Cathay still faces possible legal action from 19 sacked pilots

[r304ndy]

Nineteen of the 51 pilots that have been fighting Cathay Pacific Airways for nearly four years over wrongful dismissal have decided to reject the airline’s latest offer and may continue to pursue legal action.

The Hong Kong Aircrew Officers Association (HKAOA) says 32 of the 51 sacked pilots accepted the offer a few days ago after the union decided it would no longer fund the pilots’ legal action against Cathay.

The HKAOA withdrew financial support for the pilots’ legal case after its membership of around 950 voted on 13 April with a 74% majority in favour of accepting Cathay’s latest offer to resolve the long-running dispute, HKAOA general secretary John Findlay says from Hong Kong.

The dispute between the pilots and Cathay started in July 2001 when the airline sacked 52 pilots who were pushing for improvements in wages and conditions.

It later reinstated one of the 52 but since then the remaining 51 had all continued to fight Cathay through the courts with financial support provided by HKAOA.

Cathay, in its latest offer, has agreed to let the 51-sacked pilots apply for positions as first officers on Cathay’s cargo aircraft or get a 10-month salary cash payout.

“They will start as first officers but it is quite likely that if they were already captains then they could get command of the freighter fairly quickly,” says Findlay, adding that after three years the pilots will be eligible to transfer to Cathay’s passenger fleet.

Of the 51 sacked pilots, 21 have chosen job interviews to be held in late June, 11 have opted for the cash pay-out and “19 have not accepted the offer and are [free to] pursue legal action against Cathay”, says Findlay. But he says the union will no longer be financing the pilots’ lawsuit against Cathay.

Findlay says those that fail to get a job as result of the interview or do get a job but then leave within 12-months are still eligible for the cash pay-out.

The cash-payout is 10-months salary and this amount may be paid as early as this week depending on whether the pilots had submitted their claims forms early, he adds.

A Cathay spokeswoman in Hong Kong confirms the two sides have reached an agreement whereby the union will stop funding the legal action against the airline.

She also confirms that 21 of the sacked pilots have opted for job interviews as first officers of Cathay freighters, 11 have selected the 10-month salary pay-out and 19 have rejected the offer.

“It will be up to the [19] individuals to find other sources of funding and do it [take legal action against Cathay] themselves,” explains the Cathay spokeswoman.

“It is hard for me to comment further. It is really up to the individuals to decide what their next move will be,” she adds.


Source: Air Transport Intelligence news

[Jordan D]

For those who understand all the legal jargon - full court report appears in yesterday's (31/05/05) The Times legal section of the paper. I'll see if I can find a e-version.

Jordan

[Foreign Worker]

Why only 10 months?
I realise that the decision by CX management to summarily terminate the 49'ers cost the company significantly, but that was of their own making at the time.

"It's the little things that matter." :rolleyes:

[411A]

\\I realise that the decision by CX management to summarily terminate the 49'ers cost the company significantly, but that was of their own making at the time.\\

I seem to recall at the time that the company considered these folks as troublemakers/malcontents...so they were dismissed.
Seems reasonable to me.

[ManfredvonRichthofen]

this the one you meant Jordan ?


Times Law Reports

Hong Kong pilots employed in England





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.

[Jordan D]

ManfredvonRichthofen - that is indeed the one I was talking about.

Jordan

[Foreign Worker]

I seem to recall you displaying your lack of knowledge of the events at the time, 411A, and continuing your ignorance of them now.

[flite idol]

Ignore 411A, he is the poster boy of malcontents. While many of his peers enjoyed stable sucessful careers he bounced around the world on lousey temp contracts and now spends his time jabbing others in the ribs in an attempt to feel better about himself.

[great southern land]

411A (no doubting what the 'A' stands for..), you are truly a horses a*se. You know nothing of the circumstances in which these people were maliciously sacked, and know nothing of the people involved. Several of them are amongst the finest people who I ever had the pleasure to fly with in my 10 year Airline Career. ALL of them were sacked without due process, the company ignoring their own Disipline and Grievance procedure. All of them were used as political pawns by an unaccountable management. Your gratuitous comments make me ill, especially considering the extreme hardship both the pilots and their families suffered in the years since. Suicide, divorce, family breakdown and financial ruin are the only legacies of this shameful episode. I wouldn't wish what they went through on my worst enemies. You however would be in a different category altogether. I have a hard time imagining what sort of man possess's the depths of malice, arrogance and ignorance as you do. I'm sure the residents of Arizona are as sick of you as we readers of PPRUNE are. You sir do not possess one sliver of the integrity and decency that many of the 49ers' have in spades. You do your fellow countrymen of the USA no credit at all. ps, considering the state of the US airlines, I don't think we need to hear too much more advice on 'airline management' from your side of the pond now do we..?

[SkyCruiser]

GSL,

A quality post sir!

:ok:

[XL5]

It certainly was a quality post, but one which unfortunately again demonstrates that bait left out long enough eventually gets gobbled up hook, line and sinker.

Responding to certain posts, especially those from the Trolls, is like wrestling with a pig in the mud - the more the crap flies the greater the pig enjoys it.

[Engineer]

Would not regard 411A as a troll more of a person who is absolute in his opinion which as usual he is entitled to.

Not with standing that it is interesting to see that Cathay have reinstated 11 of the original 49 so can one assume that this is a damage limitation policy. If so then this must give a clear indication that the company is batting on the back leg and uplift the morale of those who have waged a long campaign for individual justice.

Good luck to those still fighting whatever the outcome

[411A]

Oh gosh, GSL, my comments do seem to upset you greatly.

HK law allowed CX to dismiss these malcontents at their will.
Seems to me that this was reasonable, considering that they appeared to be the biggest troublemakers in the AOA.
CX pays the salaries, not the pilots.
So, if they don't like 'em...off they go.
Simple as that.

That they continue to struggle against the 'unjust actions' of the company simply confirms that they really are....not very bright.

Hey, the company just confirmed that most of 'em are, well....
malcontents.
Just as the guy before...peanuts and all.:yuk:

OTOH, if these 'unjustly terminated pilots' had minded their manners, they might now be enjoying the satisfaction of a rather well run asian airline.
Sadly, they did not....so they are gone.

When the company speaks, most had better listen, or suffer the consequences.

[CruisingSpeed]

From inital post:

"The dispute between the pilots and Cathay started in July 2001 when the airline sacked 52 pilots who were pushing for improvements in wages and conditions."

Source: Air Transport Intelligence news

I am surprised noone has picked up on this rather well informed statement. :hmm:

[great southern land]

..so let's see: according to your definition, a 'malcontent' should be immediately and summararily sacked! No need to take into account any of the Managements actions against the same aircrew, whether egregious or not. How utterly ridiculous. What you propose is that individuals are not entitled to support and defend their hard earned pay and benefits, and that even their very 'thoughts' should be controlled.... You continue to amaze me 411. What you advocate is a form of Orwellian working enviornment. Little robots unblinkingly doing their masters bidding.

You are a man of no integrity, character or morals. The 49ers' were sacked as a political gesture, without due process, not even the company's own D & G procedure being followed. Nothing that happened to them was 'fair', 'right' nor 'moral'. It was a blatant exercise in political power.

Many of the 49ers are amongst the most decent of people I have worked with, and were sacked because they had had the courage to speak out over many of the abuses that were being committed against our profession by CX management.

Don't you dare speak of their treatment as being fair or moral or right. You do not know these men, their character or who they are. They deserve better. You seem so sure of your opinion, yet your complete ignorance of the facts, and ignorance of who these men are belies to ME how utterly vacuous and self-serving your unfeeling and malicious comments truly are. You may think you can fool or persuade most of the readers of PPRUNE of your position, but you CAN'T fool me...as I know the situation, and I know the men. You are the worst kind of commentator, one who desires nothing more than to get a rise out of people. I will not allow you or your ideas to prevail. You are nothing more than a shrill and empty background voice.

The 49er's certainly deserve better than having to read the comments of such a pathetic cretin.

[Five Livers]

Well said GSL, a strong riposte to a complete t-at

[411A]

Sorry to disagree with you, GSL, but the post by CrusingSpeed...

"The dispute between the pilots and Cathay started in July 2001 when the airline sacked 52 pilots who were pushing for improvements in wages and conditions."

Source: Air Transport Intelligence news

I am surprised noone has picked up on this rather well informed statement. \\

About says it all, really.

The CX pilots, not being satisfied with the wages and conditions at the time, all being well above average for an asian airline, simply was bad timing and an ill thought out action.

Colour 'em gone....with good reason, in my view.

Then there was the ill thought out action by the HKAOA to blacklist new entrants...which backfired in the end.

All this foolishness by the HKAOA only proves P.T. Barnam's statement many years ago...
"...there's a sucker born every minute."

And so it seems to this day.
:}

[CruisingSpeed]

411A, sorry to dissappoint, I am 100% with GSL on this one… “rather well informed” is an ironic way to say that this particular journo is talking through his ar$e. As we all know, there was never a push for IMPROVEMENTS, what utter tosh and misinformation!

Stop winding people up, sun must be a sizzler up there in Arizona, eh? :rolleyes:

[Two Cocks]

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?