The case of an Aer Lingus pilot who says he should not have been stripped of command responsibility for failing to immediately file an air safety report over what he considered a “non-event” has heard of a third word error in internal company documents on the case.
Hearings on complaints by Declan McCabe under the Protected Disclosures Act 2014, the Safety, Health and Welfare at Work Act 2005 and the Payment of Wages Act 1991 are continuing this week at the Workplace Relations Commission (WRC).
The WRC has heard for the third time of what is said to be an error in wording in internal company documents concerning a disciplinary process brought against McCabe.
The tribunal was told on Thursday that when the airline’s chief pilot wrote that McCabe had been “indicted” by a safety investigation, he meant to write “indicated”.
RM Block
McCabe was disciplined for what the airline deemed breaches of his air safety reporting obligations while flying in command of an Airbus A321xlr, which failed to link up with a radio navigation beacon coming into Dublin Airport before making a turn to re-establish contact.
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The conclusion in a disciplinary investigation was that McCabe’s aircraft, with 156 passengers and crew aboard, was “flying in the wrong direction ... until air traffic control intervened” on the day, according to Captain Eamon Kierans, the manager who conducted the process.
McCabe said what happened was “a non-event from a flying point of view” and that the relevant Aer Lingus manual left it up to his judgment to decide whether to report it. The company disagreed, and while his actions as a pilot were not impugned, the airline concluded he had failed in his safety reporting duties by not filing a report until he was directed to do so by the airline’s director of safety and security Conor Nolan.
The tribunal heard that Capt Nolan decided in a safety review that the flight crew’s actions prior to the air safety report being submitted amounted to a “reckless violation” – leading ultimately to disciplinary action.
McCabe’s case is that the airline had no right to pursue a disciplinary process against him and that it was penalisation for complaining about another senior managing pilot, Capt Colm Wynne, having a safety management role in the airline, on foot of a previous dispute dating back to 2011.
Yvonne De Silva, who was director of in-flight services at Aer Lingus in 2024, upheld the disciplinary sanction against McCabe when she gave her decision on his internal appeal in March 2024.
David Byrnes BL, for the complainant, said that during the appeal stage his client argued that the entire disciplinary process was prejudged. McCabe cited a letter from the airline’s then-chief pilot, Capt John Kelly, stating before the disciplinary process began that McCabe was “already indicted” by Capt Nolan’s safety probe.
Giving evidence, De Silva said the only role Capt Kelly had in relation to her appeal process had been to ask about her availability, and that she had been assigned to the process by Aer Lingus HR.
“You know what indictment means – charges brought before even a disciplinary investigation to say that a disciplinary hearing is warranted,” Byrnes asked the witness.
“Yes,” De Silva replied. She said she had agreed with McCabe that the word “indictment” was “not appropriate” when he brought it up at appeal stage.
“I read the email myself. My interpretation was that it was a typo,” De Silva said.
McCabe told her at the appeal that Capt Kelly “hadn’t mentioned it”, she said.
“I spoke to captain Kelly and mentioned what was his thinking. He said: ‘Oh, that was a typo; when I wrote back to him I didn’t notice the typo myself,’” De Silva said.
“I wrote in my outcome letter that it was a typo, it was my view that it was a typo,” she said. “The use of the word ‘indicted’ was a typo on the part of captain Kelly – it should have said ‘indicated’” .
Her finding was that “having read the full email, there was no other logical conclusion”.
Earlier this year, Capt Conor Barrett, the disciplinary investigator in McCabe’s case, said he used the word “believe” when he meant to write “belie” in relation to McCabe’s interpretation of the manual’s safety reporting section.
Capt Barrett told the WRC the next day that when he used the word “belies” elsewhere in the report, he meant something different. De Silva said she mentioned the typo in the course of a broader discussion with Capt Kelly – one of a number of conversations she had with senior pilots at the airline during the appeal process, she said.
She told the WRC she wanted “to get a little bit more information” from them.
Byrnes asked De Silva: “Did you document these conversations?”
“No,” she said.
“I believed it was the right thing to do,” De Silva said.
Byrnes said his client was entitled to “know the evidence and test the evidence from the start to the bitter end” but had only found out about these conversations for the first time at the WRC on Thursday.
Counsel said the information gleaned from such conversations “clearly materially influenced” the appeal process and asked De Silva to show him where the Aer Lingus policy provided for her to have such discussions without notice to the appellant.
“You’re probably going to tell me it’s not there,” De Silva said.
Counsel said De Silva “showed bias toward what people outside the process were telling you”, which she denied.
Byrnes asked her whether she told his client that one of the people she spoke with in this context was Capt Kierans, the disciplinary officer, and “the person you were reviewing in this appeal”.
“No,” De Silva said.
Byrnes asked whether the HR officer assisting De Silva with the appeal process had warned her that she “ought to be careful” about contacting Kierans during the appeal.
“I can’t remember,” De Silva said. She accepted she did not give McCabe and his representative during the internal process, Capt Padraig Higgins, “a chance to respond to those conversations I had”.
The case continues.
