(eTN) – The frequency of aviation accidents and incidents has greatly reduced due to technological advances. However, the human factor is indispensable, and as a result, there will always be errors, slips and mistakes. This implies that accidents and incidents cannot be completely eliminated. A case in point is the near miss at the Barcelona-El Prat airport on July 5, 2014.

With humans being at the forefront of aviation, the industry has come up with a concept called “just culture,” to identify, discuss and understand human errors with a view to finding ways to improve processes, systems and enhance safety without punishing individuals. This concept is central to safety risk management in aviation organizations where risks are identified, assessed and controlled. There are several publications on this subject, but for purposes of this article I will restrict myself to analysis of “just culture” as defined in Ugandan aviation literature.

Neither the Civil Aviation Authority (CAA) Act, nor the regulations made there under define “just culture.” However, according to the CAA Safety Management Systems Manual for Air Navigation Services (June 2012 issue), “Just culture” is “an important aspect of safety culture that ensures that while staff will be held accountable for their actions, they will at all times be treated fairly and with respect.” It further states, “While a non-punitive environment is fundamental for a good reporting culture, all staff must know what is acceptable and what acceptable behavior is. Negligence or deliberate violations will not be tolerated in this organization, even in our non-punitive environment. Our “just culture” recognizes that, in certain circumstances, there may be a need for punitive action and management will define the line between acceptable and unacceptable actions or activities.”

This definition highlights four key ingredients:

• A non-punitive environment good for a reporting culture:

This is how it is supposed to work; an incident occurs, information about the same is reported by the employee to supervisors or investigators. An investigation is conducted on the basis that no punitive action shall be taken against the employee and that the investigation findings shall be used to prevent further accidents/incidents thus enhancing safety.

The assumption here is existence of trust on both sides. This is an illusion. There can be no guarantee in any organization that volunteering information will not work against an employee who may be “held accountable” by way of suspension, demotion, dismissal or even prosecution before, during or after the investigation. In any case, the employee does not determine whether or not punitive action should be taken and may hold back vital information due to FEAR. This is because whether or not to take punitive action is at the discretion of management.

• All staff must know what is acceptable and what acceptable behavior is:

Some might consider risky what is considered safe to others, but all within the parameters of normal operating procedures. For example, in relation to the El-Prat incident, the Spanish Air Navigation Service Provider stated that the Boeing plane could have continued to land without any danger, that the separation between the two aircraft was sufficient, and that the Airbus aircraft would have cleared its path. According to the BBC news website, “Officials have denied passengers were in danger at any point” (http://www.bbc.com/news/world-europe-28195337). However, the same incident has been described as “a heart stopping moment” by reporters (http://www.news.com.au/travel/travel-updates/two-passenger-jets-in-near-miss-at-barcelonas-el-prat-airport/story-e6frfq80-1226981254805)

It may be difficult to determine “acceptability” where there are divergent views like in the El-Prat incident. This is likely to put the organization at crossroads. An act/omission should not be deemed unacceptable simply because some other person or group holds a contrary view.

Where acceptable/unacceptable behavior is not clearly defined, or is border line, management may have to come up with a definition after the incident, taking the aviator employee by surprise.

• Negligence and deliberate violations will not be tolerated in this organization:

One can only be found negligent at common law when; (a) A legal duty exists, (b) There has been breach of that duty, (c) There is consequential injury/damage/loss as a result of the breach.

Proving negligence in Courts of Law requires adducing and evaluating evidence on facts, law, custom/usage, circumstances, acceptable practice, the reasonableness test, and analyzing causation and remoteness factors. This is a complicated process that Courts have mastered with guidance of Counsel. It requires time, which may not be available to a disciplinary panel, constituted by lay people, and tasked to make a decision within a period limited by statute. Besides, Courts of law may overturn a finding of negligence by the disciplinary panel, and such a reversal is likely to dent the image and question the objectivity and competence of the organization’s disciplinary process.

Whether or not an act or omission amounts to negligence or a deliberate violation is also subject to discussion. An honest mistake, for instance, might be interpreted to be negligent or a deliberate violation. This depends on the composition and attitude of the disciplinary Committee at the material time.

Just like “acceptability” above, it may be difficult to determine negligent acts/omissions. An employee should not be found negligent if he followed a procedure accepted and used by some aviators but held in contempt by another group of aviators whose opinion differs.

Once again, the employees do not determine whether their acts were negligent/ deliberate violations. This is left to management.

• Management determines what is acceptable or unacceptable:

This last ingredient arms management with a giant double-edged-sword. It means management may come up with offences and punishments for the same at its convenience, even after the fact. This is untenable. What is or is not acceptable should be clearly laid out in employment contracts/operations manuals/ human resource guidelines to avoid employees being taken by surprise, a tool that could be used unfairly and arbitrarily by management.

There is no guarantee that management shall always be fair, balanced and objective. Discretion will certainly be abused to the employee’s detriment. This erodes “fairness and treatment with respect” that is a component of “just culture.”

“Just culture” as defined above is based on assumption, excessively empowers management, is vague, difficult to understand/enforce and is unlikely to achieve its intended objective of safety risk management and enhancing safety in the Ugandan context.