Legal News

Refusal to Testify is Insubordination

In March 2006, the employer established a Divisional Inquiry Panel to investigate the sinking of the BC ferry Queen of the North. Two officers refused to answer questions about the critical period prior to the impact and grounding of the ferry, on the basis that their statements would not be protected by privilege. The employer tried unsuccessfully to reach an agreement with the officers about their evidence. They were then held out of service without pay until they fulfilled their legal duty to inform the company about the events in question. The union filed policy and group grievances challenging the employer’s actions and the matter proceeded to arbitration.

The arbitrator found that the employer had a legitimate business interest and a responsibility to the public of British Columbia to determine the cause of the sinking and to take remedial action to prevent similar incidents. The testimony of the officers was critical because they were primarily responsible for ensuring the safe passage of the ferry when the incident occurred. The arbitrator determined that the employer’s legitimate business interest outweighed the officers’ interest in remaining silent for fear of possible future repercussions.

The duty to comply with an unequivocal direction from the employer is a fundamental employment obligation. As a result, the officers’ refusal to testify was a serious and continuing act of insubordination. On this basis the arbitrator concluded that the employer’s decision to hold them out of service without pay was not excessive in the circumstances.

British Columbia Ferry Services Inc. and The B.C. Ferry and Marine Workers’ Union, March 22, 2007 (Foley)