Sunwing Airlines pilot grounded after off-duty domestic assault of coworker

A Canadian airline had just cause to fire a pilot who was charged with assaulting a coworker while off-duty and failed to advise his employer of the charges.

The 40-year-old worker was a captain with Sunwing Airlines. He first joined Sunwing in 2007 as a first officer.

In the fall of 2019, the worker began a romantic relationship with a first officer who was also with Sunwing. They both became based in Calgary in November 2019 and bid for a December schedule that would allow them to work together during the peak December holidays and have the same time off. They were scheduled to work together from Dec. 21 through Dec. 25 with matching days off from Dec. 18 to 20.

However, on Dec. 9, the worker and the first officer had a serious argument. Things escalated and the flight officer called the police, who arrested the worker and charged him with assault. The worker was released with the condition that he have no contact with the flight officer. The worker recognized there could be incidental contact with her as he was scheduled to work with her Dec. 21 to Dec. 25 and he would have to “work that out.” He considered a shift trade but he didn’t take any action.

The worker didn’t initially inform Sunwing of the incident. However, the first officer was concerned for her safety, particularly since she was scheduled to work with him and they could also run into each other in airports and on layovers while she was on reserve when the worker was flying. She notified Sunwing and the airline removed the worker from service on Dec. 15 to avoid potential contact between the two. The first officer booked off the Dec. 21 to 25 trips and the worker returned to work.

The worker explained that the incident was a private matter and he had planned to advise Sunwing before his scheduled Dec. 21 trip with the first officer. He continued to work through Jan. 30, when he was suspended pending an investigation.

Sunwing terminated the worker’s employment on March 13, 2020, for failing to disclose that he had been arrested and charged for assaulting a coworker and that he could not have contact with the other employee. The union grieved the termination.

The arbitrator referred to the established test for just cause arising out of off-duty conduct:

 the conduct harms the employer’s reputation or product,
• the behaviour renders the employee unable to perform his duties satisfactorily,
• the behaviour leads to other employees refusing or being reluctant to work with the employee,
• the worker is guilty of a serious breach of the criminal code that renders his conduct damaging to the employer’s reputation and its employees, and
• the behaviour creates difficulty for the employer to effectively manage its workforce.

The arbitrator found that the worker’s failure to notify Sunwing or change his schedule was inappropriate, as he was scheduled to work with the first officer (holiday scheduling was difficult for Sunwing) and the airline had an obligation to protect the first officer’s health and safety — she suffered from stress stemming from the incident and the possibility of encountering the worker. Failing to act when he was in a position of trust and accountability was blameworthy, said the arbitrator, and wrongly put the onus on the first officer to bring the matter to Sunwing’s attention.

The arbitrator also found that continued employment of the worker would significantly affect Sunwing’s reputation in the aviation industry. In addition, the worker’s misconduct made him unable to perform his duties satisfactorily, caused one coworker to refuse to work with him, and caused significant difficulty for Sunwing to manage and schedule its workforce efficiently. All of this provided just cause for dismissal, said the arbitrator.