Canadian Employment Law Today - sample

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Workplace accident the result of insufficient training, not safety violation Worker had previous safety violations, but neither he nor co-worker were trained on what to do in specific circumstances that led to railyard collision BY JEFFREY R. SMITH A BRITISH COLUMBIA employee who was fired in the wake of a rail car mishap leading to a derailment is not responsible due to a lack of proper safety training, the B.C. Supreme Court has ruled. Richard Tymko, 54, worked as a switch- man and trackmobile operator for 4-D War- ner Enterprises, a transportation and heavy equipment company. 4-D had a contract with the MacKenzie Pulp Mill in MacKen- zie, B.C., to move rail cars along the mill's internal rail lines, and Tymko's job involved moving those rail cars. When working as a trackmobile operator — trackmobiles are small locomotives that power the movement of railway cars and commodities in a railway yard — he was responsible for the forward and backward movement of the trackmobile and using the brake system. As a switchman, he was responsible for ensuring rail cross- ings were clear, ensuring brakes are applied on rail cars, and monitoring the movement and direction of trains. When a trackmobile is moving, both the switchman and operator are responsible for stopping it. e operator is in charge of the brakes and the switchman — located near the back of the train — advises when it's time to apply them and stop the trackmobile. Accord- ing to standard procedure, the operator can't move the trackmobile without the switchman advising that the track is clear and where to go. When a train is moving, the procedure is for the switchman to call car lengths before the stopping point over the radio, starting at three cars, then two, then one, then one-half. If the operator doesn't hear the switchman counting car lengths, he's required to stop the train immediately. e switchman also oper- ates switches that allow railway cars to move from one track to another. e MacKenzie Pulp Mill's rail operation rules and its general operating instructions both outlined the stopping procedure for trains and employees were required to be familiar with them to do their jobs safely and efficiently. 4-D gave employees manuals to read and started them on a buddy system with a more experienced employee, until the more experienced employee advised they could do the job safely. Employees were not trained on signalling procedures or safety protocols in the event of a radio failure be- tween the switchman and the trackmobile operator, as the radios were supplied by the pulp mill. Tymko joined 4-D in November 2012 and received what he referred to as "limited training" on the switchman job. He said no one told him to read training materials, but he found them in the desk of the trailer where the crew had coffee, which he reviewed on his own. In April 2014 he attended a one-day seminar on trackmobile operating. As per company procedure, Tymko was paired with a switchman to train — he didn't do any switching himself until he was deemed ready. He also attended at least five company safety meetings and was observed during his training to determine proficien- cies and deficiencies. By August 2015, his on-the-job training for switchman was deemed complete and he was able to work as a switchman himself. 4-D had a progressive discipline policy in place that involved a verbal warning for a first infraction, a written warning for a sec- ond, and termination for a third. However, certain instances of serious misconduct could lead to termination, and safety viola- tions could result in suspension and up to 90 days' probation. Tymko was under the impression the second stage of the discipline policy, the written warning, was followed by a three-day suspension and then the 90-day probationary period. In the second half of 2017, Tymko's su- pervisor noted Tymko had problems clear- ing the crossing — a safety issue — and long coffee breaks. He discussed these issues with Tymko casually to outline expectations. Warnings for safety violations Tymko received two formal written warn- ings related to safety on Dec. 17, 2014 — for failing to put pins in switches after switch- ing — and April 23, 2015 — for failing to set the brakes on rail cars on a storage line. With the latter warning, he was placed on 90 days' probation. Tymko argued he wasn't on the worksite the day of the latter violation, but the brakes had been checked at 4:45 a.m. and they had been set the day before when Tymko was working. Tymko was working as a switchman moving rail cars with a trackmobile on Dec. 28, 2015. e plan was for him and a trackmobile operator to move four railway cars to a particular line and then stop them about six to eight boxcar lengths from the warehouse. e job required a reverse ma- noeuvre towards the warehouse. As per normal procedure, the operator was in control of the speed and brakes of the train while Tymko was tasked with notifying him when to stop. As the train switched tracks and was re- versing towards the warehouse, Tymko be- gan calling out over the radio the car lengths before stopping, with the operator repeat- ing each. However, by the time he called out "one," Tymko didn't hear the operator repeat the number. As the train moved past the stop- ping point, he panicked and tried to reach the operator on the radio, calling for him to "slow down," "stop," and "blast the air." e train didn't slow down and as it approached the warehouse, Tymko jumped off the track- mobile. e train hit the warehouse door and derailed a railway car that was inside. Tymko made sure there were no injuries inside the warehouse and then spoke to the operator. ey discovered the handheld ra- dios they were using had failed. He felt the accident was caused by either the lack of radio communication or operator error, as safety protocol was to stop the train imme- diately if communication was lost between the switchman and the operator. However, operators weren't specifically trained to stop if nothing is heard from the switch- man until it was added to training in Janu- ary 2016. Tymko learned of this protocol when he independently read the manuals he found and assumed the operator was aware of it. ey reported the incident to the super- visor, who came to assess the accident site. Tymko asked him why there was no hard- wired radio in the trackmobile and advised the acting manager of the pulp mill that it was necessary to have one. A hard-wired ra- dio was installed by the next day. Tymko told the supervisor he had called out the car lengths from three on down and then "dynamite the brakes" at the appropri- ate time. e trackmobile operator said he only heard "dynamite the brakes" over the radio and "had no idea what to do" so he con- tinued until he heard from Tymko. 4-D felt Tymko was mostly responsible as the operator makes no move without being told by the switchman. It considered Tymko's previous safety infractions and de- termined they were getting more serious. It decided to terminate his employment on Dec. 30. e trackmobile operator, who had no previous discipline, was suspended for four days and received a 90-day probation. e court found that while Tymko and SAFETY on page 7 »

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