Canada: Terminating Post-Train Wreck? Let's Talk Training — Failure To Train Someone Other Than Plaintiff Can Erode Just Cause For Dismissal

Richard Tymko was discharged from employment when the train on which he was working as a switchman derailed in the internal rail yard of a pulp mill in northern British Columbia. His employer, 4-D Warner Enterprises, terminated his employment because it alleged he failed to tell his co-worker, the trackmobile operator, to apply the train's brakes and that caused the derailment.

In Tymko v. 4-D Warner Enterprises Ltd., 2018 BCSC 372, Madam Justice Emily Burke of the B.C. Supreme Court found that the employer did not have just cause to discharge Mr. Tymko, because it failed to determine whether the radio was working (Mr. Tymko alleged it was not) and also because it failed to train Mr. Tymko and his co-worker in its policy setting out the safe response to a communication failure between switchman and trackmobile operator. Employers that discipline or terminate based on a failure to adhere to safety policies must train their employees in those policies. That requirement can extend to co-workers of discharged employees when the training might have prevented the safety incident underlying the discharge.

Background facts

4-D Enterprises ("4-D") had contracts with the Mackenzie Pulp Mill to move rail cars on the mill's internal rail network. Rail cars are moved by two-person teams. A trackmobile operator is responsible for moving and stopping the rail cars. A switchman is responsible for instructing the trackmobile operator. The switchman is the eyes and ears of the two-person team.

On November 4, 2012, 4-D hired Mr. Tymko as a switchman at the Mackenzie Pulp Mill. The parties disagreed about what training Mr. Tymko had received upon employment. However, the parties agreed that the written training materials contained the following safety policy – what is known as the "Radio Silence Stop Rule":

123.2(iii) [W]hen the movement [of the train] has travelled one half the distance required by the last instruction [from the switchman] and no further communication is received [by the trackmobile operator from the switchman] the movement must be stopped at once.

It was snowing slightly on the evening of December 28, 2018. Mr. Tymko was working as switchman. At trial, Mr. Tymko said he counted down the stop distance to the trackmobile operator over the radio as he normally would: "4-3-2-1." When the train did not stop, Mr. Tymko said he frantically tried to instruct the trackmobile operator to stop. The train did not stop, and Mr. Tymko managed to jump from the train before it crashed through the warehouse doors and ultimately into other rail cars. Mr. Tymko told 4-D that the radio must have malfunctioned. Mr. Tymko worked the rest of the day using the same radio without issue, and 4-D installed a "hard-wired" radio in the train the following day.

4-D discharged Mr. Tymko for what is considered to be just cause because, in its view, Mr. Tymko must have failed to instruct the trackmobile operator to stop and was therefore "95%" to blame for the serious safety incident.

Decision

Madam Justice Burke accepted that Mr. Tymko worked in a safety-sensitive environment and also held that as a matter of law, safety infractions warrant a more severe disciplinary response than an ordinary policy breach or failure to meet a performance standard. At the time of termination, Mr. Tymko had received two safety-related written warnings in his relatively short service.

However, the Court found that 4-D did not have cause to terminate Mr. Tymko's employment for two reasons. First, 4-D should have determined whether there was any merit to Mr. Tymko's excuse to the effect that the radio had malfunctioned. 4-D was required to conduct an investigation even though the radio was subsequently used without issue.

Second, and more interestingly, the Court found that because 4-D failed to train the trackmobile operator in the Radio Silence Stop Rule, it could not blame Mr. Tymko for the incident. Irrespective of why the trackmobile operator did not hear the instruction to stop (radio failure or error on the part of Mr. Tymko), the Court held that if the trackmobile operator had been trained in the Radio Silence Stop Rule, he would have stopped the train and the accident would have been avoided.

Mr. Tymko had no ability to apply the brakes. Mr. Tymko could not have done anything differently even if he had been trained in the Radio Silence Stop Rule. In this case, 4-D failed to train an employee other than the plaintiff in a policy which could have prevented the incident. That failure to train the other employee eroded 4-D's ability to discharge Mr. Tymko for cause.

Lessons for employers

1. An employer may fall short of establishing just cause for dismissal in relation to a safety incident if it fails to deliver training to employees, including employees other than the plaintiff, which could prevent a safety incident. It is the employer's burden to prove that the training was delivered.

2. Employers should be careful when they set high safety standards for themselves, especially if there is a risk that the elevated, self-imposed standard might not be met. Courts will hold employers to those higher standards. An employer's safety policy reach should not exceed its grasp.

3. Employers should take reasonable steps to investigate excuses provided by employees at and around the time of termination, even if those excuses seem frivolous or self-serving.

Originally published in the LexisNexis Labour Notes Newsletter.

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