Illegal Activity, Negligence or Wilful Misconduct

The Safety Management System (SMS) Safety Policy is the platform on which the SMS is built. The policy is built on an idea, a vision, and expectations of future achievements. A policy is a course or principle of action adopted or proposed by a government, party, business, or individual. An SMS policy follows these same principles and remains in force until the idea, vision, or expectations changes. It is crucial to the success and integrity of a Safety Management System that the Safety Policy is designed to serve the major definite purpose of an enterprise. There is one quality which one must possess to win, and that is definiteness of purpose, the knowledge of what one wants, and a burning desire to possess it. A major definite purpose is the core purpose for the existence of an organization, and the hub where goals, objectives and processes are developed and designed. The more you think about the purpose of your SMS Policy, and how to achieve it, you begin to attract people, opportunities, ideas, and resources that help you to move more rapidly toward your goal. 

A requirement of a safety policy is that it includes an anonymous reporting policy, a non-punitive reporting policy and a confidential reporting policy. A purpose of these reporting systems is to preserve the integrity of the Safety Policy. A non-punitive reporting policy is a commitment by the Accountable Executive (AE) to the event itself and to personnel who were involved in an event that punitive actions are off the table. During the pre-SMS days, punitive actions were applied depending on the severity of the outcome, prior history and expected reoccurrence. Punitive actions were subjective, biased and based on one person’s opinion. A pilot who was involved in an incident expected to be terminated on the spot. There was an expectation by air operators that a commercial pilot should have knowledge and experience to get the job done. Back then, when the weather was low the expectation was to go and take a look and if you see the runway land, but if you don’t, try again. A young pilot did just that and flew an approach to zero visibility, landed and kept the job. Today, in an SMS world, a pre-take off hazard report could have been submitted and the flight cancelled. Then there are other examples of a pilot who was terminated for the operator to look good for their clients when an aircraft on fire was recovered with the first officer frozen on the controls. Punitive actions were an integrated part of a system to improve pilot skills and remove the bad apples. In a non-punitive reporting system, the report may go to those who needs to know, to those who should know and are also disseminated as a summary throughout the organization of events for information purposes.   
A confidential reporting system is when the report only goes to the persons who needs to know, or to a director level within the organization. At the level of directors, the report may go to other than those who needs to know, but the report is still confidential to the director level. The purpose of a confidential reporting system is that the reporting process is within a controlled system and that the contributor has confidence that the report is not shared outside of a director level, or to those who needs to know. A contributor of a confidential report may allow for the report to be shared within the organization, or also contribute to the SMS with videos and clarification of how an incident happened. 
A non-punitive policy is the most often applied policy since it is applied to every single SMS report received as a commitment to the contributor by the AE. There is an ongoing discussion in the aviation industry what makes a non-punitive policy effective. One opinion is to view it from a contributor’s point of view as a job performance assessment when an incident becomes a learning tool for continuous safety improvements. This is defined in a statement where the conditions under which immunity from disciplinary action will be granted. Another opinion is to view this from an enterprise’s point of view when the policy is only applied if an incident does not trigger litigation or legal action against the worker or enterprise and defined in a statement that the non-punitive is not applied if a worker was involved in illegal activity, negligence or wilful misconduct. 
These two opposing regulatory requirements above are supporting the same common goal, which is safety in aviation, but they are opposing views. They are opposing views since one requires definitions of unacceptable behaviors, while the other requires definitions of acceptable behaviors. There is a fine line, and often an invisible line, to balance between accepting an event to be accepted under the non-punitive policy, or for the event to be excluded by the policy. 

The foundation of a Safety Management System is a just-culture. In a just-culture there is trust, learning, accountability and information sharing. A just-culture is where there are justifications for actions or reactions. For an enterprise to apply one or the other definition to their non-punitive policy, a safety case, or change management case must be conducted with a risk assessment of their justifications for the application of either of these two definitions. Both unacceptable behaviors, when punitive actions are necessary, and acceptable behavior when immunity will be granted must be pre-event defined in the Safety Policy, with detailed definitions and publications of the five W’s and How in their SMS Manual. The five W’s are to define the process of What, When, Where, Why, Who and How to both illegal activity, negligence or wilful misconduct, and to when immunity from disciplinary action will be granted.

There is no expectation that an enterprise retains workers who shows behaviors of illegal activity, negligence or wilful misconduct. These behaviors could cause the destruction of a successful business. However, SMS is job-performance review and not legal activity review. When an SMS policy states that illegal activity, negligence or wilful misconduct are unacceptable, everything else becomes acceptable. Until the level of these behaviors is reached, the AE makes a commitment to the worker to continue to work. In addition, in an enterprise that allows for any behavior, except for that illegal activity, negligence or wilful misconduct, there is no room for training or continuous safety improvements. On the other hand, in an organization where the conditions under which immunity from disciplinary action will be granted, a defined list of job-performance safety critical areas can be defined and applied. It is crucial to an enterprise to comprehend that even if punitive actions are accepted, there is no regulatory requirement that they must be applied. However, when applied, they must be applied systematically, or evenly to all workers, including senior management. The very first case pursuant to the SMS policy applying the punitive action sets the bar for all future punitive actions.  
When conducting a safety case for which definition to apply to a safety policy, the case must focus on how a policy affects the future of operations and more important, how the policy affects an expanding business. A short term non-punitive policy applied to a single-pilot, single engine operator, or a small regional airport, may restrict the operator to expand into multicrew and multi-engine aircrafts, or an airport may be restricted to expand to multi runways and international traffic. A safety case applies the 5-W’s and How to processes rather than to the issue. As an example, the What question could be asked as; What is illegal activity, negligence or wilful misconduct, or What is the process to establish the baseline for illegal activity, negligence or wilful misconduct. Asking a process question does not eliminate the fact that these behaviors must be clearly defined in the SMS manual. 
Below are two simplified examples of safety cases questions for both scenarios. 

Punitive Actions Allowed		Immunity Granted
What is the process to allow for punitive actions	Clearly define the justification of a process to establish what illegal activity, negligence or wilful misconduct are	What is the process to allow for granting immunity	Clearly define the justification of a process to establish what granting immunity is
When is the process to allow for punitive actions applied	Clearly define the process when illegal activity, negligence or wilful misconduct are applied	When is the process to allow for granting immunity applied	Clearly define the process when granting immunity is applied
Where is the process to allow for punitive actions applied	Clearly define the process to establish where in the organization illegal activity, negligence or wilful misconduct are applied	Where is the process to allow for granting of immunity applied	Clearly define the process to establish where in the organization immunity is granted
Why is the process to allow for punitive actions applied	Clearly define the process to establish why illegal activity, negligence or wilful misconduct are applied	Why is the process to allow for granting immunity applied	Clearly define the process to establish why granting immunity is applied
Who is the person approving the process to allow for punitive actions	Clearly define the process to establish who in the organization approves the application of illegal activity, negligence or wilful misconduct	Who is the person approving the process to allow for granting immunity	Clearly define the process to establish who in the organization approves the application of granting immunity
How is the process to allow for punitive actions applied	Clearly define the process to establish how illegal activity, negligence or wilful misconduct are applied to personnel and the event itself	How is the process to allow for granting immunity applied	Clearly define the process to establish how granting immunity are applied to personnel and the event itself

Both scenarios require comprehensive pre-defined and published definitions. A concept of the SMS is to pre-define and clearly spell out job-performance expectations. When job performance expectations are undefined until they reach the level of illegal activity, negligence or wilful misconduct, the line when these levels are reached must be clearly defined. Generally speaking, illegal activity is an act committed in violation of law where the consequence of conviction by a court is punishment, especially where the punishment is a serious one such as imprisonment. A definition of negligence is failure to use reasonable care, resulting in damage or injury to another, and a definition of wilful misconduct any act, omission or failure to act (whether sole, joint or concurrent) by a person that was intended to cause the harmful consequences to the safety or property of another person. In addition to general definitions, each sub definition must be clearly defined. When job performance expectations are defined under which immunity from disciplinary actions will be granted, these expectations must be clearly defined. They are defined as Safety Critical Areas with a subcategory of Safety Critical Functions. A comprehensive list could include more 500 events to consider. 
An airport or airline operator must apply the regulatory requirement applicable to their operations. Within a just-culture, or a non-punitive environment, there must be justification for pre-defined actions or reactions. The four principles within a just-culture there is trust, learning, accountability and information sharing. As long as an operator is governed by these principles, they may apply any non-punitive policy tailored to the needs of their operations.  

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