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Queen of North Captain Fighting His Firing

Tribunal ruled Henthorne 'heroic' but responsible for tragedy. He claims he was dumped for raising safety concerns.

By Andrew MacLeod 23 May 2010 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Reach him here.

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Image of sunken ferry in Wright Sound.

Colin Henthorne, the captain aboard the Queen of the North the night it sank, has filed for a judicial review of his firing.

The legal question hinges on whether or not Henthorne's raising safety concerns during British Columbia Ferry Services Inc.'s divisional inquiry into the 2006 sinking had anything to do with the company later firing him.

The two bodies that have already looked at the case have made opposite rulings. Those rulings, previously unreleased, have now become public as part of Henthorne's 129-page court petition.

In a July 21, 2008, report WorkSafe B.C. case officer Elaine Murray wrote, "I find that at least part of the motivation for deciding to terminate the worker relates to the employer being displeased with the worker's attitude towards safety issues as a member of management. Thus, the motivation for firing the worker is tainted."

But a Workers' Compensation Appeal Tribunal decision dated March 11, 2010, reversed Murray's finding. Panelists Heather McDonald, Lesley Christensen and Warren Hoole, having heard testimony from former B.C. Ferries captains Trafford Taylor and George Capacci, decided raising safety issues had nothing to do with Henthorne's firing.

"Rather, we have found that with the sinking of the ship and the loss of two lives, the worker's continued employment as exempt Master was already in serious jeopardy," they wrote. "Subsequent events confirmed, in the employer's mind, that the employment relationship could not continue."

The two passengers presumed drowned are Gerald Foisy and Shirley Rosette.

As on-duty master of the Queen of the North, Henthorne was accountable for the accident, the tribunal found. "The employer lost confidence in the worker's suitability as an exempt Master due to the employer's perception that the worker failed to accept ultimate responsibility and accountability as Master for the marine accident and due to the employer's perception that the worker did not appreciate his role as a member of its management team."

Ruling discourages voicing safety concerns

Howard Ehrlich, the lawyer acting for Henthorne, said his client wants the judicial review to set aside the WCAT decision and reinstate Murray's finding.

While the WCAT panel heard from Taylor and Capacci, the decision to fire Henthorne was made by a group of people that included senior executives and B.C. Ferries president David Hahn, according to Henthorne's submission to the court.

The panel failed to seek or find "direct evidence of the state of mind of several of the individuals who decided to terminate the petitioner's employment" and whether Henthorne's raising safety concerns affected their decisions, it said.

Also, it said, the appeal is based on "the admissions of B.C. Ferries' witnesses that the petitioner was terminated in part because of their perception that the petitioner avoided responsibility for the marine accident in which he was involved, and that the fact that the petitioner raised safety concerns contributed to their perception that the petitioner avoided taking responsibility."

The WCAT ruling sends a worrisome message to workers, Ehrlich said in an interview. "The important part from our perspective is if an employee can be fired if an employer incorrectly and unfairly perceives that an employee is raising safety concerns to avoid taking responsibility, employees won't raise safety concerns."

Similarly, if the fact an employee raises safety concerns allows an employer to view that person as someone who is not a team player, who can then be fired, that's a problem, he said. Workers will be loathe to voice their safety concerns, he said.

The lawyer acting for B.C Ferries on the file declined to comment.

OK to fire hero: WCAT

Neither the Transportation Safety Board nor B.C. Ferries divisional inquiry assigned blame to Henthorne. Even the WCAT ruling against him called his actions the night of the sinking "heroic."

"By all accounts, prior to the sinking of the ship the employer viewed his performance as a Master as excellent," wrote the panel. "The worker was asleep in his cabin at the time of the ship's collision and there is no question that he was entitled to be there at the time.

"His role in the evacuation and rescue of the ship's passengers and crew was heroic. Our ruling in this appeal does not detract from the courage and leadership he displayed in the aftermath of the marine accident."

Still, Capacci and Taylor told the WCAT panel that as master captain Henthorne was ultimately responsible for what happened to the ship.

According to B.C. Ferries' fleet regulations, "The Master has the overriding authority and responsibility on matters affecting the safety of the vessel, passengers, crew, cargo and the environment."

Capacci told the panel, "a Master has no one to turn to but himself and is responsible for all manner of things that take place on his ship, such as (just to name a few) activities in the engineering, catering, or deck departments and issues of passenger service and safety."

According to the document, Capacci told the panel that "we're all responsible" and that he offered his own resignation to B.C. Ferries president Hahn, which was not accepted. "Captain [Capacci] testified that in his postion as vice-president for Fleet Operations he felt responsible for the situation and he took the loss of the ship and two lives very personally."

Capacci is no longer with B.C. Ferries and is now working for a ferry company in the U.S.

Ship's master responsible regardless

Taylor, who has also since left the company, was quoted saying, "It doesn't matter what happens on a ship... the safe navigation of a ship, it's all the responsibility of the Master."

The panel agreed Henthorne was responsible. "This is despite the fact that the worker had retired to his cabin hours before the ship grounded and despite the fact that no one has ever indicated that it was inappropriate for the worker to have made the decision at that time to get the requisite hours of sleep."

Within the maritime culture, it was expected that a master would take responsibility for a ship's sinking regardless of whether he or she was directly at fault, they found. "Captain [Capacci] said that if he had captained a ship that sunk he would expect to be relieved of his command and he 'would move inland with an oar over my shoulder.'"

Henthorne's address on the court documents is in Alberta.

But it is also clear from the documents that Henthorne raised numerous concerns about safety in two interviews during the divisional inquiry into the crash.

He provided a list of 58 concerns, including problems with the guardrails, pitch control systems, the need for accurate passenger counts, the maganetic compass on the ship's autopilot, handles on searchlights, a sink draining onto the car deck and dangerous inner bow doors.

None of the problems were things he figured caused the crash and many, but not all, of them had been dealt with by the company. He did offer in his list this observation on chronic B.C. Ferries safety problems: "First, they are created by someone who does not have to cope with them and second, the person who does have to cope with them does not have the means to solve them."

'Bridge crew staffed according to regulations': WCAT

The original Workers' Compensation Board decision by Murray made reference to the report George Morfitt wrote for the company on safety.

In that report Morfitt described the relationship between the union and the employer as largely dysfunctional and a "significant impediment to resolving operational safety issues."

"It is more than apparent from the employer's submission that it viewed the worker as still playing on the union team even though he was in management," Murray wrote. "Mr. Morfitt's conclusions about the lack of cooperation between union and management in the workplace with respect to safety concerns resonate here. In my view, the evidence suggests that at least part of the employer's reasons for expecting the worker to have an 'appreciation of his role on the management team' stems from it not understanding... that safety concerns are not to be divided along lines of management or union."

Henthorne's speculation for the cause of the crash was similar to what the TSB and other investigators found: the officers on duty on the bridge, Karl Lilgert and Karen Bricker, failed to make a course correction and 14 minutes later struck Gil island.

Lilgert has since been charged with criminal negligence causing death. The criminal justice branch found the available evidence didn't support charging anyone else.

Henthorne told the divisional inquiry he'd been unaware that Lilgert and Bricker had previously had a romantic relationship, and that he had no concerns about the staff on the bridge the night the ship sank, according to WCAT's summary. "The bridge crew was staffed according to regulations and he had been confident in his overnight watches."

Captain not seen to be sad

The WCAT panel found that Henthorne's raising safety concerns was not a factor in his termination, though Henthorne's lawyer contends Capacci and Taylor's testimony shows the raising of safety concerns contributed to their seeing Henthorne as someone who was not a team player, as someone who was failing to take responsibility for his own role in the sinking.

"Rightly or wrongly, fairly or unfairly, they did not perceive the worker as feeling remorse and sadness about the loss of the ship and two lives or that he questioned the part he may have had to play in the cause of the accident," the panel wrote.

Part of that perception, said Ehrlich, was Henthorne's discussion of safety issues during the divisional inquiry.

The panel considered a similar argument and disagreed. "We find that it is not fair or reasonable to isolate a few sentences from the testimony of Captains [Capacci] and [Taylor] from the overall context of the [Divisional Inquiry] panel's message to the worker and the employer's response to his concerns," they wrote.

The WCAT panel found that B.C. Ferries has a commitment to safety and the people running the divisional inquiry genuinely wanted to hear about safety concerns that might have contributed to the sinking.

"Viewing the evidence about the DI interviews as a whole and considering the testimony from the employer's witnesses as a whole, we find it clear that it was not the raising of the worker's safety concerns that was the problem for the employer. Rather, it was the worker's failure to address himself to the focus of the DI and, as requested by the DI panel, turn his mind to providing them with helpful information about the sinking of the ship."

It will be up to a supreme court judge to decide whether or not Henthorne's raising of safety concerns was a factor in his dismissal. A court date has not yet been set. Nor has B.C. Ferries filed a response to the petition.

B.C. Ferries is reportedly suing Henthorne to recover the back wages that were paid to him after the first decision reinstated him, plus interest. Ehrlich said that his client hasn't yet responded in that case, which is a separate action.

However, he added, if Henthorne is successful in the judicial review, the back wages case would likely disappear.  [Tyee]

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