Blog Post #532 – Dismissal Not the Result of Raising Safety Concerns

Blog Post #532 – Dismissal Not the Result of Raising Safety Concerns

Excerpt from the OH&S Canada magazine

After years of legal wrangling, the Supreme Court of British Columbia ruled in April, 2011, that the captain of a ferry that sank five years earlier was not terminated because he raised safety concerns.

The decision was a judicial review of a March 11 ruling by the Workers’ Compensation Appeal Tribunal (WCAT) that concluded Vancouver-based British Columbia Ferry Services Inc. (BC Ferries) did not improperly terminate the worker.

In July of 2008, a WorkSafeBC officer determined that BC Ferries had terminated Captain Colin Henthorne as an exempt master of the Queen of the North ferry because he had raised oh&s concerns. The employer appealed the decision, resulting in the supreme court ruling, which upheld WCAT’s decision.

On the night of March 22, 2006, the ferry struck Gil Island and sank, claiming the lives of two passengers whose bodies were never found. Shortly thereafter, BC Ferries informed Henthorne and all other bridge team members on duty at the time that they would be removed from service, the ruling notes.

During divisional inquiry proceedings a couple of months following the incident, Henthorne raised a number of concerns related to the safety and seaworthiness of not only the Queen of the North, but other employer-owned vessels as well. At the request of the panel, he provided a written list of 58 safety concerns, none of which contributed to the sinking of the ferry. He was dismissed in January, 2007.

After finding that Henthorne was dismissed for raising oh&s concerns, workSafeBC ordered the employer in 2009 to reinstate the worker to his previous position as exempt master and to try to come to an agreement on what he was owed in terms of lost wages and benefits, as well as interest.

“I am satisfied that there was foundation in the evidence for the conclusions the [inquiry] panel reached and for the inferences it drew,” notes Justice Carol Ross of the Supreme Court. Quoting the inquiry ruling, she writes “the employer perceived that the worker, in raising the old safety concerns while at the same time failing to focus on safety concerns that led to the grounding and sinking of the ship, was avoiding his responsibility as master of the ship at the time of its final voyage.”

My opinion

This one was really hard to deal with for me. On one hand, the Captain was raising safety concerns about health and safety and then sank the ferry. He related safety concerns, BUT, none led directly, or indirectly, to the sinking of the ship. I understand the end result but I still wonder if any other captain will forward safety concerns so readily the next time. I would wager a guess he/she would not!

I do hope that legislation has changed, even in a minor role, to attempt to ensure this accident does not happen again.

My wife and I traveled the Mediterranean in November 2012, and the talk on the cruise line is that the accident at the time, the Costa Concordia ran aground off the coast of Tuscany in January of the same year. The captain of our vessel kept making jokes about the navigation of the one we were on but the issue still was on the back of our minds anyway. We discussed it at length with our dinner companions numerous times.

Remember – In Ontario, “ALL Accidents are Preventable”

HRS Group Inc. has a great team that can help you with all your health and safety needs including ‘Due Diligence’ and ‘Standard Operating Procedures’. Contact Deborah toll free at 1-877-907-7744 or locally at 705-749-1259.

We can also be reached at info@hrsgroup.com

‘Work’ and ‘Play’ safe.

Daniel L. Beal
CHSEP – Advanced Level
VP & Senior Trainer
HRS Group Inc.

Dan
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