JUSTICE IN A JUST CULTURE

FAIL ING TO FOLLOW STANDARD OPERAT ING PROCEDURES

FOUR MONTHS EARL IER

CO P ILOT REPORT AND DISMISSAL

Written Report

Engine Torque Anomalies

Full Power Takeoff from the ship

Nose-up manuevers upon return to base

E-mail Correspondence

Dismissal

GORL IN v s . EMPLOYER

“Unjust, harsh and unreasonable”

“No basis for serious misconduct”

“Natural justice denied”

DECIS ION

Rationale lacked specificity

Procedure “severely flawed”

No serious misconduct

Torque anomalies – judgment

Full power takeoff – no policy

Nose-up landing – not outside safety

parameter

“BLATANTLY FLAWED AND UNJUST”

Contacting co-pilot not Gorlin

Additional issues beyond report

Not allowed to challenge copilot’s written report

A BALANCING ACT

Open Reporting Culture Individual Accountability

JUST CULTURE

Encourage open reporting by not punishing

”honest errors”

Accountability for wilful violations or gross

negligence

THORNY QUEST IONS

• Where do you draw the line?

• How is the decision made?

• Who decides?

• What opportunity should the individual be accorded?

NATURAL JUST ICE

NATURAL JUST ICE

• Standards of Conduct

• Fact Finding

• Decision Maker

• Hearing

STANDARDS OF CONDUCT

“

J U S T C U L T U R E

EU Regulation 376/2014

”A culture in which front-line operators or other persons are not punished

for actions, omissions or decisions taken by them that are commensurate

with their experience and training, but in which gross negligence, wilful

violations and destructive acts are not tolerated”

L INE DRAWING

ORDINARY NEGLIGENCE WILFUL MISCONDUCT * GROSS NEGLIGENCE

WILFUL

”Notoriously, slippery term”

“A peculiar, chameleon-like quality”

Intent to act or mere knowledge sufficient?

FAILURE TO CONT INUOUSLY MONITOR INSTRUMENTS

Thai Airways – Nepal (CFIT)

Fixated on flap malfunction = wilful misconduct

KAL 007 – Soviet airspace shoot-down

After five hours – strayed 360 miles off course = wilful misconduct

Dorton (CFIT)

Late let-down due to navigation errors but monitoring = NOT wilful misconduct

Discipline ?

Intentional violation of a safety rule

Engaging in intentional conduct that

coincidentally violates a safety rule?

AMBIGUOUS APPL ICAT ION

W I L F U L M I S C O N D U C T

“ The meat slicer must be unplugged

before cleaning”

ONE POSS IBLE TEST? – WILFUL V IOLAT ION OF A SAFETY RULE

Employee knew the rule existed

Understood the safety consequences of violating the rule

Deliberately chose to violate the rule

Choice was unreasonable under the circumstances

Source: 99 C.J.S. Workers' Compensation § 593

GROSS NEGL IGENCE

Absence of Slight Care Reckless No reasonable care

Gross Negligence ? Gross Negligence ?

ELUS IVE TERMS – BLURRY D IST INCT IONS

wilful - intentional – knowingly - reckless

RESOLVING AMBIGUITY

CONTEXT

FACT F INDING

I N V E S T I G A T I V E C O M P E T E N C E

Technical expertise

Research skills

Critical thinking and problem solving ability

Causal analysis

Interviewing

HEARSAY – INHERENTLY UNREL IABLE

Problems

Memory

Perception

Internal Bias

Fact?

EYEWITNESS STATEMENTS - UNREL IABLE?

Memory ≠ Tape Recorder

Impact Factors

Lighting

Distance

Stress

Observer’s Age

Time Lapse

Source: www.innocenceproject.org/understand/Eyewitness-Misidentification.php

CONFL ICT ING EVIDENCE

Corroboration

Credibility

Bias

Conflicts of Interest

Prior statement consistency

DECIS IONMAKERS & FA IRNESS

THE DECIS IONMAKER

Temperament

Technical Competence

Bias/ Conflicts of Interest

Communication Skills

DECIS IONS

Well reasoned

Facts not speculation or conjecture

Specific not general

FAIRNESS

Notice

Opportunity

Aggravating – Mitigating Factors

JUST ICE

Well-defined and understood standards of conduct

Understand context through quality fact-finding

Inherently weak: hearsay, eyewitness statements

Resolving evidentiary conflicts

Unbiased, impartial decision maker

Fairness – due process

Notice

Opportunity to be heard

Decisions based on a well-reasoned rationale

JUSTICE IN A JUST CULTURE

Peter N. Stein

69th International Air Safety Summit

Flight Safety Foundation

Dubai, UAE

November 14-16, 2016