Talk to a serious litigation lawyer (not a company staffer) about the
following points in terms of NZ law. This pilot's refusal to exercise a
reasonable amount of behaviour management (duty of care) within the
confines of his professional duties will no doubt constitute 'wilful
misconduct'. (Get the lawyer to check the Florida Federal District Court
finding on the 'Cali' accident. Your jurisdiction will have similar
rules in these matters to Florida's.) So, too, the company's action in
not grounding the man almost certainly falls short of the reasonable
standard of duty of care to passengers (you're bound to find in your
civil aviation act or equivalent) - wilful misconduct again. (Industrial
legislation will always give way to public safety. Anyone defending this
person's 'right to work' - apart from being morally reprehensible -
could also be 'joined' as a defendant.) A finding of wilful misconduct
invalidates insurance cover, so any damages will become the liability of
the company (the CEO should know this, if he or she already doesn't) and
that of the individual defendants (incl, co-pilot, supporters). The
circumstances you have outlined come close to definition of allowing him
to fly passengers as 'criminal negligence'. Jail terms could be a
consequence. A crew member, knowing the man, and not refusing to fly
with him, could also become liable to be so charged. Further, a Court
awarding damages would see the circumstances - ie, key people knew about
the problem - as accentuating the degree of misconduct, bringing into
play the question of higher, 'exemplary', awards. Not pretty stuff, but
worth a chat with a lawyer about.
Here's a true story for your lawyer to test his teeth on: Three aircraft
are hired by a football club to go away for an end-of-season
celebration. Pilot 'A' hasn't flown the type before, and gets an
endorsement that morning, with instructor 'B'. The footballers arrive
mid-afternoon, but the planes aren't ready. Most of the passengers are
drinking as they wait, and a part of the group gets noisy and
boisterous. The other two pilots refuse to fly them, so 'A' says he'll
take them. 'B' becomes aware of that, and knows the law forbids carriage
of intoxicated people, but does nothing. 'A''s flight ends in disaster,
crashing on finals after an expedited (presumably under pressure from
the passenger to get on the ground and to a toilet) circuit in poor
weather. 'A' survives, but several passengers do not. Get the lawyer to
define both 'A' and 'B''s legal positions. Compare 'B''s with the
accountant who becomes aware that a partner in the firm is giving advice
on how to cheat the tax office, though the amounts are small, and the
scheme is such that the fraud will be impossible to detect.
For those feeling a tad uncomfortable with all this savage reality,
consider this: None of the above is exeptional in the other professions.
Whether you are an architect designing shopping malls, an engineer
building bridges, or a brain surgeon, public safety is an issue, and
amongst the things you are expected to have done 'reasonably' is to have
prepared yourself for your work - including not only undertaking
prescribed training, but showing that you have met the training
objectives - in this case, by demonstrating co-operative behaviour
skills. You don't get to cut holes in people unless you can demonstrate
that you are up-to-date in all professional aspects of knowledge and
skill. It's only quirks of history - such as disproportionate industrial
'muscle', and too-easily evaded government regulation (vice
self-regulation) - that have resulted in the 'profession' of aviation
not realising that it, too, is bound by these laws. They're out there
all right, and closing in. Every pilot making a living out of flying
passengers around ought to take a long hard look at not only the
training they are undergoing, but the benefits they are getting from it.
Many of us on this forum have a duty to assist them to come to grips
with that. Won't be easy, I know, but it's a 'reasonable expectation'.
Cheers
Doug