Jurisdiction and Choice of Law Issues in Transnational Employment Rights Disputes

Abstract

The Irish airline Ryanair is estimated to employ, either directly or through companies such as Crewlink or Brookfield Aviation, some 12,000 pilots, cabin crew and other workers operating from 87 bases throughout Europe. Cabin crew supplied by Crewlink are invariably employed under three year fixed-term contracts with a 12 month probationary period. Clause 6 of such contracts typically provides: “As the Client’s aircraft are registered in the Republic of Ireland and as you will perform your duties on these aircraft your employment is based in the Republic of Ireland.” Clause 37 then typically provides: “The employment relationship between the Company and you shall at all times be governed by the laws in effect and as amended from time to time in the Republic of Ireland. The Irish courts have jurisdiction in all matters relating to the execution and termination of this contract.” That clause, it should be noted, goes on to provide: “In the event that this clause becomes inoperable due to legislative changes, legal directive or any other change that the Company determines as material, then this contract will become null and void and your employment with the company will cease and you will be paid the statutory amount in lieu of notice.” The applicability of these two clauses has been considered in recent times by courts in Belgium, Germany, Italy and Norway. In Beyer v Ryanair (8 Ca 8031/09), the Bremen Labour Court ruled, on 1 April 2009, in a case brought by a cabin director based at Bremen airport, that the German courts did not have jurisdiction. This decision was followed by the Wesel Labour Court on 2 February 2010 in Dominguez v Crewlink (1 Ca 2253/09), a case brought by a flight attendant based at Weeze airport. Similar decisions were made by the Courts of Velletri and Bergamo in Iaccarino v Ryanair (985/2013) – flight attendant based at Naples airport – and de Blasio v Ryanair (920/2014) – pilot based at Bergamo airport – on 19 February 2015 and 12 March 2015 respectively. The decision of the Bergamo court was appealed to the Labour Section of the Brescia Court of Appeal which, by decision of 23 March 2016, dismissed the appeal (Order no.21/2016). It should be noted that the Italian Supreme Court, in a case relating to a flight attendant employed by a Belgian company on Belgian aircraft operating out of Fiumicino airport, had previously ruled that the Italian courts did not have jurisdiction in such cases (Cass. Joint Sections, Order no. 18509 of 20 August 2009). This article will focus on the litigation in Belgium and in Norway.