To my good friend bugg smasher
I see ‘the Devil’ has been up to his old antics during my absence. Will he never learn? Let me in the first instance thank you, as well as tilii and others, for the responses to my poser.
You are quite right in that the vast majority of employment contracts primarily relate to specific areas required by law. Thus a verbal agreement outside the ‘four corners’ of the employment contract differs, for example, from such an agreement outwith a contract of sale. The law distinguishes between the many and varied statements made by contracting parties in some rather interesting ways.
To consider the issue of the alleged verbal promise by ‘B’ to ‘A’, we might begin by asking whether it was ever made at all (this because ‘B’ denies it). This may be overcome by the court looking at the parties’ intentions. I think the real question here is: would ‘A’ have entered into the contract without such a promise from ‘B’? It seems clear that, without the promised assistance, ‘A’ could not afford to provide the promised consideration, that is, to fly as a pilot for ‘B’ for an agreed minimum term (in this case, three years according to the bonding agreement). Logic suggests there was nothing for ‘A’ in the contract, there was no ‘business efficacy’ in him entering into the agreement, without his being able to commute at substantially reduced airfares. The court, then, may find that there must have been such a promise made, that it was an ‘implied term’ of the contract and not a ‘mere’ representation (which is perhaps what you describe as a ‘convenient enticement to sign’
.
Of course, the court may hear the witnesses and hold that there was (or was not) such a promise made. It may find that there was a misrepresentation by ‘B’, intended to induce ‘A’ into entering the contract on the false premise that he would be able to perform his side of the bargain. And ‘B’ may have acted fraudulently (by deliberate ‘modification’ of the truth) or non-fraudulently in this. In any event, there is a possible remedy at law.
Let us assume, then, that the court finds the promise to be an implied term. Was the term breached? It seems it was, in that ‘A’, once established at the remote base, was denied the promised assistance. Once the assistance was withheld, the contract was breached and ‘A’ then had reason to hold it as breached. His rights then depend upon whether the term was a condition or a warranty. I will leave it at that for now.
If, as you say, the ‘term-contract area of aviation is replete with this kind of incident’, it is perhaps high time it was dealt with comprehensively in the courts. To promise a junior pilot ‘command’ and to then leave the promise unfulfilled for many years is no less a breach of contract than it is to refuse to pay the agreed salary, or grant the agreed leave, and so on.
You have said: “If there is one thing that is most clear, it is encumbent [sic] on the potential employee to uncover as much as possible regarding the potential employer … and make his/her own determination as to the suitability of the employment in question.” And you are very wise to point to this. However, there is always in employment law the question of inequality of bargaining power, as our friend “slj” has said above. And it is not always possible for the employee to effectively conduct this vetting process. Even where possible, there may be little the hapless potential employee might do about it when discovering something untoward. The choice is usually one of take it or leave it.
This does not mean, however, that the employee is without recourse in such circumstances as ‘A’ found himself. But it is important to remember that the aggrieved party must act quickly. To linger too long is potentially to show a willingness to accept the breach and may lead to loss of a right to seek a remedy. ‘A’ resigned, was sued, and defended with counter-claim. He may not have been able to do so had he sat on the problem for too long.
Interesting, is it not?
[ 04 September 2001: Message edited by: Holt CJ ]