Trinidad and Tobago Airline Pilots Association v Trinidad and Tobago (B.W.LA. International) Airways Corporation

• Jurisdiction: Trinidad & Tobago
• Judge: Beckles, C.
• Judgment Date: 09 December 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: E.S.D. 30 and 32 of 1990
• Date: 09 December 1991

Industrial Court

Beckles, C.;

Elcock, M.;

Ashby, M.

E.S.D. 30 and 32 of 1990

Trinidad and Tobago Airline Pilots Association

and

Trinidad and Tobago (B.W.La. International) Airways Corporation

Appearances

Mr. D. Mendes - Attorney-at-Law, Mr. S. Singh - Attorney-at-law for party no. 1.

Major C. Bernard - Attorney-at-law, Mr. Augustus Ramrekersingh - Industrial Relations Officer for party no. 2.

Industrial law - Termination of employment — Dismissal of three pilots for gross misconduct — Captain allowing excess passengers on aircraft — Training captain and first officer making no protest against overloading — Commission and omission of acts resulting in deliberate overloading — Breach of civil aviation rules and safety standards — Whether dismissals harsh and oppressive — Suspension of licence — Principle of double jeopardy — Whether dismissals too punitive — Finding that conduct of training captain and first officer merely passive — Training captain reinstated — Orders for payment of severance benefits to first officer and captain reduced by specific percentages.

Beckles, C.

1 By section 4(2A) of the Industrial Relations Act, 1972, now Chapter 88:01 (“the Act”) the Industrial Court consists of two Divisions viz. General Services and Essential Services. By section 4(2D) of the said Act as amended by the Industrial Relations (Amendment) Act, 1978, a person appointed to the court as a member of one Division or deemed to be such a members may not sit as 06 member of the other Division, unless invited to do so by the Chairman of that other Division, but while so sitting shall exercise all the functions of member of that other Division.

2 In the instant matter two members of the General Services Division of the court namely, Mr. C. Beckles Vice President end Mr. Lloyd Elcock, Member were invited by the Chairman of the Essential Services Division, with Mr. F. Corbie to sit as members of the Essential Services Division, along with Mr. Vernon Ashby a Member of the Essential Services Division. The court thus constituted assumed jurisdiction to hear and determine the above matter, and proceeded to do so at sittings commencing January 8th, 1991 and continuing on divers dates until June 28th, 199 the court acceded to a request by Party No. 1 to make an Interim order in respect of Captain Thomas Lawrence one of the aggrieved persons on whose behalf it appeared because of certain peculiar circumstances to which we will advert subsequently. Party No. 2 had no objection to this course of action as all the arguments save compensation n respect of this officer had been completed. Accordingly, an interim order was made by the court on the 29th July, 1991 as consented to by the parties.

3 Hearing of this matter continued on the 30th September, 1991 when the parties wound up their respective arguments at the end of which time the court reserved its decision.

4 By section 13(3) of the Act this judgment ought to have been delivered at latest by the 20th November, 1991, but the court was constrained by exceptional circumstances to wit, the fact that two of the members had many other commitments in the General Services Division in addition to the perennial infra structural problems with which this Court is plagued, to delay delivery, to today, 9th December, 1991.

5 Hereunder is the judgment of the court in this matter.

6 The issue concerns the dismissal by Trinidad and Tobago (B.W.I.A. International) Airways Corporation (hereinafter called the Corporation) of three of its pilots, namely Captain Darryl Lou Ring, Captain Thomas Lawrence and First Officer Humphrey Ho Koon on the alleged ground of gross misconduct arising out of events pertaining to the carriage of excess passengers on Flt. BW 419 between Jamaica and Puerto Rico on April 23rd, 1990. Letters of dismissal dated June 15th, 1990 were received by the abovementioned pilots, and are reproduced in so far as is necessary hereunder.

TRINIDAD AND TOBAGO (BWIA INTERNATIONAL) AIRWAYS CORP.

Administration Building, Golden Grove Road, Piarco.

P.O. Box 804, Port of Spain

1990 June 15

Captain Daryll Lou Hing

Flight Operations Department

BWIA International

Administration Building

PIARCO

Dear Captain Lou Hing

The inquiry into your participation in the events pertaining to the carriage of excess passengers on flight BW 419 of April 23rd, 1990 has been concluded and the determination is as follows:-.

• (i) As Captain of the above flight you acted:

  • (a) in flagrant breech of the Corporation's regulations by permitting the presence in the cockpit of persons whose locations seriously compromised the safety of the operations of the flighty;

  • (b) in breach of Article 28(2) and 35 of the Colonial Air Navigation Order 1961;

  • (c) so as to cause the Corporation to be in non-compliance with and/or in breach of the terms and conditions of the Corporation's Aviation Hull All Risk and Airline Comprehensive aviation Legal Liability Insurance Policy;

  • (d) in a manner which compromised the safety of the aircraft, its crew and passengers; and

  • (e) in a manner which recklessly exposed the Corporation to serious criminal and civil liability should any incident have taken place which resulted in personal injury or death

• (ii) You permitted and/or participated in the overloading of the said flight:

• (iii) You acted in a manner which brought the public image of the Corporation into disrepute:

• (iv) You exercised poor judgment as a Captain; and

• (v) By your conduct aboard the said flight you seriously compromised the airline's ability to continue to promote and project its cherished safety image.

In light of the foregoing you have been found guilty of gross misconduct and the Corporation has lost confidence in your suitability and/or ability to function satisfactorily in your job.

As a result of the overloading of flight BW 419 of April 23rd, 1990, the Corporation filed a Mandatory Occurrence Report with the Director of Civil Aviation in Trinidad and Tobago. The corporation has since been advised that the director of Civil Aviation has suspended your licence to operate as a pilot until further notice and pending full investigation of the incident.

For all of the above and for good reason your services are hereby terminated with immediate effect.

Before payment is made to you for any accrued vacation leave standing to your credit and/or any other sums which may be due to you from the Corporation as a result of your employment to) date, you are required to return all the Corporations property in your possession including as applicable:–

• (1) Uniforms

• (2) Manuals

• (3) Cash heats

• (4) BWIA International and Airports Authority ID Badge

• (5) Other

Additionally, recovery action will be taken for any amounts due by you to the corporation.

Yours faithfully,

TRINIDAD & TOBAGO (BWIA INTERNATIONAL) AIRWAYS CORPORATION

Ian C Bertrand

Manager Director

TRINIDAD AND TOBAGO (BWIA INTERNATIONAL AIRWAYS CORPORATION,

Administration Building, Golden Grove Road Piarco

1990 June 15.

First Officer Humphrey Ho Koon,

Flight Operations Department,

BWIA International

PIARCO.

Dear First Officer Ho Koon:

The inquiry into your participation in the events pertaining to the carriage of excess passengers on flight BW419 of April 23, 1990 has been concluded and the determination is as follows:–

• (i) As First Officer of the above flight you condoned:

  • (a) a flagrant breach of the Corporation's regulations committed in your presence, that is the permitting in the cockpit of persons whose locations seriously compromised the safety of the operations of the flight;

  • (b) the breach of Article 28(2) and 35 of the Colonial Air Navigation Order, 1961:

  • (c) actions which caused the Corporation to be in noncompliance with and/or in breach of the terms and conditions of the Corporation's Aviation Hull All Risk and Airline Comprehensive Aviation Legal Liability Insurance Policy;

  • (d) actions which compromised the safety of the aircraft, its crew and passengers; and

  • (e) actions which recklessly exposed the Corporation to serious criminal and civil liability should any incident have taken place which resulted in personal injury or death.

• (ii) You condoned and/or permitted the overloading of the sail flight:

• (iii) You participated in action which brought the public image of the Corporation into disrepute.

• (iv) You exercised poor judgment and displayed a lack of initiative in the face of serious wrongdoing; and

• (v) By your conduct aboard the said flight you seriously compromised the airline's ability to continue to promote and project its cherished safety image.

In light of the foregoing you have been found guilty of gross misconduct and the Corporation has lost confidence in your suitability and/or ability to function satisfactorily in your job.

As a result of the overloading of flight BW419 of April 23rd, 1990 the Corporation filed a Mandatory Occurrence Report with the Director of Civil Aviation in Trinidad and Tobago. The Corporation has since been advised that the Director of Civil Aviation has suspended your licence to operate as a pilot until further notice and pending full investigation of the incident.

For all of the above for good reason your service are hereby terminated with immediate effect.

Before payment is made to you for any accrued vacation leave standing to your credit and/or sums which may be due to you from the Corporation as a result of you employment to date, you are required to return all the Corporation's property in your possession including as applicable -

• (1) Uniforms

• (2) Manuals

• (3) Cash Floats

• (4) BWIA International and Airports Authority ID Badge

• (5) Other

Additionally, recovery action will be taken for any amounts due by you to the Corporation.

Yours faithfully

TRINIDAD AND TOBAGO (BWIA INTERNATIONAL) AIRWAYS CORPORATION

Ian G. Bertrand

Managing Director

TRINIDAD AND TOBAGO (BWIA INTERNATIONAL AIRWAYS...