When a safety incident occurs in the workplace, the employer has a duty to investigate the incident, determine its cause and take steps to prevent similar incidents from happening in the future. One of the key steps in the internal investigation is interviewing the worker(s) involved. But when interviewing workers, you need to be aware of and respect their civil rights, such as the right to remain silent in the face of an actual or potential criminal investigation. This right may come into play if an incident involves a fatality or serious injury and could result in criminal negligence charges under C-45. Does the right to remain silent mean workers’ can refuse to answer questions about the incident as part of your incident investigation? A recent case illustrates how courts balance an employer’s duty to investigate an incident against workers’ right to remain silent. Although it took place in BC, the case involves principles of law that apply in all of Canada.
THE CASE
What Happened: A ferry ran aground in Wright Sound, BC. All crew members and most of the passengers were rescued before the vessel sank. However, two passengers weren’t evacuated and are presumed to be dead. The RCMP began a criminal investigation of the incident. The ferry company also started its own internal investigation so it could determine the cause of the tragedy and issue a public report. The company questioned two members of the navigational crew about what happened before the ferry entered the Sound and after it grounded. But the crew members refused to answer questions about the critical events that led to the grounding. The company suspended them without pay. An arbitrator dismissed their grievance challenging the suspension.
The union appealed.
What the Court Decided: The BC Supreme Court upheld the dismissal of the grievance.
How the Court Justified the Decision: The court explained that individuals have the right to choose whether to provide information that may be used against them in a criminal proceeding. The right to remain silent can arise in the employment context when an employer is investigating allegations of misconduct that are or may become the subject of a criminal investigation or proceeding. Generally speaking, workers who exercise their right to remain silent and refuse to answer their employer’s questions during such an investigation can’t be disciplined for insubordination. But this right isn’t absolute. For example, a worker may be disciplined when he “knowingly allows his silence to damage the legitimate business interest of the employer,” said the court.
The court said that the circumstances in this case were “extraordinary.” A ferry carrying passengers grounded and sank in waters routinely traveled by the company’s ferries. The evacuation of the crew and passengers was harrowing. Two people died. And the vessel couldn’t be recovered. Under these circumstances, the company “had an obligation to account for the tragedy to the public as quickly as possible,” concluded the court. To do so, it required the cooperation of the crew members, particularly the members of the navigational crew. The crew members’ refusal to answer questions about the events immediate before the ferry’s grounding frustrated the public purpose of the company’s investigation and damaged its legitimate business interests. Thus, the court concluded that it wasn’t “patently unreasonable” (or even just unreasonable) for the arbitrator to decide that the crew members’ right to remain silent was outweighed by the company’s interests [British Columbia Ferry and Marine Workers’ Union v. British Columbia Ferry Services Inc., [2008] BCSC 1464 (CanLII), Nov. 3, 2008].
ANALYSIS
A worker’s right to remain silent during an internal incident investigation has to be balanced against an employer’s legitimate business interests in conducting the investigation. If the employer’s business interest is marginal, the right to remain silent will trump it. However, if the business interest is significant, the employer can demand answers to its questions. The British Columbia Ferry case strongly suggests that when, investigating a safety incident that involves a fatality or implicates public safety, the scale will tip in favour of the employer.
The issues raised in British Columbia Ferry have typically arisen when employers are investigating misconduct such as embezzlement or theft of company property. But with the enactment of C-45 and possibility of criminal negligence charges for serious safety incidents, these issues may begin to arise more frequently in investigations of safety incidents. So safety coordinators need to be aware of these issues and prepared to deal with them when investigating safety incidents that could be the basis of a C-45 prosecution.
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