It was October 11, 2021. It had been 21 days since the La Palma eruption had begun and the cloud of ash emanating from the crater had already affected traffic operations. For that day, the company Canair (a subsidiary of Binter) activated a late-afternoon flight from Tenerife to Isla Bonita, in one day in which there had been an incident with a Ryanair plane, which suffered a breakdown in flight due to ashes and had to make an emergency landing in Tenerife South, where it had come from. Although the airspace was not closed, one of the two assigned commanders, designated as co-pilot, expressed his doubts about carrying out the operation due to the risks that the volcanic material could pose. The entity’s response was that, if he refused, he would look for another pilot, according to the affected version. Faced with this scenario, he decided to agree to make the journey, which he later reported, in which he was able to observe the ash and perceive the strong smell of sulfur, like rotten eggs. Previously, on September 23, he had experienced a similar situation that he also reported, being the main commander, but on that occasion the plane did not take off. On November 11, he was fired for “loss of confidence.”
The Official College of Pilots denounces that it was flown without guaranteeing safety during the eruption in La Palma
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He is one of the two pilots, who prefer to remain anonymous, who have sued the company after being fired for the same official reason. With the support of the Spanish Union of Airline Pilots (Sepla), they have gone to the Social Courts of Santa Cruz de Tenerife requesting that this business decision be declared null and void and receive the corresponding compensation (25,000 euros), estimating that their fundamental rights were violated, and air safety was put at risk. The lawyer for the pilots and for Sepla, Gonzalo Lucendo, explains that they began to investigate and came to the conclusion that the origin of the dismissals was related to “several flights on the dates in which there were incidents with the ash clouds. The pilots considered that there was a risk, but the company pressured them to carry them out”.
“For aviation to be safe, the professional decisions of commanders must be respected and everything that could pose a danger must be reported without suffering reprisals. And, in this case, the actions question the professional decisions of the commanders in the exercise of their duties, which is not admissible”, explains the spokesman for the Official College of Commercial Aviation Pilots (COPLA), Carlos San José. This body has also reported different operations during the La Palma eruption to the Spanish Aviation Safety Agency (Aesa).
Ash in the fuselage
The other case that has been brought to court refers to events that occurred on November 2, on a night flight. According to the statement of demand, the operation consisted of piloting two empty planes from Tenerife to Gran Canaria. That same day, volcanic ash affected the Tenerife North airport, registering eight diversions to Tenerife South of flights from Madrid and another eight cancellations, seven from Madrid and one from Binter originating in La Gomera. The plaintiff defends that the company criticized him for flying at 7,000 feet instead of 5,000, as he had ordered, and even unofficially accused him that the aircraft had ash on the fuselage upon arrival in Las Palmas de Gran Canaria. The pilot understood that it was safer to fly at that level as it was free of ash and also alleges that the maintenance service in Tenerife had not carried out any checks before departure.
Although he agreed to make the journey, he reported the incident through the Event Notification System, as established by transport regulations in the event of any event or procedure that could have an impact on safety. The pilot reflected that it was a dangerous operation that entailed excessive risk, since it involved flying at night under ash, with scattered clouds and below the minimum off-route altitude. In addition, he considered that it violated the recommendations that COPLA had made.
On October 13, this body issued a statement in which it recalled that the particles emitted by the volcano are abrasive, so they can seriously damage critical parts of the plane (especially the engines), block probes that provide the crew with information on parameters key to the flight or affect the communications antennas of the aircraft, among other consequences. For this reason, it recommended that pilots always avoid entering areas with the presence of volcanic ash that could pose a safety risk.
And on November 19 he was fired: “Through this letter, we inform you that the company’s management has made the decision to terminate your employment contract due to the loss of confidence in the performance of your duties,” the letter read. . In this regard, the lawyer for both pilots, Gonzalo Lucendo, explains that in a dismissal “there should be justification, prove the reasons and in these cases it was a single line.”
A “purely labor” matter, according to Binter
For his part, Binter has defended that the legal matter is “a purely labor issue and not an air safety issue”, since in his opinion the commanders were fired “due to a loss of confidence, due to the way in which they managed the flights”, referring to other operations that did not take place during the eruption. In this aspect, he highlights that all the flights carried out while the phenomenon was active “were made because the technicians estimated that they could be done safely and always in contact with the Aviation Safety Agency, with Enaire, with Aena and knowing that the commanders They are the ones who have the last word. And when there was no certainty that the conditions were good, they were cancelled. In fact, 437 flights were canceled during that period.
On March 11, the Social Court Number 9 of Santa Cruz de Tenerife issued a ruling on one of the two cases, partially upholding the claim: it declared the dismissal of one of the two pilots inadmissible and ordered Canair to compensate the commander with 8,565 euros, terminating the employment relationship between the worker and the company. The judge considered that the company had not justified the origin of the dismissal, since the reasons given without specifying any fact “results in the generation of defenselessness.”
The sentence makes it clear that the content of the dismissal letter must be “concrete, clear and precise”, some requirements that Canair failed to comply with, since “the letter refers vaguely and imprecisely (in its maximum meaning) that a loss of confidence in the performance of their duties. One might wonder what facts and on what date, because their blatant absence places the plaintiff in an absolutely defenseless situation as they cannot know what specific facts they have to defend themselves against, which leads to the conclusion that the dismissal has to be considered inappropriate”.
The judge also does not uphold the plaintiff’s claim to annul the dismissal, because he does not consider the violation of the indemnity guarantee or of his fundamental rights to be proven, as he does not see any irregularity in the flights analyzed. “The proven fact is that the plaintiff got on the plane and performed the service. And analyzing the reports of the same by the commander, nothing abnormal was reported about the flight made. And to make matters worse, no trace of ash was seen on the plane during the review carried out by maintenance that night,” the letter reads.
Although it recognizes as evident, based on the expert reports provided, that the ash has a detrimental effect on aircraft engines and may affect their safety, on September 23 and October 11, when the the flights that, according to the plaintiff, put aviation safety at risk, “it has not been proven that the space was closed” by the volcanic material and, therefore, concludes that the company “was fully entitled to carry out operability”. Nor is it proven to the judge that Canair fired the pilot in retaliation for his safety claims in his reports.
“Job helplessness”
After the sentence, Sepla issued a statement in which it regretted that only the unfairness of the dismissal was recognized and left the pilot “absolutely jobless”, for which it has already announced that it will support him if he decides to appeal. The union criticizes that in the letter there is “not a single allusion to aviation safety or to the concepts of fair culture, according to which aviation professionals should feel free and protected to report on any issue related to safety.” For this reason, he considers that the judge’s ruling is “seriously harmful” both for the worker and for all the pilots of the airline. In this regard, he recalled that three pilots have been fired by Canair in the same circumstances and the goal is that “in the future they can make the correct safety decisions without fear of later losing their jobs after an inappropriate lack of trust”.
The COPLA spokesman clarified that “the two obligations of the commanders are: to preserve the safety of the passengers and the aircraft and, on the other hand, to report to the competent authority any threat that may arise for air safety.” This last point is called a fair culture, “it is protected by law” and implies that “a commander must make decisions and report without suffering any type of reprisal, as long as he does not act in bad faith or with intent”, because this allows having the knowledge necessary for operations to be carried out without risk.
Carlos San José insists that not respecting the fair culture “would create a huge security hole” and “constitutes a threat to the entire profession.” And, in this case, it adds that “COPLA has been aware of these events for a long time” in the same company, and now, after Aesa required the complaint for what happened during the eruption in La Palma, they have presented the reports sent by the pilots.
In this regard, Carlos San José points out that “when a company is not applying a fair culture, it does so systematically. In this case, it seems that it goes that way and then it has manifested itself in the retaliation in the form of dismissals that have occurred during the eruption. And the conclusion is reached that the safety culture in this operator is frankly improvable and that it must be solved. Aesa and COPLA are here to help with rigor, transparency and collaboration to achieve excellence in security”.
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