FAQ's Cases - Stewart McKelvey

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