ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SEYMOUR
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE LONGMORE
||Appellant / Claimant
|- and -
|AIR INDIA LTD
||Respondent / Defendant
Mr Jonathan Cohen (instructed by Morgan Walker) for the Respondent
Hearing dates : Friday 4th February 2011
And further written submissions of 11th and 18th February 2011
Crown Copyright ©
Lord Justice Rix :
"Shift Work and Payment
10. Provisions regarding shift work, payment for shift work, overtime working and payments for overtime working are set out in notices and circulars issued by Air India from time to time. Copies of current notices and circulars are available for inspection upon request to your Section Head.
Hours of Work and Payment
11. Your basic hours of work (excluding meal-breaks) will normally be 37 and a half hours per week spread over any five days at such times as Air India shall determine. However, in view of the operational needs of an airline, you will be required from time to time to work overtime, both on a rostered basis and ad hoc basis. Your agreement to the working of such overtime forms an important part of this contract of service."
"As regards the outstanding overtime claims raised by Mr. M Driver it was agreed that a small Committee comprising Airport manager, London and a representative of the IFSD Department should be set up to examine the issue in detail and make recommendations thereon."
"This has reference to CMD's notings with regard to letter dated April 07, 2005 addressed to the undersigned from Mr M.R. Driver, Catering Manager, London, forwarded to us for our views.
2. We have examined the issues raised and our comments are as follows:…
ii) Mr. Driver has proved to be an effective Catering Manager and through his efforts has effected several savings in costs in Europe/UK region.
iii) Overtime: London is one of the busiest stations on our network with several flights operating via London. Mr. Driver, being the sole representative of IFSD at Heathrow is often required to work overtime beyond his rostered hours. Under these circumstances, Mr. Driver may be paid the applicable overtime as regulated and certified by the Airport Manager-Heathrow.
iv) Conveyance: The vehicle assigned to IFSD in London has been surrendered as a result of which the Catering Manager has to use his personal vehicle for official work. Mr Driver may therefore be paid the Conveyance (Kilometric Allowance) as applicable for use of his vehicle for official purpose, duly regulated and authorized by the Airport manager-Heathrow.
vi) Communication: The catering-Manager-London is being reimbursed land line charges which are applicable to all staff in the grade D-10 in UK. Due to the nature of his assignment, Mr. Driver has to use his mobile phone for official calls. It is recommended that in addition to the reimbursement for land-line charges, the Catering Manager may also be reimbursed mobile phone charges for official calls on production of itemized bills. The same can be regulated and authorized by the Airport Manager-Heathrow.
vii) Shift Allowance: Applicable Shift Allowance may be paid in line with the entitlement of other staff in the same grade…
3. The above issues are pertaining to the allowances that are due to Mr. Driver and have been pending since long without any justification.
4. Mr. Driver is a conscientious officer and depriving him of his legitimate dues may have a demoralizing effect on his performance. It is therefore requested that the allowances due to him may be reimbursed as per the company's policy and within the framework of our rules and regulations in this matter.
5. Enclosed is the Office Note…dated January 28, 2003 signed by the then Director-IFS wherein a decision on most of the issues raised were taken…
6. CMD's kind approval is requested for clearance of his dues as recommended in para 2 above. Based on the approval received, we will advise the RD-UK accordingly." [Emphasis added]
In line with what was decided at the meeting on 10 December 2002 in London when the then MD had indicated on office note No. IS/256 dated 28 January 2003, the following may be communicated to Mr. Driver:
a. Conveyance Allowance: A fixed conveyance allowance of £100 per month to enable Mr. Driver to use his personal car.
b. Overtime: At that meeting it was decided that a Committee comprising the Airport Manager – London and representative of the Inflight Service Department should examine this issue. As recommended, applicable overtime may be paid to Mr. Driver, regulated and certified at all times by the Airport Manager – Heathrow.
c. Shift Allowance: Applicable shift allowance may be paid in line with the entitlements of other staff in the same grade.
d. Communication: As regards Mr. Driver's monthly telephone bills he should be provided the same facility as that extended to other officers in the grade. However, on account of the nature of his assignment, reimbursement for mobile phone charges for official calls may also be permitted on production of itemised bills duly regulated and authorised by the Airport Manager – Heathrow."
"5. Hours of work
5.1 The Employee's hours of work shall be 40 hours per week from 9 am to 6 pm and which can be enhanced to 48 hours at the discretion of the employer. Air India based on its requirements will notify the Employee with the starting and finishing times.
5.2 The Employee may from time to time be required to work such additional hours as may be necessary for the proper performance of his duties. Subject to working in excess of 48 hours per week, overtime may be paid at Air India's discretion and in accordance with the provisions set out in the Air India Overtime Guidelines in force from time to time."
No such Overtime Guidelines have been disclosed by Air India.
"Air India shall reimburse to the Employee such travelling, hotel and other out of pocket expenses as shall from time to time be reasonably and properly incurred by the Employee in the course of his employment, subject to the Employee complying with such guidelines or regulations issued by Air India from time to time in this respect and upon the Employee submitting to Air India on request satisfactory information and evidence of the same."
"Please find attached overtime statement of Mr Minoo Driver for the month of November 2006. The overtime claim for the period 18.11.06 to 30.11.06 has been certified by your office.
You were kindly aware that the then CMD vide letter dated 28.12.05 had ordered that a Committee will examine the issue of the overtime of Mr Driver.
In light of the above you are requested to furnish the reason for certifying the overtime of Mr Minoo Driver for the period 18.11.06 to 30.11.06 before the appointment of the Committee."
"I had recently taken over the station prior to signing Minoo Driver's overtime from 18th to 30th Nov 2006. I was neither briefed nor was I aware of the CMD's order dated 28th Dec 2005, and therefore inadvertently the overtime for the above period was certified by me. The oversight is sincerely regretted."
"Somewhere in the last week of November 2006, Mr Driver showed me the copy of the CMD's letter dated 28.12.05 wherein with regards to the overtime of Mr. Driver, CMD had passed an order stating that a committee comprising of the Airport Manager – London and representative of Inflight Service Department will examine the issue and as recommended by the Committee the applicable overtime may be paid to Mr Driver regulated and certified at all times by the Airport Manager – Heathrow. Since I was being re-posted back to India, Mr Driver pleaded with me to certify the overtime claim forms for the period August 2003 to November 2006 for purpose of record for the Committee which was likely to be set up to look into his overtime issue. When it was pointed out to Mr Driver as why he had not submitted the overtime claim forms to the undersigned as instructed to him vide letter dated 01.09.2003, Mr Driver was not able to give a satisfactory reply.
However, as the issue of overtime of Mr. Driver was under consideration and as I was being re-posted back to India, in good faith I certified all the overtime claims of Mr. Driver for record purpose without verifying the authenticity of the same and put the date of certification as the date which was requested by Mr Driver."
"In view of the fact that the catering unit where your office is located is away from the terminal, with immediate effect you will submit your duty roster pattern for the following month on the by the 27th of the preceding month.
Further, you will also submit your shift time sheets along with your overtime statement for certification by me by the 5th of the following month for the preceding month. Please note that the overtime claimed should have all the details of the flights handled or notes if the overtime has been incurred due to any other catering activity."
Issue (1): Did the first contract give Mr Driver any entitlement at all to the payment of overtime?
"83. The short answer to Mr Driver's claims to be paid overtime was in fact given by Captain Sharma during the course of his cross-examination. Captain Sharma pointed to clause 6 of the First Contract and said, correctly, that Mr Driver's duties and responsibilities were to be assigned to him from time to time by his immediate superiors. It was not up to Mr Driver himself to decide what he would do, and then seek to charge Air India for undertaking overtime which Air India had not asked him to work. It is a clear and straightforward point. In my judgment it is plainly right. Mr Driver was not, as he seems to have thought, the judge of whether he should work overtime and charge Air India for it. Air India was only potentially liable to pay Mr Driver for undertaking overtime duties if it had asked him to perform such duties. On the evidence, it had made no such request.
84. It is also correct that the First Contract contained no provision for the making of payment for overtime working. The contract contemplated that there would, or might, be a need for overtime working, but detailed provisions in relation to overtime, and in particular provisions for payment of overtime working, clause 10 of the First Contract envisaged would be found in other documents. No such other documents were produced in evidence. The documents relied upon as notices or circulars in relation to overtime did not deal at all with rates of payment or the precise circumstances in which payment might be made for working overtime…"
"105. As I understood it, the point Mr Stagg [counsel for Mr Driver at trial] wished to make, as an alternative to the principal case of Mr Driver was that if, on the proper construction of the First Contract or the Second Contract, there was a contractual right to a payment – for example, in respect of overtime – dependent upon a claim for the payment being approved by someone on behalf of Air India, it was no answer to the claim that the approval of that person had not been given, unless there was a good reason for denying the relevant approval. I do not think that that was really in dispute in this action. The essential position of Air India in respect of those claims of Mr Driver which were pursued was that there was no contractual right to the relevant payment, not that it was entitled to refuse a payment which was otherwise due because a necessary approval had not been given."
"This contract provided for no enforceable rights at all without more. D [Mr Driver] would only have an entitlement to shift or overtime pay if and in so far as AI [Air India] determined to grant such payments, by the issue of notices and circulars. In that sense, clause 10 was little more than an agreement to agree. Put another way, if a contract provides for a further agreement to be incorporated that does not exist or is not made, it is of no effect…
Thus, the exercise that the learned judge was required to perform in this claim was to identify whether the discussions and communications between the parties were such as to create further contractual rights going beyond the terms of the written contracts…
In the circumstances, whether or not D was required to obtain prior approval for overtime worked or not and whether or not particular witnesses were telling the truth…are moot. D simply did not have the contractual rights that would be necessary to make out his claim…
…The real value in this case was the claim for unpaid overtime…The battleground between the parties was whether D simply did so of his own volition (D's case) or whether he did so against the repeated instructions of AI (AI's case). Once again, when viewed against the contractual background, that was irrelevant if no contractual right existed to pay. Nor was there any cogent explanation as to why D continued to work overtime for years when payment was persistently refused. Viewed from that perspective, it is not surprising that the learned judge approached D's claim with scepticism. It was at best curious and at worst misconceived."
"There is generally speaking (in the absence of an express or implied contractual term to the contrary) no obligation on employees to work overtime. However, in contrast to sick pay, there is no general implied right on the part of employees to be paid for overtime when worked voluntarily. Correspondingly, since the majority of contracts will stipulate the hours of work, unless there is agreement on the question of payment beyond these normal hours of work (and absent a term requiring the employee to work on without additional payment) mutual agreement (express or implied) on the subject of additional remuneration will generally be the prerequisite before the employer can insist overtime is worked."
Issue (2): Was any condition precedent imposed, by the first contract or otherwise, such as pre-authorisation, or prompt presentation of overtime claims, or certification itself?
"As already advised, henceforth you will report to Miss S.D.Kulkarni, Manager-London Airport, for all administrative matters, i.e. leave requests, passages, overtime, etc."
The judge said of this (at para 84):
"I find that, on proper construction, the memorandum dated 20 April 2000 had the effect for which Mr Cohen contended; that is to say, it was an instruction not to work overtime without the prior authorisation of the Airport Manager, London. The construction for which Mr Stagg contended, it seems to me, produced absurd consequences; namely that Mr Driver might choose to work overtime, that being necessary in his view, but then not be paid, because Air India, in the form of the Airport Manager, did not share that opinion."
"2. Mr. M. Driver has prepared a format which gives details by day on the flights attended by him. This chart indicates reasons for overtime, if any. The chart is satisfactory.
3. Mr. S.N.Dhotre, Dy.Gen.Manager, GSD, LHR will countersign the format prepared by Mr. M.Driver.
4. Upon the completion of every month, Mr. Driver may bring the format duly countersigned by Mr.Dhotre to the undersigned [Mr Row] who will then certify the overtime claim submitted by Mr. Driver."
"From 19 December 2001 therefore Mr. Driver was required to submit his statements on a timely basis every month to the Airport Manager for verification. Mr Joseph's letter dated 4 July 2006 reconfirms this procedure when it states at paragraph 6:
"Your time sheet should be submitted to this office no later than the 05th of the next month for the past month verification."
"With effect from 08th May '02 following will be the roster pattern to be followed by you as per the timings given below. Your shift will commence at 0600 Hrs to 1430 Hrs."
"The attendance has to be signed in the office of the Commercial manager London Heathrow. Please ensure strict compliance of the above."
The judge said (at para 85):
"I accept the submission of Mr Cohen that Miss Kulkarni's memorandum dated 5 May 2002 itself amounted to an instruction not to undertake overtime, because strict compliance with the roster set out above meant that no overtime would be worked."
"86. I also accept the submission of Mr Cohen that, on the evidence of Mr Joseph, which I accept, he instructed Mr Driver not to undertake overtime without authorisation, unless in an emergency, in which event he was to notify Mr Joseph of what he had done. Mr Joseph, in his memorandum dated 1 September 2003, instructed Mr Driver to submit any claim for overtime for certification by the 5th day of the month following the month in which the overtime was said to have been worked. Mr Driver did not comply with that instruction."
"Further, you will also submit your shift time sheets along with your overtime statement for certification by me by the 5th of the following month for the preceding month. Please note that the overtime claimed should have all the details of the flights handled or notes if the overtime has been incurred due to any other catering activity."
"Subject: Overtime certification for period 01 Jan 2001 – 31 Jul 2003
The overtime statements of my duties for the above period were presented for certification and regularisation for payment to the then Manager London Airport namely Ms Kulkarni and thereafter Mr Gupta. During the above period, I was signing the attendance register kept in their office.
However, till date, I have not been advised as to the whereabouts of these overtime sheets and whether they have been certified. On enquiring with accounts, I have been informed that they have not received the same from the airport office.
I do have copies of the statements that were submitted earlier and may I seek your assistance in getting the same regularised now, as they have been outstanding and pending for quite a long time."
"This has reference to your letter dated 01 Sep.03. Further to our discussions on receipt of your letter and as confirmed by you, I will be submitting my duty roster to your office for a three monthly period. However, the overtime statement will be forwarded to your office on a monthly basis."
"Many of these issues seem to be pending approval from HQrs. For which I may not be in a position to resolve. However to ensure that your working time records are kept updated, please follow instructions regarding overtime and see my letter dated 01 sep '03."
It appears that this manuscript note was passed to Mr Driver, for Mr Driver accepts that he received it.
"Subject: Overtime certification for period 01 Jan 2002 – 31 Jul 2003
I do confirm that your overtime statements are not in my office as of now and I am not aware of the whereabouts of the same.
Since these records are pertaining to overtime payments for a period before I assumed office of Manager, London Airport, please be advised that I am not in a position to certify and regularise the same for payment. However, by means of a copy of this letter addressed to the RD – UK/EUR and RFAM – UK/EUR, both of whom were in office during the above period, I am bringing this issue to their notice for necessary assistance in resolving this matter. Hence may I suggest that you kindly approach them with this pending issue.
For the future and with immediate effect, please ensure that you submit your roster pattern and overtime statements on a monthly basis to the undersigned for necessary certification."
"Further as of Sept 03, I have stopped sending the overtime statement to Airport Managers Office as no one is ready to confirm the receipt of the same but all records of these statements are available with the undersigned in his office."
"74. Mr Joseph also told me that I should hold on to the overtime sheets because they would get lost in his office. He said to wait until approval from Head Office had come through which would be after the committee to look into my overtime had considered the point. The committee was of course never formed."
"I have acknowledged my error in signing the overtime statements. If I was aware that Mr Driver had prepared false claims and had I examined the statements in detail I would not have signed the statements in good faith."
Issue (3): Was any entitlement to be paid for overtime under the first contract solely in the discretion of Air India (as it was in the second contract)?
Issue (4): If there was no right to payment for overtime under the first contract, did Mr Thulasidas' decision give Mr Driver such a right, and if so, was that prospectively only, or also retrospectively?
Issue (5): If Mr Driver obtained any right to payment for overtime from Mr Thulasidas' decision, was that right subject to any condition precedent of any kind, such as certification by the airport manager?
Issue (6): Were Mr Driver's claims for overtime payment properly certified, and if not, what is the effect of that?
Issue (7): In that connection what, if any, is the relevance of the judge's finding that Mr Driver's presentation to Mr Joseph in November 2006 had been motivated by fraudulent intent?
"82. While, as Mr Joseph acknowledged, it was unwise of him to have signed Mr Driver's overtime statements in November 2006, the fact of him having done so had, as it seems to me, no impact on Mr Driver's claims in this action. It was not the case that, because Mr Joseph had signed, Mr Driver was entitled to some payment. Given the circumstances in which Mr Joseph signed, his signature was of no value in relation to the question whether Mr Driver had done the work in respect of which he sought payment. I accept Mr Joseph's account that, essentially, he signed the overtime statements in order not to prejudice Mr Driver's position in relation to the anticipated investigating committee. That was misguided, but charitable. Mr Driver's attempts to obtain signatures below the words "certified and verified", which I accept is what he sought, show, as it seems to me, that he was in fact seeking to produce documents which would look, contrary to the fact, as if they had been checked and found correct contemporaneously with the dates on the various statements. His motivation, as was accurately recognised in paragraph 13 of the Amended Reply and Defence to Counterclaim, was "fraudulent intent"."
"…the Defendant denies that the overtime and shift allowances from August 2003 were duly certified on a monthly basis by Mr M. V. Joseph…The Defendant has carried out a vigilance inquiry into this matter and found that the certification of the alleged overtime and shift allowances were fraudulently done on a single day, much later to the period to which they pertain and after the retirement of the Claimant."
"As to paragraph 18 of the Defence, it is admitted that Mr Joseph certified overtime worked by the Claimant after the event in November 2006…There was no fraudulent intent whatsoever in Mr Joseph certifying the Claimant's overtime on a retrospective basis. He had declined to do so pending resolution of the matter by higher management…"
"It seemed to me, as a matter of common sense, that the documents indicating that time off had been taken, especially as these were the claims for payment submitted by Mr Driver to Air India in respect of overtime, were more likely to be accurate than documents indicating that even more work had been done by Mr Driver than that for which he was seeking payment."
Issue (8): Similar issues arise in relation to shift work.
"In supersession of all previous orders on the subject, with effect from 1st May 2006, Shift Allowance will only be paid to staff working in shifts.
Staff working in shifts when transferred or assigned duties during normal working hours will not be entitled to any shift allowance with the effect from 01 May 2006.
The earlier practice of paying Shift Allowances (full for the first six months and 50% of the allowance for the next six months) on transfer from the shift duties to normal working hours, will be discontinued effective 01 May 2006."
Issue (9): What is the effect of Mr Thulasidas' decision on the claim for conveyance allowance?
Issue (10): What is the effect of Mr Thulasidas' decision on the claim for telephone expenses?
Issue (11): What is the position in respect of overtime under the second contract?
Issue (12): What is the position under the second contract in respect of the expenses claims?
Lord Justice Longmore:
i) overtime is voluntary on both sides, so that the employer is not bound to provide overtime work and the employee is not bound to serve it;
ii) a fixed period of overtime obligatory on both side, so that the employer is bound to provide overtime and the employee is bound to serve it;
iii) overtime is obligatory on the employee but not on the employer, so that the employer can call on the employee to work overtime and the employee is bound to serve it but the employer is not bound to make any such call.
".... in view of the operational needs of an airline, you will be required from time to time to work overtime, both on a rostered and ad hoc basis. Your agreement to the working of such overtime forms an important part of this contract of service."
Rostered overtime may no doubt fall within the third of Lord Denning's categories but "ad hoc" overtime is necessarily somewhat different. The judge thought that even "ad hoc" overtime had first to be called for but that is not to my mind the meaning of "ad hoc".
Lord Justice Mummery :
Note 2 The counterclaim for overtime was only for the period of September/December 2001 inclusive, and not for the previous period. The counterclaim was expressed to be on the ground that in those months overtime had been claimed without the certification of the regional director. [Back] Note 3 The note went on to record the managing director’s advice to seek to avoid “the need for overtime” by granting Mr Driver “offs on a regular basis”. It is not clear how the one could avoid the other, unless the “offs” were intended as non-monetary compensation in kind for the payment for overtime. [Back] Note 4 Unless perhaps Mr Amod Sharma’s investigation referred to in his memorandum of 5 October 2005 (see below) amounted to such a committee. I do not think it did. The December 2002 decision to set up a local committee was water under the bridge, and what happened in 2005 was a new initiative. [Back] Note 5 “Your duties and responsibilities will be assigned to you from time to time by your immediate superiors, however such are the operational needs of an international airline that it may be necessary to transfer you from one section to another or perhaps to other cities within the United Kingdom. Should a transfer involve relocation to a city other than the city office and airport office of the area in which you are appointed, you will be consulted and consideration given to any representation made by you.” [Back]
Note 2 The counterclaim for overtime was only for the period of September/December 2001 inclusive, and not for the previous period. The counterclaim was expressed to be on the ground that in those months overtime had been claimed without the certification of the regional director. [Back]
Note 3 The note went on to record the managing director’s advice to seek to avoid “the need for overtime” by granting Mr Driver “offs on a regular basis”. It is not clear how the one could avoid the other, unless the “offs” were intended as non-monetary compensation in kind for the payment for overtime. [Back]
Note 4 Unless perhaps Mr Amod Sharma’s investigation referred to in his memorandum of 5 October 2005 (see below) amounted to such a committee. I do not think it did. The December 2002 decision to set up a local committee was water under the bridge, and what happened in 2005 was a new initiative. [Back]
Note 5 “Your duties and responsibilities will be assigned to you from time to time by your immediate superiors, however such are the operational needs of an international airline that it may be necessary to transfer you from one section to another or perhaps to other cities within the United Kingdom. Should a transfer involve relocation to a city other than the city office and airport office of the area in which you are appointed, you will be consulted and consideration given to any representation made by you.” [Back]