 1999. The authorities gave very little guidance as to the principles of statutory construction that should be applied to a such a repeal.

In Serco the Court of Appeal laid down the test that Part X of the 1996 Act applied to employment in Great Britain. The court rejected alternative tests of whether the employee had a substantial connection with the United Kingdom, or the base where the employee was employed was within the United Kingdom or whether he ordinarily worked in the United Kingdom.

In due course the House of Lords would rule in Serco whether employment in Great Britain was the correct definition. In the meantime the court was bound to apply it.

The effect of Serco was to restrict protection from unfair dismissal to those employees who, under their contracts of employment, worked in Britain. The tribunal concluded that on the facts the Cathay pilots were based in Hong Kong, but the centre of operations of the Veta pilots was London.

His Lordship said that provisions in section 196 by which mariners employed to work aboard a ship registered in the United Kingdom were to be regarded as ordinarily working in Great Britain, were replaced, after the repeal of section 196, expressly in section 199. Absent express provisions, which had not been introduced, section 94(1) of the 1996 Act could not apply to international airline pilots.

In relation to the contract claims, if they were to proceed before the employment tribunal, there was a strong case for arguing that that factor made the tribunal the more appropriate forum for the parallel claims for breach of contract.

LORD JUSTICE WALLER said that he could not accept that by virtue of the strict application of the Serco test section 94(1) of the 1996 Act could not apply to international airline pilots.

His Lordship found it difficult to contemplate that a pilot such as Mr Todd, who by virtue of his contract was found to be ordinarily working in Great Britain under the previous legislation, was, because of the repeal of section 196, no longer employed here.

Even if the Serco test was appropriate, that test had to be construed with sufficient flexibility to bring the employment of international airline pilots within the unfair dismissal provisions of the 1996 Act.

The tribunal had made detailed findings. The fact that the decision was difficult was not a basis for remitting the matter to a fresh tribunal to start again, and only if one was driven to do so by some lack of findings should it be contemplated that the further costs of remission should be incurred.

The place where the contract placed international airline pilots did throw light on whether under their contracts they were employed in Great Britain.

The findings of the tribunal led to the conclusion that the Veta pilots were employed in Great Britain because the contract required them to live and work in the way it did.

If the employment tribunal had jurisdiction in relation to the unfair dismissal claims, it would be the appropriate forum to hear the breach of contract claims of the Veta pilots.

LORD JUSTICE MAURICE KAY said that he had come to the same conclusion as Lord Justice Waller for substantially the same reasons.

[Wizofoz]

quite simply there is no law that compels any person or corporate body to employ any given person, hence the dismissals CANNOT be UNLAWFUL,


Tamali,

Maybe not where YOU live. Have a look here-

http://www.job-watch.org.au/index.html

As you will see, under Australian law, dismissal for a prohibited reason is UNLAWFUL dismissal, and is remedied as I outlined above. One of these reasons is union membership, and it would not be hard to prove that this was the main reason for the 49er dismissals.The Australian high court has already asertained that the Australian bases pilots are subjest to Australian law.


As for British law, WRONGFUL dismissal, as opposed to UNFAIR dismissal, holds the following-

Wrongful dismissal should not be confused with unfair dismissal. Wrongful dismissal is based on contract law, as well as statute. If an Employer dismisses an Employee, and in doing so, the Employer acts in breach of his contractual obligations or in breach of his statutory obligations to give the Employee notice, then the Employer will be liable to the Employee, for damages for wrongful dismissal. Any damages will be assessed on the basis of what the Employee would have received had the Employer not breached the contract.


Note the last sentence.

Ask yourself this- If the best the complainents can hope for is three months pay, why did the company offer 10? The reason most accepted the company offer was because they didn't feel they could fung their legal action after the HKAOA pulled the rug out from under them, not because they thought the deal was in any way reasonable!!

[mizzy]

The 38'ers
So, with 11 re-employed and the others who accepted the offer taking the money those who are "Continuing Legal Action" are gonna look pretty silly trying to argue why they didn't accept the companies offer in court...........any reasonable judge will probably award them, what ?? 3 months salary !!!!


although they called them the 49ers, teh actual laid-off number was 53 initially with one successful appeal soon after the incident, therfore, the correct total should be 52. among the dozen plus re-applicants, 12 success.

[tamalai]

wizo,

I agree entirely but as pointed out you CANNOT force somebody to employ another person. Also in assessing damages the court will look to see "What reasonable steps the agrieved may take/have taken to mitigate their losses"
i.e: could they/have they obtained alternative employment ??
What it all boils down to is, "was the companies offer to settle, reasonable"?

based on the majority accepting it, it must have been

you may not like the logic......................but....................

[Wizofoz]

tamalai,

Last words (Promise!!)

No you can't force someone to employ anyone. HOWEVER, once an employer HAS employed someone, that person obtains certain legal rights as an employee (and these vary from state to state) and the employer takes on legal responsibilities. Among these is the right not to be dismissed in contravention of the laws of the state in which the person was employed.

The fact that any other parties (especially when their action was under a different states laws) have accepted a settlement has no weight whatsoever in a particular individuals case.

Your statement in quotaions appears to be some legal principle you hold as universal. Under which statute is the AGGRIEVED parties actions after the fact a mitigation to damages incurred?

[geldap]

Quite right - I think Tamalai has his facts a little wrong here. Talking about the U.K pilots only, they will have thier cases heard fro unfair dismissal and breach of contract. They were without doubt, under U.K law unfairly dismissed as it is my understanding that the sackings came "out of the blue". Under U.K law there are very few "potentially fair" reasons to terminate someones employment being redundancy - certainly not the case here, competancy, but if this were the case then a due process (which would be fairly lengthy) would need to be followed - again not applicable in this case. The only other potentially fair reason would be gross misconduct and again CX could not argue this as they did not follow any process of interviewing and giving anyone a fair hearing. Not that they did anything wrong anyway or so I understand. In short in the U.K legal system it is without doubt unfair dismissal.

What Tamalai is correct in saying is that there is responsibility on the claimant to mitigate his or her loss, or find another job to you and I. If it is obvious that this was possible but the claimant did not take this opportunity then the compensation awarded would be slashed by the court.

What the Tribunal would NOT do is expect that the 49er take a lower position with the airline that sacked him in order to mitigate his loss. Even if other people have taken the offer it is acknowledged that people are different and that while some may be able to forgive and forget others may not.

If on the other hand CX had offered the 49er the position back that he was sacked from with seniority in tact AND compensated him for all of his financial loss and the 49er refused this offer, then yes the court may suspect that the claiment is acting vexatiously.

When you apply to tribunal in the U.K you must state at the outset what you are seeking. If you are seeking reinstatement and you win your case then court can make an order to re-employ on the same terms and conditions and award compensation to the extent of the loss both financial and otherwise.

In the U.K at least CX are in for a hiding.

I also believe it is incorrect to judge whether or not any offer CX dished out was O.K or not. Having had similar happen to me I would not work for CX if they were the last employer on earth but I could understand someone who is more forgiving just wanting to put the past behind them and get on with it.

Good luck to the guys who took the job and also to the remainder of the 49ers in thier persuit of justice.

[411A]

\\...remainder of the 49ers in thier persuit of justice.\\

These folks should get exactly what they deserve....absolutely nothing.

If one is not satisfied with their personal terms and conditions, they should seek employment elsewhere.
To engage a so called professional body (HKAOA) to try to strong arm the company with, what at the time, did indeed seem to be unreasonable, only shows 'em what they truly are...
Complete fools.

[Engineer]

These folks should get exactly what they deserve....absolutely nothing.
It appears that 11 of them got some thing and unfortunately or fortunately a legal decision will decide what the rest deserve and not someone posting in some forum.

[BusyB]

411A,

Once again you open your mouth and show us all your ignorance.

If you put the same effort into your flying as you've put into understanding the 49'ers situation you are better staying on the ground. For the Rest of the World's safety!!!

[Engineer]

BusyB

May be 411A post are like the tristar he flies. From Jurassic Park :E

[411A]

Sorry to disagree, BusyB, but the action of the HKAOA, and the resulting dismissal of the concerned CX pilots was simply poor timing, no more, no less.

Pilots, and in a broader context, pilot associations/unions have a very unfortunate habit of acting without reasonable care and attention to TIMING.

Now, IF the HKAOA had decided to have their so called "discussions' with CX at a slightly more opportune time...like NOW, when CX is busy, profits are growing, and traffic has picked up considerably, the outcome might well have been different.
Sadly, they did not, and CX simply took advantage of the situation at the time, and of the HK legal process, which apparently leaves the employee on the short end of the stick.

Live and learn?
For most, the lesson is lost in the bravado of the moment.

Pilots (in general) and especially pilot associations/unions seemingly never learn

CX acted the way they did simply because they COULD.
No more, no less.

[BusyB]

411A,
That is the most reasoned post i have ever read from you. With immaculate hindsight you would be correct. Unfortunately, 9/11 and SARS came after the dispute had commenced.
The current position has only gone to show that some of the 49'ers, the re-employed, didn't actually do anything wrong.

Thanks for your re-think.

[Hangin' on]

411a, you have all the qualities of a dog, with the exception of loyalty.

[Two Cocks]

Just wondering.................

I am a little unsure of the outcome for the pilots that chose to accept a First Officer Interview on the freighter fleet.

After all it's an interview and surely it's not 100% guarenteed about the outcome of the job? Would these pilots consider legal action if they were not successful with the interview.

Which raises another question. If they were originally Cathay employees and passed all Cathay's checks and then fail at the interview what would this suggest?

Any comments?

[6feetunder]

There were 19 49ers that chose to take their chances with the job interview. 18 others are continuing with the legal battle. The rest took the cash.

In order to have the chance at the interview one was required to drop all legal actions, the same for those who took the cash. Those that were unsuccessful in gaining employment were left with the cash, 10 months of the salary they were being paid in July 2001.

In all 12 were successful and received job offers. That left 7 that were refused and got nothing but the 10 months pay.

The DFO so very graciously offered letters of reference to some of those denied employment, just a couple of weeks shy of 4 years since they were terminated without cause.