FAQ's Cases - Stewart McKelvey

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The parties agree this Board has the jurisdiction to determine this matter. TheUnion has grieved the discharge of Ken Keen from his employment at Coquitlam Sandand Gravel on August 23, 2010 for issuing a death threat against another employee.FACTS:Coquitlam Sand and Gravel is a subsidiary of Lafarge Canada and its operationsare on Pipeline Road in Coquitlam, B.C. The Plant Manager is Corey Mutter and theAssistant Manager is Phil Wallace. There are 27 employees at the site and the membersof the bargaining unit are represented by Teamsters Local Union No. 213 for whichChuck Symons is the Business Agent.Ken Keen, the Grievor, is 50 years of age and had been an employee withCoquitlam Sand and Gravel for just over two years at the time of his discharge. He hadpreviously worked as a truck driver but then obtained an excavator operator ticket andwas hired by the Employer. During his employment at Coquitlam Sand and Gravel, hereceived a written warning and a three day suspension for improper operation of theequipment.Mr. Keen operated the “long reach” excavator and worked primarily on theafternoon shift (2:00 p.m. to 10:00 p.m.) until May of 2010. At that point he wastransferred to the graveyard shift (8:00 p.m. to 6:00 a.m.), although he testified he did notlike working ten hour shifts (two hours at overtime) and had arranged with managementto come in at 9:00 p.m. or 10:00 p.m. on some days.In late July, 2010, Mr. Keen went off on sick leave for three weeks and thenreturned to work on Monday, August 16, 2010. The events which led to the discharge ofMr. Keen occurred the following Friday afternoon (August 20) during a meeting in Mr.Mutter’s office. To put what occurred in that meeting into context, some background ishelpful.The first point is that the long reach excavator was being used on the day shiftduring the week of August 16 by an employee, Tanner Gunn, who was substituting forthe regular operator who was on vacation. Mr. Keen felt the cab of the excavator wasbeing left in a messy condition and the tracks were not being properly cleaned by Mr.2011 CanLII 85129 (BC LA)2
Gunn. This upset Mr. Keen and led him to attend at the plant around 3:00 p.m. onAugust 20, five hours before his shift was to commence.The other important piece of background information has to do with Mr. Keen’srelationship with Rod Birch, who was the loader operator on the afternoon shift. Prior toMay, 2010, Mr. Birch and Mr. Keen worked on the same shift although for 80 to 90percent of the time, they worked in different areas of the site. However, on occasion, Mr.Keen would have to perform excavation duties near the plant itself which is where Mr.Birch operated the loader.Mr. Birch, who is a member of Local 213 and appeared pursuant to a summons,testified that he hardly ever spoke with Mr. Keen and only very rarely even saw himduring the afternoon shift. However, Mr. Birch testified he was aware that Mr. Keenapparently had some issue with him at one point quite some time ago and so Mr. Birchgenerally avoided Mr. Keen.The Grievor testified that during the two years that both of them were on theafternoon shift he felt Mr. Birch drove the loader at too fast a speed, and, on occasion,would come within the radius of the swing arm radius of the long reach excavator whichcould be very dangerous for Mr. Birch. Mr. Birch testified he was not aware of comingclose to Mr. Keen on even one occasion over that period and added that “I am verycareful”. He also stated Mr. Keen had never talked to him about any such concerns. Mr.Keen, who kept notes in a book, testified that he had also on occasion observed Mr. Birchparked and observing Mr. Keen while he worked. Mr. Keen’s notes indicate there wasone occasion in November, 2009 where he had made such a record. Mr. Birch deniedthat he had ever stopped his own work to watch Mr. Keen.Mr. Keen testified that he had complained about Mr. Birch to the leadhands and toMr. Mutter but nothing was ever done. For his part, Mr. Mutter testified that each timehe had received a complaint from Mr. Keen, it had been investigated and proved to begroundless. Mr. Mutter testified there had never been any corroboration for any of theallegations made by Mr. Keen and that, in his view and that of others, Mr. Birch was anefficient and safe loader operator.So with that background in place, we return to the afternoon of August 20, 2010.As indicated, at 3:00 p.m. Mr. Keen arrived five hours early at the plant and went to see2011 CanLII 85129 (BC LA)3
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The Labour Relations BoardSaskatche
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3unionized workforce at their plant
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5[15] In addition, there was some h
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7Employee “D”: He was on his pr
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9[37] The Board did not have the be
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11[48] Shortly after Mr. Copeland b
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13credible reason for the disciplin
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15outlined by the Board in RWDSU v.
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173. Order for captive audience mee
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19for his failure to produce the wi
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21[95] Similarly as noted in the qu
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23[103] Also, in The Newspaper Guil
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25rights under the Act. The Employe
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27The determination of whether, in
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29respect to the section of the Alb
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31meetings, would have been within
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Page 35 and 36: - 2 -[2] The plaintiff, Susan Chart
Page 37 and 38: - 4 -by the time she finished there
Page 39 and 40: - 6 -[24] Testimony was received fr
Page 41 and 42: - 8 -would feel grateful for the fo
Page 43 and 44: - 10 -[49] 2. Comfortable, even tem
Page 45 and 46: - 12 -[67] Another complaint was th
Page 47 and 48: - 14 -bottom of the problem and the
Page 49 and 50: - 16 -member about something amusin
Page 51 and 52: - 18 -[111] Given that the meeting
Page 53 and 54: - 20 -[130] Some of the plaintiff
Page 55 and 56: - 22 -[146] The plaintiff’s expla
Page 57 and 58: COURT OF APPEAL FOR ONTARIOBETWEENC
Page 59 and 60: Page: 3[5] In his application, the
Page 61 and 62: Page: 5(c) By the Employer at any t
Page 63 and 64: Page: 7continuation, in the amount
Page 65 and 66: Page: 9D. ANALYSIS[23] It is well-s
Page 67 and 68: Page: 11[28] The appellant submits
Page 70 and 71: Page: 14[37] When parties contract
Page 72 and 73: Page: 16addressing the issue of a c
Page 74 and 75: Page: 18application of mitigation:
Page 76 and 77: Page: 202008 ONCA 479, 91 O.R. (3d)
Page 78 and 79: Page: 22[56] Notably, the concern e
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Page 82 and 83: Page: 26[64] The costs on the appli
Page 86 and 87: Mr. Wallace. The evidence is that M
Page 88 and 89: Mr. Mutter and Mr. Wallace each tes
Page 90 and 91: Mutter spoke. He testified he was a
Page 92 and 93: saw (or was told by the crew) Mr. K
Page 94 and 95: and heard, as well as other factors
Page 96 and 97: When viewed in that light, it is fa
Page 98 and 99: IN THE SUPREME COURT OF BRITISH COL
Page 100 and 101: Balogun v. Deloitte & Touche, LLP P
Page 113 and 114: Page 2of the immediate problem that
Page 115 and 116: Page 4- He admitted that he had pla
Page 117 and 118: Page 626 26. The Grievor's conduct
Page 119 and 120: Page 8he had a problem with was fro
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Page 123 and 124: Page 12hope to gain a financial ben
Page 125 and 126: Page 1483 83. McKinley is an import
Page 127 and 128: Page 16(iv)Has the employer attempt
Page 129 and 130: HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 131 and 132: [1] This is an Application under se
Page 133 and 134: [10] Sean McKay also testified on b
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THE LAW[19] Section 5 of the Code p
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that ensued. There is no evidence t
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] The applicant has filed two App
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CHRONOLOGY OF KEY EVENTS[11] The ap
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tasks beyond his functional limits
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do what they can and that if someon
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checking summaries before stating t
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Roehl in June or to the respondent
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Section 10 of the Code defines hara
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was assigned duties that required h
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-last portion of the day he levels
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[66] I recognize that some of the c
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was made aware on May 22/07 that hi
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“To be honest Tony I don’t know
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is older, or believed that the appl
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[91] The applicant also submitted t
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steps to address allegations of dis
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this period lessening, in my view,
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[109] The respondent submits that i
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that the events of May 22 may have
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Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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