Queen of North Captain's Firing Legal: Appeals Tribunal

British Columbia Ferry Services Inc. has won an appeal allowing it to fire Colin Henthorne, the captain of the Queen of the North the night it sank.

The Tyee learned of the previously unpublicized March 11 decision today, the same day the criminal justice branch filed charges of criminal negligence causing death against Karl Lilgert, the officer who was responsible for steering the vessel when it struck bottom near Gil Island in Wright Sound.

B.C. Ferries fired Henthorne following the sinking, but he was reinstated in 2008 after winning a WorkSafe B.C. decision under rules that prevent the firing of a worker for raising safety concerns.

"The worker alleged that the employer had terminated his employment because he had raised safety concerns during an inquiry conducted by the employer into a workplace accident," says the summary posted on the Workers' Compensation Appeals Tribunal website. Due to privacy concerns, WCAT removes identifying details, but The Tyee has confirmed the summary refers to Henthorne's case.

The appeal tribunal found that "in no part was the employer motivated" because the worker had raised safety concerns.

"WCAT found that due to the worker's management position and on-duty role as manager in charge at the time of the workplace accident, his continued employment was already in serious jeopardy simply because of the accident event," the summary said.

"Subsequent events confirmed in the employer's mind that the employment relationship could not continue. The employer lost confidence in the worker's suitability as a member of the management team due to the employer's perception that the worker failed to accept ultimate responsibility and accountability as an on-duty manager for the workplace accident and due to the employer's perception that the worker did not appreciate his role as a member of its management team."

It concluded, "WCAT found that those were the sole reasons for the employer's termination of the worker's employment."

"It's a personnel matter," said B.C. Ferries spokesperson Deborah Marshall. "We wouldn't be commenting on personnel matters."

Captain considering judicial review

Howard Ehrlich, an employment and labour lawyer with the Vancouver firm Bull, Housser and Tupper, is representing Henthorne.

"Captain Henthorne is presently considering a judicial review of the decision of the Workers Compensation Appeals Tribunal," Ehrlich said. "We are considering a judicial review which would set aside the decision of the Workers Compensation Appeals Tribunal and reinstate the decision of the case worker."

The case worker's July 2008 decision found Henthorne's raising of safety concerns did contribute to B.C. Ferries "deciding that he was not a management team player and thus terminating his employment," Ehrlich said.

Henthorne had spoken about his concerns and provided a list at the request of the chair who led the divisional inquiry within B.C. Ferries, he said.

Ehrlich confirmed Henthorne returned to work with B.C. Ferries for some months after the WorkSafe decision. "Captain Henthorne is no longer with the company," he said. "It wasn't Captain Henthorne's decision to leave the company."

The criminal justice branch today laid charges against navigating officer Karl Lilgert for criminal negligence causing death in connection with the sinking of the Queen of the North. Passengers Gerald Foisy and Shirley Rosette were missing and presumed drowned after the vessel sank on March 22, 2006.

"Mr. Lilgert has been charged on the basis that he was the navigating officer responsible for steering of the vessel at the time of the incident," a statement from the criminal justice branch said. "The available evidence does not support the laying of charges against anyone other than Mr. Lilgert."

Ehrlich said he doesn't know what charges were filed against Lilgert and has no comment on that matter. At the time of the incident, Henthorne was obtaining his required hours of rest, he said.