FAQ's Cases - Stewart McKelvey

explained to him what he had intended by his comment but he later agreed in histestimony that did not actually happen. Mr. Keen also made a number of statementsduring his evidence that were never put to the Employer witnesses earlier during theirtestimony and that is a further indication that his testimony cannot be relied upon.There are a number of other factors which contribute to serious misgivings aboutMr. Keen’s stated lack of intent to threaten Mr. Birch. Based on all the testimony,including his own, Mr. Keen was emotional and highly agitated and that further supportsthe inference that Mr. Keen likely intended to threaten and intimidate Mr. Birch. This isreinforced by the evidence of Mr. Wallace, Mr. Birch and Mr. Mutter that the Grievor’stone of voice was such that it indicated a death threat was being made.As well, I accept the testimony of Mr. Mutter, Mr. Wallace and Mr. Birch overthat of Mr. Keen and determine that the Grievor was standing over Mr. Birch andpointing his index finger when he made the statement. It is very hard to reconcile Mr.Keen’s assertion that he was simply making a comment about past safety problems whenhe was standing over the top of Mr. Birch and pointing his finger directly at him. Thesephysical gestures add significant support to the likelihood that Mr. Keen was intending tothreaten Mr. Birch: Pacific Inland Resources, [2000] B.C.C.A.A.A. No. 117 (Germaine).Another factor to be weighed is the context of the Grievor’s remark. At the timethe statement was made by Mr. Keen, safety was not even being discussed. Thediscussion was focused on Mr. Keen’s allegations that Mr. Birch wanted his job, wantedto be the leadhand and was monitoring Mr. Keen while he was working, each of whichwas clearly an irritant for the Grievor. Mr. Keen had made only one comment thatafternoon about safety and that was at the beginning of his remarks about Mr. Birch toMr. Wallace in the earlier conversation between the two of them in Mr. Wallace’s office.If Mr. Keen’s comments were meant as a statement of safety concern, they would havebeen “completely out of the blue” and did not flow at all naturally from the conversation.There is also no evidence that there were even “six” specific prior safety incidentsto which the Grievor might have been referring in his statement. It is also not clear as towhat the safety concern would have been at the time as Mr. Keen and Mr. Birch nolonger worked on the same shift and that had been the case for the previous three months.2011 CanLII 85129 (BC LA)13