Vincent Joseph Tinker v Bahamasair Holdings Ltd

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judge: Harrison L. Lockhart
• Judgment Date: 25 October 2013
• Docket Number: No.135 of 2010

In the matter of the Industrial Relations Act

And

In the matter of the Employment Act, 2001

Vincent Joseph Tinker

Applicant

and

Bahamasair Holdings Limited

Respondent

Before:

His Honour Harrison L. Lockhart, President.

No.135 of 2010

INDUSTRIAL TRIBUNAL

NASSAU

Appearances:

Counsel for the Applicant — Sidney Campbell Esq.

Counsel for the Respondent — Ferron J. M. Bethell Esq. with him Ms. Camille Cleare.

DECISION AND REASONS

The Facts:

1 By letter dated February 3, 1987, the Applicant now aged 57 years was re-employed by the Respondent having been employed previously in the early 1970s (shortly after completing secondary school). He was at all material times employed as a line mechanic/technician at the Respondent.

2 He alleges that he was wrongfully dismissed by the Respondent on August 14, 2009, and claims damages for wrongful dismissal and/or reinstatement.

3 At the time of the Applicant's termination of employment his basic salary was $31,470.66 per annum.

4 The Respondent denies that the Applicant was wrongfully dismissed and avers that his summary dismissal was justified in view that he had committed a major breach of discipline pursuant to article 14:01:02(b) of a purported industrial agreement to which he was subject between the Airport, Airline and Allied Workers Union (“the Union”) and the Respondent, viz., insofar as he had committed “gross negligence in the performance of his duties”; and in particular, the Respondent says that:

“The Applicant was terminated for gross negligence in the performance of his duties. The Applicant was employed in the capacity of a mechanic II by the Respondent.

On Monday, August 10, 2009, the Applicant was instructed to tow aircraft C6-BFI out of the hangar where it had just undergone repairs to a hydraulic line by the maintenance team. In complete disregard of established operating protocol for the towing of an aircraft, the Applicant, utilizing a tow tractor, attempted to maneuver the subject aircraft without properly stationed guide men to signal the amount of clearances. Further, despite only engaging one guide man to assist in the maneuver, the Applicant continued his attempt to maneuver the aircraft after having lost visual and oral communication with the single guide man. As a result of the Applicant's negligence in seeking to maneuver the aircraft in contravention of established protocol, the aircraft collided with the hangar occasioning irreparable damage to the $4 million aircraft. The aircraft has had to be removed from the Respondent's fleet and to date has not been replaced.”

The Evidence:

5 The Applicant testified that on August 10, 2009 he was instructed to tow a Dash 8 aircraft from the line to the hangar to be repaired.

6 He said that he conducted this operation by hooking up a tractor and tow bar to the aircraft. One individual (a cleaner) was in the cockpit of the aircraft. His job was to ride the brakes of the plane and to communicate with the control tower.

7 The Applicant testified that he was instructed by his supervisor to tow the aircraft. The supervisor also chose the support personnel to assist him in the exercise.

8 He said that to the best of his recollection there were 2 wingmen assigned to him to assist in towing the aircraft to the hangar. He could not recall if there were any other personnel involved {other than the cleaner who rode the brakes).

9 The Applicant testified that after the aircraft was repaired he was instructed to remove it from the hangar and tow it to the line. As he recalled, there were 2 persons with him: one was in the cockpit, and the other person acted as a wingman on the side of the right wing of the aircraft.

10 He said that the Respondent's policy is that there should have been 3 persons to assist him in the towing exercise: one in the cockpit, and 2 wingmen; i.e. one on the side of each wing.

11 The Applicant was then referred to paragraph 4.7 A (1) (f) and (g) and (2) of the Maintenance Control Manual (MCM) of the Respondent which provides:

“4.7 Tractor Operator Requirements…

• 1. Before towing aircraft:…

  (f) note all potential clearance problems

  • • Obstructions to be avoided.

  • • Overhead obstacles

  • • Portable equipment and/or stands which may be positioned in the path the towed aircraft is to follow (even though the aircraft path may be painted on the ramp or floor)

  (g) Move aircraft only when visual contact with all necessary guide men is in force. Obstructed vision is a signal to stop and get necessary guide men contact (s) reestablished.

• 2. When aircraft brakes are released, move tractor slowly to avoid strain or damage to the aircraft structure.”

12 The Applicant testified that the procedure in the MCM was not always followed. He said that sometimes he was only provided with one wing man. “They put pressure on you to get the job done with only one wing man sometimes.” Furthermore he said under cross-examination that he was not familiar with paragraph 4.7 A (1)(g) of the MCM.

13 He said that he was a tractor operator for 5 years and never had an incident before the one leading to his dismissal.

14 He said that while towing the aircraft from the hangar back to the line his speed was only about 2 mph.

15 He said that while towing the aircraft from the hangar, he was on the side of the left wing and that when he proceeded to turn the aircraft he was about 50 feet from the hangar, but he was not on the yellow parallel line.

16 He said that he had no prior instructions with respect to the said parallel line denoting the safe distance for rotating the aircraft; in fact he testified (on the Tribunal's visit to the locus in quo) that the Respondent had just put that line there.

17 The Applicant admitted however that it would have been possible to reach the yellow parallel line before rotating the aircraft; and he admitted that in turning the aircraft it struck the angular support bar of the hangar.

18 As far as the Applicant was concerned, the Respondent should have provided him with more support personnel — in particular, more wing men to assist him in the towing exercise.

19 He said that in the circumstances he did not consider his conduct which occasioned the damage to the aircraft as grossly negligent.

20 The Applicant was shown paragraph 4.6(A) (7) of the MCM which provides as follows:

“7. Aircraft tow tractor operators shall not tow or push aircraft or operate tractors in congested areas, i.e., in or around hangar, ramp, etc, where aircraft clearances are at a minimum, unless guide man (men) stationed as necessary to signal continuously the amount of clearance (s) by moving hands together or apart

Note: Signals between the tractor operator and aircraft operator or guide person may be oral if practical. When oral signals cannot be heard, hand signal procedures shall be used.”

21 The Applicant testified that he never saw this procedure before, but he admitted that he had to see or hear the guide man during the towing exercise. He also said that if he could not see or hear him he would be required to stop the operation as his discretion would dictate.

22 He said that he halted the towing exercise when he heard a sound; and that he also heard a sound from wing man, Nikeino Smith.

23 The Applicant was then referred to the written statement of Nikeino Smith, which he said was accurate. He also said that he personally instructed Smith “to walk the wing.”

24 Nikeino Smith's statement read as follows:

“Mr. Glinton gave instructions to Mr. Tinker to tow the aircraft(BFI) out of the hangar and on to the line. I was then instructed by Mr. Tinker to walk the wing. As I gave clearance to Mr. Tinker, we lost contact because of the direction he was heading at the time. When I noticed the tail of the aircraft getting close to the building, I tried my best to get Mr. Tinker's attention but unfortunately he was unable to hear or see me. And that's when the accident happened, the tail slammed into the building.”

25 The Applicant said that he did not request Mr. Stephen Adderley to be a wing man because he was not part of his shift.

26 He said that he did not go to Mr. Glinton to ask for more assistance in the exercise, because he (Glinton) was doing something else; he could not find Mr. Glinton to complain about not having more than one wing man.

27 Nevertheless the Applicant testified that he did not consider himself as being negligent in towing the aircraft with only one wing man.

28 Under cross-examination the Applicant was then referred to a Maintenance Training Certification dated June 13, 2005 signed by him. The course inter alia included towing of aircraft and brake riding. The Applicant said that he did not recall attending such a course.

29 The Applicant was then shown a letter to him dated August 10, 2009 from Mr. Tracy Cooper, Director of Maintenance as follows:

“Re: Impact of Aircraft C6-BFI with Hangar resulting in Major Structural Damage to Aircraft

Mr. Tinker,

Around 5:55 p.m. this evening, you were towing aircraft C6-BFI from the hangar to the line when your towing caused the aircraft tail section to impact the maintenance hangar. The force of the impact was significant to cause major structural damage to both the vertical and horizontal stabilizer structures.

Bahamasair is reviewing this matter as a gross negligence on your part in the manner in which the aircraft was towed and the resultant impact and damages to the aircraft. Therefore you are being placed on immediate suspension with pay pending a disciplinary hearing.

You are also required to attend a disciplinary hearing scheduled for Wednesday, August 12, 2009 in the Maintenance Boardroom at 1 pm. As this matter is a serious incident, you are strongly advised to have union representation at the meeting.

Tracy Cooper

cc. Cornel Mortimer, Director Human Resources AAAWU”

30 The Applicant testified that after...