UK Chief Pilots and the 'Old Boy' network . . .
Join Date: Jul 2001
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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 ]
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 ]
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Actually Holty, I'm (we're all) learning the whole time, and to be honest I'm glad to see you back - genuinely !
....I'll also take this opportunity to congratulate you on your very well constructed and nicely put treatise above - a nice balance of common sense, with just a soupcon of legalese - bravo !
....I'll also take this opportunity to congratulate you on your very well constructed and nicely put treatise above - a nice balance of common sense, with just a soupcon of legalese - bravo !
There seem to be at least two issues here. Firstly, where a pilot falls foul of his/her boss and then finds that said Chief Pilot is giving them a bad reference through an informal contact with the prospective employer. Many of you, quite rightly I feel, have condemned such action. I knew of one such case and thankfully for the pilot concerned our new boss could see this embittered chap for what he was and so took no notice whatsoever.
However, a second and equally valid scenario is the one put forward by Devil's Advocate. Someone at the very beginning of this thread reminded us that professional aviation is a very small community within the UK. There is a very small number of individuals who will cause problems wherever they work and it is human nature that having built themselves a bad reputation it will spread to other companies.
Lastly, as slj said this 'old boy network' can often help pilots get jobs not lose them.
However, a second and equally valid scenario is the one put forward by Devil's Advocate. Someone at the very beginning of this thread reminded us that professional aviation is a very small community within the UK. There is a very small number of individuals who will cause problems wherever they work and it is human nature that having built themselves a bad reputation it will spread to other companies.
Lastly, as slj said this 'old boy network' can often help pilots get jobs not lose them.
quidquid excusatio prandium pro
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Greetings HoltCJ,
A fascinating and frighteningly coherent post; I thank you for a most enlightening look into the legal process. I imagine a few employers out there are feeling somewhat uncomfortable by now. I have searched far and wide, by the way, for a reference to the term “encumbent” and have found it in only one place, the “Handyman’s Book of George Bush-isms”. Not wishing to beg artistic license, perhaps less CNN and more BBC these days would serve me well.
There is much food for thought in the comments you have made, and I will no doubt have many questions in the days to come, once the digestive process has been allowed to run its windy course. I would, however, here like to address the issue of bonding. Many airline companies, it seems, have established training operations that function as independent profit centers of their own right. I believe the sum of twenty thousand English Pounds was mentioned earlier on in this thread. A conversion to a new aircraft type costs considerably less than that; a Boeing 777 course, for example, can be had for twelve thousand dollars (those of you with specific knowledge kindly correct me if I am wrong) at a certain contract training center in the United States, assuming the candidate is appropriately pre-qualified. That is considerably less than half the above-mentioned figure, and for an aircraft much larger and more complex than the usual types for which these bonding agreements are entered into. Even when the higher costs of conducting business in Europe are accounted for, it remains a usuriously inflated sum. From the accounting department’s point of view, whether the pilot stays or leaves matters not, the employer profits handsomely. And so my question is, when dealing with bonding issues, do the courts see fit to examine the employer’s actual cost of training, and in the absence of disputed verbal agreements as experienced by your client, would any such process work in favour of the pilot defending with a counter-claim of this nature?
A fascinating and frighteningly coherent post; I thank you for a most enlightening look into the legal process. I imagine a few employers out there are feeling somewhat uncomfortable by now. I have searched far and wide, by the way, for a reference to the term “encumbent” and have found it in only one place, the “Handyman’s Book of George Bush-isms”. Not wishing to beg artistic license, perhaps less CNN and more BBC these days would serve me well.
There is much food for thought in the comments you have made, and I will no doubt have many questions in the days to come, once the digestive process has been allowed to run its windy course. I would, however, here like to address the issue of bonding. Many airline companies, it seems, have established training operations that function as independent profit centers of their own right. I believe the sum of twenty thousand English Pounds was mentioned earlier on in this thread. A conversion to a new aircraft type costs considerably less than that; a Boeing 777 course, for example, can be had for twelve thousand dollars (those of you with specific knowledge kindly correct me if I am wrong) at a certain contract training center in the United States, assuming the candidate is appropriately pre-qualified. That is considerably less than half the above-mentioned figure, and for an aircraft much larger and more complex than the usual types for which these bonding agreements are entered into. Even when the higher costs of conducting business in Europe are accounted for, it remains a usuriously inflated sum. From the accounting department’s point of view, whether the pilot stays or leaves matters not, the employer profits handsomely. And so my question is, when dealing with bonding issues, do the courts see fit to examine the employer’s actual cost of training, and in the absence of disputed verbal agreements as experienced by your client, would any such process work in favour of the pilot defending with a counter-claim of this nature?
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Holt CJ
You state "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"
Are you confusing a contract of employment with a statement of employment contract terms that has to be given to employees within 13 weeks of commencing employment?
They are different animals with different purposes.
I was slightly confused by your comment a "verbal agreement outside the four corners of the employment contract. You later go on to say about the verbal promise of B to provide travel support for A. Well, that is very much part of the employment contract which is what a court battle would be concerned with. Many employers and employees fail to appreciate what the contract of employment embraces.
Your argument about a promise to promote to LHS as breach is more difficult to sustain as it must be implied tht this is depends on so many factors and can only be a representation in the form of an opinion and not actionable (in English law) as a representation or misrepresentation. To be actionable the representation must be one of fact not opinion.
You state "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"
Are you confusing a contract of employment with a statement of employment contract terms that has to be given to employees within 13 weeks of commencing employment?
They are different animals with different purposes.
I was slightly confused by your comment a "verbal agreement outside the four corners of the employment contract. You later go on to say about the verbal promise of B to provide travel support for A. Well, that is very much part of the employment contract which is what a court battle would be concerned with. Many employers and employees fail to appreciate what the contract of employment embraces.
Your argument about a promise to promote to LHS as breach is more difficult to sustain as it must be implied tht this is depends on so many factors and can only be a representation in the form of an opinion and not actionable (in English law) as a representation or misrepresentation. To be actionable the representation must be one of fact not opinion.
Chief PPRuNe Pilot
Gone past 100 posts so I'm closing this thread. If you want to continue ut I suggest you restart ' UK Chief Pilots and the 'Old Boy' network...II ' over in the Aircrew Notices forum.
[ 05 September 2001: Message edited by: Capt PPRuNe ]
[ 05 September 2001: Message edited by: Capt PPRuNe ]
