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Home My WebLink About1983-0389.Naylor.84-04-03Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Be--fore: For the Griever: / For the Employer: Hearing: 389/83 OPSEU (John Naylor) Griever and The Crown in Right of Ontario (Ministry of Natural Resources) Employer R.H. McLaren Vice Chairman F.D. Coll~rm Member H. Roberts Member I. Freedman, Legal Director Grievance Section Ontario Public Service Employees Union D.W. Brown, Q.C., Counsel Crown Law Office Civil Ministry of the Attorney General January 5, 1984 . i -2- AWARD ----- Mr. John Naylor, a licensed Commercial Pilot with the Air Services Division of the Ministry of Natural Resources. Re grieves the action of the Ministry in dismissing him effective in May of 1983. The parties provided the Board with an Agreed Statement of Facts to the following effect (the Ministry of Natural Resources is hereinafter referred to as the "MNR", for the purposes of the following quotation): "Agreed Statement of Facts: The Fish h Wildlife section of MNR had scheduled a caribou survey, for the 5th day of March, 1983, north of Moosenee, Ont. Those taking part were: Jim Danayluck - Conservation Officer - reg. staff Clifford Rich - Observee - contract Marc Gauthier-- ' II The survey was to be undertaken by Air, Mr. Danayluck acting as navigator (reading maps, marking any sitings) Mr. John Naylor of MNR (IFR Pilot) the pilot. After loading the aircraft (to depart from Moosenee) a Turbo Beaver - Naylor occuppied the pilot seat (left) & Danalyuck the remaining seat in the cockpit (right) Gautier & Rich were seated in the rear of the aircraft. Shortly before take-off Naylor asked Danalyuck if he wanted to use the control wheel (yoke) during the take-off. Danalyuck agreed (including the passengers) & during take-off had control of. the yoke - controls pitching E, rolling of aircraft - while Naylor controlled remaining aspects ie. rudders, throttle etc." - 3 - : . "On levelling off (2500') Naylor asks Danalyuck whether he wanted to fly the aircraft. Danalyuck agreed & moved into the left seat & took over the controls of the aircraft. Danalyuck continued to occupy the left seat for the remainder of the flight including the landing. At one point during the flight Naylor left the cockpit and spoke-briefly with Gauthier who was seated a few feet to, the rear. At all other times Naylor occupied the right seat. NO damage resulted to plane or occupants. Danalyuck holds a private pilots licence. (Naylor a commercial) & has flown approximately 400 hours. He was not qualified to fly the Turbo‘Beaver nor had he been checked out on this aircraft. In addition, he undertook control of the aircraft without the permission of the Ministry." Aside from the foregoing Agreed.Statement of Facts, the employer called Mr. Albert Stewart, who his currently the Chief Pilot with the Air Services Division of the Ministry. He has been employed by the Ministry for the past fourteen years and has been the Chief Pilot for the past year and a half. He is responsible for supervising the thirty-four regular full- time pilots in the service and the operation of the forty-two airplanes owned by the service. His testimony related primarily to the operation of the airplane and the structure of duties imposed upon pilots by the Aeronautics Act and by the Ministry as an employer. The Grievor testified on his own'behalf, not with respect to the incident, but with respect to his personal background and experience in flying. The Agreed Statement Of Facts indicates that there is no dispute before the Board as to the nature or the occurrence of the incident. It is for the Board to characterize the nature and quality of that incident and determine whether the employer's response of discharge was the appropriate penalty in all of the circumstances of the case. The Turbo Beaver aircraft is a single gas turbine engine, weighing slightly over five thousand pounds and could be described as being a complex light aircraft. It is operated from the left-hand seat and that is where the pilot sits while flying the aircraft. The Grievor committedan extremely serious error of judgment in relinquishing partial control of the aircraft to Mr. Danayluck on take-off and relinquishing the entire control of the aircraft to him during the flight and on landing of the aircraft. That conduct is a violation of the Aeronautics Act and the Air Orders contained thereunder, as well as being a breach of the employer's policies. Both the Aeronautics Act and the policies of the employer are directed at ensuring the safety of air operations, as well as the safety of the pilots, passengers and crew, together with the equipment. In engaging in the conduct in which the Grievor engaged, he demonstrated a, grievous lack of judgment because he placed the lives of himself and the other persons in'the airplane at risk. As it now turns out, fortunately the risk was taken without consequences arising -5- ', ,. from it. That fact does not diminish in any way the lack of judgment demonstrated by the pilot. The Grievor in relinquishing control violated fundamental principles of the Aeronautics Act in not remaining at his station in the left-hand seat throughout the flight and not remaining in command and in control of the aircraft throughout the flight. That error of judgment was exacerbated by the fact that the person to whom he relinquished command of the plane was not a commercial pilot nor had he been checked out for the flying of a Turbo Beaver. SO long as human beings build and fly airplanes, there will be pilot errors which will occur from time to time. An attempt is made to limit the possibility of~those errors arising by stipulating extensive qualifications for, one to qualify to hold a flying licence and providing a statutory.regime under the Aeronautics Act which is directed atminimizing the risk to all those usi,ng the air, as well as those on board an aircraft. When a pilot exhibits an error of judgment of the magnitude of this particular individual's error, particularly when it is a deliberate act and one which could have been reconsidered after take-off by not relinquishing the pilot's seat and further reconsidered prior to landing, makes the nature and the quality of his lack of judgment a very severe one. There is no other value which is valued 50 highly irk our society as life itself. His error in judgment jeopardized his own and others' lives and it is appropriate for an employer to impose very severe discipline for such conduct including discharge. Despite the foregoing comments, this Board takes the view that the Grievor merits some consideration because he . . -b- *, ., impress'ed the Board with his testimony that he was sincerely sorry for what he had done. He recognized his conduct as inexcusable and made no attempt to diminish the seriousness of it. It is the view of this Board that the Grievor is unlikely to ever engage in such irresponsible conduct again or exhibit such a gross lack of judgment. There is every pxsibility that a severe disciplinary penalty will encourage a satisfactory rehabilitation in this case. The Grievor has operated an aircraft as a pilot for twenty-four years and has over thirteen thousand hours of flying time. In the course of those twenty-four years, he has never had an accident and has never had any violations under the Aeronautics Act. In his present employment with the Ministry which has been CO, the past five years and his previous flying employment with the Manitoba government (three years); Arctic Air (five years); and Superior Airways (eleven years), he has never been disciplined by his present or former employers for anything relating to his flying activity. In respect of the Ministry of Natural Resources, the Grievor has not been disciplined for any reason whatsoever. When the likelihood of any recurrence is taken account of, together with the fact that there is absolutely no misdemeanours in either the flying record or the disciplinary record, and given the extensive experience of the Grievor together with his age of forty-four years, this is an appropriate case where the Board ought to exercise its discretionary jurisdiction t0 modify the penalts by way of reinstatement of the Grievor. -7- It is ordered that the Grievor be reinstated in his employment relationship with the Ministry effective within four weeks from the date of this award. The period from the date of discharge in May of 1983, until the date of return to work is to,be treated as a suspension without pay and without benefits provided for by~the Collective Agreement. In making this order to reinstate the Grievor in his employment, the Board is not necessarily requiring the employer to reinstate the Grievor in his job as a pilot. First, there may be a question of whether the Grievor will be able to retain his qualifications to work for the employer as a result of the provisions of the Aeronautics Act. Second, the Board is of the view that the employer ought - to determine, giventhat this award reinstates the Grievor and they had not previously directed their minds to this problem, whether the Grievor is fit to continue working as a pilot. DATED at London, Ont,ario, this 3rd day of February, 1984. R..McLaren Vice Chairman F/bollom Member H. Roberts c/ Member