Gildea & Ors -v- Aer Lingus PLC, [2008] IEHC 75 (2008)

Docket Number:1994 7021 P
Party Name:Gildea & Ors, Aer Lingus PLC
Judge:Laffoy J.
 
FREE EXCERPT

THE HIGH COURT

1994 No. 7021 P

BETWEEN/

JOHN GILDEA, WILLIAM KING,

GARRETT MADIGAN & OTHERSPLAINTIFFS

AND

AER LINGUS PLC

DEFENDANT

Judgment of Miss Justice Laffoy delivered on 3rd March, 2008.

Background to judgment

The substantive claims in these proceedings were before this Court and issues arising therefrom were adjudicated on on three occasions in 2002 and 2003. The plaintiffs were employees of the defendant (Aer Lingus) who, in 1990 and 1991, were seconded to a subsidiary company of Aer Lingus known as TEAM Aer Lingus (TEAM) and who, at the end of 1998, transferred back to Aer Lingus on the sale of TEAM and its undertaking to a Danish company, FLS.

The first substantive issue with which the court was concerned was whether the plaintiffs and other workers who transferred to TEAM were guaranteed parity of pay, while they were in TEAM, with workers of Aer Lingus who were not seconded but remained working in the maintenance and engineering area of activity in the division of Aer Lingus known as Commuter. In a judgment delivered on 15th April, 2002, Kearns J. decided that issue against the plaintiffs, holding that the relevant contract did not include any term, express or implied, whereby TEAM workers would enjoy parity of pay with comparable workers in Aer Lingus. While useful in setting the scene in which the dispute between the parties arose, that judgment is not of any relevance to the issues with which the court is now concerned, because the decision was accepted by the plaintiffs and the dispute thereafter concerned the plaintiffs' rights and entitlements after they returned to Aer Lingus at the end of 1998.

On the second occasion on which the court was concerned with the substantive issues, the primary issue which the court determined was whether the plaintiffs, following their return to Aer Lingus from TEAM, were entitled to maintenance work which accorded with their qualifications and experience, or, if such work was not available, whether they were entitled to compensation or damages in lieu thereof. Kearns J. delivered his judgment on that issue on 8th October, 2002. He decided the issue in favour of the plaintiffs, and in a later judgment of 30th April, 2003 he limited the plaintiffs' entitlement to a period of four years following the end of their secondment to TEAM. The conclusions of Kearns J. on that issue are the starting point for this Court's consideration of the first issue, the so-called "NDT claims", addressed in this judgment and they will be considered in detail later.

In 2002 and 2003 the substantive issues were litigated by reference to the claims of five plaintiffs who were chosen as sample or test cases. In April, 2003 Kearns J., having heard evidence from those five plaintiffs, dealt with a number of issues in relation to their claims, including whether they were entitled to general damages. In an ex tempore judgment delivered on 30th April, 2003 he held that they were not. The status of that judgment vis-à-vis the plaintiffs other than the five sample or test plaintiffs, as regards one aspect of the claims of some of those plaintiffs, is at the core of the second issue with which the court is now concerned, the claims for damages for personal injuries.

The order of the court on foot of the three judgments of Kearns J. was perfected on 4th June, 2003. The order specifically related to the claims of the five sample plaintiffs and recited the process through to 30th April, 2003. Insofar as is relevant for present purposes, the court declared as follows:"1. The Plaintiffs were at all material times and continue to be in the employment of Aer Lingus.

2. The Plaintiffs are entitled as employees of Aer Lingus upon the end of their secondment to TEAM to be treated as though TEAM had never existed and were to be paid the same levels of remuneration as mechanical engineers employed by Aer Lingus who had not been seconded, to have their seniority fully recognised and to be placed on the appropriate incremental scale as though they had never left Aer Lingus, such entitlement to be limited to a period of four years following the end of their secondment with TEAM Aer Lingus …"The order then set out the sums to be paid to each of the five sample plaintiffs.

The plaintiffs appealed to the Supreme Court and judgment on the appeal was delivered by McCracken J., with whom the other four judges concurred, on 20th December, 2005. As the judgment of McCracken J. discloses, there was only one issue to be adjudicated on by the Supreme Court and that was whether the rights of the plaintiffs to be entitled to be treated as if they had never been seconded at all but had remained in the employment of Aer Lingus were in some way limited in time. The Supreme Court held that they were not. In consequence, the words "such entitlement to be limited to a period of four years following the end of their secondment with TEAM Aer Lingus" were deleted from the declaration made by the High Court at paragraph 2 of the order dated 4th June, 2003. The Supreme Court ordered that the matter be remitted to the High Court for assessment of the monies owing to the plaintiffs.

The matter came back to the High Court for hearing on 6th March, 2007. After hearing submissions and evidence for one and a half days, on the second afternoon of the hearing the matter was adjourned by consent to enable the parties to endeavour to resolve issues which had arisen. Eventually, the matter was re-listed for hearing on 12th February, 2008. On that occasion the court heard submissions and evidence over two days. The parties were in discussions for the next two days.

The discussions ultimately resulted in an agreement (the Settlement Agreement) which leaves three matters, other than costs, to be determined by the court. All other matters are to be resolved by an agreed process or, alternatively, they were disposed of. Two of the matters to be determined by the court are dealt with in this judgment and they are:

(1) what are described as the "NDT claims", which relate to three plaintiffs; and

(2) claims for damages for personal injuries which are to be decided in these proceedings and which relate to seven plaintiffs.

The third matter is separate and distinct and is not dealt with in this judgment.

In addition to these proceedings (the King proceedings), the Settlement Agreement relates to two other actions which were before the court in March, 2007 and in February, 2008, namely:

(a) Barber & Ors. v. Aer Lingus Plc (Record No. 3155P/2006) (the Barber proceedings) which, by order of this Court (Clarke J.) dated 20th November, 2006 had been listed for hearing with the King proceedings; and

(b) Byrne & Ors. v. Aer Lingus Plc (Record No. 2000/7354 P) (the Byrne proceedings).

The position of the parties in the three actions, as recited in the Settlement Agreement and as represented to the court, is that the findings of the High Court in the King proceedings, as varied by the Supreme Court, would be binding on all the parties.

So the Settlement Agreement, as regards the invocation of the court's jurisdiction, effectively disposes of all claims in the three actions apart from the three matters, which are to be decided by the court. It also provides that the court shall decide the question of costs that may arise in each action.

NDT Claims

The NDT claims relate to three of the plaintiffs in the King proceedings, William King, Thomas Burke and Brian Webberley, whom I will refer to collectively as the NDT Claimants. The issue to be determined is whether on their return from TEAM to Aer Lingus in 1998 and thereafter they were and are entitled to be remunerated on the pay scale referable to a Senior Simulator Specialist, as they contend.

The following historical outline is based on the evidence of Mr. King and Mr. Webberley. Mr. Burke did not testify, but the court was informed that his position was the same as Mr. King. It is also based on the evidence of Mr. Dermot McShane, who was called on behalf of Aer Lingus, and on various documents which were...

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