On Pilot Fatigue, Planets, and Charter Challenges
Did you catch the story in the media yesterday about the Air Canada pilot who mistook planet Venus for an approaching plane and put his jet into a sudden steep dive? The finding of the Transportation Board released yesterday was that the pilot was fatigued and shouldn’t have been flying. Scary story.
Did you also catch the link to the ongoing labour relations issues at Air Canada?
Recall that some Air Canada pilots have called in ‘fatigued’ in recent weeks. As I’ve noted before, pilots in Canada are not permitted to fly if they are “suffering or likely to suffer from fatigue”. In their Charter challenge filed recently, the Pilots’ Association has alleged that Air Canada pilots are flying right now when they are fatigued because they are under threat of a big fines if they do not report to work thanks to the Feds Stay-at-Work legislation. Here is what the Pilots alleged in their Charter application:
ACPA reminded its members oftheir statutory obligation not to fly if they feel unfit to do so, Air Canada responded by informing pilots that such actions will constitute a “strike” under the Canada Labour Code and, by implication, under the Protecting Air Service Act. As a result, Air Canada pilots are flying despite being unfit to do so out of fear of being prosecuted criminally under the Protecting Air Service Act.
Last week, the CIRB ruled that some pilots that called in fatigued had engaged in an unlawful strike (thanks Lancaster House for tweeting the order). Although the Feds’ law allows for fines against pilots of up to $1000 per day for engaging in a ‘strike’, no fine was imposed this time, I assume because Air Canada did not seek a fine. Perhaps the employer is concerned about the optics of fining pilots who claim they are fatigued. Could you imagine the fall out if a fatigued pilot makes another error like the one in the above story (or worse) in the current climate, when pilots are claiming they are worried about claiming fatigue due to the poisoned labour relations climate?
Recall the meaning of a ‘strike’. If pilots agree to call in fatigued, they are engaging in a strike. However, if they call in fatigued on their own, without any ‘common understanding’ with other pilots, then they are not on strike. I’m not sure how the Board decided there had been a strike, since the decision (linked to above) released last week doesn’t include any discussion of the facts. It looks like no evidence was called. Was there agreement of the parties that there was strike? If anyone knows what happened at the hearing, please let me know.
Gord
April 18, 2012 at 4:28 pm
Prof. Doorey, there was an article/opinion piece in today’s National Post/Financial Post authored by Howard Levitt in which he advocated that Air Canada should fire the pilots who booked off sick for participating in an illegal work stoppage, contrary to the back to work bill. How do you respond to the points raised by Mr. Levitt?
Doorey
April 18, 2012 at 4:54 pm
Hi Gord, my response would be that Levitt is an outlier who believes that in every case the employer’s best course of action is to take the most hardline response possible to show how tough it is, as if that will improve labour relations. Air Canada could fire the workers, which would provoke a slew of grievances and more and more litigation. It is no surprise that Levitt’s views always lead to a path in which there is a lot of litigation and legal costs involved. Contrary the suggestion in Levitt’s piece, it is the employer that would have to prove that it had just cause to dismiss a worker who claims he/she is fatigued. Air Canada would have to prove that each individual pilot was lying. You don’t need a doctor’s note to prove you are fatigued; the law prohibits a pilot from flying if they anticipate becoming fatigued during a flight. We can’t assume that every pilot who says they are fatigued is lying. We just saw this week what can happen when a pilot is fatigued; they can seriously hurt or kill people, so we need to be cautious about assuming a pilot who claims fatigue is a lier, and err on the side of caution, a point even Air Canada concedes. Moreover, given what I know about how angry the AC pilots are, I suspect a mass firing right now could provoke a wide scale walkout of all, or a good share of the remaining pilots. Levitt would no doubt say ‘good’, fire them all. Then Air Canada will have no pilots. Good luck running an airline with ‘replacement’ pilots who are hired in a big rush. Pilots aren’t garbage collectors. They are highly skilled and have great responsibility. Would you fly Air Canada after they had fired a large percentage of their pilots. I know I wouldn’t. It would take months for Air Canada to replace their dismissed pilots, and even longer for people to feel comfortable flying AC again with the newly hired pilots, by which point the airline would likely file for bankruptcy. Aware of the precariousness of the situation, Air Canada did not even seek fines of the pilots it alleges engaged in a strike, let alone dismiss them as Levitt proposes. That is not to say that AC might not take a harder line if problems persist, but engaging in a systematic termination of any pilot that resists the government’s intervention would, in my opinion, not solve any problem, but would make matters, much, much worse for AC.