December 12, 2011 By: Christopher C. Rootham
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Workplace investigations often raise a number of questions about employee participation. Does an employee have the right to silence? Can an employee's participation—or lack thereof—be held against him or her in subsequent disciplinary hearings? A recent employment law decision of the British Columbia Court of Appeal serves as a reminder of the consequences of workplace investigations.

On the evening of March 21, 2006, the "Queen of the North" ferry—en route from Prince Rupert to Port Hardy—went aground and sank off Gil Island in Wright Sound. This led to an emergency evacuation and resulted in the death of two passengers. Mr. Henthorne, the captain or "master" of the ferry, had retired for the night at the time (as he was entitled to do) leaving the second officer and a quartermaster on navigational watch.

There were no fewer than four separate investigations that occurred after this event:

  1. A federal Transportation Safety Board investigation
  2. An investigation by the employer's insurance company
  3. An RCMP investigation
  4. An internal investigation by the employer, called a Divisional Inquiry Panel

The second officer and quartermaster participated in the first two investigations, as both were privileged investigations and would not be disclosed to the RCMP. However, they refused to participate fully in the Divisional Inquiry Panel because the investigation was not privileged and any statement given could be used in a criminal hearing. They refused to answer any questions relating to the accident.

The captain did participate in the Divisional Inquiry Panel, but was unable to explain why the vessel had failed to change course when required. He was questioned about the general safety and seaworthiness of the ferry. He recounted some safety concerns he had reported to his employer in past years, some of which had been rectified and some of which had not. The inquiry panel asked to hear of serious safety problems that might have caused the vessel to go aground, or that could cause pollution. The captain referred to two minor items: a module on the autopilot that had been resolved after several years; and a rescue boat davit, which had been launched in weekly exercises without causing injuries. After further discussion, and in light of time constraints, the captain was asked to prepare a list of safety concerns he had raised to which the Corporation had not responded. He prepared an 11-page list describing 52 issues he had noted over the years, some of which had not been resolved by the time of the sinking. In response to questioning when the inquiry resumed, he conceded that none of the items on the list had caused or contributed to the events of March 21, 2006.

The inquiry panel concluded that the second officer and quartermaster failed to keep a proper lookout at the time of the accident. The panel attributed this in part to "casual watch-keeping behaviour" on that ship; for example, the captain permitted music to be played on the bridge.

In the meantime, when the second officer and quartermaster refused to participate in the Divisional Inquiry Panel, the employer disciplined them by holding them out of service without pay. The employees contested that decision, largely on the basis of an earlier BC arbitration decision in Tober Enterprises Ltd.1 That decision set out a general rule for participation in workplace investigations as follows:

"Where an employee deliberately attempts to deceive his employer by a false or misleading explanation, the employee's conduct is clearly blameworthy and threatens the basis of the employment relationship. The employee's behaviour is equally blameworthy where he knowingly allows his silence to damage the legitimate business interests of the employer. Absent these kind of circumstances, however, an employee's decision to remain silent when accused of wrongful conduct by his employer does not form a proper basis for the imposition of discipline."

Both the arbitrator and the BC Labour Relations Board applied the rule in Tober and concluded that the two employees' silence "damaged the Employer's legitimate business interests, and therefore the general rule in Tober did not apply."2The BC Supreme Court, on judicial review, decided that in these circumstances the matter was serious enough to require an employee to speak out.

In the meantime, in January 2007 the company dismissed the non-unionized captain from his employment. While the company took the position that the termination was without cause (and provided some 15 months' compensation for the captain), the captain felt that his termination was the result of his disclosure of roughly 52 safety issues he had observed over the years. The BC Workers Compensation Act prohibits "discriminatory action" taken against an employee who gives the employer "information regarding conditions affecting the occupational health or safety or occupational environment" of workers.3 The company said that the captain was not dismissed because he revealed the safety issues. Rather, they claimed he was dismissed for two other reasons: first, a captain should always be responsible when his ship sinks; and second, that he did not focus his disclosure on what actually caused the ship to sink. As the Workers Compensation Appeals Tribunal (WCAT) put it: "it was not the topic or content of the worker's concerns in and of itself that bothered the employer, but rather the fact that the worker was not talking about critical safety concerns that they expected him, as an exempt Master and member of the management team, to address."

The captain unsuccessfully applied for judicial review of the WCAT decision, and the BC Court of Appeal dismissed an appeal from that decision.4 The BC Court of Appeal, in the course of its reasons, had to deal with two issues of administrative law. First, it concluded that the WCAT did not have standing to participate in the appeal, as the matter was essentially a private dispute between the captain and his employer. Second, the court of appeal was divided on whether it should defer to the first reviewing court on certain matters. In the end, the majority concluded that it should not, unless the first reviewing court made findings of fact separate and apart from those of the administrative tribunal (about matters of procedural fairness, for example).

On the main issue, the Court of Appeal agreed with the WCAT that the dismissal was not a reprisal for disclosing the safety issues, but was instead motivated by the failure to discuss the actual accident. The captain argued that the employer could not prove this without calling all five people involved in making the decision to dismiss him. The Court of Appeal disagreed, concluding that the evidence of two "key players" was sufficient: "The object of the whistle-blower provisions might very well be furthered by a stringent requirement for evidence from or about each and every person consulted, but in my view, the Corporation was not required as a matter of law to adduce such evidence."5 In short, the company proved that the termination was not in retaliation for disclosing safety issues.

It is challenging to discern precisely what an employee is supposed to do in an investigation of this nature. Two employees refused to discuss the accident, and were disciplined. One employee discussed too much, and was dismissed (without cause, admittedly, but dismissed nonetheless). Other arbitrators have concluded that, while a failure to discuss off-duty conduct that is subject to a criminal investigation is not in itself cause for dismissal, that failure could still lead to a suspension until the criminal matter has been concluded. Remaining silent could also impact the compensation awarded to an employee: "in cases where [an employee] elects not to disclose information to the employer, that fact has been found to affect what damages are payable if the lack of information limits the ability of the employer to assess the risk involved in the situation".6 Alternatively, "the right to remain silent in interactions with police and Crown authorities does not insulate the [employee] from the potential employment consequences of failing to make full disclosure, answer and apology, where appropriate, to off-duty misconduct in which the Employer has proper interest."7

While an employee cannot, in the normal case, be dismissed solely for refusing to participate in a workplace investigation, the "right to remain silent" does not mean that remaining silent has no consequences. Unions representing employees in workplace investigations—particularly investigations into events that could have legal consequences—should always carefully assess the circumstances. These are often situations where there is no simple, correct answer to the question "what should I do?" There are no hard and set rules about participating in an investigation; each situation must be determined on its own.

 

1Tober Enterprises Ltd., IRC No. C54/90, 7 C.L.R.B.R. (2d) 148 ("Tober")

2British Columbia Ferry Services Inc. v. B.C. Ferry and Marine Workers' Union, 2008 CanLII 1931 at para. 19, aff'd on judicial review British Columbia Ferry and Marine Workers' Union v. British Columbia Ferry Services Inc., 2008 BCSC 1464

3Workers Compensation Act, R.S.B.C. 1996, c. 492, s. 150

4Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476

5Ibid at para. 55.

6Keating v. Ontario (Community Safety and Correctional Services), 2009 CanLII 15648 (ON PSGB) at para 116.

7Toronto District School Board v. Canadian Union of Public Employees, Local 4400, 2009 CanLII 1363 at para. 70.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law