FAQ's Cases - Stewart McKelvey

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Mutter spoke. He testified he was agitated and “did not expect anything to be done”. Hetestified he does remember Mr. Birch making his denials and then Mr. Keen said “youfool, I could have killed you almost six times”. Mr. Keen stated that when he made thatcomment he was “very frustrated”. He added in his evidence that “I am a very emotionalperson and wear it on my sleeves” and “that time was very emotional”. He testified thathis comment to Mr. Birch was in reference to safety concerns and, specifically, to whenMr. Birch drove the loader into the swing arm range of the excavator and he had notmeant to threaten Mr. Birch. When questioned about why he had not mentioned the issueof his safety concerns in front of Mr. Mutter and Mr. Birch, Mr. Keen stated “it was clearthey would not listen to me”.Under cross-examination, Mr. Keen stated he always tries to avoid confrontationsbut agreed with Employer Counsel that his “outburst” was wrong and added that it was“because of the way I said it”. The Grievor also acknowledged that his comment couldhave been perceived as a threat and that it would make people “uncomfortable” and thatthere is “no place for that in the workplace”. When asked whether he had ever clarifiedhis remarks or apologized to management or to Mr. Birch, Mr. Keen indicated he had notand repeated that he did not like confrontations. He did agree, however, that he hadcertainly had an opportunity to apologize if he had wished to do so.At one point, somewhat later in his testimony, Mr. Keen stated that he actuallydid tell Mr. Wallace the next Monday or Tuesday at the park that he had not intended theremark as a threat but he then subsequently resiled from that position. Mr. Keen alsoadamantly denied that he ever pointed his finger at Mr. Birch in the meeting andreiterated he was ten feet away from him.The Grievor also agreed that he had never filed any reports or filled out anyincident reports about the “near misses”, which is what is expected by the Company. Mr.Keen also agreed with Employer Counsel that there had never been any corroboration ofhis safety complaints and that he was not aware of anyone who had ever observed unsafeacts or speeding by Mr. Birch. Mr. Keen also admitted he had never raised any of hissafety concerns in the regular shift meetings.The Grievor also acknowledged that certain parts of his testimony about themeeting in Mr. Mutter’s office on August 20 were directly contradicted by the three other2011 CanLII 85129 (BC LA)8
individuals who were in the room and Mr. Keen asserted that they were either wrong orlying.When asked in cross-examination why he brought up these issues about Mr. Birchwith Mr. Wallace on August 20 when he had not even worked on the same shift with Mr.Birch for the three previous months, Mr. Keen stated that he had “no reason”. TheGrievor also agreed he had no complaints about Mr. Birch which were “current” at thetime but he admitted he did not make that clear to Mr. Wallace. Mr. Keen was also askedabout his direct testimony that he does not want to be confrontational and that he tries to“avoid conflict”. Employer Counsel put to him that is precisely what he did in going tosee Mr. Wallace on August 20 and that he was “trying to get Rod in trouble”. Mr. Keenagreed that was the case.Mr. Keen testified in direct that he wanted to return to work with the Employer.Under cross-examination it was put to the Grievor by Employer Counsel that he was stillof the view that Mr. Mutter was not a safety conscious manager, that the leadhands werenot observant and did not deal with safety issues and that Mr. Birch was a particularlyunsafe employee. Mr. Keen agreed with that statement and concurred that if he returnedto work it would be very tense and that it would “not be a recipe for success”.There was also evidence relating to Mr. Keen’s attendance at a park across thestreet from the entrance to the plant over the few days following his termination. Thepark is used for flying model airplanes and Mr. Keen testified he often went there forenjoyment. On the Monday evening after the Grievor’s termination, Mr. Wallace wasleaving work and he saw Mr. Keen standing by his truck on the side of the road besidethe park and across from the plant entrance. Mr. Wallace approached Mr. Keen and thelatter indicated he was waiting to talk to the shop steward whose shift was about to end.Mr. Wallace testified he was concerned that Mr. Keen had been waiting near theplant. Mr. Wallace then saw the Grievor standing by his truck again after work onTuesday. He approached Mr. Keen and suggested to him it may be better if he was notthere and hung out elsewhere. Mr. Wallace testified Mr. Keen replied that “I have friendsthat fly planes”. Mr. Keen did not recall those comments but could not deny they mayhave been made. The evidence is the Company hired a security guard to attend at theplant for that week and also contacted the Coquitlam R.C.M. P. Mr. Wallace testified he2011 CanLII 85129 (BC LA)9
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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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33[143] In respect of the complaint
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- 2 -[2] The plaintiff, Susan Chart
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- 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
Page 80 and 81: Page: 24termination without cause,
Page 82 and 83: Page: 26[64] The costs on the appli
Page 84 and 85: The parties agree this Board has th
Page 86 and 87: Mr. Wallace. The evidence is that M
Page 88 and 89: Mr. Mutter and Mr. Wallace each tes
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
Page 121 and 122: Page 10supervisor. Counsel argued t
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
Page 135 and 136: THE LAW[19] Section 5 of the Code p
Page 137 and 138: that ensued. There is no evidence t
Page 139 and 140: 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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