MENDIS v. AIR LANKA LIMITED AND OTHERS

030-SLLR-SLLR-1996-V-2-MENDIS-v.-AIR-LANKA-LIMITED-AND-OTHERS.pdf


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MENDIS
V.
AIR LANKA LIMITED AND OTHERS
SUPREME COURT.
FERNANDO, J,
AMERASINGHE, J,
RAMANATHANJ.
S.C. APPLICATION NO. 443/969TH SEPTEMBER 1996.
Fundamental rights – Article 12(1) of the Constitution – Post of SecondOfficer (Flight Engineer) Air Lanka – Failing Recurrent Simulator Check -Air Lanka Manual – Failure to grant a third Check – Termination of Services.
The Petitioner was employed by the 1st Respondent Airline as a CadetPilot with effect from 21.7.95 and as a Second Officer (Flight Engineer)with effect from 21.9.95. A Second Officer is required to face a RecurrentSimulator Check every six months. Where an officer fails a Check, hislicence would cease to be valid, but the Air Lanka Manual requires him tobe given adequate guidance and assistance to regain the required stand-ard. A subsequent failure at a future date will be treated very seriously. ThePetitioner failed his first Recurrent Simulator Check. He was given sometraining after which he presented himself for the repeat Check and wasagain unsuccessful. He was not given another Simulator Check. After con-sidering his representations and reports by his superiors, his serviceswere terminated. He alleged that there was a failure to properly complywith the Air Lanka Manual and that certain other officers had been givenmore favourable treatment.
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Held:
The Superior officers of the Petitioner substantially complied with theduty to interview him and provided him with the opportunities needed forhim to regain the required standard.
The refusal to grant the Petitioner a third chance and the termination ofhis services were not vitiated by reason of non-compliance with the AirLanka Manual and/or unequal treatment.
"Even if we were to regard this case with greater indulgence than the 1strespondent did, we would not be entitled to substitute our opinion in placeof the considered views of those entrusted with the duty of ensuring thesafety of passengers and aircraft".
APPLICATION of relief for infringement of fundamental rights.
Shibly Aziz, P.C. with Mohan Peiris, M.E. Wickramasinghe and KusalSubasinghe for Petitioner.
R.K.W. Goonesekera with A. Nanayakkara for 1st to 4th Respondents.
Cur. adv. vult.
20th September, 1996.
FERNANDO, J.
The Petitioner was employed by the 1st Respondent Airline as aCadet Pilot with effect from 21.7.95 and as a Second Officer (FlightEngineer) with effect from 21.9.95. His complaint is that his fundamentalright under Article 12(1) was infringed by the 1st Respondent in theway it conducted two "Recurrent Simulator Checks" on 19.1.96 and2.2.96.
The case was argued on the basis that a Second Officer wasrequired to face a Recurrent Simulator Check every six months, andthat upon failure at one such Check the following provisions of the 1stRespondent's Manual, though referring to Pilots, was applicable mutatismutandis.
"Should a pilot fail a PPC (Panel Proficiency Check) or EFC[Enroute Flying Check] he will be interviewed by the Train-
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ing Captain concerned, and his Chief Pilot. He will be ad-vised that because of his failure, he is without a valid li-cence. Therefore, he will be reduced to minimum guaranteepay and assigned to the Flight Training Department for nec-essary upgrading. During this interview, he will be encour-aged to divulge any problems which he considers may havecontributed to his loss of proficiency and it will be pointedout to him that every effort will be made to assist him inregaining the required standard.
After completing the necessary training and reaching a sat-isfactory standard, the pilot will report to his Flight Opera-tions Manager. He will receive a letter advising that he hasregained the required standard and will be expected to main-tain it in the future.
A subsequent failure at a future date will be treated veryseriously, and will be handled with the Manager of FlightStandards and Training and the Flight Operations Manager."
It was agreed that upon failing a Check an officer's licence wouldcease to be valid, unless and until he passed the next (repeat) Check;and that there being no facilities in Colombo for Simulator Checks, the1 st Respondent sends its officers abroad for that purpose but the Checksare conducted by some of its own senior officers who are duly authorised;by the Director-General of Civil Aviation. While the Petitioner says thatthe Simulator Checks are intended to ascertain whether "an officer hadthe necessary competence in regard to abnormalities, malfunctionsand emergencies not usually faced on scheduled flights", theRespondents say they are "intended to assess an officer's knowledge,judgment and skill during normal, abnormal or emergency flight operatingsituations". It must be noted that a Second Officer does not pilot anaircraft but operates the Flight Engineer's panel behind the Co-Pilot'sseat.
The Petitioner faced his first Recurrent Simulator Check after appoint-ment as Second Officer on 19.1.96, and failed. The remarks made bythe testing officer, Flight Engineer Daher, under "General Assessment"were:
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"Check ride is NOT UP TO SATISFACTORY level. Must dolots of study on abnormals and QRH [Quick ReferenceHandbook] before coming back for another [Simulator]Check".
Admittedly, the Petitioner was given some training and instructionin Colombo from 29th to 31 st January, but not any Simulator training orpractice.
He then presented himself for the repeat Check on 2.2.96, andwas again unsuccessful. The testing officer, Jansz, recommended that"he be given a couple of additional Simulator details followed by aSimulator Check'.
However, he was not given any further opportunity to present himselffor another Simulator Check. After considering representations madeby him and reports by his superiors, his services were terminated inApril 1996.
Mr. Shibly Aziz, P.C., on behalf of the Petitioner devoted the greaterpart of his submissions to two matters: that the procedures laid downin the Manual (quoted above) in regard to Simulator Checks, wereamplified in an Air Canada Manual which had been issued to someAirlanka staff, and should have been followed; and that even after afailure at a repeat Check, an officer should not be dismissed. Whilethe provisions of the Airlanka Manual are part of the contractual termsof employment, the same cannot be said of the Air Canada Manual, inthe absence of evidence of intention or practice in regard to its distributionand use. The Air Canada Manual cannot be regarded as binding, but,at most, as guidelines not applicable in the event of inconsistency.The Petitioner had therefore to establish non-compliance with the AirLanka Manual. As for his other submission, white there is no doubtthat dismissal was not mandatory upon a second failure, equally,dismissal was within the discretion of the Airline, particularly havingregard to the safety considerations involved.
I must therefore turn to the crucial issues : whether there wascompliance with the Airlanka Manual provisions, and whether anydiscretion thereunder was exercised so as to deny the Petitioner equaltreatment.
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Mr. Aziz submitted that the 1st Respondent had not given thePetitioner the benefit of an interview, advice, guidance and furtherSimulator practice in terms of the Manual. The petition particularizedthree matters: that an adverse report should have been initiated by theFlight Engineer Instructor, discussed with and signed by the TrainingCaptain, and then shown to the Second Officer and his signatureobtained; that the pilot should have been interviewed by the TrainingCaptain and Chief Pilot in order to identify his weak areas; and thatsufficient practices should have been given to cover all weak areasuntil the required standard was reached.
He also contended that the 1 st Respondent had treated severalother officers more favourably:
that a pilot who failed the Recurrent Simulator Check twice,was given Simulator training in between, as well as a third chanceto take the Check;
that five Cadet Pilots who had not been successful in theirqualifying tests are still in service as Second Officers and FirstOfficers; and
that the 3rd Respondent failed the final Simulator Test duringhis Airbus A -300 conversion course, but was given two practicesessions thereafter.
There is some dispute as to what happened after the first Check.The Petitioner claims that Daher did not tell him immediately that hehad failed, even though there was enough time to debrief him; six hourslater Daher called the Petitioner to his hotel room and told him he hadfailed; and the report was neither shown to him nor countersigned byhim. After returning to Colombo, the 4th Respondent, the Chief instructorFlight Engineer, instructed him to undergo three Cockpit ProcedureTrainer sessions with Daher, but he was not given an interview whichwould have enabled him to discuss the reasons for failure and to agreeon the steps, including practices, needed to reach the required standardof competence. Thereafter from 29th to 31st January he was requiredto attend Cockpit Procedure Training ("which only enables a pilot topractise manual cockpit procedures and not abnormalities which the
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instructor had recommended in his report at the (first) RecurrentSimulator Check"), instead of Simulator training.
It would seem that in relation to a Second Officer there is no "TrainingCaptain" and "Chief Pilot" (as contemplated by the Manual vis-a-vis apilot): and that in relation to the Petitioner, as a Second Officer, Daheras the Instructor, and the 4th Respondent as the Chief Instructor FlightEngineer, were his equivalent superior officers.
According to Daher, he had debriefed the Petitioner at the hotelafter the Check and informed him that he had failed. He gave the reasonfor his recommendation that the Petitioner should do lots of study onabnormals and QRH: it was because he had found that the Petitionerdid not have the necessary knowledge for that Check. He also saidthat he had discussed the Petitioner's failure with the 4th Respondentand had told him that the Petitioner needed to revise his knowledge ofsystems and reference material. Accordingly he was given the task oftraining the Petitioner on that basis, and from 29th to 31 st January thepetitioner did Cockpit Procedure Training where he was given theopportunity to study normal and abnormal procedures, the QuickReference Handbook and other relevant subjects.
The 4th Respondent states that after discussion with Daher, he,as the Petitioner's immediate superior, interviewed the Petitioner as tothe reasons for failure, gave him a copy of the assessment, and toldhim that he would be doing three days of ground study in the CockpitProcedure Trainer. The Petitioner did not at any stage request furtherSimulator training or divulge any problem which he considered mayhave contributed to his lack of proficiency.
In his counter-affidavit the Petitioner does not satisfactorily dealwith Daher's account of what happened after the first Check. ThePetitioner has produced an inter-office memorandum dated 21.12.89from the then Chief Pilot addressed to "Training Captains and Engineers”,which states:
"If an adverse assessment is required on a Simulator report for
Second Officers, then this must be countersigned by the Training
Captain. Although this assessment will be primarily the
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responsibility of the Flight Engineer, he should first discuss anyproblems encountered, and reach a mutual understanding withthe Training Captain on the recommendations to be made."
However, the 4th Respondent has averred that this memorandumwas never implemented, and has referred to the fact that theassessment forms approved by the Director-General of Civil Aviationdo not provide for such countersigning. I therefore cannot accept thatcountersigning was mandatory, although it would be a salutary practicewhich would prevent any dispute as to whether the contents of anassessment were communicated to the officer concerned.
No reason has been suggested why both Daher and the 4thRespondent should have refrained from telling the Petitioner why hehad failed; if he was not told, it would only have been natural for him tohave asked why, especially as he had to prepare for the repeat Check;and if he really believed that what he needed most was Simulatorpractice, he would have requested that – but Mr. Aziz conceded that nosuch request was made. It is therefore more probable that the petitionerwas informed by both that what he needed was "lots of study" of theQRH and other Manuals, and knew that Simulator practices were notrequired.
I hold that Daher and the 4th Respondent substantially compliedwith the duty to “interview" the Petitioner, told him his shortcomings,advised him of the steps necessary to regain the required standard,and provided the opportunities needed for that purpose. The fact thatthis was done quite informally is not material, although a more formalprocedure might well avoided uncertainty and dispute.
Turning to the allegation of unequal treatment, it is clear that allbut one of the examples cited are in no way comparable. The five CadetPilots were not in a comparable position to Second Officers becauseduring a regular flight a Cadet Pilot does not pilot a plane or operateany panel in the cockpit on his own; he is always under supervision,unlike a Second Officer. Further, those five pilots were in fact dismissedwhen they failed the repeat Check; they were re-employed only afterthey had filed applications to the Labour Tribunal, and they had tocommence training afresh. The Petitioner, by contrast, asks for different
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treatment: that he be allowed a third Check, and permitted to continuefrom where he was. As for the test which the 3rd Respondent (a pilot)failed, that was completely different, being a "type conversion"; andupon failing the first Check he was given one remedial training session,and was successful at the second check. The third example cited iscomparable in that the officer concerned was a Second Officer facing asix-monthly Simulator Check; however, unlike the Petitioner, he wassuccessful at the second Check, and did not have to ask for a third.The Respondents admit that he was given Simulator training or practicein between, but the failure to give similar training to the Petitioner isnot "unequal treatment" because in the case of the Petitioner, hisshortcomings related entirely to his lack of knowledge and the properremedy was extensive study of the QRH and other Manuals, and notSimulator practice. The allegation of unequal treatment therefore fails.
Mr. Aziz pleaded most eloquently that the Petitioner had performedexceptionally in the course of the selection process leading up to hisappointment as Cadet Pilot; that he had an outstanding record of 11years service in the Air Force; that he had been awarded three medalsfor gallantry, by three successive Presidents; and that he had riskedhis life repeatedly in the service of the nation. Indeed, it transpiredthat he had returned to Colombo soon after his repeat Check on 2.2.96in order to take part in a rehearsal for the award of the third of thosemedals. Mr Aziz urged that the 1st Respondent should have allowedhim another chance to pass the Check, as recommended by Jansz.
While unreservedly acknowledging the Petitioner's exceptionalrecord in those respects, Mr. Goonasekera submitted that in acommercial airline, the Petitioner's willingness to face risks was not ofgreat importance – the paramount consideration was the safety ofpassengers; and the refusal to allow a third Check was a proper exerciseof discretion. Even if we were to regard this case with greater indulgencethan the 1st Respondent did, we would not be entitled to substituteany opinion of ours in place of the considered views of those entrustedwith the duty of ensuring the safety of passengers and aircraft. I holdthat the refusal to grant the Petitioner a third chance and the terminationof his services were not vitiated by reason of non-compliance with theAir Lanka Manual and/or unequal treatment. I must add that I expressno opinion on questions that may now be before the Labour Tribunal,
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as to whether his termination was unjustified, or whether he is entitledto compensation, for any other reason.
I dismiss the application without costs.
DR. AMERASINGHE, J. -1 agree
RAMANATHAN, J. -1 agree
Application dismissed.