The Captain's Decision

Note: This post is updated here: Pilot to Serve his Sentence in the Community

There have been a number of interesting Court Decisions in the past few weeks regarding pilots. Here are two which, although on the surface don't seem to be related - one happened in Winnipeg and the other in Salt Lake City - I think that together they have a very interesting connection. They are from different jurisdictions, so as a result, neither are directly binding, but they both go to show that as a pilot, specifically the Pilot in Command (P.I.C. or Captain), you're required to make some tough decisions.

In the first case, the pilot of a Piper Navajo, under pressure from his airline, took off in a bad weather day without autopilot (required for that flight) and without enough gas to make the whole trip. The pilot missed the landing and while over-shooting the runway, both engines failed. The plane crashed on a Winnipeg Street. One of the passengers later died of his injuries.

In the next case, an airline pilot who felt his crew was to tired to fly refused to do a flight. Eventually he was fired. In this case however, the Court found that he was wrongfully dismissed and ordered him re-instated.

Case 1: Pilot in Crash Landing Found Guilty

Pilot in crash-landing found guilty
Busy city street was turned into emergency runway

Fri Nov 2 2007

By Mike McIntyre

A Calgary-based pilot was found guilty Thursday of criminal charges laid after he crash-landed his twin-engine plane into a busy Winnipeg intersection, killing an elderly passenger and injuring several others.

Mark Tayfel, 42, had pleaded not guilty to criminal negligence causing death, four counts of criminal negligence causing bodily harm and dangerous operation of an aircraft in one of the first cases of its kind ever held in Canada.

He had been waiting on a verdict since his Queen's Bench trial ended in April. Justice Holly Beard finally released her written reasons late in the day. Tayfel will be sentenced at a later date.

Tayfel, who was employed by Keystone Air at the time, had argued he made an honest mistake and should not be held responsible for the June 2002 tragedy.

Tayfel and six American fishers were injured when both of his engines cut out when he ran out of fuel at 9:18 a.m., shortly after he missed his first attempt at landing at Winnipeg International Airport.

The plane came to rest on Logan Avenue just west of McPhillips Street.

JOE BRYKSA / WINNIPEG FREE PRESS ARCHIVES
Emergency crews examine airplane that crash-landed on Logan Avenue at McPhillips Street in June 2002.

Everyone survived the crash, but 79-year-old Kansas resident Chester Jones died a few weeks later from his injuries.

"The actions Mr. Tayfel took were not unreasonable and therefore not a departure of any type from the standard a reasonable person or pilot would take in this case," defence lawyer Belfour Der had argued at trial.

Crown attorney Brian Wilford said it didn't matter whether the crash was accidental or not -- Tayfel was guilty because he took off for Winnipeg from a northern fishing lodge without enough fuel to get to his destination.

"It was he and he alone who had the duty to ensure there was enough fuel," Wilford said.

"His passengers absolutely depended on him. Mr. Tayfel was the author of what befell that plane and those passengers."

An aviation expert called by the defence claimed Tayfel should be commended -- not criminalized -- for the deadly crash landing.

"Most people walked away from that accident. He did his job until the bitter end," said Robert Lemieux, who runs a small airline company in Alberta and works as a trainer and examiner with Transport Canada.

Lemieux told court the real blame for the disaster should rest with Tayfel's employer, Keystone Air.

He said they "pressured" Tayfel into doing his flight despite the fact he'd raised concerns with the chief pilot that his Piper Navajo wasn't equipped with a mandatory auto pilot, said Lemieux.

The device likely would have helped Tayfel make a safe landing in Winnipeg. Instead, he came out of the clouds too high and too fast -- with both engines on the verge of cutting out -- and missed the runway completely.

Tayfel then crashed as he tried to swing around to make another landing attempt.

Lemieux said Keystone's chief pilot failed to take Tayfel's concerns about the missing auto pilot seriously.

Tayfel also testified in his own defence, saying his boss simply said "Oh, I thought it was there" and then told him to take another passenger on his flight out of Winnipeg.

Lemieux said experience in the airline industry has taught him employers are often focused on making money at the expense of young pilots like Tayfel who feel there is no choice but to quietly obey orders.

During cross-examination, Tayfel admitted he didn't push the issue any further with the chief pilot and decided to do the flight as scheduled.

Officials at Transport Canada said they will take some time to review the ruling before offering comment.

-- with files from Lindsey Wiebe

mikeoncrime.com

Case 2: Judge Backs Pilot Who Grounded Self

Judge backs pilot who grounded self
By Paul Beebe
The Salt Lake Tribune
Article Last Updated: 10/11/2007 11:52:02 PM MDT


An administrative law judge has ordered SkyWest Airlines to rehire a veteran pilot who said the company fired him illegally for declaring himself and his crew unfit to fly after a perilous trip to Jackson, Wyo., where a landing was aborted because of bad weather.

The airline said it fired Don Douglas five months after the 2005 incident because he wrote profane graffiti on company property on two occasions and then refused to take responsibility after being confronted. SkyWest said Douglas's declaration that he and two crew members were unable to fly had nothing to do with his termination.

"I'm ecstatic. I hope I've done something about safety. It was always about safety," said Douglas, who lives in Sandy.

A company spokesman said the St. George-based regional airline hasn't decided whether to appeal the judge's ruling.

"SkyWest maintains fair disciplinary procedures with our employees, and in the case of Mr. Douglas, a thorough investigation process was utilized before he was terminated," spokeswoman Marissa Snow said in an email.

"After two review boards in which his peers reviewed and upheld the decision, an investigation was conducted by the Department of Labor, which also found no merit in the case," Snow said Thursday.

The Oct. 3 ruling by Judge Russell Pulver overturns an earlier ruling by the department's Occupational Safety and Health Administration. OSHA ruled last year that the evidence supported SkyWest.

Douglas, a 16-year SkyWest veteran, reported to work at Salt Lake City International Airport on March 21, 2005, three days after a vasectomy. Cleared to work by his surgeon, Douglas was scheduled to fly a 30-seat Embraer Brasilia turboprop airplane from Salt Lake to Jackson that night and return the next morning. Douglas felt fit to fly, even though he and his crew were warned that they would be flying through rain and snow.



Before departing, the crew's first officer and flight attendant told Douglas they were not feeling well. Troy Brewer, the first officer, said he was tired from a lack of sleep. Flight attendant Brandee Black said her arthritis was bothering her.

The flight was difficult, according to the judge, who wrote that Douglas and Brewer "were under more stress than usual because they had to fly on instruments and the conditions were icy."

Because wind and runway conditions were unsafe in Jackson, aircraft controllers put the flight into a holding pattern that lasted about an hour, then ordered Douglas to fly back to Salt Lake through the poor weather.

After returning, Douglas learned that he and the crew were scheduled to attempt another flight to Jackson - about five hours later - at 4:40 a.m. the next day. According to the judge's 49-page ruling, Douglas found himself unexpectedly feeling too poorly to fly so soon because he was physically and mentally drained from the experience. Douglas also said a mild discomfort from his surgery had become intense during the flight.

After considering how he felt and determining that Brewer and Black were too fatigued to fly again so soon, Douglas told a SkyWest supervisor that he and his crew would not be able to safely fly to Jackson.

"As a pilot, [Douglas] was trained to declare himself unfit should he become unfit during the course of a shift. He believed that it would be a violation of federal air safety regulations if he were to fly unfit, or were to allow a crew member to fly that he had determined was unfit," Pulver wrote.

"He also believed that he as the captain had the final authority to make fitness determinations concerning himself and his crew," the judge wrote.

SkyWest disagreed. After an investigation, Tony Fizer, the airline's western region chief pilot, suspended Douglas for a week without pay and put a letter of reprimand in Douglas's personnel file. Fizer said Douglas was already unfit to fly when he arrived for work. Douglas also did not have the authority to keep his crew from flying, Fizer said.

Two months later, a review board reversed the suspension and downgraded the severity of the letter. Fizer was told to inform Douglas that in the future he should consult with a flight surgeon before declaring himself unfit and each crew member must tell the company if they believe they are unable to work. Only if a crew member was incapacitated could Douglas declare that person unfit for duty.

In July 2005, the words "f--- Fizer" appeared on a cork board in a SkyWest crew lounge. After the board was removed, "You can still f--- Fizer" was written on the wall.

Two handwriting experts hired by Fizer later concluded that Douglas had written the epithets. Douglas was told he could keep his job if he accepted responsibility. He refused and was fired on Aug. 31, 2005.

"I couldn't admit to something I didn't do," Douglas said.

Lawyers for Douglas argued that the graffiti was written in generic block letters, not in cursive script. A handwriting expert hired by Douglas said the writing wasn't his. And the SkyWest experts never looked at handwriting samples from other people before determining Douglas was responsible.

At a hearing in September, Fizer claimed the epithets didn't bother him, though he said they created a sexually hostile work environment and required an extensive investigation because senior SkyWest managers were alarmed.

In Pulver's ruling, the judge said Fizer showed "retaliatory animus" at one meeting with Douglas. The judge also said Fizer lacked credibility because of "baseless accusations" and other steps he took toward Douglas.

"I . . . find Fizer's antagonistic statements concerning the protected activity [when Douglas declared himself and his crew unfit to fly] provide circumstantial evidence of a retaliatory motive for terminating [Douglas's] employment," the judge wrote.

Pulver said Douglas is entitled to back pay and attorney fees.

Being a pilot carries with it a lot of responsibility. Sometimes it's up to you to make the tough decisions even if that means risking your job. It has often been said that the factors you should take into consideration when making a decision are:

1- Your life
2- Your Licence
3- Your Job

In this first case, unfortunately the pilot put #3 first. Ironically, he ended up losing his job and will likely face jail time. More importantly however, this pilot almost lost his life and one of his passengers died. In the second case, although the pilot temporarily lost his job, he got it back. Airlines will often pressure you to fly when you don't think it's safe. It's up to you to make those tough decisions.