Fiji Airline Pilots Association v Air Pacific Ltd [2005] FJAT 41; Award 67 of 2005 (8 December 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 67 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI AIRLINE PILOTS ASSOCIATION

AND

AIR PACIFIC LIMITED

FAPA: Mr P Rae with Capt. H Maybin
Air Pacific: Mr N Barnes

DECISION

This is a dispute between the Fiji Airline Pilots Association (the "Association") and Air Pacific Limited (the "Company") concerning the termination of employment of Vikash Ram (the "Grievor").

A trade dispute was reported by the Association on 25 September 2002. That report was rejected by the Permanent Secretary on the basis that the Dispute arose more than one year from the date it was reported under the proviso to section 4 (i) (a) of the Trade Disputes Act Cap.97.

As a result of the Fiji Court of Appeal decision in the Permanent Secretary for Labour and Industrial Relations and Anor –v- Air Pacific Limited and Fiji Aviation Workers Association (Civil Appeal No. 23 of 2002 delivered 16 May 2003) the Dispute was again reported on 9 March and accepted on 5 April 2004.

The Minister subsequently authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A(5)(a) of the Trade Disputes Act. The Dispute was referred to the Permanent Arbitrator on 11 May 2004 with the following terms of reference:

".... for settlement over the termination of Vikash Ram (Flight Officer) with effect from 7 February 2000 by Air Pacific Limited, which the Union feels that the termination was harsh and unfair".

The Dispute was listed for a preliminary hearing on 18 June 2004. At the request of the parties the Dispute was relisted for mention on 14 July 2004. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for further mention on 11 August 2004. On that day the Tribunal granted the Company a further 14 days to file preliminary submissions. The Dispute was again listed for mention on 15 September 2004. On that day the Dispute was listed for hearing on 15/16 November 2004.

The Association filed its preliminary submission on 5 August and the Company did so on 27 August 2004.

As the parties were experiencing some difficulty in relation to the discovery of certain documents, the Dispute was listed for mention on 29 October 2004. During the course of discussions on that day, the Company indicated that it was seeking a Ruling from the Tribunal concerning the scope of the Tribunal’s considerations in relation to a dispute arising out of a Collective Agreement and in particular a dispute involving termination of employment by the giving of notice or payment in lieu of notice.

The Tribunal directed that the hearing dates be vacated and fixed a schedule for the filing of written submissions on the issue.

The Tribunal delivered its Ruling on 9 March 2005.

Following the Ruling, the Dispute was listed for mention on 30 March 2005. At the request of the parties the Dispute was again listed for mention on 29 April 2005. On that the Dispute was listed for hearing on 15 June 2005

The hearing of the Dispute commenced in Nadi on 15 June and continued on 16 and 17 June 2005. The Dispute was adjourned part heard to 18 July 2005. The hearing resumed in Suva on 18 July 2005 and was completed on that day. The Company called three witnesses and the Association called four witnesses to give evidence.

At the conclusion of the evidence the parties sought and were granted leave to file written final submissions. The Company filed its final submissions on 25 August 2005. The Association filed answering submissions on 5 October and the Company filed reply submissions on 28 October 2005.

The Grievor joined the Company in 1996. Prior to that the Grievor had been employed by Air Fiji for three months as a casual pilot and prior to that with Vanua Air Charters for 18 months.

Having successfully completed the Company’s training programme, the Grievor was appointed as a B737 First Officer until he was one of two pilots in August 1999 selected for training as a B767 First Officer in August 1999. The Grievor successfully completed the B767 Pilot Transition Course conducted by Ansett Australia in Melbourne from 5 – 19 October 1999. Then followed some simulator training before the Grievor commenced line training in December 1999 under Captain Hilton and Captain Patel.

A substantial part of the evidence given at the hearing dealt with the period during which the Grievor was undergoing line training. As a result of the Grievors performance in the line training, management decided that the Grievor was not up to standard. In a meeting with Captain Tuisue who was and is the Chief Pilot of the Company and Captain Hilton on 2 February 2000 the Grievor was informed that he would not be retained by the Company. This decision was confirmed in a letter dated 7 February 2000 from Captain Tuisue to the Grievor. Omitting formal and irrelevant parts, this letter stated:

"Reference is made to our meeting on Wednesday 2 February 2000 in which you were advised that we cannot continue to use your services as a pilot with effect from 3 February 2000.

As discussed with you in the above meeting, your overall performance in the line training phase was well below the required minimum standard even though the line training had been extended".

The Grievor gave evidence that he also received a cheque with the letter of termination. It was accepted that the cheque represented payment in lieu of notice under clause 6.6.2 of the Master Agreement. This clause states:

"6.6. The services of a pilot shall be terminable by either the Company or the Pilot.

6.6.1 ...............

6.6.2 Thereafter

(i) by three (3) months notice in writing or

(ii) by the payment to the pilot of three (3) months’ salary or part thereof in lieu of notice in writing.

(iii) ........ ".

It is not disputed that the Company has complied with the requirements of clause 6.6.2 of the Agreement. The question for the Company to determine is whether the Tribunal has acted reasonably or fairly in terminating the Grievor’s employment and in so deciding the Tribunal must also determine whether the Grievor’s right to fair labour practices under section 33 of the Constitution has been upheld.

At this stage, the Tribunal considers it appropriate to make some initial comments. First, the Tribunal is satisfied that the termination of employment was not for disciplinary reasons. There was no evidence that the Grievor had committed a disciplinary offence and there was therefore no requirement to invoke the disciplinary procedures in the Master Agreement.

Secondly, the Tribunal has no hesitation in concluding that the performance required of its pilots by the Company must be of a high standard. It is difficult to imagine a more responsible task than flying a passenger plane. The safety of the passengers is dependent upon the training, experience and skills of the Captain and the First Officer.

It is interesting to note the contents of a letter dated 19 March 2002 from the Association to the Company, the third paragraph of which states:

"FALPA do not dispute that F/O Vikash Ram did not meet the required standard when progressing to B767 First Officer. Many factors beyond F/O Mr Ram’s control contributed to that failure and these factors have been discussed at length".

The Tribunal assumes that the Association made those comments after having discussed the matter with the Grievor and after having perused at least some of the relevant documents.

The Tribunal has carefully considered the evidence and the material placed before it. As a result the Tribunal has made a number of findings which are set out in the following paragraphs.

The Tribunal is satisfied that the Grievor had undertaken over 200 hours to complete First Officer B737 line training which is longer than what is usually required.

The Tribunal is satisfied that the Grievor had undertaken 110 hours line training as part of the transition training to become a B767 First Officer. The Tribunal is also satisfied that the average for the transition is about 85 hours.

The Tribunal is also satisfied that although he was given sufficient opportunity to improve, the Grievor continued to have unacceptable difficulty in safely taking off and landing the B767 aircraft.

The Tribunal has noted that Mr Vikash Prasad, who started B767 transition training at the same time as the grievor required only about 85 hours of line training and was lined cleared to fly the B767. There was no evidence to suggest that Mr Prasad was treated substantially in any different manner by the two trainer Captains.

The Tribunal accepts that there were discrepancies in the material produced by the Company. It is also noted that not all the Grievor’s training forms were signed by him. However the Tribunal does not accept that these matters were the result of some sinister plan by the Company or conspiracy by the trainers. The Tribunal does not accept that comments were added by the trainees after the training reports had been shown to the Grievor.

The Tribunal is satisfied that the Grievor was kept informed about his progress during the line training. The Tribunal is also satisfied that the Grievor had access to his training reports on a regular basis and that there were adequate debriefing sessions conducted with the Grievor which accurately reflected the contents of those training forms. On balance the Tribunal has also concluded that Captain Hilton’s comments made during the simulator sessions in Melbourne were no more than an indication of his perception of their ability as pilots at that time.

The Tribunal is satisfied that the Grievor knew or ought to have know that his performance was not up to the required standard. The comments made by the two trainers in the training forms, the number of hours spent on line training, his performance at the pre check and the fact that he was required to return to Sydney for further simulator assessments following the pre check should have alerted the Grievor to the fact that there were problems.

The Tribunal accepts the evidence that the Grievor did not perform satisfactorily in Sydney when he was unable to complete any of the seven circuits undertaken safety or to an acceptable standard.

Where the evidence has conflicted, the Tribunal has accepted the evidence given by the three witnesses on behalf of the Company. There was no evidence advanced to explain why the Company would not line clear the Grievor other than the evidence relating to his competency and safety as a pilot. This evidence was adduced by the Company. The Grievor thought otherwise but did not call any evidence to support his contention that he had been treated unfairly or that he was the victim of a corporate conspiracy.

The Tribunal has concluded that the Company did have grounds for concluding that the Grievor was not competent or safe to be line cleared as a B767 First Office. The Tribunal is also satisfied that the Company had acted reasonably and fairly in concluding that the Grievor was no longer a sufficiently safe pilot to employ him as a B737 First Officer.

The Tribunal is satisfied that the Grievor was objectively and professionally assessed. The Tribunal is satisfied that the Grievor was aware or ought to have been aware that his performance during line training needed to improve. The Tribunal is also satisfied that the Grievor was given ample opportunity to demonstrate his skills and to improve his performance. Unfortunately his skills were not up to standard and his performance as a pilot did not significantly improve during the line training.

The Tribunal accepts that the Company was in the best position to determine whether the Grievor should revert back to First Officer on B737 plans or be released altogether. The Tribunal is satisfied that the Company acted fairly and reasonably in concluding that the Grievor should be released.

As the Company complied with the Collective Agreement in relation to termination of employment by payment in lieu of notice, there is no basis upon which the Grievor is entitled to any award by way of compensation.

The manner in which the termination itself was effected was not improper. There is no basis for the claim that the Grievor was humiliated or embarrassed by the manner in which the Company terminated the Grievor’s employment.

There were other incidents referred to during the course of the evidence which the Tribunal does not consider to be of sufficient relevance to the issue in this dispute to warrant any detailed analysis.

AWARD

The conclusion by the Company that the Grievor should not be line cleared as a B676 First Officer was reasonable.

The conclusion by the Company that the Grievor should not be retained for B737 duties was also reasonable.

The decision to terminate the Grievor’s employment was fair and reasonable. He did not suffer humiliation or embarrassment. There was no breach of any implied term of employment.

There has been no breach of the Grievor’s right to fair labour practices under section 33 of the Constitution.

There is no basis for any award of compensation.

DATED at Suva this 8 day of December 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL