By Job Brüggen, Safety Officer of LVNL (Air Traffic Control The Netherlands).

Our feature articles on Just Culture, triggered by the conviction of an Air Traffic Controller in Switzerland, aim to trigger thoughts and ideas for how to proceed. This article is written as a personal opinion of the author and does not necessarily reflect the opinion of LVNL or that of IFATCA.

The Federal Court has given its verdict and this time it is final. The conviction of a Swiss controller strongly stirred the aviation community. For missing a “readback/hearback”, two aircraft came closer than our standards prescribe, and two electronic safety nets, STCA for the controller on the ground and TCAS for the pilots in the air saved the day, as they were designed to do. The controller on the ground was found guilty, by ‘unconscious negligence’, of disturbance of public transport and fined 60 days. End of story?

Let us ask ourselves what the effect of this verdict will be to all professionals in jobs that are meaningful to the general public and also carries certain risks to the same general public. Policemen, doctors, nurses, train drivers, pilots, controllers are professionals , but also humans. And humans make mistakes. If we want these people to perform these jobs for us, we must find a way how to deal with these inevitable errors.

I reckon there are five objectives of penal law:

  1. Specific prevention – to prevent the wrongdoer acting again by teaching him/her a lesson;
  2. General prevention – to deter other people not to do the same thing. That is why punishments or executions used to be very public;
  3. To add misery to the perpetrator – compensating for the wrong act in the view of (and on behalf of) the general public and underlining the privilege of the State to enforce the law, lest vendetta’s or family gangs would have its way again;
  4. To compensate for the bad things that have become upon those that were suffering from the bad act. That is, if compensation is at all reasonably possible;
  5. To show to the general public that the law itself is being upheld – and thus upkeeping faith that the justice system actually works.

Not being a lawyer, I am sure there are more goals that the justice system serves, but these five are generally accepted to be laudable and indeed useful for a society to maintain order in a country or state.

Specific prevention and general prevention (objectives one and two) are unlikely to be served well here. Missing a readback/hearback is quite common in aviation and happens hundreds of times every day. Communication through half-duplex VHF channels is arguably one of the most critically weakest links in our system – it still amazes me we are using it. The aviation community is at best reminded that pilots and controllers have indeed serious accountabilities for ensuring safety. But they are humans and not infallible – the very reason why STCA and TCAS were invented anyway.

Objectives three and four (adding misery and compensating) completely miss the point here. There were no casualties hence what was there to compensate for? The Federal Court states that danger was created and I think nobody will dispute that. Flying inherently carries risk and risk already starts when the pilot gets out of bed at four in the morning to get to the airport and prepare for the flight.

That leaves us with objective number five: to show to uphold the law. How many people will feel more comfortable with the idea that Swiss controllers may report fewer incidents for fear of prosecution? It is legitimate to assume that Swiss controllers already report less or with less details than their colleagues in other countries, thus hampering the self-learning abilities that made aviation – inherently risky – so incredibly safe.

Note that nowhere I judge upon the acts of the controller or pilot whether they were good, normal, weak, reckless or exceptionally stupid. The Swiss judicial system, ticking like a Swiss watch, concluded that the behavior of the controller was negligent and not in accordance to professional standards, brutally brushing aside fundamental systemic questions: was the behavior of the controller seen as ‘normal’ in the community of controllers? Are other controllers experiencing the same events? Does the system elude controllers to fall into a spring loaded trap waiting to snap shut? What is the likelihood of this happening again? With this verdict, the answer to how we can prevent this systemic safety flaw from appearing again will be seriously hampered – not a pleasant thought for such a civilized country as Switzerland. My favorite phrase ‘learning is safer than punishing’ surely does apply.

“Never let a crisis go to waste” . It takes insight and courage to question as to why things are done the way they are. With the final verdict there now is a great opportunity for the Swiss people to reflect and ask themselves what they prefer: learning or punishing?

Job Brüggen
23 July 2019

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