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Can Calling in ‘Fatigued’ Be Unlawful Strike When Law Prohibits Working While ‘Fatigued’?

More Air Canada flights have been cancelled, some due to a fire at Pearson Airport that I presume even Minister Raitt won’t blame on the workers.  Others were cancelled due to fog near Montreal.  And there are rumours that some pilots have called in claiming they are unfit to fly due to fatigue.

The fatigue issue is very interesting from a labour law scenario.  I was out with Allan Bogg, labour law professor from Oxford last evening, and we agreed that one of our favourite labour law cases to teach is a 1972 British Court of Appeals decision called ASLEF #2. I have summarized this case before on this blog. Briefly, the case involved transit workers who decided to obey the terms of their employment contracts to the letter.  When they did this, the transit came to a screeching halt.  Showing the great creativity of common law judges, the Court ruled that complying with your employment contract can actually be a breach of your employment contract (!), if you interpret your contract rules in a way that is designed to harm the employer’s economic interests.  This was the beginning of the ban on “works to rule”.

In Canada, the ban on ‘work to rules’ created by Lord Denning and his friends on the British Court of Appeals has been incorporated into labour relations acts.  I noted yesterday, the language in the Canada Labour Code that applies to airlines.  Here it is again:

“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;

Can you see how the reasoning in ASLEF #2 appears in this language?

However, in the case of pilots, there is a competing legal framework.  The Canadian Aviation Regulations state quite clearly that no one will act as a flight crew (including pilots) if they are fatigued or “likely to suffer from fatigue”. Check out section 602.03:

Fitness of Flight Crew Members

602.02 No operator of an aircraft shall require any person to act as a flight crew member and no person shall act as a flight crew member, if either the person or the operator has any reason to believe, having regard to the circumstances of the particular flight to be undertaken, that the person

(a) is suffering or is likely to suffer from fatigue; or

(b) is otherwise unfit to perform properly the person’s duties as a flight crew member.

Not only is it good practice not to fly an airplane while fatigued, it is a legal obligation. How do you think you can prove or disprove whether a pilot is lying about being fatigued?  And if there is any question about it, shouldn’t an airline and the pilot be erring on the side of caution?  Or should an airline employer discipline a pilot or force them to fly if they do not believe the pilot is being honest about a fatigue claim?

Read the “strike” definition (above), and the “Fitness to Fly” section of the Aviation Regulations.  How do you think the two sections can be reconciled if a rash of Air Canada pilots claim fatigue over the coming the days?

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3 Responses to Can Calling in ‘Fatigued’ Be Unlawful Strike When Law Prohibits Working While ‘Fatigued’?

  1. Bruce Dust Reply

    March 18, 2012 at 11:54 am

    My CLC experience is in the rail industry, but I have friends who work at Air Canada who have had similar experiences.

    Transport Canada has adopted the (dangerous) practice of letting federally regulated undertakings ‘self monitor’ and ‘self report’ enforcement of regulations, guidelines, etc.. Again, I can only relate my railway experiences, but where an operating employee is called for work, or proactively books of ahead of time, and refuses due to fatigue, the company position is that the worker didn’t live up to their responsibility (I forget the Canadian Rail Operating Rule (CROR) number, it may be Rule G) to be fit for duty. This leads to demerits &, more frequently, termination. I know of one 20+ year worker who switched into road service & missed his first call, and was fired – the Hunter Harrison way; watch out CP Rail.

    Also, engineers (Hoggers) have mileage limits per month, and they are frequently coerced into exceeding these caps (safety measures to help stave off fatigue).

    So, yes pilots & railroaders have ‘protections’ in the CLC & regulations; with the companies doing the enforcement, it does workers little good to rely on these measuers.

  2. Andrea Reply

    March 19, 2012 at 12:30 am

    While it’s absolutely necessary to adhere to the law in that no one should ever fly while fatigued, I think the clear intersection of the two ‘sections’ is here: “in concert or in accordance with a common understanding”. It will be difficult to suggest that these pilots did not agree that they were ‘fatigued’ in concert, because without a common understanding, it is unlikely that they all individually decided this simultaneously. That being said, if the pilots can demonstrate their fatigue then the prior point will be moot. That being said, there are 2 considerations, I suppose: 1) what is the definition of ‘fatigued’? This must obviously used here. There must be a certain number of hours over a certain period of time, physical tests, and cognitive/mental tests that can be used as a standard here; 2) “is likely to suffer from fatigue” must be defined because the airline or deiding body will be held responsible for any accident related to being ‘fatigued’ should the pilots be ‘forced’ back to work.

  3. Mike Roach Reply

    March 19, 2012 at 8:42 pm

    The rules covering pilot fatigue, also include pilot stress. When a top heavy company wants to lay off 1800 experianced pilots so they can farm out the work to kids who have barely got their drivers license let alone pilots license, this stresses me out and I’m not a pilot. I can only imagine the stress these guys are under with all that responsibility. If only the government were as responsible then they wouldn’t force private sector employees back to work quoting public health and safety and the almighty dollar. They don’t seem to care about the maintenance of the aircraft as the majority of the jobs will disappear to El Salvador sometime this year, just so long as the planes are in the air making their buddies at Air Canada money. I seen this played out before on the show “Mayday”. If you have ever seen that show you know that it’s about planes crashing, often due to Stress and/or Fatigue!!!

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