FAQ's Cases - Stewart McKelvey

More documents

Recommendations

Info

saw (or was told by the crew) Mr. Keen there on a few occasions over the next weeks andhis attendance became more sporadic over time. Mr. Birch testified that he had alsoobserved Mr. Keen there on a number of occasions “watching us come in and out”. Mr.Birch testified Mr. Keen on each occasion was by his truck looking at the plant entranceand was not in the park itself.DECISION:In discipline cases, an arbitration board must ask itself three questions:1. Has the employee given and just and reasonable cause for some form ofdiscipline by the employer?2. If so, was the discipline imposed an excessive response in all of thecircumstances of the case?3. Finally, if the discipline is considered excessive, what alternative measureshould be substituted as just and equitable?2011 CanLII 85129 (BC LA)(Wm. Scott and Co. Ltd. and Canadian Food & Allied Workers Union, Local P-162, [1977] 1 Can L.R.B.R. 1 (B.C.L.R.B.).Turning to the first question, the arbitral jurisprudence is clear that death threatsare an extremely serious matter and termination is generally the consequence: BrewersWarehousing Co. Ltd., 6 L.A.C. (3d) 104 (Egan); Greater Vancouver Regional District,147 L.A.C. (4 th ) 319 (Sullivan); Labatt Brewing Co., [2002] B.C.C.A.A.A. No. 414(McPhillips); City of Vancouver (Medeiros Grievance), 148 L.A.C. (4 th ) 406(McPhillips); City of Vancouver (Forber Grievance), [2003] B.C.C.A.A.A. No. 285(Moore); Western Star Trucks Inc., [1998] B.C.C.A.A.A. No. 395 (Blasina); AlcanSmelters and Chemicals Ltd., 135 L.A.C. (4 th ) 226 (Hope). There are also statutoryprovisions requiring employers to maintain a workplace free of violence: Bill C-45: AnAct to Amend the Criminal Code of Canada; Workers Compensation Act of BritishColumbia.In this case, the Union acknowledges that in these circumstances, if it is found bythe Board that a death threat was made by Mr. Keen against Mr. Birch, termination wasthe appropriate response on the part of the Employer.The first point in the analysis of whether the Grievor gave the Company cause fordiscipline is to determine whether objectively the words used by Mr. Keen could be seen10
as a death threat. For that purpose, the analysis will be undertaken based on theconclusion that what Mr. Keen said on April 20 to Mr. Birch was “You fool. I could havekilled you six times”. I reject for reasons detailed below that Mr. Keen included the word“already” in his remark.In my opinion, the words used by the Grievor reasonably bear the inference thatwhat the Grievor meant was that he could have killed Mr. Birch on a number ofoccasions in the past and could do so in the future. Granted, the words could also beparsed as a statement of past reality and I will return to that possibility later.Further, each of the three people in the room with the Grievor at the time thecomment was made testified that he clearly perceived it that way given the context inwhich the remark was made as well as the tone, demeanour and body language of theGrievor. Moreover, their reaction in the office at the time indicates that is certainly howthey took it. Mr. Mutter immediately stated to Mr. Keen that those words were notappropriate and he jumped up and escorted Mr. Keen from the building.Another reason for the conclusion that the words can be viewed objectively as athreat is that Mr. Keen himself acknowledge in cross-examination that they could betaken that way and he agreed it was inappropriate for him to have spoken in that mannerat the workplace.As a result of the above factors, it is concluded on the balance of probability thatthe words used by Mr. Keen would “properly be perceived as a threat”: Ajax PickeringTransit Authority, 123 L.A.C. (4 th ) 151 (Craven); Alcan Smelters and Chemicals Ltd.,supra.The next issue is the subjective intent on the part of the Grievor and whether thecomment made by Mr. Keen on August 20 was actually intended by him as a death threatagainst Mr. Birch. In addressing that question, an assessment of credibility becomescritical. In that regard, the comments by the British Columbia Court of Appeal in itsdecision in Faryna v. Chorny, [1952] 2 D.L. R. 354, at pp. 356 – 7, are helpful:If a trial Judge’s finding of credibility is to depend solely on which person hethinks made the better appearance of sincerity in the witness box, we are leftwith a purely arbitrary finding and justice would then depend upon the bestactors in the witness box. On reflection it becomes almost axiomatic that theappearance of telling the truth is but one of the elements that enter into thecredibility of the evidence of a witness. Opportunities for knowledge, powers ofobservation, judgment and memory, ability to describe clearly what he has seen2011 CanLII 85129 (BC LA)11
Page 1 and 2:
The Labour Relations BoardSaskatche
Page 3 and 4:
3unionized workforce at their plant
Page 5 and 6:
5[15] In addition, there was some h
Page 7 and 8:
7Employee “D”: He was on his pr
Page 9 and 10:
9[37] The Board did not have the be
Page 11 and 12:
11[48] Shortly after Mr. Copeland b
Page 13 and 14:
13credible reason for the disciplin
Page 15 and 16:
15outlined by the Board in RWDSU v.
Page 17 and 18:
173. Order for captive audience mee
Page 19 and 20:
19for his failure to produce the wi
Page 21 and 22:
21[95] Similarly as noted in the qu
Page 23 and 24:
23[103] Also, in The Newspaper Guil
Page 25 and 26:
25rights under the Act. The Employe
Page 27 and 28:
27The determination of whether, in
Page 29 and 30:
29respect to the section of the Alb
Page 31 and 32:
31meetings, would have been within
Page 33 and 34:
33[143] In respect of the complaint
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
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 90 and 91: Mutter spoke. He testified he was a
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___
Page 141 and 142: [1] The applicant has filed two App
Page 143 and 144:
CHRONOLOGY OF KEY EVENTS[11] The ap
Page 145 and 146:
tasks beyond his functional limits
Page 147 and 148:
do what they can and that if someon
Page 149 and 150:
checking summaries before stating t
Page 151 and 152:
Roehl in June or to the respondent
Page 153 and 154:
Section 10 of the Code defines hara
Page 155 and 156:
was assigned duties that required h
Page 157 and 158:
-last portion of the day he levels
Page 159 and 160:
[66] I recognize that some of the c
Page 161 and 162:
was made aware on May 22/07 that hi
Page 163 and 164:
“To be honest Tony I don’t know
Page 165 and 166:
is older, or believed that the appl
Page 167 and 168:
[91] The applicant also submitted t
Page 169 and 170:
steps to address allegations of dis
Page 171 and 172:
this period lessening, in my view,
Page 173 and 174:
[109] The respondent submits that i
Page 175 and 176:
that the events of May 22 may have
Page 177:
Accordingly, I am requiring the par
show all

FAQ's Cases - Stewart McKelvey

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?