Switchman wins wrongful dismissal suit

A B.C. Supreme Court Justice has found a contractor responsible for moving rail cars at Mackenzie Pulp Mill failed to adequately train a man who was fired after a length of railcars he was helping to guide crashed into a warehouse door.

In doing so, Justice Emily Burke ordered 4-D Warner Enterprises Ltd. to pay Richard Tymko two months worth of pay and benefits.

Tymko had filed a wrongful dismissal suit alleging 4-D Warner did not establish clear standards or provide suitable instruction for the positions of trackmobile operator and switchman and failed to maintain a consistent disciplinary policy.

On Dec. 28, 2015, Tymko was working as the switchman. His job was to notify the operator of the trackmobile – a small locomotive used to move rail cars around the yard – of when to stop a length of four rail cars over a radio.

Tymko said the radio failed and the trackmobile operator testified he had “no idea what to do” when he did not hear from Tymko and continued until he finally heard from him. The length of cars also derailed another car upon crashing through the warehouse door.

4-D Warner disputed Tymko’s claim, alleging he made up the story about the radio failure. But Burke found that on balance of probabilities, 4-D Warner did not prove the radio was in fact working.

“This is largely due to its failure to investigate the situation despite being immediately advised of the issue,” Burke said in a reasons for judgment issued Friday.

Burke also found 4-D Warner failed to show on a balance of probabilities that either Tymko or

Tymko said the radio failed and the trackmobile operator testified he had “no idea what to do” when he did not hear from Tymko...

the trackmobile operator had been properly trained on what to do in the event of a radio failure.

“Neither employee involved in the critical incident was aware of the safety protocol when loss of communication occurs between the switchman and the trackmobile operator,” Burke said.

“While this was outlined in the manuals, neither received instruction or training about what a trackmobile operator should do if, during a movement, he stops receiving instructions from the switchman. The evidence established that the training was changed following the incident to provide a more comprehensive training course that included this policy instruction.”

The full decision is posted with this story at pgcitizen.ca.