Canada: Proactive Investigations: An Ingredient To Success

Last Updated: October 16 2018
Article by Andrew Woodhouse

A recent decision out of British Columbia highlights a common pitfall when employers terminate employees for cause: failing to thoroughly and proactively investigate the facts and circumstances regarding the alleged misconduct or neglect of duty.

In Tymco v. 4-D Enterprises, 2018 BCSC 372, (PDF) the employer terminated an employee with six years of service after a railcar, which the employee was responsible for guiding, derailed. As a switchman, the employee was responsible for, among other things, monitoring the railcar and advising the operator over a wireless radio when to activate the railcar's brakes.

On this particular occasion, the railcar did not brake when it should have, crashed into a warehouse, and derailed another train, causing significant damage. The reasons why the railcar's brakes were not activated were disputed.

There was no question that the incident involved significant safety issues and that the worksite was a safety-sensitive environment.

In support of its decision to terminate the employee's employment for cause (i.e. without any notice or pay in lieu of notice), the employer cited the employee's disciplinary history relating to safety infractions, as well as the employee's "persistent problem" of failing to clear the track as switchmen were required to do. The employer argued that this final culminating incident demonstrated an alarming behavioural pattern.

For his part, the employee claimed that his wireless radio had abruptly stopped working when he attempted to communicate with the operator, and that he had not been provided with adequate training about what to do in such circumstances. The employee, therefore, argued that he did not violate any safety policies, nor was he otherwise guilty of any misconduct that would warrant discipline, let alone being fired without any advance notice.

The judge agreed that the employee had not been trained on the procedure to follow in the event his radio malfunctioned and he was unable to communicate with the railcar operator. The judge also ruled that if the radio had, in fact, malfunctioned, the employee could not be said to have wilfully violated the employer's safety rules or policies.

The employer argued that the employee's explanation regarding the radio was untruthful and that it was conveniently being raised for the first time at trial. Moreover, the employer asserted that the employee's dishonesty warranted cause for termination separate and apart from the incident itself.

In theory, the employer's argument made sense. The problem, however, is that it was based on speculation and lacked objective facts to support it. Notably, the employer did not investigate whether the radio was properly functioning when the accident occurred and, as a result, could not confirm or refute the employee's explanation.

The judge expressed reservation about whether the employee's version of events was plausible, but determined that she was obliged to give the employee "the benefit of the doubt" in the absence of an investigation and objective evidence contradicting the employee's recollection.

As a result, it was determined that cause for termination did not exist and that the employee had been wrongfully dismissed.

Tymco provides yet another example of the need to conduct proactive, thorough and impartial investigations into all aspects of alleged misconduct when terminating employees for cause. The employer in this case argued that it did not investigate the functioning of the radio because the employee had not raised the issue previously. The Court did find that, on balance, the employee likely did make verbal reference to the radio. Regardless, however, the employer's failure to proactively consider all aspects of the accident, and alleged misconduct, led to the result that the termination could not be supported.

Originally published September 19, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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