FAQ's Cases - Stewart McKelvey

Birch was constantly “driving into my swing range” and that he drove the loader “at ahigh rate of speed”.Mr. Keen also testified that he had concluded Mr. Birch wanted his job becausehe had heard Mr. Birch make a comment on the radio in May 2010. Mr. Keen alsoindicated in his testimony, however, that the notion that Mr. Birch wanted his job was notreally his concern. Although that is was he stated to Mr. Wallace on August 20, what hemeant to address was that he was concerned Mr. Birch might try to drive the excavatorbetween 6:00 p.m. (when the day shift operator left) and either 8:00 or 10:00 p.m. whenMr. Keen came to work.After the discussion between Mr. Wallace and Mr. Keen had gone on for roughlyfifteen minutes, Mr. Mutter returned to his office next door and he joined in theconversation. There is agreement on some things which occurred then but there isdisagreement about others. It is agreed that Mr. Wallace told Mr. Mutter in front of theGrievor about Mr. Keen’s three concerns about Mr. Birch wanting his excavation job,Mr. Birch wanting to be leadhand and Mr. Birch on several occasions observing Mr.Keen while he worked. Mr. Mutter then indicated that these matters could be easilycleared up by having Mr. Birch join them. Mr. Mutter radioed for Mr. Birch to come upto the office and Mr. Keen testified he neither agreed or disagreed with the suggestion ofMr. Birch coming to the office.Mr. Birch arrived at Mr. Mutter’s office and there is some disagreement aboutwhere everyone was located. Mr. Birch, Mr. Wallace and Mr. Mutter each testified thatthe four of them were seated with Mr. Birch sitting right beside Mr. Keen across fromMr. Mutter, who was behind his desk. Mr. Mutter testified they had to bring an extrachair so that everyone could sit down. However, Mr. Keen testified he never sat down atany time but rather stood in the doorway about ten feet away from where Mr. Birch wasseated.It is agreed that Mr. Mutter explained to Mr. Birch the three concerns that hadbeen raised by Mr. Keen and Mr. Birch then responded to each of them. He indicatedthat he had no desire to be either the excavator operator or leadhand (there was already avery good leadhand on the shift) and also stated that he had never stopped to watch Mr.Keen operate his machine.2011 CanLII 85129 (BC LA)5