Aer Lingus general counsel denies ‘whitewash’ of alleged safety complaint

Aer Lingus’s senior in-house lawyer has denied acting to “whitewash” attempts by a pilot to complain about being subject to disciplinary action over calling in with fatigue.Evidential hearings into Declan McCabe’s complaints under the Protected Disclosures Act 2014, the Safety, Health and Welfare at Work Act 2005 and the Payment of Wages Act 1991 have now concluded after 15 days at the Workplace Relations Commission (WRC).The parties will meet once more in December for closing legal arguments.McCabe was disciplined for what the airline deemed breaches of his air safety reporting obligations while flying in June 2023 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.READ MOREMcCabe’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, Captain Colm Wynne, having a safety management role in the airline, on foot of a previous dispute dating back to 2011.Maebh Gallagher, now the airline’s general counsel, was the company secretary when McCabe brought up the 2011 matter again in 2023, - expressing concern to Aer Lingus chief executive Lynn Embleton that Wynne had taken an interest in the June 8th, 2023 flight.McCabe’s evidence to the tribunal last December was that Wynne’s email to him some eight days after the flight was the first he had heard from Wynne in 12 years, following what the complainant called an “outrageous” disciplinary process over a decade prior.This process began after he called in to say he was too fatigued to pilot an A320 jetliner on July 11th, 2011, something he was required to do as a licensed pilot, he said.Microsoft president Brad Smith: Ireland is “well-positioned for future of AI”The WRC heard McCabe wrote to Embleton attaching 2016 correspondence about the alleged matters in 2011 as “background” to an objection to Wynne’s involvement.He pointed out that a letter issued by then Aer Lingus chief pilot Davina Pratt dated September 15th, 2011 demoting him from captain to first officer and removing him from flight duties.However, that disciplinary sanction was deferred while McCabe flew in command of a number of flights on September 15th and 16th , 2011 to destinations in Spain and the Netherlands, the letter added.McCabe’s contention was that these flights were not compliant with European air safety regulations, invalidated the airline’s Air Operator Certificate, and constituted a “illegal public transport”, a breach of contract with passengers, and a “criminal act”, the letter continued.Tom Mallon, for Aer Lingus, put the letter to Gallagher when she gave evidence on Friday before adjudicator John Harraghy. She said she was on leave the first time the letter was sent in, but had considered it again when it was resubmitted in 2023.She said a screening committee for protected disclosures in Aer Lingus had determined the matters to have been “fully examined and closed”, calling the issues raised “completely baseless and without merit”.“It is, in substance a grievance, I explained that. It’s an attempt to breathe new life into something that he had raised years before which emerged from his dissatisfaction with the outcome of a disciplinary process,” she added later.David Byrnes, for the complainant, put it to Gallagher in cross-examination that when McCabe went to the Irish Aviation Authority in 2016 with the same concerns, the regulator “accepted that they were protected disclosures”.“I can’t speak to how the IAA triaged protected disclosures,” Gallagher said.She said McCabe was “seeking to reframe” his unhappiness with the 2011 disciplinary sanction as a safety matter.“It’s called a disclosure; it has to disclose something,” Gallagher said.Byrnes said Gallagher, in her responses to McCabe, “tried to legalese [McCabe] out of the protected disclosures environment using your training and expertise as a solicitor” in her representations to the Aer Lingus protected disclosures committee.“The core of his issue is he’s unhappy with the outcome of the disciplinary,” Gallagher said.Byrnes put it to Gallagher later that his client complained about being subject to disciplinary action in relation to calling in with fatigue “and nothing else”.“That is a protected act, and you whitewashed that,” he said.“I don’t accept that, that’s not my evidence,” Gallagher said.He said his client had approached Embleton with his concerns because she was “a new CEO” who “wasn’t around then” and there was a chance she would listen.“You went and told the CEO there was nothing to see here,” Byrnes said.“That’s not true,” Gallagher said.In 2011, a process led by Wynne found McCabe had “shown a total disregard for the commercial interests of the company” and was “not of the standard of an Aer Lingus captain”, the complainant said. The sanction was reduced on appeal to a final written warning, and he recovered his lost pay in a settlement of a Circuit Court lawsuit, Mr McCabe said.However, the complainant’s evidence was that he had “no comfort that I couldn’t call in fatigued again” and remained in fear of “retribution” from Wynne, who was subsequently promoted to flight operations safety manager.Byrnes was led by Setanta Solicitors for the complainant, and Mallon by Arthur Cox LLP for the respondent.