Rights as an Irish Contractor?

[PieterB]

Hello all,

I was formerly working for Ryanair as a contract pilot through one of the brooker offices. Having found another job, I left them with less than the contractual 3 months notice on punishment of 5000euros if you don't give the 3 months.

They are now trying to claim the money with agressive letters and e-mails (no registered letter, so officially I didn't receive any of their claims).

I don't just want to pay them this amount of money because I think as a self employed contractor, you have certain rights. And on top of that, they can stop using my services from day 1 to day 2, whereas I, as the service provider should give them a full 3 months notice?

Anybody was in the same situation before? Any ideas as where to find information on my rights and wheter the contract is legal? Anybody knows any legal backup specialised in this kind of cases?

Thanks!

[OutsideCAS]

I think you will find that hiring a decent employment law solicitor to deal with responses to the threating letters will yield a quick cessation of such correspondence.

[mad_jock]

Why they sending them to you anyway?

I thought you were all through a Ltd company.

Its the company's problem not yours.

[bfr]

I think IALPA dealt with similar cases.
5000/11 or 33 = 454 or 151 months worth of monthly fee depending if you were FO or captain...

[RAT 5]

Why not just threaten to allow the case to go to court. That way the contract will be scrutinised under a legal beady eye and most likely exposed to be what many allege it to be, i.e. that of an employee. They wont want that scrutiny and so I'd expect the letters to cease.

[Water Wings]

Eesh. I'm not familiar with Irish law but out here, regardless of whether you liked the terms and conditions, you'd be in breach of the contract and likely to not only have a court order you to pay the 5000, but other forms of relief the Judge deemed fit plus could be liable for expenses for the other party.

[b.a. Baracus]

Surely Ryanair wouldn't waste their time pursuing 5k in court?!

[maybepilot]

Back in the good old days of bonding many of us left airlines without paying them back.
All of those contractual bonds that I am aware having been pursued in courts ended in nothing and nobody ever paid anything.
If you want to talk legal then the first thing to determine is which court is responsible for the case and you might be surprised to find out that very often it is not the court stated in the contract but the court where the facts actually took place.
In the case of a company like ryanair it would most probably be a court of the country where you were based before resigning as stated in the 2007 Lugano Convention.
Then of course the law of that state applies regardless of what it is stated in your contract as defined by another EU treaty like the Convention of Rome.
At this point I seriously doubt ryanair will risk a curt case they will loose, especially because the law system of any country but Ireland would slap them hard.

[woolyalan]

IALPA have indeed seen this before, there is also plenty of info on REPA regarding this very problem/issue. Try there :ok:

[PieterB]

Thanks for the inputs guys, I am still looking out how to make things come in my advantage if it were to go to court.


e.g.
The contract clause states: The Contractor or the EC may terminate this Contract by giving not less than 3 months’ written notice to the
other parties. In the event that the EC purports to terminate this Contract upon less than 3 months’ notice, then
the EC shall pay to the Contractor the sum of €5,000, such sum being payable as liquidated and ascertained
damages by the EC to the Contractor in full and final settlement and satisfaction of the EC’s entire liability for
any loss, damages, costs or expenses suffered or incurred by the Contractor arising from such event.

Would they have to prove that they had actual damages by my leaving? Which is doubtful since a recent memo stated that we had a hiring stop and more than enough first officers to cover everything.

On top of that, I was based in MAD, a base that was just reducing their fleet and I would have been sent to Weeze as a solution.

[bluecode]

At this point I seriously doubt ryanair will risk a court case they will lose, especially because the law system of any country but Ireland would slap them hard. There is no need to be patronising and insulting to the Irish law system. Your own country's court system is no shining beacon of light. The reality is that they wouldn't win in Ireland either. Neither would they risk a court case because it would highlight their dubious practices.

Either write back and tell them to get lost or ignore them. The only reason they're bothering to pursue it all is because they don't want everyone walking out at a moment's notice.

I very much doubt your the first to do this and you won't be the last.

[Toast30]

When I left RYR I asked if I could be released of contractual duties a little early. I was getting married so it seemed logical and I was owed leave anyway (and before you ask they had refused to grant my wedding day as leave!!). They declined and immediately threatened me with legal action. I pointed out that my Sim check was due in my last month which they said was not an issue. Sure enough 2 days before my sim and 3 weeks before my 3 month was up my roster was wiped clean and I was told I could leave early. Funny how that was the case when they realised they were spending money putting me through the sim. €€€€ is the only language they understand. I wouldn't work for Brookfield again,they simply bark the orders and pass on the threats from RYR management with a distinct lack of care or compassion. I have told many new cadets about my experiences but it doesn't seem to put people off. Whilst people put up with the sh*t they will continue to treat us like this. Expect to work your 3 months unless you know a cheap solicitor and are willing to take a gamble that they won't take it to court.

[Facelookbovvered]

I read recently that the need to prove loss or damages were no longer relevant when it came to breach of contract, to be fair that was in a property rental case so it my be different.

I think the general theme here is correct, in any event is the contract actually with you or your company? Or do you have a separate contract with your employer, I know they have use a solicitor in Leeds in the past, but a bit like the cowboys that issue parking tickets on private land they never go to court, a guy I know paid them £2400 and in the end said enough is enough.

If you actually gave them3 months notice what would happen? I'm told you'd be put on stdby for 3 month ie no pay?

But hey ho great training and in my view I'd take a walk and see them in court, if you've no brass apply FR legal aid and write to all the newspapers with your case explaining how you were employed?you weren't how much tax & NI you paid.

Treat others how they treat you is my motto

[Skyhigh86]

speak to IALPA about this.


A lot has been happening in recent times regarding this situation. Your not the first and certainly not the last.

[Piltdown Man]

Were you personally working for the agency or were you working for a limited liability company (ie. your alter ego) who in turn was working for the agency? If it was the latter, your company needs to be wound up pronto. The reason is that you are not your company, you are two separate legal entities. Your company is liable, not you.

[Avenger]

If RYR take you to court, and they may well do, it is not the whether you win or loose it is the cost of defending the action, you may get some outfit "no win, no fee" but it is highly unlikely, RYR know this, they have their own legal people and it costs them nothing to serve you but it costs you a lot to defend it... now, for all those"just ignore it brigade", if you get an ex-partie judgement against you it is a blur on your credit rating and a swine to overturn.. unless.. yes you guessed it.. you pay up! I wonder if the boot was on the other foot and any company, not just RYR terminated a contract early, wouldn't you demand compensation.. just to add a touch of balance to the argument.. And for the LTD Company issue,, do you honestly believe the courts will swallow this? it's a " shadow directorship" and you cannot be " self employed" in a company of which you are a director.. trying to defend this is like killing your granny and then changing your name.. it's still the same old you.. probably best to try and negotiate a solution, even if it's 50 euros a month for 100 months.. this looks much better if it ends up in the dock " shows willing" Ma'lud..:)

[737 Jockey]

Pieter,

Firstly, congratulations for escaping Ryanair/Brookfield!

I think we flew together from BLQ base back in 2011. :ok:

I too have recently made a 'non-standard departure' from Brookfield/Ryanair, and they are persuing me in the same manner. So, you are certainly not the first, and for sure, will not be the last. Funny thing is that not for one second do they pause to think why guys are doing this, and what could they do to stop it....of course they will not bother all the time they are making a profit out of recruiting cadets...but that's another thread entirely.

What I would say is to speak with IALPA. They will tell you that there is a queue of about 30 court cases, between Brookfield and ex Ryanair Pilots to be heard in the UK at the moment. They are waiting to see the result of one case, which is being treated as a test case for all the others. Whatever the ruling on this test case, will probably influence all the others, so there is alot riding upon it. I'm told that the judge is an ex-employment contract law expert and has already been asking Mr Declan Dooney some searching questions relating to the Brookfield contract in it's entirety, not just the notice clause. We all know the contract is tenuously legal at best, as it is so far skewed towards the benefit of Brookfield and Ryanair, but who can call at this stage if justice will prevail?

Solicitors will prove to be very expensive, but consult one if you can. But please speak to IALPA. The more people they know about, the more they can paint a picture of the reality of this contract.

If Brookfield put any form of pressure on you regarding this payment. I would merely advise them, that you are aware of the test case in London, and will communicate with them further, once the ruling has been made, probably within the next couple of weeks.

[cockney steve]

One has to ask why you do not approach your trade-organisation (IALPA / BALPA/ other?)
What? you didn't think it was worth the fees?

WAKEY WAKEY....All you Aircrew who don't join a professional body and pay your dues....It's OK to say "they'll do the job, with or without my few quid"...but that's not how it works! It's unfair and immoral to sponge off the backs of your colleagues who DO pay their dues.

To the OP...Ignire the bullying letters, Court documents are the only ones to worry about and it's highly unlikely" they" want the spotlight turned in the direction of these somewhat dubious "contracting" practises.

[b.a. Baracus]

Are the outstanding court cases relating to the 5k notice period fine, or a variety of things?

What is the deal with IR35 legislation (masked employment) are there any pilots being investigated by the tax man? In other industries as a contractor being contracted to one company for more than 2-3 years can often raise eyebrows at HMRC. However, things may be different in Ireland.

[737 Jockey]

Both of course.....we're talking about Brookfield Aviation here. Bunch of crooks led by DD, who was formerly employed by.....Ryanair....what a coincidence :ugh:

[rexmundi]

I would conver with IALPA on this also, the Irish legal system wll most likely side with you on this. Brookfield contracts and RYR forcing you to choose their accountants for contracting is dubious, in any case they won't pursue it.

[despegue]

No Ryanair pilot is a contractor. ALL are employed by Ryanair, no matter what any contract says.
False self employment is fraud and always commited by the employER, in this case Ryanair.
When a contract is illegal, the employER is liable, it does not matter that you signed. it is at all times the employER that needs to present a contract to the employee that is in accordance with EU legislation. EU legislation supercedes any dodgy Irish law by the way.
If FR barks too much at you, just threaten them to go Strasbourg with the issue.
The barking dog is in reality limp and sick. And its agression is a sign of Ryanair knowing it is on the brink of downfall due to their own fraudulous doings.

[Meccano]

PieterB:"I don't just want to pay them this amount of money because I think as a self employed contractor, you have certain rights. And on top of that, they can stop using my services from day 1 to day 2, whereas I, as the service provider should give them a full 3 months notice?"


Unconscionable Contract Clauses

Unconscionability (also known as unconscientious dealings in Australia) is a term used in contract law to describe a defense against the enforcement of a contract based on the presence of terms that are excessively unfair to one party. Typically, such a contract is held to be unenforceable because the consideration offered is lacking or is so obviously inadequate that to enforce the contract would be unfair to the party seeking to escape the contract.
In and of itself, inadequate consideration is likely not enough to make a contract unenforceable. However, a court of law will consider evidence that one party to the contract took advantage of its superior bargaining power to insert provisions that make the agreement overwhelmingly favor the interests of that party.

Unconscionability - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Unconscionability)

[B-U-S-S]

How are the Ryanair pilots situation compared to the definition of being employee or self-employed?
In the company I work for we are engaged through the agency and have no limited company. I can answer yes to all questions under "employee", so I wonder how legal the contracts are?


As a general guide as to whether a worker is an employee or self-employed; if the answer is 'Yes' to all of the following questions, then the worker is probably an employee:

Do they have to do the work themselves?
Can someone tell them at any time what to do, where to carry out the work or when and how to do it?
Can they work a set amount of hours?
Can someone move them from task to task?
Are they paid by the hour, week, or month?
Can they get overtime pay or bonus payment?
If the answer is 'Yes' to all of the following questions, it will usually mean that the worker is self-employed:

Can they hire someone to do the work or engage helpers at their own expense?
Do they risk their own money?
Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves?
Do they agree to do a job for a fixed price regardless of how long the job may take?
Can they decide what work to do, how and when to do the work and where to provide the services?
Do they regularly work for a number of different people?
Do they have to correct unsatisfactory work in their own time and at their own expense?
Source: HM Revenue & Customs: Employment status (http://www.hmrc.gov.uk/employment-status/#1)

[b.a. Baracus]

This issue was previously discussed here:

Ryanair Brookfield False Self Employment? [Archive] - PPRuNe Forums (http://www.pprune.org/archive/index.php/t-445086.html)

Main point being if you are a Ryanair pilot living / working in the UK as a contractor, enjoying the benefits of tax efficient dividends through your ltd co, then you could potentially get a knock on the door from HMRC who could demand a significant amount of cash going all the way back to day 1. It seems there is little doubt that this scenario fails the test of genuine self employment and therefore lies inside IR35.

[despegue]

No, False employment is ALWAYS the fault of the EmployER, therefore, it is Ryanair who is resonsible for paying the owed taxes and social contributions.
A clear as water according to EU legislation.
The Employee is ALWAYS the victim and will more than probably even get a large compensation due to being forced to accept an illegal contract and work under illegal work conditions. And yes, if a company obliges you to sign a certain type of illegal copy, or not hire you at all, this is considered as a forced contract.:ok: So no exuses claiming that the employee could also not have accepted the contract...

[b.a. Baracus]

Despegue,

The employer in the case is your Ltd Co, Ryanair are the client who you provide services to. The contract does not mean a lot, if your contract is IR35 compliant but your working practices show that you are clearly inside IR35 there will be penalties for you, not Ryanair.

I am sorry to say that there are no legal or tax reasons for Ryanair to concern themselves with IR35, the risk lies solely with you.

If HMRC decide to investigate your Ltd Co the costs in supporting this investigation can be substantial. It may be worth joining the Professional Contractors Group as they will provide support given a tax investigation as part of your membership.

[RAT 5]

I do not understand why an individual, or IALPA, does not go to HMRC with a contract and ask for a ruling. This can be done without any knowledge to RYR or BRK. What is then done with the answer gained is a later decision. All the talk on here is about unions and opinions etc. etc. Why not just ask the horse's mouth for the answer? Bar room lawyers are not necessary. HMRC advice should be free and confidential. I do not understand the reluctance to seek the official truth.

[vrb03kt]

I think I can understand why an individual would hesitate; the worry that HMRC might decide that the pilot is liable for a large wedge of unpaid tax? Also, I imagine it is a bit of a symbiotic relationship existing between most contractors and the company - if they say nothing and don't rock the boat they can exit ASAP and never look back, once they get the required number of hours to move to a reputable employer. Mutually beneficial.

On the other hand, why trade unions collectively representing the profession don't bring this to the Revenue...

[Depone]

I do not understand why an individual, or IALPA, does not go to HMRC with a contract and ask for a ruling

What makes you think they haven't?

[b.a. Baracus]

Depone,

I sincerely doubt HMRC are so dim as to be put off by that smokescreen.

Exactly my point!

[blind pew]

Politicians occasionaly get elected because of the amount of backing they receive (financial or otherwise).
Some might feel they owe a debt to those that help them get elected.
How they repay this I leave to your imagination.
Aviation contractors are small fry compared to the big boys - you might ask about the recent British news items with tax holidays or Microsoft and others in the Irish republic with CGT. ( as Merkel has been complaining for several years).
IMHO asking the authorities about the anomalies of aviation contractors when there are MANY using the same loopholes to avoid tens of millions is a waste of time...:ugh:

[Mikehotel152]

You forget that contractors working at FR pay full tax, in fact more than they would pay as employees in the UK.

[16024]

Definately.
And I wish people would stop having, or giving the impression that all FR "employees" are "enjoying the benefits", as Baracus put it. What happens with old old contracts I do not know, but the new old contracts and the new new contracts are pretty well screwed down.
The vast majority are operating under the LTD scam (which, for the benefits of the more litigious pikey, means Socially Commendable Asset Management) and lots and lots of revenue goes to the Revenue.

[RAT 5]

Surely an individual could de-identify the contract, both from themselves, the agency and the client. They then ask HRMC IR dept what would be their employment & tax status if offered such a contract. They could even already be on the contract, or anticipating it. It is an information seeking question in general terms. No-one is implicated and thus no-one is liable for any penalty action. The old BRK contract, as claimed here, is still in use with some, and the new one, we are told, is being enforced as the old one dies, or new-comers arrive. Surely bar-room lawyer opinion is not necessary. One individual with a version of each of any current contract would suffice to achieve an answer once and for-all. It might help stop the demise of the profession, because this type of 'employment' will be copied just as baggage, boarding & credit card charges were done in spades. Arguing round & round in circles is a waste of breath.

[PieterB]

Hey Everybody, thanks a lot for your advices,

it seems like being in contact with RPG and IALPA together with the Bates Wells & Braithwaite lawyers office gave me a good solution.

The lawyer sent out one letter for a very reasonable price informing BRK that we are not answering to any threats or blackmails.

The result of the recent lawsuit proved that the 5000euros is illegal and thus it seems like my case is solved

[PieterB]

Dear Steve,

I take the liberty of answering your comment:

One has to ask why you do not approach your trade-organisation (IALPA / BALPA/ other?)
What? you didn't think it was worth the fees?

WAKEY WAKEY....All you Aircrew who don't join a professional body and pay your dues....It's OK to say "they'll do the job, with or without my few quid"...but that's not how it works! It's unfair and immoral to sponge off the backs of your colleagues who DO pay their dues.

To the OP...Ignire the bullying letters, Court documents are the only ones to worry about and it's highly unlikely" they" want the spotlight turned in the direction of these somewhat dubious "contracting" practises.

I want to inform you that I was part of the IALPA and RPG, and they helped me out, however I was trying to consult every possible source in order to find colleagues with similar situations. Further on, Brookfield has sent out court documents to ex-pilots and I advice everybody to be proactive and not wait until a subpoena arrives in your letterbox.

Please limit your comments to those with relevant information, because it kind of clutters my thread.