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CN Rail loses wrongful dismissal case

A B.C. Supreme Court Justice has ordered CN Rail to pay a former Prince George employee damages for wrongful dismissal.
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A B.C. Supreme Court Justice has ordered CN Rail to pay a former Prince George employee damages for wrongful dismissal.

Justice Selwyn Romilly found Gordon Younger, 58, is entitled to 19 months salary, which works out to $152,543, as well as other amounts after finding he had been constructively dismissed when CN Rail reassigned him to a different department in its Prince George operations.

According to the ruling, Younger's entire working life had been in the railway industry beginning in 1973 when he started as a labourer with CN. By September 1978 he was a heavy duty mechanic and left CN for a similar job at BC Rail where by 1999, he was the manager of motive power.

In July 2004, CN acquired BC Rail and in September 2004, Younger was promoted to assistant superintendent mechanical (ASM), which required him to move to Prince George from Squamish.

In his new position, he oversaw the mechanical portion of the locomotive and freight car repair functions at the locomotive shop and the north and south car shops in Prince George and the mechanical shops in Fort St. John, Williams Lake, and Prince Rupert.

There were only two ASMs in B.C. at the time, each overseeing about 100 employees.

But prior to his promotion, Younger's work had been entirely with locomotives and he admitted he difficulty learning the terminal requirements and freight car maintenance system and, as a result, often worked 10 to 12 hours per day.

Younger said he asked a superior about getting training but was never given any. He also said there were not enough personnel for freight car maintenance to meet the goals set by CN.

A year later, Younger was told on a Friday he had been reassigned to the wheel shop starting the following Monday where he would be in a first-line supervisory position rather than a managerial position. Moreover, he would oversee 10 to 12 employees while an employee at the wheel shop was moved into his old position.

When Younger advised he would not take the position, CN told him his pay would remain at the level he earned as an ASM for one year and then lowered to the scale for his new position.

Younger did not report to work and registered online to receive job posting notifications. However, none of the postings were compatible with his skills and experience and by February 2006 he had moved to Kamloops to work as a maintenance supervisor for the luxury passenger train operation Rocky Mountaineer, overseeing 40 staff.

CN Rail argued Younger's reassignment was a lateral one that would be more consistent with his skill set and work-life balance and that by refusing to report for work, he had resigned and was not constructively dismissed.

Romilly disagreed, saying in part that a "reasonable bystander would observe a significant reduction in job responsibility, prestige, and status." Romilly also noted that there was no term in the employment contract allowing CN to unilaterally re-assign Younger to another position.

But Romilly also found Younger failed to mitigate his damages by not remaining at CN until he found employment elsewhere. Consequently, while Romily found Younger was entitled to 24 months notice he awarded him 19 months pay.

Younger will also receive bonuses for 2005 and 2006, based on his September 2005 annual income of $96,343, a two-thirds pay out on the restrictive share units he was entitled to as a manager, pension contributions to the end of the notice period, prejudgment interest and legal costs.