For most employees, it can be determined with some ease whether they have an employment contract and what law applies to that employment contract. Pilots, on the other hand, occupy a special position within labor law because of the international elements that tend to fester.
In this article, we discuss some points of interest and specifics regarding the pilot’s employment contract that are important for airlines.
Dismissal procedure pilot in Dutch court
If an airline wants to proceed with dismissal proceedings, it is wise to think about a number of points in advance. These include assessing which court has jurisdiction and which law applies.
Dutch court jurisdiction over pilot with international labor contract
In an international working relationship with a pilot, the court will first consider whether the pilot is an employee within the meaning of the European Regulations. This is tested on the basis of European case law. There is an employment contract when there is a durable link that gives the employee a certain place in the organization and the pilot has provided under performance for a certain time for a fixed monthly remuneration.
The court can then use the Brussels I-bis Regulation (EEX Regulation II) to assess whether jurisdiction exists. The parties can agree on a choice of forum clause. However, such a choice of forum is only allowed if the employee also has the option of submitting the dispute to other courts.
If no choice of forum has been made, then it must be determined who the defendant is and then it can be examined which courts have jurisdiction Article 21 and 22 of EEX Regulation II. Suppose the employer is a Dutch airline that wants to file a request for dissolution and the employee’s place of employment is the Netherlands and he lives there as well, then the Dutch court has jurisdiction. In fact, the court of the member state where the employee is domiciled has jurisdiction.
On the other hand, if an employee wants to initiate the proceedings, he or she has a choice between the courts of the country of (1) the employer’s residence or (2) the place where the employee usually worked.
Applicable law
Which law applies is determined by the Rome I Regulation (for employment contracts concluded on or after Sept. 17, 2009). Parties often agree on a choice of forum in international agreements. This means that they agree that, for example, Dutch law is applicable. However, there are three limitations to the choice of law: (1) If there is an international employment contract and all connecting factors are in one country, the mandatory law of that country applies and takes precedence over the choice of law. (2) Certain special mandatory rules take precedence over the choice of law (for example: Working Hours Act and General Equal Treatment Act). (3) The choice of law may not lead to loss of protection of mandatory provisions of the law that would apply to the employment relationship in the absence of choice of law.
If no choice of law has been made, then (1) the country of habitual employment must be determined, (2) failing which, the country in which the establishment that hired the employee is located is held. (3) If there is a closer connection with another country, then the law of that country applies.
Supreme Court proceedings on labor agreement poloot and competent court
The Supreme Court ruled on the question of jurisdiction last year in a case between Netjets and a pilot. The question was whether the Dutch court had jurisdiction to take cognizance of an employment dispute between a UK-based airline regarding the termination of the employment contract. The court had assumed jurisdiction because Schiphol was the home base within the meaning of Annex III of Regulation 3922/91 and therefore the place from which the pilot habitually worked. The Supreme Court confirmed this. The Court correctly held that the main part of his obligations were fulfilled from Schiphol. The pilot performed his assignments from Schiphol Airport and returned there after each tour. The pilot also received his instructions at home via email or app. In addition, after accepting an assignment, the pilot made sure that he was present at Schiphol in uniform at the appointed time. The Dutch court thus had jurisdiction.
Questions regarding dispute international labor agreement pilot?
Contact Lisa Kloot of LVH Lawyers for more information on aspects of the pilot’s employment contract. She specializes in employment law and is active within the aviation industry.
