Training bonds are often used by air operators to recruit and/or retain their flight crew. This legal agreement is rather simple; the air operator pays for the newly hired pilot’s flight training (i.e. Pilot Proficiency Check), and requires in consideration that the pilot agrees a term of employment usually within a formal employment agreement. Should the pilot resigns before the end of the term agreed in the employment agreement, the pilot must repay the cost of the flight training on a prorata basis set in the agreement.
An interesting case from the Ontario Superior Court of Justice dated 2008 raises three important points for the newly hired pilots (Chartright Air Inc. v. De Paoli, 2008 CanLII 47468 (ON SC). First, prior to sign any training bonds, pilots (especially pilot-in-commands) should conduct their own due diligence on the employer and the other flight crew members hired by the employer. Second, if things turn sour amongst the flight crew members, pilots should submit formal written complaints to the employer as soon as they happen, and clearly explain the alleged misbehaviours. Employers should submit written reply to the pilots, and ensure a safe environment to their employees. Third, pilots must understand that not every situation in which a flight crew member cannot get along with another flight crew member will form ground for constructive dismissal. Chartright Air Inc. v. De Paoli is a great example.
In Chartright Air Inc. v. De Paoli, a pilot (the “captain”) was hired by an air operator (the “employer”) to act as captain on a Challenger 601. Despite his great experience, the captain was not qualified to fly on the 601. He therefore had to obtain his Pilot Proficiency Check. The employer agreed to pay for the captain’s training. In return the captain had to work for the employer for twenty-four continuing months upon completion of the training. The training was evaluated at $31,265.00. The captain successfully passed the examinations and obtained his Pilot Proficiency Check on the 601. At the same time, the employer hired another pilot (the “first officer”) to complete the flight crew. The first officer failed his Pilot Proficiency Check. The employer asked the captain to assist the first officer in his training. The captain assisted the first officer, but quickly noticed that the first officer was not ready for the evaluation. The captain advised accordingly the employer. Despite the notice, the first officer successfully passed his training on the second attempt. The captain and first officer flew and worked together a certain number of times once their training completed. The working environment was difficult. The captain verbally complained to the employer’s executive director in respect to the first officer’s lack of professionalism. The captain urged his employer to act; according to him, the first officer misbehaviours brought safety issues to their lives and the aircraft. Frustrated by his first officer and disappointed by his employer’s actions, the captain resigned only five months after being hired.
The question in the case at bar was whether the captain had to pay $27,641.51 for his training knowing that he breached his training bonds due to this resignation after working only five months with the employer while the terms required in the Training Contract was twenty-four months.
The employer simply argued that the captain signed a Training Contract stipulating the captain was bonded for twenty-four months. The captain argued that he was forced to resign due to the unsafe working environment. The captain also argued that he was constructively dismissed by the employer.
The Court rejected the captain’s reasons and granted judgment to the employer for the amount claimed under the training bond, $27,641.51. After reviewing the evidence, the Court rejected the captain’s argument on constructive dismissal. First, the Court laid out the legal objective test in constructive dismissal cases; “whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed” (Farber v. Royal Trust Co, at para. 26). Second, it held that according to the evidence, there was no constructive dismissal at law. The Court believed the employer’s version based on the fact that these were personality issues, not safety concerns. Plus, the Court held that the captain did not submit any formal written complaints addressed to the employer prior to July 19th while the incidents that he testified before the Court started in May. The Court held that if the captain was that worried about his safety while working, he would have submitted formal complaints to the employer. According to the evidence, the complaints were verbal and took place in the parking lot of the employer. The Court simply did not believe the captain’s version and stated that the captain only raised the first officer’s mishebaviour as a safety issue when the captain knew he was going to be held to the terms of the training bond. It was not a safety issue but rather an employee management situation. There was no constructive dismissal at law. Accordingly, the captain had to repay the loan taken with the employer.
This case demonstrates how fundamental it is for flight crew members to remain professional in their working environment; not only on flight time but also when flight crew members are dealing with the management team of the air operator. Any flight crew members who sign a training bond must respect their contractual obligations. Training bonds are legally binding and enforceable documents. Training bonds are interesting legal tools for pilots willing to upgrade their aviation qualifications, therefore, to advance in their career, but pilots must acknowledge that such agreements imply substantial amount of money, and can therefore bring serious personal liabilities should there is a breach of contract. Flight training is costly, and being liable for breach of contract could jeopardize your aviation career.
This article was written by Alexis David Fafard, LL.L., J.D., Ottawa Aviation Services and can also be found at Flying Policies blog.