The Word Of An Employee Against The Word Of An Employer Following An Event Leading To Termination

Written on behalf of Arbesman Hamilton LLP

A breach of contract can lead to the termination of an employee. However, what if the employee says they are not to blame for an incident at work? The Supreme Court of British Columbia recently issued a decision where the facts of the incident leading to termination came down to the employee’s word against the employer’s.

The day of the accident

The employer had a contract with a pulp mill to move rail cars along the internal rail line of the pulp mill. He had been working for the employer for six years before he was involved with a train derailment at the pulp mill on December 28, 2015. He was terminated following the derailment.

The employee worked as a switchman. On the day of the incident he was responsible for providing radio communication to a colleague who was moving train cars down a track to make room on another track for train cars to pass. He was supposed to alert his colleague, who was operating the train cars, about how many train car lengths he was from the warehouse. This was normally done by counting down “4-3-2-1.” On the day of the incident the employee stopped counting down at “2” and then ceased communication before eventually shouting  “Blast”; “Slow down”; “Stop”; “Blast the air” over the radio. It was too late, though, and the train car collided with the warehouse, crashing through the door and causing another train car to derail.

The employer and employee’s positions

The employer’s argument was that the employee dialed in his duty to properly clear the tracks. Meanwhile, the plaintiff said he did not receive adequate training on how to handle issues such as what occurred on December 28, 2015. He claimed that his radio must have not been working, which is why his colleague did not respond to his please to stop the car. The employer put forward that the employee was making up an excuse in order to save himself from disciplinary measures. It was the employer’s position that the train derailment was one reason to issue discipline, while the employee’s lie about how it occurred was another.

The court tries to determine who to believe

After hearing testimony from the plaintiff on his training history, the court found that the employer had failed to train him and the colleague in what to do in a situation such as what occurred on the day of the derailment. Both the employee and his colleague testified they were not aware of the safety protocol for when there is a loss of communication between a switchman and a trackmobile operator (the person in control of the train car). While the protocol is outlined in a manual, it was not explained to the employees during training. As a result, the court found the employee could not have had neglectful or willful disregard to the employer’s safety standards and procedures.

The court did say it was skeptical about the truthfulness of the employee’s excuse about the radio not working. However, it also noted that the employer failed to establish that the radio was working. The court found the lack of evidence to be a result of the employer failing to properly investigate the accident. As a result, the court found it could make no other determination other than the employee was telling the truth.

In failing to establish just cause to terminate the employee, the employee was found to have been wrongfully dismissed without reasonable notice or pay in lieu. The court awarded the employee two month’s salary in lieu of notice.

This case underscores the importance for employers to investigate the causes of workplace incident, including accounts of those involved, or who may have witnesses incidents. If an employer fails to do so, they may find themselves without a leg to stand on when attempting to challenge an employee’s version of events. It would also be prudent for employees to confirm with an employer when the cause of an accident is blamed on something such as equipment failure.

The lawyers of Arbesman Hamilton LLP represent both employees and employers in matters of employment law. We can assist in the writing of clear and unambiguous employment contracts and policies that clearly explain the rights and responsibilities of all parties. We also provide employees with an understanding of what rights they have under a contract and can help them explore whether they may have been wrongfully terminated, or treated contrary to how they should be. Please reach us online or call us at 416-481-5604 to talk today.