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B.C. FERRIES CAPTAIN GOES DOWN WITH HIS SHIP

On March 22, 2006 at 12:22 a.m., the B.C. Ferries vessel “Queen of the North” plowed into Gil Island at full speed. The ship had sailed through a critical course change at and drove straight on into Gil Island.

After drifting for a little over an hour, the ship sank in 430 metres of water. Ninety nine passengers and crew were rescued and two others died.

A Transportation Safety Board report indicated that the navigational crew aboard the ferry failed in executing their responsibility for the safety of the vessel and its passengers and crew. According to the T.S.B., this tragedy happened because of a total safety breakdown which included disabled systems, insufficient training, and human failure to keep a watch.

For 14 long minutes after the Queen of the North passed the designated course change, the fourth officer and the quartermaster failed to recognize that the ship was headed for disaster. Only when it was too late did the fourth officer realize that a drastic course change was required.

In the wake of the tragedy, the ship’s captain, Colin Henthorne, was dismissed from his employment. He filed a complaint with the Workers Compensation Board (now WorkSafeBC) alleging he was terminated because he raised safety concerns in the course of a B.C. Ferries divisional inquiry into the accident.

Henthorne had been interviewed during the divisional inquiry proceedings and had raised some 58 safety concerns. Had his employment been terminated as a result of his having done so, B.C. Ferries would have been in violation of provisions of the Workers Compensation Act protecting employees who raise issues of occupational health and safety in their working environment.

Henthorne’s complaint was initially accepted and B.C. Ferries was ordered to reinstate him to employment. The employer appealed that decision and the Workers Compensation Appeal Tribunal reversed it, concluding that the decision to terminate him was not tainted by considerations relating to his having raised safety concerns.

As might have been expected, Henthorne appealed that decision and the B.C. Supreme Court recently issued its reasons for dismissing his appeal.

B.C. Ferries’ position was that it did not terminate Henthorne’s employment because he advanced his list of safety concerns. Instead, it fired him because, in doing so, he failed to address anything relevant to the sinking of the Queen of the North.

The evidence had been that Henthorne’s 58 concerns were “red herrings, they had nothing to do with the grounding and the loss of the Queen of the North”. The Supreme Court effectively agreed, stating that none of the safety issues he raised before the divisional inquiry related to the sinking.

The Court quoted the earlier finding that the divisional inquiry “was irritated that the worker was not addressing his mind to safety concerns causative of the ship’s accident”. In the view of the divisional inquiry, Henthorne was making “a negative contribution” when he persisted in discussing his own safety concerns and not those which led to the ship’s sinking.

In the end, the Court was satisfied there was a foundation in the evidence for the conclusions drawn by the earlier panel and for the inferences it drew. The decision to dismiss Henthorne’s complaint to the Workers Compensation Board was upheld.

Although decided in the narrow context of a workers compensation complaint, this decision lends support to the premise that employees have an obligation to cooperate with employers’ workplace investigations. Captain Henthorne’s actions in persisting with his own safety agenda at the expense of his employer’s investigation will surely stand as an example of how not to cooperate.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.