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

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 switchman and trackmobile operator for 4-D Warner Enterprises, a transportation and heavy equipment company. 4-D had a contract with the MacKenzie Pulp Mill in MacKenzie, 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 crossings 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. The 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. According 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. The switchman also operates switches that allow railway cars to move from one track to another.

The 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 between 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 proficiencies 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 second, and termination for a third. However, certain instances of serious misconduct could lead to termination, and safety violations 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 supervisor noted Tymko had problems clearing 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 warnings related to safety on Dec. 17, 2014 — for failing to put pins in switches after switching — 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. The 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. The job required a reverse manoeuvre 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 reversing towards the warehouse, Tymko began calling out over the radio the car lengths before stopping, with the operator repeating each. However, by the time he called out “one,” Tymko didn’t hear the operator repeat the number. As the train moved past the stopping point, he panicked and tried to reach the operator on the radio, calling for him to “slow down,” “stop,” and “blast the air.” The train didn’t slow down and as it approached the warehouse, Tymko jumped off the trackmobile. The 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. They discovered the handheld radios 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 immediately if communication was lost between the switchman and the operator. However, operators weren’t specifically trained to stop if nothing is heard from the switchman until it was added to training in January 2016. Tymko learned of this protocol when he independently read the manuals he found and assumed the operator was aware of it.

They reported the incident to the supervisor, 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 radio 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 appropriate time. The trackmobile operator said he only heard “dynamite the brakes” over the radio and “had no idea what to do” so he continued 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 determined they were getting more serious. It decided to terminate his employment on Dec. 30. The trackmobile operator, who had no previous discipline, was suspended for four days and received a 90-day probation.

The court found that while Tymko and other employees were generally provided with adequate safety training, 4-D failed to train them on what to do in the particular situation of radio failure. As a result, Tymko could not be held responsible for the incident or found to have had “a neglectful or wilful disregard of 4-D Warner’s safety standards and procedures,” said the court.

The court also found that 4-D didn’t immediately investigate the situation despite being advised of it, so it couldn’t establish if the radio was actually working or not. The fact the pulp mill hardwired a radio into the trackmobile shortly thereafter made it likely there was in fact a problem, said the court.

The court found 4-D didn’t have just cause to dismiss Tymko. 4-D was ordered to pay Tymko two months’ salary and benefits for wrongful termination of his three years of service.

For more information see:

• Tymko v. 4-D Warner Enterprises Ltd., 2018 CarswellBC 547 (B.C. S.C.).

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