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The parties agreed that I was constituted with the jurisdiction as an arbitrator under the

terms of their Collective Agreement and the British Columbia Labour Relations Code to

hear and determine the matters in dispute.

This case concerns two grievances filed by the Union on behalf of Grievors Sohan Heer

(Sohan) and Manjit Heer (Manjit), alleging that their dismissals of June 22, 2009 were

without proper cause.

The grievances arise out of an incident that took place in the Merritt, B.C. Aspen Saw

Mill and Planer Mill (the Mill) lunchroom in the early morning of January 26, 2009. The

Grievors allege that that morning their co-worker, Mr. Sital (Sam) Singh Panghli brought

a handgun into the lunchroom, loaded it in front of them, and, while so doing made

violent threats. Panghli has consistently denied these claims.

Nevertheless, as a result of these claims, on the morning of January 26, 2009, Panghli

was arrested at the Mill, spent four days in jail and was suspended without pay by the

Employer for approximately five months, ultimately losing approximately $24,000

income. Upon receipt of an RCMP report dropping all but one of the charges against

Panghli; and a psychiatric assessment that determined that Panghli was not a threat to

himself or others, the Employer reinstated Panghli in June 2009, and terminated the

Grievors.

The two letters of termination are alike except for the intended recipient, Sohan or

Manjit Heer, and read as follows:

…

Dear Sir:

On February 20th, 2009, you were sent a letter which advised you of the basis upon which you were permitted to return to work.

You were advised that “the accumulation of the totality of the evidence concerning this matter, will continue, and as noted, may only be finalized at the conclusion of the criminal proceedings which have been instigated”.

We are now in receipt of the totality of the evidence which we consider crucial to our final determination.

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The above referenced letter of February 20th, 2009, concluded with the following:

“We candidly advise you that, should we conclude from the totality of the evidence when available, that your report was a fabrication arising out of the animosity between you and Mr. Panghli, which is a matter of public record in the mill, your employment will be terminated.”

The purpose of this letter is to advise that on the totality of the evidence, it is our conclusion that you deliberately and with premeditation embarked on a course of action which through the utilization of fabrications and falsehoods was intended to result in the termination of Mr. Panghli, and a further expectation that he might face criminal charges and even incarceration.

After the review of the incident of January 26th, 2009 in its entirety, and a review of your file, we have determined that your employment is terminated forthwith.

Yours truly

ASPEN PLANERS LTD.

[signature Joe Facey]

Joe Facey

Merritt Operations Manager

At issue is whether the Grievors‟ claims about the events in the lunchroom on the

morning of January 26, 2009, were, on a balance of probabilities, truthful or not. Once

that has been determined, a ruling can be made on whether termination was a

justifiable response to the events relating to the lunchroom incident.

Throughout the course of the hearing, counsel made several applications. Two of these

matters were dealt with by written decisions from the undersigned in September 2009.

Employer counsel raised two further matters in a case management meeting on April

30, 2010.

These latter two applications concerned a request by the Employer to have Sohan and

Manjit mutually excluded from each other‟s testimony; and a request by the Employer to

have Jennifer Barnes, a Customer Service Representative for WorkSafe BC at the

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material time, give her evidence by teleconference, as she now works out of the

province for a different agency. The Union objected to both applications.

I provided oral decisions on both matters. In the first, regarding mutually excluding the

Grievor‟s from one another‟s testimony, I found that because the parties had agreed to

merge the two cases after the two grievances were filed; and because the exclusion

issue was not raised early in the proceedings when several other issues, including the

exclusion of witnesses was raised, the Employer‟s application at this time presented a

potential procedural unfairness to the Union‟s case and, therefore, it was denied.

I also denied the Employer‟s application to have Jennifer Barnes testify by

teleconference, as I agreed with the Union that there was a potential unfairness to the

Union in so doing.

Nine witnesses testified for the Employer at the hearing. They were: Mill Manager Joe

Facey; Mill First Line Supervisor Mike Ward; Trim Saw Operator Kelly Bryson;

Chipperman John Katona; WorkSafe BC in-house counsel Mark Power; Former

WorkSafe BC Customer Service Representative Jennifer Barnes (noted earlier herein);

son of the first Mill owner, Paul Ghog; DDM Operator at the Mill Sital (Sam) Singh

Panghli and rebuttal witness Brenda Stockford, currently Human Resources Supervisor.

Messieurs Bryson, Katona (both bargaining unit members), Powers and Ms. Barnes all

testified under subpoena.

Four witnesses, all Mill employees and bargaining unit members, testified for the Union.

They were Trim Line operator Charnjit Thandi, under subpoena; Bin Chaser Chuck

Prest; and the Grievors Sohan and Manjit Heer.

As well, professional interpreters were retained for the first few days of these

proceedings, but when that proved unsuccessful, Surinder Momrath, Plant Manager at

Aspen Saw Mill, and Harpeet Sekhon Singh of the United Steel Workers of America

(USWA) agreed to provide interpretation coverage for the duration of the hearing. Their

coverage was competent and thorough and appreciated by all parties.

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BACKGROUND

Joe Facey explained that the Aspen Planer Mill is a spruce-pine-fir dimension lumber

mill that cuts about 300 million board feet of wood per year. The workforce consists of

approximately 175 employees, 150 of whom are bargaining unit employees represented

by the USWA, Local 1-417.

The three principal parties to this grievance, the two Grievors and Panghli, are all long-

time Mill employees: Sohan‟s seniority date is February 18, 1974, Manjit‟s is February

19, 1992 and Panghli‟s is April 5, 1976. Sohan Heer‟s brother is married to Manjit‟s

sister.

There are general safety rules in the Mill that are documented and posted on the

bulletin boards. To reinforce these rules, weekly crew safety meetings are scheduled.

While there is normally high attendance at these weekly meetings, not all employees

attend each week.

There is also a policy called „Company Rules‟ in effect at the Mill that includes the

statement, “Violent or threatening behaviour won‟t be tolerated. Report violent incidents

to your supervisor immediately.”

A Workplace Violence Policy is also posted on the bulletin board and discussed in the

weekly crew talks. This policy includes the following:

Aspen Planers recognizes that workplace violence, threatening or abusive behavior is an Occupational Health & Safety concern. As such, policy and procedures for prevention and management have been implemented. The purpose of this policy is to ensure that every employee or visitor can function in a respectful environment free from violence and aggressive behaviour. Aspen Planers is committed to providing a safe workplace. Any conduct that threatens the well being of its employees or visitors will not be tolerated. To this end, Aspen Planers will intervene to disrupt any unacceptable patterns of behaviour and will enlist assistance from outside agencies if necessary. Visitors who display violent, threatening or abusive behaviour will be banned from Aspen Planers property. Employees who engage in unacceptable conduct will be subject to disciplinary action up to and including dismissal. Aspen Planers will assist in any criminal prosecutions arising from workplace violence. Any individuals experiencing or witnessing the following behavior are encouraged to

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immediately report it to Aspen Planers management in confidence for investigation and corrective action.

Violence

The actual, attempted or threatened use of physical force to cause injury to a person or damage to property is considered a Violent Incident. Examples include:

Physical Assault

Fighting

Hostile throwing of objects

Displaying or brandishing a weapon

Sabotage of equipment

Vandalism or destruction of property

There is a high risk of injury in any violent incident. The first priority when encountering a violent situation is to leave the situation quickly. Contact police or Aspen management when safe to do so.

At the time of the incident, Sohan was employed at the Mill as a Chip and Saw

Operator, Manjit was a 966 Operator and Panghli was a DDM Operator.

By all accounts Sohan and Panghli, and later Manjit, were at one time friends. However,

at some point something changed in their relationships and Panghli was seemingly the

odd man out, especially with respect to Sohan.

Some witnesses, including Panghli, believe the apparent animosity had something to do

with a workplace/seniority issue that took place a few years ago regarding Sohan and

Panghli‟s respective positions.

The DDM and the Chip and Saw machines both achieve similar functions – taking raw

logs and turning them into rough boards -- but the DDM is a new and more

technological machine, and thus more productive. It was introduced to the Mill in 2004.

Originally, when the DDM was introduced, the Chip and Saw was shut down, only to be

used in event of a DDM breakdown. At that time, former Chip and Saw operators,

including Panghli, were transferred to the new machine.

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In 2007, the Employer, under the direction of Facey, sought to increase its productivity

by regularly running both machines. Accordingly, the Company posted the Chip and

Saw position. Sohan was the successful applicant for the position -- he had posted

successfully for the Chip and Saw steady graveyard position in 1999.

According to Facey, the idea to run both the Chip and Saw and the DDM was so

successful that, “The downstream effect was we couldn‟t handle all of the lumber

product so the Chip and Saw was again shut down.” At that time, Sohan felt he should

apply his seniority to bump into the DDM Operator position, then occupied by Panghli.

However, although Sohan admittedly had more seniority, was trained on the DDM and

had a backup posting on the DDM, the Employer refused to allow him to bump into the

position held by Panghli. The Union subsequently filed a grievance and ultimately a

resolution was reached that allowed Sohan to remain on the Chip and Saw in a reduced

capacity and to fill the remainder of his time in the position of Cambio Barker Operator --

the arrangement being he could straddle the two positions as well as provide backup for

the DDM. I note for the record that the Chip and Saw Operator is paid at a higher rate

than the DDM Operator.

Facey himself was not aware of any residual animosity between Sohan and Panghli

arising out of the foregoing events. However, Panghli cited this incident as a turning

point in his relationship with Sohan.

Facey and other management employees testified to the personnel records and

personal impressions of the three key witnesses in this case: Panghli, Sohan and

Manjit. As the case before me fundamentally concerns the credibility of these witnesses,

I have summarized their respective impressions of each below.

In the course of his duties, Facey has had the opportunity to evaluate Panghli. Facey

stated, “He is an excellent worker. He is hardworking, diligent and I wish all worked as

hard as him.”

Another management employee, Robert Westergaard, has interacted with Panghli in

the workplace setting. Approximately three years ago, there was an incident where

Panghli fell asleep on the job. Westergaard, in management at the Mill, who did not

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testify at this hearing, was interviewed by the RCMP arising out of the current case.

That interview took place on January 25, 2009 and the transcript was admitted in these

proceedings, but not for the truth of the contents. In Westergaard‟s statement, he

revealed that he suggested to Panghli that he would get Sohan to replace Panghli on

the DDM so Panghli could have some relief. Westergaard said that after he made the

suggestion about the replacement, Panghli told Westergaard he was so upset with the

suggestion to get Sohan to relieve him that Panghli had been thinking of killing both

Westergaard and himself. Westegaard told the police that at the time he did not take

Panghli seriously and that the two of them later shook hands over the matter. For his

part, Panghli acknowledged the incident but said in cross-examination that the

statement was “a little bit wrong” in that he said to Westergaard, “If you‟re going to upset

me like that, I‟m going to kill myself.”

Westergaard also told the RCMP he understood there were some issues between

Panghli and Sohan “a lot of a workplace conflict” over seniority and a job. He told the

RCMP that the DDM was “one of the nicer jobs at the Mill… kind of a prestige job, too,

because the DDM accounts for 75 – 80 percent of our production...”

As well, Westergaard told the RCMP officer about a recent incident where some

equipment had been damaged on the DDM weigh feeder and Panghli had been very

upset about it. Westergaard advised the RCMP that Panghli “doesn‟t like to be blamed”

and “it hurt his pride.” In addition, according to the RCMP report, Westergaard added,

“[Panghli] was sort of angry about that for the rest of the week anyway.”

Front Line Supervisor Mike Ward testified that he had never heard of the production

incidents described by Westergaard and he knew of no animosity between Sohan and

Panghli. About Panghli he stated – “if anything goes wrong, he‟ll apologize.”

The psychologist who evaluated Panghli for the Employer, Dr. John Lawrence, Ph. D.,

R. Psych, determined in his May 28, 2009 psychological assessment of Panghli that,

“Mr. Panghli denies he has ever had intentions, plans or ideas of causing harm to

himself,” and concluded with:

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The conclusive findings in this assessment probably come as close to what might be referred to colloquially as a “clean bill of medical health” as an evidence based psychologist might provide.

I return to the views of Facey, who as Mill Manager also had occasion to form an

opinion of Manjit and described him as “A mediocre worker at best, he does his bare

minimum.”

Facey further testified that even before the events leading to this grievance, he found

Manjit to be untruthful and explained a disciplinary record that was principally based on

a two-day suspension that Facey himself had imposed on Manjit in 2006 following a

seatbelt violation – an incident that was no longer on Manjit‟s file in January 2009.

According to Facey, Manjit‟s job as 966 Regular Operator required him to move logs

around the yard in a large vehicle (a 966) and feed the logs to the Mill. It is a mandatory

safety rule in the Mill to wear a seatbelt at all times when operating a vehicle.

Facey explained that in 2006 he found Manjit driving the 966 and not wearing his

seatbelt, a disciplinary offence. After Manjit served a two-day suspension for this

conduct, Manjit and Sohan came to Facey‟s office and asked to have the letter that

suspended Manjit lifted from the file because, according to Facey, they advised him

Manjit did not know he was required to wear a seatbelt. Facey took Sohan and Manjit at

their word at the time and said if Manjit kept a clear record for six months he would lift

the letter and the suspension. After a clear six months, Facey kept his side of the

bargain and removed the discipline from Manjit‟s file.

According to Facey, “Subsequently I found out there was an administrative assessment

done by WorkSafe BC in 2002, four years before the 2006 incident, whereby the

Company was assessed a fine of $70,500 because the officer found Manjit not wearing

a seatbelt. Manjit had testified at that proceeding. As well, a review of the supervisory

records reflected that on three other occasions (May 30, 2005, July 26, 2005 and

August 23, 2005), Manjit had been instructed to wear a seatbelt.

Both Sohan and Manjit dispute Facey‟s recollection of the 2006 events surrounding the

request to lift the letter from Manjit‟s file. Manjit testified that he would not have told

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Facey he did not know about the seatbelt rule, because he did, in fact, know about that

rule in 2006. In direct conflict with Facey‟s account of this incident, Sohan denied ever

saying anything to Facey in defense of Manjit, and testified he only said “take the letter

back- he [Manjit] won‟t do it again.” Sohan agreed in cross-examination about this

matter that in his experience Facey was honest whenever he had to deal with him.

Facey characterized Sohan as “An average worker, seven out of ten.” Facey testified

there was a written warning from 1974 on his file. Facey added, “He does have a history

of alcohol abuse at his work. He has sought and obtained counseling and gone to detox

twice”.

THE INCIDENT GIVING RISE TO THE DISMISSAL OF THE TWO GRIEVORS

The incident giving rise to the dismissal of the two Grievors took place in and around the

Mill lunchroom at approximately 0445 on Monday, January 26, 2009. There was a

regularly scheduled crew safety meeting scheduled that morning, as there is every

Monday morning at 0500. Company records reflect that usually about 18 to 20

employees attend these meetings.

Sohan testified he had never seen Panghli at a safety meeting before January 26, 2009.

In fact, by all accounts, including his own, Panghli has never regularly attended these

meetings. Instead, while the meetings are taking place, Panghli would fix up his

machine centre and produce lumber. However, there was evidence that on some

Monday mornings when there are no logs or there is a problem with his machine, he

has attended the safety meetings.

Ward explained that if Panghli missed a safety meeting, Ward would speak to him later

in the day and fill him in on whatever he had missed from the meeting.

Sohan and Manjit attended the meetings fairly regularly.

In any event, all three: Panghli, Sohan and Manjit, attended at the lunchroom prior to

the scheduled meeting on January 26. Panghli said he decided to attend the meeting

because there were no logs to run through his machine.

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Manjit arrived first to the lunchroom, prior to 0445. Soon after, Sohan arrived and then

Panghli followed, pulling a chair from the supervisor‟s office and sitting directly across

two side-by-side six-foot tables from Manjit and Sohan.

What actually happened next in the lunchroom is a matter of great dispute between the

two Grievors and Panghli. As well, there were also discrepancies between Manjit and

Sohan in their initial post-event interviews with the Employer. More importantly, each of

these witnesses had various discrepancies in their testimony at this hearing versus their

interviews with the RCMP and compared to what was recorded by the Employer in their

respective post-incident interviews with Facey. As well, with respect to the evidence of

the Grievors, discrepancies occur between what each is alleged to have reported to

Teleclaim representatives at WorkSafe BC and their testimony at this hearing.

The crux of the dispute is whether or not Panghli brought a gun to work on January 26,

whether he loaded the magazine of that gun on the lunchroom table in front of Sohan

and Manjit, and whether he simultaneously threatened to kill four or five people. All of

which is alleged, in some form or other, by Manjit and Sohan. For his part, Panghli

denies all of these allegations. He does, however, acknowledge that at the time of the

incident he owned ammunition, two rifles and a Beretta handgun, which he had permits

for and which he stored at his home. The Beretta is all-black semi-automatic with a clip

in the handle. He asserted that he used the rifles for hunting, but that he had never fired

the handgun or removed it from his home.

I will address the details of each witness‟s conflicting accounts later in this decision. The

following represents the generally agreed facts.

Initially Panghli and the Grievors were alone in the lunchroom but at some point, some

other Mill employees joined them. There was some form of quiet discussion and

confrontation in Punjabi between Panghli, Sohan and Manjit, following which all three

left the lunchroom for a brief period. Sohan went to find Supervisor Mike Ward; Manjit

soon returned to the lunchroom and issued some sort of warning about Panghli and a

gun, and Panghli eventually left the Mill, returning to the main gate some minutes later

where Ward and an RCMP cruiser were waiting for him.

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Ward has been a supervisor since July 1995, and is directly responsible for the

production area at the Mill. Both Sohan and Panghli were under his direct supervision in

January 2009, and Manjit was under his supervision about half of the time as Manjit

works steady day shift.

At about 0445 on January 26, Sohan left the lunchroom and found Ward. He told Ward

something about Panghli having a gun. The exact nature of what he said is one of the

matters contested and is described later in this Award.

Regarding the allegation that Panghli had a gun, Ward stated, “I was surprised –

something we‟re not prepared for - I was unbelieving.” Ward also added, “With Sohan

and Manjit you have to be a little careful sometimes.” When asked what he meant, Ward

replied, “I don‟t have any disrespect for them. Sohan struggled with alcohol – I look at

that as a problem – had to deal with that.”

Subsequently, Ward immediately went to look for Panghli towards the DDM and the

exits and the parking lot by the Mill‟s main gate. He did not check the bathrooms. When

Ward went back inside the Mill after failing to locate Panghli, he found Sohan, with

Manjit at his side, making a 911 call in the offices by the lunchroom. Ward then took

over the call, explained the situation to the operator on the other end of the line and

subsequently put Sohan and Manjit together in a locked room to “have them safe” while

he resumed his search for Panghli.

Sometime between 0445 and 0450 Mill employee Chuck Prest said he saw Panghli

exiting the Mill through the main gate. Prest maintained that the timing was closer to

0445.

When Ward resumed his search for Panghli after the 911 call and putting Sohan and

Manjit in the locked office, he found Panghli coming through the main gate towards the

Mill sometime between 0459 (according to one police report) and 0505-0506 (according

to Ward‟s testimony and another police report). Ward put his arm around Panghli and

led him to a waiting police car. According to Ward, Panghli kept saying he was sorry he

was late and squatted down when they reached the police car picking up a few pebbles

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and throwing them. Ward testified, Panghli “wasn‟t breathing hard or anything like that,

wasn‟t walking really fast – was walking normally.”

Panghli was handcuffed and taken to the local RCMP detachment where he was

thoroughly questioned and detained. The RCMP also later interviewed Sohan, Manjit,

Katona, Bryson, Thandi, Facey, Ward and Westergaard.

The Employer (Joe Facey, accompanied by various other Employer representatives)

conducted a series of post-event interviews in an attempt to determine exactly what

took place at the Mill on the morning of January 26, 2009. Facey acknowledged in

cross-examination that he was not a trained investigator.

Sohan was interviewed on the afternoon of January 26 and again on January 28. Manjit

was interviewed on January 27 and again on January 28, right after Sohan‟s second

interview. It should be noted that Facey attempted to keep Sohan and Manjit separated

between their respective January 28 interviews. To that end, he specifically told Manjit

to remain waiting by himself in a boardroom while Sohan was being interviewed, until

Manjit was called for his own interview. However, despite these instructions, Manjit left

the boardroom when Sohan came out of his interview and the two men had a brief

conversation and exchanged a cell phone prior to Manjit‟s interview.

Panghli was interviewed on February 11 and at that time was presented with the

transcripts to Sohan and Manjit‟s interviews and asked to comment on their contents.

The Employer also interviewed Forklift Operator Richard Edgar on January 27, Forklift

Operator Juspan Kheleh on January 27, John Katona on January 26, Kelly Bryson on

January 27, Charnjit Thandi on January 27 and Mike Ward on January 26, 27 and

February 2, as well as receiving Ward‟s written report, which was submitted on January

26. Facey provided comprehensive viva-voce evidence and explanations of the minutes

of the Company‟s many interviews with those involved in any way with the incident of

January 26, 2009. It should be noted that both Facey and Brenda Stockford testified to

the accuracy of these notes but Sohan and Manjit both took issue with certain points in

the Employer‟s notes of their interviews. Sohan and Manjit were not offered an

opportunity to sign their witness statements, unlike some of the other witnesses.

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On the day of the incident (January 26, 2009), Sohan elected to remain at the Mill to

operate the DDM. Later the same day he visited his doctor from whom he obtained a

note advising the Employer that he had suffered “traumatic stress in the workplace” and

may miss work. Manjit left work right after the incident on January 26 and was driven

home by Ward. The next day, January 27, 2010, he visited his doctor (the same doctor

as Sohan) who advised in a written note that, “Manjit Heer is not able to work this week

due to PTS [Post Traumatic Stress] incident [at] work.”

On January 30, it was confirmed by the Company that Sohan and Manjit were on

medical leave. On February 20, Sohan and Manjit were both sent letters advising them

that the investigation was continuing. The letter stated, “But we can say we have

conflicting evidence, some of which touches on the veracity of your report,” and went on

to explain that Panghli had been charged with five counts of criminal conduct. The letter

concluded with the following paragraph:

We candidly advise you that, should we conclude from the totality of the evidence, when available, that your report was a fabrication arising out of the animosity between you and Mr. Panghli, which is a matter of public record in the mill, your employment will be terminated. You can further rest assured that should we conclude Mr. Panghli carried out the actions you reported, he will be dealt with accordingly.

Sohan and Manjit both also applied for crime victim assistance benefits from the B.C.

Ministry of Public Safety and Solicitor General (which were ultimately denied), and the

day after the event both also made WorkSafe BC Teleclaims for mental stress (which

were also both subsequently denied and under appeal at the time of this hearing).

The WorkSafe BC report included in part the following regarding Sohan‟s claim:

…

Regarding WorkSafe BC Claim No. SC09108073

Thank you for the opportunity to speak with you on Friday February 27, 2009. This letter will outline my decision to deny your claim.

Your teleclaim application on January 27, 2009, describes an incident that took place in the lunchroom between you, Mr. Manjit Heer and a co-worker, Mr. Panghli. You report that you and Manjit were sitting in the

15

lunchroom when another worker (Mr. Panghli) came into the room with a gun. You reported that he loaded the gun and told you that he was going to kill 4 or 5 people because they were talking about him in the lunchroom. You reported that you and Manjit were able to get the gun away from him. You are applying for a mental stress claim.

The issue I must decide is whether you have entitlement to compensation for mental stress…

I have considered the following evidence in rendering my decision:

January 27, 2009: Teleclaim - You reported that Mr. Panghli, suddenly came into the lunch room with a gun threatening to shoot 4 or 5 people in the room. You reported that you and Manjit were able to get the gun away from Mr. Panghli. The police were called and the gunman was arrested.

February 5, 2009: In a telephone conversation with me you told me essentially the same recollection of the incident as you reported to the teleclaim with the exception of taking the gun away from Mr. Panghli. You further elaborated that nothing happened at work to provoke the incident and you did not think it had anything to do with work.

After various interviews the day of the incident, you worked the rest of the shift at Mr. Panghli‟s DDM position.

The employer conducted an accident investigation which included several witness interviews performed on the day of incident and over the days that followed. None of the three other employees in the lunchroom at the time corroborate the allegations. No threats were heard and no one saw a gun or ammunition

Mr. Panghli denies these allegations.

The RCMP did not find a gun or ammunition on Mr. Panghli‟s person or at the Mill.

The prevention officer‟s investigation of the incident is similar to the employer‟s report. No threat or traumatic event could be objectively identified.

I do not have sufficient evidence to confirm your recollection of the events of that day. Your recollection of the events changes each time you are interviewed. Witness accounts of that day do not support a life-threatening event. I find no evidence to support that a life-threatening event took place on January 27, 2009. It is my decision this situation does not meet the criteria necessary under Section 5(1) of the Act as an acute reaction to a sudden and unexpected traumatic event…

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The WorkSafe BC included in part the following regarding Manjit‟s claim:

…

Regarding WorkSafe BC Claim No. SC09108118

Thank you for the opportunity to speak with you on Friday February 27, 2009. This letter will outline my decision to deny your claim.

Your teleclaim application on January 27, 2009, describes an incident that took place in the lunchroom between you and a co-worker. You reported to the teleclaim officer that a co-worker suddenly came into the lunch room and pointed a gun at you and other workers and threatened to shoot 3 – 4 guys in the room. You are applying for a mental stress claim.

The issue I must decide is whether you have entitlement to compensation for mental stress…

I have considered the following evidence in rendering my decision:

January 27, 2009: Teleclaim - You reported that a worker, Mr. Panghli, suddenly came into the lunch room and pointed a gun at you, threatening to shoot you and 3 – 4 other people in the room. The supervisor Mike was called in and when he entered the room the gunman ran away. The police came shortly after and the gunman was arrested.

February 5, 2009: In a telephone conversation with me you told me essentially the same recollection of the incident as you reported to the teleclaim and further elaborated that nothing happened at work to provoke the incident and you did not think it had anything to do with work. You then went on to say that he did not actually point the gun at you, or threaten you directly, but that he loaded bullets into a clip and said that some people would have to die. You reported that the gun was placed on the table surface in front of Mr. Panghli, while he was loading the clip.

The employer conducted an accident investigation which included several witness interviews performed on the day of incident and over the days that followed. None of the three other employees in the lunchroom at the time corroborate the allegations. No threats were heard and no one saw a gun or ammunition.

Mr. Panghli denies these allegations.

The RCMP did not find a gun or ammunition on Mr. Panghli‟s person or at the Mill.

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The prevention officer‟s investigation of the incident is similar to the employer‟s report. No threat or traumatic event could be objectively identified.

I do not have sufficient evidence to confirm your recollection of the events of that day. Witness accounts of that day do not support a life-threatening event, and your recollection of the events changes each time you are interviewed. I find no evidence to support that a life-threatening event took place on January 27, 2009. It is my decision this situation does not meet the criteria necessary under Section 5(1) of the Act as an acute reaction to a sudden and unexpected traumatic event…

Sohan and Manjit both returned to work on February 23, 2009.

The RCMP charged Panghli on five counts. The Employer elected to suspend him

pending the results of the RCMP investigation and pending the results of its

independent psychiatric assessment. When these were both received in June 2009,

with the RCMP dropping four of the five charges, and the psychiatrist giving Panghli a

“clean bill of mental health”; the Employer reinstated Panghli on June 16, 2009 and

terminated Sohan and Manjit on June 22, 2009 – thus giving rise to these Grievances.

According to a report from John Hogg, Panghli‟s lawyer, Panghli pled guilty to “careless

storage of a firearm and ammunition in his home (they were upstairs in his bedroom

closet without trigger locks, etc.) … similar to thousands of other Canadians.” Panghli

was fined $400 per firearm for a total of $1200 and received a two year prohibition of

possessing firearms – he consented to the Beretta handgun being confiscated

permanently.

Facey testified that after he received and reviewed copies of the WorkSafe BC reports

of February 27, 2009 rejecting both Sohan‟s and Manjit‟s claims of January 27, 2009,

and after “reviewing the numerous variances of the witness [Sohan‟s and Manjit‟s]

statements themselves and the numerous variances of what others had said, the scales

of probability shifted to Panghli‟s favour.” However, he added that it was not until the

outcome of the pending criminal charges and the psychological assessment that he had

the peace of mind to return Panghli to work. Facey said that without these, Panghli

would not have been allowed to return to work. At this point, he concluded the Grievors

had been lying about the event in the lunchroom on January 26, 2009.

18

Discrepancies in testimony and interview accounts

As already stated in addition to the above facts in this case, there are innumerable

instances where the witness accounts differ vastly. It is imperative to the determination

of this case that I assess the credibility of Panghli, Sohan and Manjit. Therefore, I have

provided the reader with a number of examples (not in the least exhaustive) of the types

of inconsistencies that were revealed in the evidence on a number of topics.

Relationship between Sohan and Panghli

Panghli testified that he and Sohan had known each other since 1976 and had been

good friends who enjoyed many social activities together including hunting and fishing.

As stated above, Panghli‟s opinion was that their relationship became strained after

Sohan unsuccessfully tried to bump him from the DDM position. He testified that Sohan

often gave him dirty looks and whispered around him. He said that more recently Manjit

had also begun to ignore him. Panghli characterized these actions as being

“disrespectful” and outlined that in the Indo-Canadian community the actions of the type

employed by Sohan and Manjit were offensive and serious.

Panghli testified, “After [the DDM bid] we didn‟t have the same relationship we had

before. We still went out and hung out; but that „good love‟ wasn‟t there … In the

workplace when we saw each other it was like the hatred look towards each other, from

brother Sohan. Slowly it got worse, facial and head movement, whispering to himself.”

In cross-examination, Panghli disagreed with the proposition that he was worried about

Sohan taking his job on the DDM.

Panghli further testified that Sohan sometimes deliberately blocked him from going to

the washroom near Sohan‟s workstation and that one time when he managed to get into

the washroom before Sohan could block him, Sohan continuously banged on the door

while he was using the facilities.

For his part, Sohan testified in direct examination that contrary to Panghli‟s evidence

about their early history as good friends, he had only been hunting or fishing with

Panghli “maybe one time.” However, in cross-examination, he acknowledged he did go

19

hunting and fishing with Panghli, “when he used to force me to go, I‟d go, but not

something I liked to do.” Nonetheless, later he acknowledged they had been “very good

friends.”

Sohan also commented on Panghli‟s character in his direct examination:

Our brother Sam, when he need something, he treats the person like they are everything to him and if he gets something – whatever he wants – then it‟s okay. But if he doesn‟t get something then he becomes your enemy, no matter who it is. That‟s why he doesn‟t speak to his brother-in-law, brothers. If he wants something and sees you, he gives you a big hug. If he doesn‟t get it and meets you in a couple of days, he turns his head the other way. If he gets what he wants, you are his best friend, everything to him. If he doesn‟t you are nothing to him. Merritt is a really small town; everybody knows everything. My family, his family, my roots, his roots, all the people think this way.”

In cross-examination, when asked if it was his view that the Indo-Canadian community

in Merritt did not have much use for Panghli, Sohan stated, “I think I myself made a

mistake [in direct examination] – I didn‟t know whether they liked him or not.”

When he was reminded he had testified that “No one ever comes up to Panghli and

asks how he‟s doing – not even his closest relatives,” Sohan explained, “No - what I

stated was -- what he said to me before at my friend‟s house – he used to state himself

– that „my relatives do not want to interact with me‟.” Further, Sohan did not remember

other comments from his direct examination noted above which were repeated to him

and finally said, “Maybe when I said it, I didn‟t mean it that way.” Later he completely

reversed his direct examination response and said there are “No concerns [about

Panghli] outside the Mill.”

He also stated in cross-examination that he respects Panghli. When asked how he

equated that with his earlier comments about Panghli having no use for you unless he

needs something, Sohan said, “No I stated that he stated to myself that when he didn‟t

need anyone, he wouldn‟t talk to them.” When pressed about when that statement was

made by Panghli, Sohan agreed that perhaps it was over 30 years ago.

20

Sohan also asserted that he did not badmouth Panghli at work or in town as nobody

ever asked him. However, Juspan Kheleh told the Employer in his January 27, 2009

interview that Sohan had told him (Kheleh) that he did not get along with Panghli.

Sohan further stated he had “been working there for 36 years and never argued with

anyone else – not with any Foreman.” In cross-examination, he defended this statement

by saying, “Ask anyone at the Mill.” But when pressed, Sohan recalled he had been

involved in an incident in the Mill yard with another employee, a Mr. Delassandro,

culminating in Sohan being punched in the face by Delassandro. Sohan explained this

incident by clarifying, “But it wasn‟t an argument” and claiming he had no responsibility

in this incident “[Delassandro] was throwing rocks at me from a far, I don‟t know why,

and then he punched me …”

Despite any animosity between the Grievors and Panghli, all three agreed that if the

Grievors were reinstated, they could work together.

Lunchroom conversation/events and immediately following

The chief area of contention in this matter concerns the conversation and events that

occurred between Panghli and the Grievors on the morning of January 26, 2009 in the

lunchroom.

According to Panghli, on the day in question, January 26, 2009, he came to work at

about 0400. Mike Ward confirmed he had already seen Panghli go into the Foreman‟s

office at approximately 0410 to check the previous shift‟s production. Panghli said once

he ascertained that there were not enough logs to run his machine, he went to the

lunchroom for the safety meeting, at about 0445 or 0450, where he saw Manjit and

Sohan. Panghli said that Sohan started whispering and “looked at me in a real bad way

with his head shaking back and forth.” Panghli said that at that point he spoke up and

asked Sohan why he was acting that way. He testified that his words were something to

the effect of, “What is wrong, is wrong. The way you treat me, I cannot tolerate it any

more. Lots of years have gone by, if it continues I‟ll kill myself.” Panghli testified that

Sohan replied, in a loud angry way, “„you talking to me?‟” When Panghli replied, “Yes”

he said that Sohan got up and walked out the door.

21

In testimony, in his interview with Facey and in his RCMP interview, Panghli denied

bringing a gun to work, loading the gun in the lunchroom or threatening to kill four or five

people. As noted at this hearing he did agree that he told Sohan that he might kill

himself. The notes from his February 11 Employer interview, indicate that Panghli also

told Facey that during their lunchroom conversation he said to Sohan,

I respect you all the time. I never talk bad to you, never bad mouth you every time I see you, you get pissed off at me. If you hate me that much over this job I just can‟t take it anymore. I cannot live like that every day. I‟m just going to kill myself.

In his RCMP interviews, Panghli declined to advise the RCMP that he had threatened to

kill himself during his conversation with Sohan. In cross-examination, his answer was,

“[The officer] never asked me if I said „I‟m going to kill myself‟.”

Panghli‟s account contrasts directly with the evidence of Sohan and Manjit at this

hearing. In essence, they testified that, in Sohan‟s words, “[Panghli] came and sat down

and looked towards us, he gave us a bad look, towards me and Manjit, he was stroking

his beard.” According to Sohan, the two of them did not say anything, when:

[Panghli] took out a small little box and he put it on the table. I didn‟t see exactly where he took it out from. He was wearing one pajama and one hoodie jacket with a jacket underneath – like those fleecy jackets. The zipper was open and he had the hood over top. From down – I don‟t know where – he pulled out a gun. He pulled the magazine out from underneath. He had the box on one side and he put the gun down beside. Then he started talking to us. In his hand he had a magazine and he took out – not sure how many – maybe two, maybe three [bullets] and started putting them in there. I was scared when I looked [at the gun] but it looked like it was black. Top portion looked like it was silver – the barrel – looked to me like it was silver. Sam said, „you guys are talking about me here. And I‟m going to kill four or five people and I really respect you guys‟.

Sohan said he responded, “I do too, did I say anything to you?” According to Sohan,

Panghli then reportedly said a couple of times, “I‟m not going to open my mouth –

conversation can go really far – I‟m going to kill four or five people – if I die it doesn‟t

matter‟ – that‟s all he said.” Sohan went on to testify:

[Panghli] was talking really slow. He grabbed the box and put it down – then he put his hand on the gun and put it down as he was talking. He

22

used one hand when he put the gun down – one hand was on the table toward the door as he picked up the box and put it down somewhere, he put his hand on the table and grabbed the gun. This all took one to two minutes – could have been more. I don‟t know. At the time only Manjit and I were in the room. When he put the gun down John Katona entered the room… at that time he had hidden the gun… I don‟t know if he put the gun in his pocket – the front pocket – I‟m not sure where he put it.

Sohan testified that Katona stood at the door beside the Coke machine, put his lunch kit

down and walked away. In fact, Sohan and Manjit allowed that Katona was the only

other person in the room during the conversation with Panghli, and that no one else was

seated at the table. This evidence was refuted by Panghli, who testified that Mill

employees Charnjit Thandi, John Katona and Kelly Bryson had all entered the room

during the conversation; and by Katona, Thandi and Bryson who all testified that they

were in the lunchroom while the Grievors and Panghli were talking. Moreover, Katona

testified that he was seated at the table with the Grievors and Panghli, at right angles to

where Panghli was sitting for some of the conversation. Katona said:

When I entered the lunchroom I put my lunch kit on the floor, sat down at the table and had a coffee I brought. They were talking in their own language. I didn‟t pay any attention; it was a regular conversation, no raised voices. No one appeared upset.

Bryson substantiated Katona‟s impressions of the mood in the room when he testified

that “There was absolutely no excitement in the room.”

For his part, Thandi testified that he had no recollection of what the three men were

saying or doing in the lunchroom.

At the end of the conversation, Sohan left the room and was followed by Panghli and

then Manjit. Sohan testified he was so scared he ran to get the Foreman. In both of his

interviews with the RCMP, he said he ran outside to the Foreman. Manjit testified that

Sohan actually “ran out of the room”, but in cross-examination agreed that it was more

like a “fast walk.” Witnesses John Katona and Kelly Bryson both testified that they did

not notice anything unusual in the manner in which Sohan or the others left the room

and that their exit was orderly and not rushed.

23

Manjit testified under cross-examination that when Panghli was loading the gun

magazine in front of him and Sohan, “at that time I didn‟t think of running out,” nor did he

think of yelling or issuing a warning when others, like Katona, came in.

Manjit said in cross-examination he eventually followed the other two rather than take

the safe outside door from the lunchroom, because he did not think of it. Sohan testified

that he did not try to disarm Panghli because “in the Mill they did not train us to disarm

someone like that. I think it‟s the duty of the Safety Chair to show us how to disarm

someone.”

Panghli testified that although he left the room after Sohan, he did not engage in further

conversation with him.

For his part, Manjit testified he first told Thandi, “Sam brought a gun” and then left the

lunchroom following Panghli.

Both Katona and Bryson testified that after the three men left the room, they heard

“hollering” for about five or ten seconds from the hallway and then Manjit came back

into the room. Thandi testified that he did not see the men leave the room and did not

hear anyone speaking Punjabi in the hallway.

According to Ward‟s testimony, at approximately 0445 on January 26, 2009, “I was at

the trim ladder just outside the lunchroom door – standing on the trim line, trimming –

running the trimmer optimizer when Sohan stepped out of the lunchroom and said “

„he‟s got a gun‟.” Ward agreed in cross-examination that at the time he could see people

walking by him, but not behind him. Ward did not see Manjit at that time, although

Sohan stated that Manjit was behind him when Sohan was speaking to Ward.

Sohan testified that he left the lunchroom intending to look for Ward, he said he looked

at the trim saw where Ward usually was – and where Ward testified that he indeed was

at the time. According to Sohan, Ward was not at the trim saw, but at the end of the

catwalk by the trimmer infeed unscrambler on the way to the Ukiah – further from the

lunchroom than Ward testified.

24

Manjit‟s evidence was he came upon Ward and Sohan “at the trimmer scrambler

sidewalk, by the stairs.”

Wherever it occurred, both Sohan and Ward agree that Sohan issued a warning to

Ward. Ward stated he was four to five feet away from Sohan when Sohan stepped out

of the lunchroom and said “he‟s got a gun.” Ward explained, “Sohan repeated this – he

was fairly loud – I had [ear] muffs on – I had a difficult time hearing him at first.” Ward

asked Sohan whom he was referring to and Sohan replied, “Sam‟s got a gun.” Ward

asked, “Who again?” Sohan replied, “Sam‟s got a gun – he‟s gone.” According to

Ward‟s testimony, Sohan did not say anything about Panghli threatening to kill anyone

at that time.

Ward stated that it was while he was locking Sohan and Manjit up later that Sohan told

him that Panghli had said he was tired of four guys bugging him and was going to shoot

those four guys and two more. Ward testified it was also at that time Sohan told him that

while Panghli was talking to him and Manjit in the lunchroom he (Panghli) had taken a

gun out of his coat and started loading it. Ward provided statements to the RCMP and

the Employer which contained much of the same information; but varied in precisely

what was said to him by Sohan at particular times.

Sohan stated at his first interview with Facey on January 26 at 1530 that he told Ward

when he first found him “Sam has a gun and is going to shoot us.” At this hearing, he

said he told Ward at that time Panghli had a gun and was going to kill four or five people

and to phone the police. The notes of Sohan on January 26 included about this “I said

Sam has a gun. He wants to kill four or five people. Call the police, call the police.” This

statement was put to Ward who replied that when he came out of the lunchroom, Sohan

did not say that.

Manjit, for his part, then returned to the lunchroom to issue a warning to the men inside

and nobody saw where Panghli went.

Panghli testified that after he left the room, he went directly to the washroom where he

stayed for seven or eight minutes. He said that during that time he was thinking that he

had to get out of the Mill because he was upset and angry. He had some pills in his

25

pocket that had been prescribed to relax him, but he testified that he could not recall if

he took one, although in his February 11, 2009 interview with the Employer he stated,

“I‟m taking some pills and sometimes they make me feel dizzy.” In cross-examination at

this hearing he affirmed “I‟m not saying I‟m changing my story, all I can tell you is I didn‟t

take my pills.” Panghli had told the RCMP on January 26 that he took some pills.

Panghli said he then left the Mill and started walking towards his house. His house is

five blocks from the Mill – and on the evidence, it takes approximately six and a half

minutes to walk each way. Panghli testified that he did not reach his house; rather he

turned around when he got to “John Suzuki‟s house … started to cool off and walk back

to the Mill” where he met Ward at the gate. He implied that he did not go home because

he realized he loved his job so much he did not want to jeopardize his job, because if he

quit “then Sohan would do it.”

Although Panghli disclosed that he had a Beretta handgun and two rifles and a box of

bullets at his home, he denied emphatically that he had brought a gun or bullets to work,

that he went back to his house to put away a gun or that he ever said he was going

home to get a gun.

The Gun and Bullets

A key point of contention in this case is what exactly gave rise to Sohan telling Ward

that Panghli had a gun. Sohan and Manjit both vehemently maintain that there was

indeed a gun, that Panghli loaded its magazine in the lunchroom and then the gun itself,

and that he threatened to kill four or five people. Panghli equally vehemently denies this

accusation.

There was a great deal of testimony regarding what kind of gun and bullets the Grievors

allegedly saw.

In his first interview with the Employer on January 26, the minutes of the interview

indicate that Sohan stated, “[Panghli] pulled out the bullets and put them on the table.

Then he pulled out a pistol or revolver, it was a little gun.” He went on to say that

Panghli “pulled out the magazine and put bullets in.”

26

Facey testified that during this meeting, Sohan said, “Panghli reached into his pocket

and pulled out a handful of bullets and put them on the table. He then dislodged a clip

from the gun and began loading it in one by one. He then put the clip back in the gun

and held the gun on the table.” Stockford testified that during the interview, at which she

was present, she emphatically remembered “[Sohan] didn‟t say bullet box, he put his

hand in his pocket and put it on the table with a closed fist…There is no way he said

„bullet box‟ in that first meeting.” Facey also testified that Sohan had not mentioned

anything about a box during the first interview. In cross-examination, Sohan denied ever

making any gesture or indication of Panghli putting individual bullets on the table.

However, in his second interview on January 28, Sohan said it was a box of bullets that

Panghli had taken out of his pocket. When asked if he saw Panghli take bullets out of

his pocket, Sohan replied, “Yes, he took a box out and put it on the table.” He could not

recall the color of the box. During that interview, he reiterated that Panghli had taken the

magazine out of the handle of the gun, inserted bullets and then put the magazine back

in the gun. At this interview, he identified the gun as being brown or black.

Sohan alleged at this hearing that the minutes of his first Employer interview were

incorrect, that indeed he did not say, “He pulled out the bullets and put them on the

table,” asserting that he never referred to Panghli having loose bullets in his pocket.

However, in his statement to the RCMP at 0827 that same day, he said, “He pulled out

the bullets from his pocket” then stated, “Package, eh” and later repeated, “He put

bullets on the table.” Sohan agreed in cross-examination that his interview with the

RCMP on January 26, 2009, was conducted without an interpreter and was accurate.

Sohan told neither Facey in his interviews, nor the RCMP how many bullets Panghli

actually loaded. As noted above he gave an explanation of inserting bullets into the

magazine before putting it back in the gun, which could have been taken to mean the

gun was then fully loaded. However, after the demonstration at this hearing where it

took Panghli one minute and 40 seconds to load the clip with eight bullets, Sohan‟s

evidence was that “he took out two, maybe three bullets, not sure how many” and

loaded them. Manjit also testified Panghli loaded two to three bullets for the first time at

this hearing.

27

For his part, in his first interview with the Employer, on January 27, Manjit said Panghli

“put a small box full of bullets on the table … I see a small gun and he start to fill it up.

He said, „I want to kill four or five people‟.” He said the gun was “black and silver” and

added, “The handle was black.” In his second Employer interview, on January 28, the

minutes reflect Manjit reportedly identified the gun as “a revolver” and repeated that he

thought the gun was black and silver. Facey and Stockton maintained in testimony that

Manjit indeed identified the gun as a revolver, however Manjit testified that the Employer

notes were wrong and that he never said “revolver”, that in fact he said, “Small gun.”

Stockton, who took the notes, testified that the word “revolver” in her notes definitely

came from Manjit, as she knows nothing about guns and simply wrote down what he

said.

Whether from a box or loose bullets, Sohan and Manjit agreed that Panghli put the gun

down on the table when he was loading it and then sat “with the gun below the table.”

They agreed that when Katona entered the room, according to Manjit, Panghli had

hidden the gun, put it “back in his pocket.” Or, according to Sohan, he “put it down

somewhere. He had already picked up the box and put it in his pocket or somewhere.”

During the second Employer interviews, Sohan and Manjit were both asked by Facey to

look at some photos of guns and identify which of them looked like the one allegedly

brought in by Panghli. Despite the fact that they had described different guns earlier in

their interviews (i.e. Manjit allegedly said a silver and black revolver while Sohan said

the gun was brown or black), both identified the same gun, a black Jericho 941 F, with a

magazine, in the gun picture which most closely matched Panghli‟s hand gun. It will be

recalled that this was the day when Facey unsuccessfully attempted to keep the

Grievors separated between interviews. Facey commented, “I tried to keep the two

witnesses separated so I could get a fair assessment on the pictures of the guns

…unfortunately that didn‟t work.” At this hearing, according to his testimony, described

previously herein, Sohan said the gun looked like it was silver – the top part of the barrel

looked silver. Sohan had told the RCMP in his second interview he could not say what

colour the gun was because he was so scared.

28

Other than the Grievors, no witnesses saw a gun or bullets in the lunchroom or on the

premises.

Panghli testified that not only did Manjit know he owned a Beretta handgun, but that

Manjit had actually seen the Beretta when he came over to Panghli‟s house once a few

months prior to the incident. In fact, Panghli testified that Manjit was the only person

who had ever seen the Beretta and that Manjit picked up the gun and “had a look at it.”

Manjit claimed he had only been at Panghli‟s house once and denied he ever saw or

handled the Beretta.

After Panghli‟s arrest, the RCMP retrieved an all-black Beretta handgun; a magazine

clip; a box of with 50 rounds of Beretta ammunition in a suitcase or box; two rifles and

rifle ammunition from Panghli‟s home in a hidden closet off his bedroom. There were

also documents relating to the firearm purchases and registration.

Alleged Position of the gun

In his January 27 interview, the Employer‟s notes indicate that Manjit stated that Panghli

did not point the gun, but demonstrated Panghli holding a gun in his lap. The notes

state, “I observed Manjit‟s right hand hold his left hand and demonstrate that [Panghli]

held the gun in his lap…” Later in the interview, the notes state, “… I observed him

demonstrating again with his right hand holding his left hand in his lap.”

According to the Employer‟s notes, Sohan indicated a similar perspective of the events

in his January 28 interview with the Employer, wherein he acknowledged that Panghli

did not point a gun at him, and demonstrated to the Employer that Panghli held the gun

cupped his hands in his lap under the table at waist position to show how he held the

gun. Later in the same interview he said, “Yes, [Panghli] put bullet in one by one and

then he sit with gun clasped above the table so we can see.” I observe that the notes of

Sohan on January 26 reflect that after Panghli loaded the gun he put the gun in his right

hand below the level of the table, between his legs, and that when Katona walked into

the lunchroom Sohan looked down and the weapon was gone.

29

However, in a demonstration at this hearing, it was clear that from the position of the

table and the distance between the parties, it would have been impossible for the

Grievors to see how Panghli held a gun in his lap unless Panghli was sitting at least 36

inches back from the table. John Katona testified that Panghli was actually sitting “a

few, maybe six inches away” from the table. After this demonstration, Sohan testified

that the minutes from the January 28 Employer meeting were incorrect insomuch as he

claimed in testimony that he “couldn‟t see [meaning the gun] from the other side

because his chair was low.”

Attendance in the lunchroom

Sohan stated at the first interview with the Employer, on January 26, 2009, that at the

material time, no one was seated in the lunchroom at the table other than himself,

Panghli and Manjit. Sohan said, “The Chipperman, John, John Katona, he came to

open the door and [at that time] Panghli put [the] gun below the table so he [Katona]

won‟t see it.” He also said at his RCMP interview of January 29, 2009 “then one guy‟s

come inside he has the gun right beneath – he saw somebody open the door … so he

hide the gun – then I, I run away. I don‟t know what happen.” Sohan also said at that

interview he thought he saw maybe Thandi, too, but was not a hundred percent sure

because he was so scared he ran away. Manjit agreed that Katona was “just standing

there looking out the window” and said in his first interview, “Yes, when John came in,

Sam put the box back in his pocket.”

On the other hand, Katona testified that he was sitting at the table with the Grievors and

Panghli before the three of them left the room. Katona testified that when he entered the

lunchroom earlier that morning he sat down at the table in his usual seat with his coffee

and “they were talking in their own language – I don‟t understand it and didn‟t pay much

attention to it – Sam and Sohan and Manjit – no voices were raised – it was regular

conversation – no one appeared upset.” He did not notice who else was in the room at

the time.

Katona told Facey in an interview at 1030 on the morning of January 26, that he was

indeed in the lunchroom for about five minutes while the Grievors and Panghli were

there. “They weren‟t talking loud, just speaking in a normal voice,” he said in the

30

interview with the Employer, adding that he could not understand what they had said

because it was in Punjabi.

Katona also told the RCMP in an interview on January 30, that he sat down “probably

on [Panghli‟s] right hand side on one of the benches on the side of the table.” He drew

the RCMP a picture of where people normally sat and seemed to have indicated his

usual seat was at a right angle to where Panghli sat when he attended.

Thandi told the Employer during his interview that he was in the lunchroom but that he

did not see either Katona or Bryson come into the lunchroom at all. Thandi said, “I see

Manjit and Sohan sit at lunch table by locker. Sam was sitting in chair away, but in front

of them; looking at them and talking to Sohan and Manjit.” He said they were speaking

in Punjabi for about one to one and a half minutes while he was there before Sohan got

up. Thandi said that he was the only bystander in the room.

Manjit said he did not see Bryson in the lunchroom. Bryson told the Employer that he

was in the lunchroom while the Grievors and Panghli were sitting at the table. “I walked

into the lunchroom, Sam was sitting at the end of the table; Sohan, Charnjit and Manjit

were there, I‟m not sure about Surjit. John Katona was definitely there. I went over to

my locker, I‟m not sure how long I was there, all the East Indians went outside.” Bryson

said they were “hollering” outside the lunchroom Bryson also said in this interview that

nothing was being said when he first entered the lunchroom – “there was no shouting or

hollering. They did not start hollering until after they left the lunchroom…”

Panghli said that aside from himself and the Grievors, Thandi, Bryson and Katona were

all in the lunchroom.

What Manjit told the crowd in the lunchroom when he returned

After Sohan, Panghli and Manjit all left the lunchroom, Manjit quickly returned. Manjit

said in his first interview with the Employer that, “by then everybody was in the

lunchroom standing around asking what happened. I said Sam had a gun and was

loading it in the lunchroom.” He added that Thandi, Bryson and “everybody who comes

for the Monday meeting” was in the lunchroom by that time.

31

Katona stated in his interview with the Employer that he never saw a weapon:

No, I didn‟t see anything like that. Their [Sohan, Manjit and Panghli‟s] voices were not raised at all, it didn‟t sound like they were arguing until after they left the lunchroom – I could hear them yelling in Punjabi outside the lunchroom. After the yelling, Manjit came back into the lunchroom and said Sam was going to get a gun. He said it two or three times and made a motion of loading a rifle. He then went back out of the lunchroom towards the trim saws. There were other people in the lunchroom when Manjit said this, but I don‟t remember who they were.

Katona testified he had a distinct recollection of what Manjit said because, as he put it,

“after, I didn‟t know what to do – sit there and wait for him to get back with a gun – or

walk out and meet him – get shot…”

In cross-examination, Katona maintained that Manjit made a motion of loading a rifle at

the same time he said, “Sam‟s going to get a gun.” Katona said, “I remembered the

motion, you don‟t forget something like that.” When asked why he had not mentioned

that before to the RCMP, he stated they had not asked him and denied flatly that he

only mentioned it at this hearing because someone had told him this was important

evidence.

For his part, Thandi initially stated he did not remember the RCMP asking him what he

heard Manjit say and his answer to them, “That they tell that somebody, Panghli was

putting, like a pistol you know like that you know.” At this hearing, Thandi said that

Manjit said, “Sam‟s got a pistol,” and testified in cross-examination he could not have

said, “Sam‟s going to get a pistol.” Thandi said he did not tell the RCMP about what

Manjit said because, “They never asked.”

In his interview with Facey, Thandi said only Sohan left the lunchroom, Manjit stayed.

Then after Manjit left and came back – he said, “Sam has a gun.”

Bryson testified that when Manjit returned to the lunchroom, he said, “„He‟s going home

to get his gun and he‟s going to load his gun‟, I have a clear recollection of that.” He

added that Manjit, “made a gesture of loading a gun as he was saying Sam was going

home. I interpreted it as loading a rifle.” He added, “Manjit‟s hand motions were

definitely loading a gun, not a magazine.”

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In his interview with the RCMP Bryson said, “Manjit said to me, „He‟s going to get his

gun‟, or he could have said „Sam is going to get his gun‟, he said he is going to get his

gun … I know he said he was going home, but I had no inkling that there was a gun at

work. He was going home to get the gun. Now that‟s not saying what he meant, but I‟m,

you know, that‟s what he told me.” However, Bryson did acknowledge to the RCMP and

at this hearing that it was possible that Manjit told him Panghli had a gun, not that he

was going to get a gun, but he advised, “That‟s not how I took it in anyway, but possible

absolutely, in fact I think he said he‟s going home to get a gun.” Bryson reiterated in

cross-examination that at no time did he see a gun or believe there was a gun in the

lunchroom.

In his testimony, Manjit denied the testimony of Katona and Bryson and maintained that

he said Panghli “brought” a gun. He said he did not recall making motions of loading a

gun at the time and stated, “No, I told them [Bryson and Katona], I agree I may have

made motions with my hands, but not that way. My English is poor and when I speak I

give hand gestures trying to explain.”

Timing

There are many discrepancies in the timing of the incidents in question. From the time

of the meeting between the Grievors and Panghli, to the amount of time Panghli was

gone from the Mill.

Sohan advised the RCMP he thought he came into work at quarter to five that morning.

In a further interview with the RCMP on January 29, 2009, he confirmed, “Maybe 0445 –

very close – maybe out a minute.” At this hearing, Sohan testified under cross-

examination that he did not have a watch on him on January 26, 2009, and his arrival at

work would have been before 0445, as he usually arrived 30 minutes before the shift.

This evidence changed from his earlier estimates. Other witnesses agreed with Sohan‟s

earlier evidence that he was in the lunchroom at about 0445.

Bryson said that he thought he arrived at the lunchroom at approximately 0445 and that

when he arrived Panghli, Sohan, Manjit, Katona and Thandi were already in the room.

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Ward testified that he was first approached by Sohan at approximately 0445. He had

adjusted his watch from the plant clock, which he explained is about three minutes fast

and read 0448.

Chuck Prest testified that he saw Panghli leaving the Mill at “roughly a quarter to five

[a.m.].” When asked in cross-examination whether it could have been 0450, he said

“Could have, but I don‟t believe so.”

Ward said that he heard the Mill‟s 0500 whistle before he met Panghli returning to the

Mill inside the main gate, and estimated that it was approximately between 0505 and

0506 that he met Panghli.

The RCMP interviewed Panghli on January 26, 2009. In the course of that interview, he

stated (regarding what he did after he left the lunchroom on the morning of January 26,

2009):

So I sitting in the washroom, I you know like I [inaudible] have some pills here. Took some pill, you know I get dizzy. So I go down there, sit on the can, I go have a little washroom, I go like that, I start walking to my machine and here‟s my foreman.

It was only when the RCMP suggested to him they might check satellite pictures of the

Mill and Panghli‟s home and asked him whether they would see him going home from

the Mill after the lunchroom incident that morning that he agreed, “maybe you saw these

pictures.”

During his interview with the Employer on February 11, 2009, Panghli made the

following statement about the same time period:

I went out the lunchroom door and turned right, I went down the stairs, I was pissed off. I went to the washroom for a while. I usually go to the washroom when I get to work. Then I went out of the Mill and left by the main gate. I walked towards the church on Orme Street and turned right and walked toward John Suzuki‟s house I went maybe half way down the block. I was thinking that I love my job so much, it‟s all I want to do. If I quit then he‟ll do it [Sohan]. I start to cool off and I walk back to the Mill. I see Mike Ward. I go into the yard. Mike Ward says, „Sam, you come with me.‟ I told Mike I had to sit down.

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Panghli told the Employer that after he left the lunchroom he went to the washroom and

then left the Mill for “five, six, seven minutes.”

At this hearing, Panghli maintained that he spent “seven to ten” minutes in the

washroom and then left the Mill and started walking towards his house. He stated,

I was thinking when I‟m that upset, that angry, how can I work? I just left the gate and started walking – when I reached John Suzuki‟s house I thought, this is wrong. I can‟t leave this job. I worked so hard for it. I love this job. From that point, I returned to the Mill.

The WorkSafe BC Teleclaims

Both Sohan and Manjit took issue with the written report of their WorkSafe BC

Teleclaims and the testimony of Jennifer Barnes and Mark Powers.

They both asserted that although they each told the Customer Service operator to

whom they respectively spoke that their English was not very good, they were not

offered an interpreter and were advised to proceed with their claims. They also both

took issue with statements that were contained in the letters denying their claims,

statements they profess were not accurate representations of what they actually said to

the Customer Service operators.

Manjit took issue with the statement that he allegedly initially, “reported to the Customer

Service representative that a co-worker suddenly came into the lunchroom and pointed

a gun at you and threatened to shoot three to four guys in the room” and stated that in a

subsequent call he “… went on to say that he did not actually point the gun or threaten

you directly …”

Sohan disagreed with the teleclaim statement recorded by Barnes that he “…reported

[Sohan] and Manjit were able to get the gun away from Mr. Panghli,” an assertion that

Sohan denied in a subsequent conversation with Case Manager, Tamara Erickson.

Manjit also originally testified at this hearing that his claim was correct in that he had

said, “The supervisor Mike was called in and when he entered the room the gunman ran

away.” When faced with that evidence in cross-examination he backtracked.

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It should also be noted that Manjit repeatedly asserted that he only spoke with a female

Teleclaim officer and that this evidence was directly refuted by Mark Powers, who

testified that Manjit initially filed his claim with Bernard Matute, a man.

Powers went on to explain the procedure when a Teleclaim comes in, i.e.: that the

individual operator records the information on the computer and then “reads it back to

the person who calls in, to confirm they have it accurately.”

Jennifer Barnes testified that she has no independent recollection of her telephone

conversation with Sohan when he made his WorkSafe BC claim. However, she did

describe her comprehensive training for taking such calls and her standard procedures

for so doing.

The call from Sohan came over a year after her training and at that time, she had taken

a couple of thousand calls. She had received the copy of his claim from Counsel prior to

giving evidence at this hearing and testified she believed it to be accurate. She

manually types the information on the computer as the claimant makes the claim.

According to Barnes, the information provided all comes from the claimant and would

have come from Sohan in this case. For example, the name of the worker, the

supervisor, the time Sohan went to the lunchroom (0445), the name of the company, the

names of other witnesses all came from the information provided by the worker.

Barnes asserted that despite Manjit and Sohan‟s claim that they were denied

interpreters, WorkSafe BC has in-house interpreters on staff who speak Punjabi,

Cantonese and Mandarin. She testified that if a claimant asks for an interpreter, or if the

Teleclaim operator does not understand what is being said, an interpreter is

automatically brought into the call. In the case of Sohan, Barnes said if he had told her

his English was not that good she would have taken that for a request for an interpreter

and provided one.

In evidence, Sohan also claimed that Barnes told him, “We don‟t accept these kinds of

[mental stress] cases and gave an example of a case that had happened at a gas

station that WorkSafe BC did not accept.”

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Barnes indicated she would never have mentioned any other specific case, as she is

very sensitive to the Freedom of Information regulations that prohibit such a practice.

As to how she confirms the information with a claimant, Barnes said she would not have

reread to Sohan the text she typed, but she would go through the elements referred to

and confirm all the details had been recorded correctly.

Barnes testified, based on her training and the checks and balances, it is her job to get

the correct information from the claimant. She stated about this particular claim (that of

Sohan), “It is correct.”

POSITIONS OF THE PARTIES

The Employer argues this as a straightforward case: If the Arbitrator finds on a balance

of probabilities that the Grievors fabricated the story of Panghli bringing a gun to the Mill

and threatening harm to himself and four to five co-workers, then the termination must

be upheld. If Panghli did not bring a gun to work, the Grievors‟ mischief caused serious

financial and emotional distress to Panghli: he was removed from the workplace in

handcuffs; he was incarcerated for four (4) days; his legal fees were approximately

$15,000; he lost five months income; and he suffered loss of reputation in the

community. In the circumstances, these grievances should be dismissed.

The Employer argues that in addition to the harm inflicted on Panghli, the Grievors

contravened the Company‟s workplace violence policy. The Company makes it clear

that any employee who engages in unacceptable conduct will be subject to disciplinary

action up to and including dismissal. The Grievors, who Employer counsel argues were

aware of this policy, should not be surprised that their harmful fabrications resulted in

their respective terminations.

The Employer contends that the cumulative effect of the evidence adduced destroyed

the underpinnings of the Grievors‟ evidence and their credibility.

Counsel for the Employer asserts that Manjit knew that Panghli owned a handgun.

Panghli testified that Manjit saw the gun during a visit to Panghli‟s house and that he

picked it up and examined it. Panghli‟s evidence was undisturbed in cross-examination,

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was also mentioned in his interview with Facey on February 11, 2009, and counsel asks

that the panel accept that evidence.

The Employer says that Panghli acknowledged that he rarely attended safety meetings,

as he preferred to work instead. On the morning of January 26, he decided to attend the

meeting as his log deck was empty. It was sheer happenstance that he was in the

lunchroom that morning: he did not know the Grievors would be there and he would

have expected the crew to be trickling in for the safety meeting. It seems unlikely,

counsel argues, that Panghli would have brought a handgun into the room to threaten

the Grievors given that he could not expect to be alone with them and he could be

observed by anyone who walked by the large window on the outside door, or the

window in the access door.

The Grievors testified that Panghli loaded the weapon in front of them. Employer

counsel argues there is a glaring discrepancy between their initial statements and their

later descriptions of how that happened. In the interview on the day of the incident,

Sohan described and demonstrated Panghli pulling a fistful of bullets from his pocket

and putting them on the table. In his interview with the RCMP, Sohan said Panghli

pulled the bullets from his pocket but also mentioned a package. The Employer says

this discrepancy demonstrates the facility with which Sohan will embellish a story - it

being far more dramatic and demonstrative to Facey the pulling of a handful of bullets

from his pocket and spreading them across the table. This, submits the Employer, casts

substantial doubt on the veracity of Sohan‟s evidence.

The Employer continues that the box of bullets first appears in the Company interview

conducted with Manjit on January 27 – the day after the incident. In a follow-up

interview conducted by the Company with Sohan on January 28, he now suggests that

Panghli took a box of bullets out and put it on the table. Counsel asks the Arbitrator to

draw the inference that this abrupt change reveals that the Grievors had taken steps to

alter their stories.

Employer counsel points out that the Arbitrator must weigh the credibility of Facey and

Stockford because Sohan denies he ever suggested there were a handful of bullets.

Facey conducted the interview with Sohan on the afternoon of the event and before he

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had interviewed Panghli. Stockford recorded the interview. If you accept Sohan‟s

evidence, then Facey fabricated the interview and enlisted Stockford in the subterfuge.

The Employer reminds us that when the Grievors attended at the workplace for follow-

up interviews on January 28, Manjit was instructed to stay in a separate room and not to

leave until Gene McArthur came for him. Contrary to those instructions, Facey saw

Manjit emerge from the room and engage in conversation with Sohan. Employer

counsel asserts that they were apprising each other of the contents of their statements.

The Grievors both testified that Panghli loaded the magazine or clip of the weapon in

the lunchroom that day. Counsel for the Employer notes that in a demonstration during

the hearing, it took Panghli one minute and forty seconds to load the clip and the

loading required fine motor control. Counsel says that it is difficult to accept that the

Grievors simply did nothing while the gun was disabled on the table and Panghli

manipulated bullets into it. He suggests that the Grievors could have run out of the

lunchroom or upended the table on Panghli scattering his bullets all over the floor.

Employer counsel discounts the notion that the Grievors were too petrified to act: from

his testimony, Sohan had no difficulty exiting the room to go and find Mike Ward.

In another example of an inconsistency in Sohan‟s evidence, Employer counsel says

that in Company interviews, Sohan reported that he ran away from the lunchroom and

that he ran outside to get the Foreman. Katona and Bryson, who testified under

subpoena, were present in the lunchroom when Sohan, Manjit and Panghli exited the

lunchroom. Both said that they just got up and walked out of the room. Counsel asserts

that there is no corroborating evidence that Sohan ran out of the room.

Employer counsel also rejects the Union‟s suggestion that the Grievors had no

opportunity to fabricate the story of Panghli bringing a gun to the workplace. In fact,

says counsel, Sohan was not interviewed by the Company until 9 ½ hours after the

event and Manjit not until the next day which gave them plenty of time to prepare their

stories in detail.

The Employer argues the allegation that Panghli had a gun in the lunchroom is directly

contradicted by what Manjit said when he returned to the lunchroom. Bryson and

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Katona – disinterested arm‟s length observers – testified under oath that the words

Manjit used were “Sam‟s gone home to get a gun." Bryson said that Manjit made the

hand movement of loading a bolt-action rifle. His recollection of these events was

unshaken throughout RCMP questioning. Counsel notes that Panghli did own a bolt-

action Carl Gustav rifle.

Katona‟s evidence, Counsel continues, was consistent and uncontradicted throughout

the arbitration proceeding and in his interviews with the Company and the RCMP. He

too said that Manjit came back into the room and said Panghli was going to get a gun.

Katona expressed the dilemma he experienced: do I leave the lunchroom and meet

him coming back with his gun or do I sit here and then he is going to appear and shoot

me? This dilemma, Counsel contends, is entirely consistent with someone who has

been told a co-worker has gone to get his gun. The RCMP repeatedly questioned

Katona on his recollection but he did not waiver. Further, he too said that Manjit

demonstrated loading a bolt-action rifle.

Thandi, a witness for the Union, gave evidence under subpoena. The Employer asserts

that parts of his evidence should be discounted. He was a reluctant witness, Counsel

says, and his evidence was contradicted by witnesses who are more credible. For

example, Thandi said that only Panghli, Sohan and Manjit were in the room; however,

Bryson and Katona recalled being in the room with the four of them. Sohan testified

that Panghli hid the gun when Katona entered the room. Thandi testified that he did not

see a gun, bullets or a magazine. The Employer suggests that in this regard Thandi‟s

evidence should be preferred over Sohan‟s – Thandi was present and his evidence

excludes the possibility that Panghli produced a pistol and loaded it. On the other hand,

Counsel says, Thandi had no recollection of what Manjit said when he returned to the

lunchroom.

The Employer reviewed the evidence of Jennifer Barnes, a WorkSafe BC Teleclaim

Operator subpoenaed to testify in these proceedings. Characterizing her as a

disinterested, arm‟s length witness, Counsel says she gave her evidence in a

professional and unbiased manner. Sohan testified that he had told the Teleclaim

Operator that his English “wasn‟t that good”; he said that she asked, “Can you try

40

explaining that”. Barnes testified that she would never have said that; she would have

taken my “English is not that good” as a request for an interpreter. On point after point,

Barnes repeated that, based on her experience and training, she could not accept that

what Sohan testified had occurred while filing his Teleclaim, had in fact occurred.

Employer counsel maintains that the Arbitrator should prefer Barnes‟ evidence – based

on her training and experience – over Sohan‟s. Counsel argues the inference that

should be drawn from Barnes‟ evidence is that Teleclaim Operators did not make errors

when taking Sohan and Manjit‟s claims; rather, they significantly embellished their

claims to suit their purposes.

Employer counsel contends that when the evidence of all the witnesses about the time

they arrived in the lunchroom is reviewed, there simply was not enough time for Panghli

to produce and load a weapon in the lunchroom. Similarly, counsel argues that on the

basis of Chuck Prest‟s evidence of when Panghli left the Mill (roughly 0445), the

evidence of various witnesses‟ timed walks to Panghli‟s home and back to the Mill, and

the RCMP‟s records of the arrest, there also was not enough time for Panghli to go

home, empty the weapon of its bullets, store them in their ammunition box and return to

the Mill.

Employer counsel continues that the Arbitrator should ignore what he refers to as the

self-serving evidence of Sohan and Manjit about where Katona sat in the lunchroom.

Katona, Bryson and Panghli all said that Katona sat at right angles to Panghli. As that

location would have better allowed Katona to observe a gun in Panghli‟s lap, the

Grievors say Katona positioned himself by the outside exit door looking out the window.

Employer counsel summarizes Sohan‟s evidence as contradictory and inconsistent.

Counsel says that where there is a discrepancy between Sohan‟s evidence and that of

Facey, Stockford, Ward, Katona, Bryson, Barnes, or Panghli, the Arbitrator should reject

Sohan‟s evidence and accept the more credible witnesses‟ evidence. Counsel asserts

that Manjit‟s evidence is the same: it lacks credibility.

In contrast, the Employer argues, consider Panghli‟s evidence. Despite what counsel

describes as badgering by RCMP Corporal Bartch, Panghli remained adamant that he

did not bring a gun to the workplace. Counsel reviewed the transcript of the RCMP

41

interview and what he calls an “intense police grilling” and argues that Panghli remains

consistent and clear in his responses throughout. As in his evidence during the

arbitration proceeding, the Employer maintains Panghli was resolute in denying that he

brought a gun to the workplace.

Finally, Employer counsel argued that the Arbitrator should give the RCMP

Westergaard transcript no weight, as there was no proof that its contents were true. The

Arbitrator, Counsel continued, should prefer Panghli‟s evidence that his statement

reflected nothing more than Panghli‟s propensity to say in stressful circumstances that

he is thinking of killing himself.

Employer counsel asserts that the applicable standard of proof in this case is the civil

standard of proof on a balance of probabilities. Counsel says the Arbitrator is required to

“scrutinize the relevant evidence with care to determine whether it is more likely than

not that an alleged event occurred” F.H. v. McDougall, [2008] 3 S.C.R. 41 at paragraph

49. The required standard has been met in this case, the Employer says.

The Employer‟s case against the Grievors is that they entirely fabricated the incident of

January 26, 2009 and, in so doing, knowingly and deliberately caused significant harm,

financial and otherwise to Panghli and to the Company. The conduct merits termination

of employment and nothing less, he says.

Counsel argues that the Grievors demonstrated an alarming propensity for dishonesty

and untrustworthiness. Their conduct in respect of this incident ranged from disregard

for the truth in order to secure a benefit for themselves to outright dishonesty. Moreover,

he says, the evidence reflects a persistent animosity over a prolonged period by Sohan

motivated by a personal vendetta against a former colleague and friend. If the Arbitrator

accepts the Company‟s view of this case, Counsel says, it follows that the Grievors

continued to lie throughout the arbitral proceedings.

The Employer insists that credibility is an issue in this case. Mr. Parsons argues that

Panghli consistently denied the allegations levelled against him; and, he says,

disinterested, arm‟s length witnesses provided compelling evidence to support Panghli‟s

denial. Relying on Faryna and Chorny, [1952] 2 DLR 354 at 357 at paragraph 11,

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Counsel says the Grievors‟ testimony does not accord with “... the preponderance of the

probabilities which a practical and informed person would readily recognize as

reasonable.”

Employer counsel argues that in Oshawa Foods -and- United Food and Commercial

Workers International Union, Local 175, unreported, May 17, 1996, Arbitrator Paul

Craven dealt with a similar case albeit one that was not on “all fours” with the present

case. The grievors were suspended and then terminated for what the company

considered to be “false and malicious” and “unsubstantiated” allegations of sexual

harassment against their co-worker. As in the present case, given the gravity of the

allegations, the police were involved and the Award references the police investigation

as well as the employer‟s investigation. As in the case at bar, credibility was a

significant issue. In that case, the Arbitrator rejected the testimony of the grievors and

concluded that the allegations against the co-worker were false. Arbitrator Craven

upheld the termination of one grievor and reinstated without compensation the other on

the basis that she had not made the false allegations but only repeated those of her

fellow grievor.

Employer counsel also relies on Canada Post v. Canadian Union of Postal Workers

[2007] 91 C.L.A.S. 370 where Arbitrator Lanyon found that filing a false claim for

harassment and physical abuse against a colleague was just cause for termination. In

University of Calgary -and- AUPE and Wickham, July 29, 1996, Library File Number 96

094G, the grievor was terminated for making a false accusation of sexual harassment.

The panel concluded at paragraph 166 that filing a false report against a co-worker, in

any workplace, is an “inherently serious matter.” The decision to dismiss was upheld

and the grievance was dismissed.

Counsel for the Employer concluded his argument by urging this panel to do the same

and determine the termination of Sohan and Manjit should stand.

For its part, the Union argues that the job of the arbitrator is not to review the decision of

the Employer but rather to independently assess all of the evidence and come to her

own determination of whether the Employer had just and reasonable cause for

43

termination: Re Houston Forest Products Co. and International Woodworkers of

America, Local 1-424, [1984] B.C.C.A.A.A. No. 31.

The Union says it appears the Employer based its decision to terminate the Grievors on

the Crown‟s decision not to proceed with the charges against Panghli of uttering threats.

However, it is important to keep in mind, it says, that the Crown must determine whether

there is a substantial likelihood of conviction. This standard is higher than the balance of

probabilities standard required in this hearing.

The Union argues that the Employer terminated the Grievors because it believed they

fabricated a story that Panghli brought a gun to work. This employment offence is

similar to the Criminal Code offence of making a false report under the mischief

provision of the Code and the Arbitrator must be satisfied of all of the elements of the

employment offence in order to find just cause for discipline. The Union relies on R. v.

Goodridge, [1998] 132 C.C.C. (3d) 90, at paragraph 9 for the elements of making a

false report.

The Union submits that labour arbitrators have accepted that in certain employment

offences there is a component of mens rea in addition to the actus rea and adopted

elements of Criminal Code offences similar to employment offences as set out in

Canada Safeway Ltd. v. UFCW, Local 1518 (Varley Grievance), [2003] B.C.C.A.A.A.

No. 135; Hoffman Meats Inc. and UFCW, Local 139, [1991] O.L.A.A. No. 61; and

Canadian Airlines International Ltd. v. IAMAW, Transportation District 140 (Egresits

Grievance), [2000] C.L.A.D. No. 604.

The Union says the Arbitrator needs to answer the following question: is there sufficient

evidence to conclude that Manjit and Sohan fabricated a story of Panghli bringing a gun

to work with the intent to mislead the Employer? The Union says the evidence falls far,

far short of proving this issue; that the preponderance of evidence demonstrates that

Panghli brought a gun to work on January 26, 2009 and made a show of loading it in

order to intimidate Sohan, who Panghli thought was after his job and thought

disrespected him. Not only did Panghli‟s denial not carry any ring of truth, the

preponderance of probabilities lies heavily against the Grievors fabricating a false report

for no gain to themselves and at tremendous cost.

44

As such, the Union continues, there is no need to proceed to consider the additional

issues which would be required to dismiss the grievance under the framework set out in

William Scott & Sons Co. Ltd. [1977] 1 Can.L.R.B.R. 1 (B.C.L.R.B.).

The Union says that while the Employer cannot establish on a balance of probabilities

that there was a fabrication of the reported events, there was evidence from the

Employer, from Joe Facey and from Panghli, Sohan, and Manjit that all three

employees could continue to work together.

Relying on the Supreme Court of Canada‟s decision in F.H. v. McDougall, supra, the

Union submits that the Employer has the onus of proving on a balance of probabilities

that the employment offence occurred. The Arbitrator must decide if a fact was proven

or not. The Union continues that in determining if a fact has been proven, the Arbitrator

must ensure the evidence is clear, cogent and convincing and must consider the

inherent probability of events: F.H. v. McDougall, supra, at paragraph 48.

The Union says that significant aspects of the Employer‟s investigation were flawed.

Facey was biased against the Grievors; early on he determined that he did not believe

them and he expressed that to the RCMP and WorkSafe BC. The Employer did not

attempt to clarify statements to WorkSafe that it thought were contradictory nor did it

examine contradictions in Panghli‟s evidence or in other evidence. The Employer

improperly relied on the dropped criminal charges against Panghli to determine whether

the Grievors fabricated the incident.

Further, the Employer improperly relied on a discussion between Manjit, Sohan and

Facey when a letter of discipline was issued to Manjit for failing to wear a seatbelt in

2006. Reliance on misconduct which was not formalized at the time is contrary to the

principles of just and reasonable cause for discipline as outlined in The City of

Vancouver and Municipal and Regional Employees Union (1983), 11 L.A.C. (3d) 122.

The Employer‟s bias against the Grievors is demonstrated by the fact that Brenda

Stockford, who apparently wanted to question Sohan‟s travel time from the gate to

Panghli‟s house, walked the route herself, timed it and then walked it with the Union

plant chair. She did not tell the chair that she had already walked it and that she

45

planned to use her time trial to challenge the evidence of the Grievors. Ms. Stockford

did not share this evidence with the Arbitrator; she only revealed it on cross-

examination. Her failure to be forthright demonstrates her bias against the Grievors.

This bias, the Union continues, is reflected in the denial of a safety chair when

requested by Sohan, while one was offered to Panghli; and the failure to offer Manjit or

Sohan the chance to review and sign their notes, as was offered to other witnesses,

including Panghli.

The Union says that Ms. Stockford‟s assertion that if something was said, described or

demonstrated during the interviews, she recorded it in her minutes. However, she failed

to record a hand gesture used by Sohan that she testified to – demonstrating that her

notes are not completely accurate.

The Employer‟s notes and findings should not be taken as a definitive and authoritative

record of what transpired during the interviews and investigations, the Union says. The

RCMP‟s word-for-word transcription of their recorded interviews is the only truly

accurate record of what transpired during interviews and investigations.

The Union asserts that the RCMP investigation was conducted by independent,

objective, skilled investigators – unlike the Employer‟s. The key findings in the Report to

Crown Counsel are that Sohan‟s statement to the RCMP and the Employer are very

similar; that it is completely possible for Panghli to have left the Mill, walked to his home

and returned based on the observed times Panghli left the Mill and returned; that there

were no significant differences or inconsistencies provided by Manjit or Sohan to the

RCMP or the Employer; and that Panghli did have significant inconsistencies in his

statement to the Employer and to RCMP.

The Union says the Arbitrator should consider that the RCMP conducted an extensive

investigation and probed all witnesses for inconsistencies in their statements. The

RCMP‟s investigation of Panghli was more extensive than the Employer‟s and

demonstrated more inconsistencies.

46

The Union submits that the times that Panghli left and returned to the Mill are an

important consideration in this case. The Union relies on the evidence of Mike Ward to

establish that Panghli left at 0448 and returned at 0505.

Union counsel argues that Manjit and Sohan‟s stories are remarkably consistent,

whereas Panghli‟s version changed markedly. Counsel says the Arbitrator must

appreciate that despite the passage of some 18 months from the incident, the Grievors

recalled details of the events that occurred in January 2009.

The Union says that the key articulations of credibility are set out in Faryna v. Chorny,

supra, at paragraphs 11 and 12. In particular, is the test of internal consistency and

consistency over the course of several tellings. It says that much of the Employer‟s case

is based on attacking Sohan‟s credibility. Counsel points out that from the Employer

investigation, to the RCMP interviews through to his evidence at this hearing the key

elements of Sohan‟s story are consistent. He consistently described a small handgun

with a magazine. He selected from an Employer photo line up the automatic pistol that

most closely matched Panghli‟s gun.

It is the Union‟s argument that if Sohan had no significant motivation to fabricate a

report of Panghli bringing a gun to work, Manjit had even less motivation. When

interviewed by the RCMP, Manjit talked about a gun with a magazine. He demonstrated

loading a magazine which came from the handle of the gun. In the first Employer

interview, Facey does not ask about the type of gun, only the size. Manjit says the gun

he saw was smaller and had a shorter barrel than the one Facey drew. In the second

interview, Facey asks about two different types of guns, a 22 or an automatic. Manjit

says a small gun. The Employer records revolver. However, the Employer did not ask

Manjit how the bullets were loaded or to demonstrate how they were loaded. Manjit

selected the same gun from the photo line up as Sohan.

The Union questions the accuracy of the WorkSafe Teleclaim operator, Jennifer Barnes.

Union counsel points out that Barnes had no recollection of Sohan‟s call. She did not

review the information with Sohan to allow him to correct it. Although she testified she

thought the information was accurate, she was confused about Manjit‟s name and

recorded it as Mandit. The WorkSafe BC decision letters indicate that Sohan and Manjit

47

corrected the initial Teleclaim statements. The statements in the Teleclaim reports that

Sohan wrestled the gun away from Panghli and that Panghli ran away when Mike Ward

was called in were fundamentally at odds with all of the other statements provided by all

witnesses. It is inherently more probable that Barnes misunderstood Sohan and Manjit

and that was the finding of the RCMP.

The Union argues that Panghli was an evasive and uncooperative witness who did not

readily answer questions, admit facts, or agree with assertions that most people would

agree with. As examples, the Union counsel points out that, in cross-examination,

Panghli denied that speaking of killing oneself was a plan or idea of causing harm to

himself. When Union counsel put simple propositions to him in cross, e.g., that he was

very upset at the prospect of Sohan taking over the DDM job and that he talked about

killing himself if he was removed from the job, he refused to agree with these

propositions.

Union counsel says that throughout his testimony in cross-examination, Panghli denied

he was worried that Sohan would take his job, despite his statements to that effect at

the time of the incident. The Union maintains that what is evident from Panghli‟s

testimony, demeanour and statements to the RCMP is his dislike of Sohan. Panghli saw

Sohan‟s desire to be trained on the DDM and his grievance as a threat to Panghli‟s job;

Panghli disliked Sohan‟s involvement in the Union; Panghli says that Sohan is talking

about him in the mill and he claims that Sohan mutters and shakes his head in

disrespect when he sees Panghli.

Panghli clearly dislikes Sohan, the Union continues, and had every motivation to try to

intimidate him on January 26, 2009. In addition, Westergaard recounts in his statement

to the RCMP about a previous incident when Panghli threatened to kill himself, if he was

taken off the DDM machine, and to kill Westergaard too.

The Union says that Panghli told the psychologist that he did not attend safety meetings

in order to avoid contact with Sohan. However, during direct and cross-examination, he

stated that he did not attend safety meetings in order to work and run the DDM and he

did attend when there were not enough logs to run the DDM.

48

The Union contends that Panghli was inconsistent in his interviews with the RCMP, the

Employer, in his direct evidence, and in an interview with WorkSafe BC about how

many people were in the lunchroom and in what order they arrived. Similarly, when the

RCMP asked Panghli if he threatened to kill himself, he denied it. When interviewed by

the Employer, Panghli said he told Sohan, “... I never talk bad to you. If you hate me, I‟m

going to kill myself.” To WorkSafe he said he told Sohan, “... if you hate me so much, I

can‟t take it, I‟m going to kill myself.” Panghli omitted any reference to killing himself

when he talked to the psychologist.

The Union asserts that Panghli was inconsistent about what Sohan said in the

lunchroom. Panghli was inconsistent about why he left the lunchroom and about where

he went when he left the lunchroom. In his interview with the Employer, Panghli said he

was pissed off when he left the lunchroom. In direct examination, Panghli said he was

upset and angry. The uncontradicted evidence of Prest who saw Panghli leaving the Mill

at about 0445 is that Panghli said “see you later” in a normal tone.

Panghli said he was away from the Mill for five to seven minutes; but given Prest‟s

evidence and Ward‟s that he saw Panghli return to the site at approximately 0505 or

0510, Panghli was off site for 15 to 20 minutes.

Citing more inconsistencies, the Union says that Panghli told the RCMP he took a pill

because he was dizzy; in his interview with the Employer, Panghli said he needed to sit

down because he was taking pills that sometimes made him dizzy. When interviewed by

the psychologist, he denied taking pills. In direct evidence, Panghli said he could not

remember if he took pills. The Union suggests that if he was so distraught that he had to

take pills, Panghli would remember that.

The Union points out that Panghli testified in direct evidence that Sohan was always

badmouthing him. However, on cross-examination, Panghli was unable to provide one

example of this bad mouthing. Most of the witnesses in their statements said they were

not aware of any problems between Sohan and Panghli.

Part of the Arbitrator‟s job is to assess the inherent probability of the facts put forward,

the Union argues, relying on F.H. v. McDougall, supra, and Faryna v. Chorny, supra.

49

The Union says it is inherently more probable that Panghli threatened Sohan than

Sohan and Manjit fabricated the event because Panghli believed Sohan was talking

about him, he believed Sohan wanted his job and making an indirect threat to Sohan

would keep him quiet; this threat was consistent with his previous threats of violence

when he was confronted with a work situation which threatened his job. The Union

asserts that Sohan and Manjit, on the other hand, have no significant motive to fabricate

the event. While the Employer alleges that Sohan was motivated by Panghli getting the

DDM job, that matter was resolved through the grievance procedure two years before

the event. It is inherently more probable, the Union argues, that Panghli brought a gun

to threaten Sohan than Sohan waited two years to fabricate a story about an issue that

was grieved and resolved. Further, Manjit had no motivation to fabricate the story,

therefore it is more probable that Panghli did bring a gun to threaten Sohan.

Manjit and Sohan were off work for approximately four weeks due to stress. Each

submitted doctor‟s notes, made W.I. and WorkSafe claims; both attended counselling

sessions. The Union asserts that it is inherently more probable that Manjit and Sohan

experienced the trauma they claimed they experienced than that they fabricated the

event and misled their physicians and counsellors, made false W.I. and WorkSafe

claims and lost a month‟s income to make a fabricated story seem more credible.

The Union contends that the Grievors did not know Panghli was going to be in the

lunchroom that day. They had no opportunity to conspire prior to Panghli entering the

room or while Panghli was in the room. Sohan went directly from the lunchroom to Ward

and told him Panghli had brought a gun and threatened them. Independently, and with

no opportunity to conspire, Manjit tells Thandi that Panghli had a gun. It is inherently

more probable, the Union says, that Panghli brought a gun to work than that Manjit and

Sohan fabricated the story without any opportunity to discuss or plan it.

The Union points out that Sohan did not know Panghli would leave the room when

Sohan went to get a supervisor. Had Panghli stayed in the room, Ward would have

quickly determined if Panghli had a gun. The Union argues it is inherently more

probable that Panghli left the room because he had a gun than it is Sohan fabricated the

story and went to tell a supervisor without knowing that Panghli would leave.

50

Continuing along that line of argument, the Union says that Sohan and Manjit called 911

to report to the police that Panghli had a gun. Had Panghli stayed in the lunchroom, the

RCMP would have quickly established if he did not have a gun. Uncharacteristically,

they say, Panghli left the worksite for approximately 15 minutes and then reported to

work late. It is inherently more probable, the Union says, that Panghli left the worksite to

hide the gun than it is Sohan and Manjit fabricated the story without any knowledge that

Panghli would leave the worksite.

Panghli‟s testimony that Manjit showed up at Panghli‟s house without any purpose,

when he had never visited Panghli before; that he handled a handgun and left without

saying why he was visiting was inherently improbable the Union asserts, especially as

Manjit was unable to describe the gun in the interview.

During cross-examination, Employer counsel suggested that Sohan and Manjit did not

attempt to tackle or restrain Panghli because they have fabricated the story of the gun.

Union counsel argues that it is inherently more probable that when a gun is

unexpectedly produced at 0445 in the morning, the Grievors would be shocked and

would seek help from the supervisor and 911 rather than trying to wrestle the gun away.

The Union maintains that even though Panghli knew there was no wood to run in the

DDM and even though he would expect that there was a safety meeting in progress,

Panghli went to the DDM. Counsel says it is inherently more probable that Panghli went

directly to the DDM to avoid the Employer knowing that he left the site and returned late.

The Union concludes its argument by saying that the Employer has not provided

sufficient clear, cogent and convincing evidence for the Arbitrator to find that Sohan and

Manjit fabricated the story. Relying on F.H. v. McDougall, supra, he says that if there is

not sufficient evidence of an employment offence, the event did not happen. Finally, the

Union says that Arbitrator Munroe‟s decision in Canadian Heating Products Ltd. and

International Assn. of Operating Engineers Local 115 (Walsh Grievance), [1995]

B.C.C.A.A.A. No. 608 stands for the proposition that if the Employer has not met its

burden of proof, the grievance must succeed.

51

The Union also relies on Fairmont Royal York v. Unite Here Local 75 (G.T. Grievance),

[2009] O.L.A.A. No. 416, 186 L.A.C. (4th) 188; Canada Safeway Limited and United

Food and Commercial Workers Union Local 247 (D. Chisholm Grievance), unreported,

February 5, 2010, (McPhillips); University of Western Ontario and C.U.P.E., Loc. 2361,

Re, [1988] O.L.A.A. No. 108, 35 L.A.C. (3d) 39; Re Sheraton Ltd. and Hotel and Club

Employees’ Union, Local 299, [1980] O.L.A.A. No. 47, 26 L.A.C. (2d) 122; and David

Layton, “The Prosecutorial Charging Decision” 46 Crim. L.Q. 447 2002.

DECISION

The questions to be considered by an Arbitrator in a discipline or discharge case are

found in William Scott, supra. These questions are:

1. Has the grievor given just and reasonable cause for some form of discipline by

the Employer?

2. If the answer to question #1 is yes, was the discipline imposed an excessive

response under all the circumstances?

3. If the answer to question #2 is yes, what alternative measure should be

substituted as just and equitable?

In F.H. v. McDougall, supra, the Supreme Court of Canada overturned earlier

jurisprudence that had found, in certain types of civil cases, the standard of proof could

exceed on a balance of probabilities and approach the criminal standard of beyond a

reasonable doubt. The Court clarified in F.H. v. McDougall, supra, that there is only one

standard of proof in a civil matter and that is on a balance of probabilities.

Consequently, the standard of proof the Employer must meet in these proceedings is

that standard. The Court said at paragraph 48:

It will be for the trial judge to decide to what extent, if any, the circumstances suggest that an allegation is inherently improbable and where appropriate, that may be taken into account in the assessment of whether the evidence establishes that it is more likely than not that the event occurred.

52

The Arbitrator, when assessing whether it is more likely than not that an event occurred,

must assess the credibility of each witness. The BC Court of Appeal addressed the

assessment of credibility in the well-known decision of Faryna and Chorny, supra:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

(Emphasis added)

The Court in F.H. v. McDougall, supra, turned to Bastarache and Abella JJ. in R. v.

Gagnon, [2006] 1 S.C.R. 621, at paragraph 20, for the following guidance on the subject

of assessing credibility:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

Relying on the complex intermingling of impressions that emerged during this lengthy

hearing, I find that there were inconsistencies in the testimony of each of Panghli,

Sohan and Manjit. Therefore, I decline to rely on either Panghli or Sohan and/or Manjit

53

alone for the truth of what happened in the lunchroom around 0445 on the morning of

January 26, 2009.

Panghli‟s story changed between his various interviews and this hearing when he

described his version of key elements such as: where he went when he left the

lunchroom; whether he had taken pills that morning; whether he had ever threatened to

kill himself, and his concern about Sohan taking his DDM job.

I find the inconsistencies and equivocation found in Panghli‟s evidence are indicative of

his attempt to deflect implications that he had any responsibility for what occurred on

the morning of January 26 at the Mill.

I am buttressed in this conclusion from the Psychological Assessment by John

Lawrence, wherein he stated on page 7 of his report:

The results on the PAI showed that Mr. Panghli was responding defensively and was making an effort to present himself in a positive light and deny common shortcomings that most persons would admit. He acknowledged that he was experiencing pressure to appear free of psychological problems, and that he would like to return to work as soon as possible. A defensive response pattern is common among persons involved in legal proceedings, and Mr. Panghli‟s defensive scores were not in the clinically significant range, and did not invalidate the rest of the profile.

In the circumstance, I find that Panghli‟s evidence is not sufficiently reliable on its own

for what happened in the Mill lunchroom in the early morning of January 26, 2009.

Sohan‟s evidence is equally unreliable. His comments with respect to Panghli‟s

character and reputation altered significantly in cross-examination, as did his evidence

about whether he had previously argued with any one at the Mill. Moreover, Sohan‟s

evidence about events in the lunchroom and immediately thereafter, was in conflict with

that of Ward, in respect of where they met, and what was actually said to Ward at first;

with Katona and Bryson with respect to where Katona was located in the lunchroom (or

if, indeed, Bryson was in the lunchroom) and Sohan‟s “running” from the lunchroom. His

evidence was also in conflict with that of Facey and Stockton regarding what he told

them during company interviews about where and how Panghli held the gun, and how

54

he (Sohan) had demonstrated pulling bullets from his pocket. Sohan also told Facey in

his interview of January 28 that the gun he saw was brown and black, but said at this

hearing, after being aware of Manjit‟s evidence on the colour of the gun, that the top

portion looked silver. His evidence about saying his English was poor to the Teleclaim

operator, but being advised to proceed anyway, is in conflict with Barnes‟ evidence vis-

à-vis the policy of providing interpreters at WorkSafe BC whenever difficulty with English

was expressed by a claimant.

Likewise, on several points, Manjit‟s evidence was contradicted by the evidence of other

witnesses. For example, his evidence about where he and Sohan initially spoke with

Ward was in conflict with that of Ward. His evidence was in conflict with that of Facey

and Stockton who stated they heard him describe Panghli‟s gun as a revolver at the

January 28 interview with the Employer. With respect to what he said and demonstrated

when he returned to the lunchroom was in direct contradiction with the evidence of both

Katona and Bryson. Regarding his WorkSafe BC claim, Manjit insisted he initially spoke

to a woman in direct conflict with Powers‟ evidence that the records revealed in filing his

Teleclaim, he spoke with a man. His evidence that he stated that he had difficulty with

English when making his Teleclaim to WorkSafe BC was in contradiction to the

evidence of Barnes vis-à-vis WorkSafe BC policy of providing interpreters whenever an

operator heard or sensed a language issue with a claimant. At the hearing Manjit also

contradicted his own direct evidence both when asked in cross-examination about the

accuracy of his WorkSafe BC claim and about Panghli running out of the lunchroom.

In summary, the evidence of each of these witnesses suffered from grave

inconsistencies sometimes with their own earlier evidence, sometimes with the

evidence of others and their evidence in total sometimes included equivocations,

omissions and/or was tailored to other evidence.

In the case of Sohan, I find he changed his story during the time of his interviews up to

and including this hearing to conform to other evidence as it unfolded. To find his

evidence at this hearing credible would require finding the evidence of Facey, Stockton,

Ward, Barnes, Katona and Bryson lacking in credibility.

55

In the case of Manjit, to find his evidence credible would also require finding the

evidence of Ward, Facey, Stockton, Katona, Bryson, Barnes and Powers lacking in

credibility.

It is entirely possible that any one of the witnesses whose evidence was in conflict with

that of Sohan or Manjit had a memory lapse or mistook or misheard what occurred on

January 26, 2009. What is inherently unlikely is that Sohan and Manjit‟s evidence was

correct and that all of the other witnesses lacked credibility in their testimony.

Ward, Katona and Bryson were impartial witnesses who had no self-interest in these

proceedings and testified as to their observations. Each of these witnesses was clear,

concise and credible.

I find that it is more in accordance with the preponderance of probabilities that matters

unfolded as these witnesses described the events they observed in and around 0445 on

the morning of January 26, 2009. That is Manjit, Sohan, Panghli and Thandi were in the

lunchroom when first Katona and then Bryson entered the room. Katona was sitting at

the table at right angles to Panghli. Bryson was standing at his locker in the lunchroom.

Katona heard a quiet discussion in Punjabi between the Grievors and Panghli without

excitement or voices raised. Bryson heard nothing, no shouting or hollering in the

lunchroom. Shortly after Bryson entered the room, Sohan, Panghli and Manjit got up

and exited the room. Neither Sohan nor Panghli ran from the room, but all left in an

orderly fashion. Katona and Bryson both heard “hollering” from outside the room for

about “ten seconds or so.” Sohan found Ward at the Trim Ladder four to five feet from

the lunchroom door and said to him “He‟s got a gun” and then “he‟s gone” – meaning

Panghli. “Moments later, Manjit came back into the room and said to Bryson and

Katona, “Sam‟s gone to get a gun” or “Sam‟s gone home to get a gun.” Katona and

Bryson both repeated that Manjit made that statement and demonstrated the gesture of

him loading a rifle. They were both tested in cross-examination (as I have described)

and albeit Bryson acknowledged that Manjit might have said, “He‟s got a gun,” I am

satisfied that his repeated recollection was of Manjit saying, “Sam‟s gone home to get a

gun.” I prefer the evidence of Katona and Bryson on this matter to that of Thandi, who I

56

did not find to be a credible witness as his evidence suffered from inconsistencies and

memory lapses at this hearing.

It will be recalled that none of the independent witnesses, Katona, Bryson or Thandi,

saw a gun or bullets in the lunchroom.

After he left the lunchroom that morning, the evidence establishes that Panghli left the

Mill for a period of time and then returned. The Union argues that at issue was whether

he had sufficient time to go home, store the weapon and get back to the Mill. The

evidence of Chuck Prest was that he saw Panghli leave the mill at roughly 0445,

although, it could have been two or three minutes later. The RCMP records reveal that

Panghli was apprehended at either 0459 or 0505 – both times were recorded. Mike

Ward‟s evidence was that Panghli came through the main gate at 0505 - 0506 and that

Panghli was not winded at the time. The RCMP timed the walk from the Mill to Panghli‟s

house and back to the Mill; the return trip took 13 minutes. The RCMP evidence also

reveals that at Panghli‟s house they found a full box of bullets and that the clip in

Panghli‟s Berretta handgun was empty. Sohan and Manjit‟s evidence was that in the

lunchroom Panghli loaded the clip and inserted it in the gun. The demonstration at the

arbitration showed that loading the clip took one minute and 40 seconds, although no

one unloaded a clip at the hearing. All of which leads me to conclude that it is possible

there was sufficient time for Panghli to walk home, enter his home and go to his

bedroom, unload the weapon, store it in a secret closet off his bedroom in a container

and, without any apparent exertion, return to the Mill in the minutes he was gone from

the premises. However, it is also possible that is not what occurred and Panghli went to

the washroom for several minutes and then went for a walk as he says, thought better

of doing something that would threaten his job and returned to work. There are no

witnesses save and except Prest‟s evidence of seeing Panghli leave the Mill as to what

Panghli actually did when he was gone.

On the evidence, it is clear that Panghli was angry and frustrated over Sohan‟s

treatment of him. I am persuaded that whether Panghli went to the washroom first or

not, he left the premises to deal with his frustration, possibly related to the lunchroom

57

conversation and the heated conversation in the hall outside the lunchroom. Only

Panghli knows for sure what he was thinking at the time.

In any event, by Ward‟s account, Panghli was not exerted when he came back through

the main gate after the 0500 whistle, and did not protest when Ward escorted him to the

waiting police car and the RCMP. The evidence of his quiet co-operation in that

exercise demonstrates one way or another he had calmed himself before returning to

work.

In the result, I conclude that what Panghli did in the minutes he was gone from the Mill

is a matter of pure speculation and is neither helpful to nor determinative of what

occurred in the lunchroom earlier.

The Union asserts that there was no possible way that Sohan and Manjit could have

planned to make up a story up about Panghli having a gun and loading it at the work

place as he usually does not come to the Monday crew meetings and they could not

have known he was coming on the morning of January 26, 2009. I agree. However, I

find that neither could Panghli have known that he would have two to three minutes with

Sohan and Manjit alone in the lunchroom prior to the crew meeting. Usually more than

15 people come to these meetings and arrive at various times. It is inherently unlikely

that he could have planned that private discussion and alleged gun demonstration and

that it would be unobserved by others. That is especially so when the door to the exit

has a window in it through which anyone walking by could have seen what Panghli was

doing with the gun on the table. Sohan said in evidence that no one would have been

walking by because the Mill was not running at the time. However, on the evidence, due

to the crew meeting the employees were arriving in the lunchroom around this time.

Indeed, we know that at least three other employees did arrive at or around that time

and entered the lunchroom.

Moreover if events had transpired as Sohan and Manjit testified, I find it highly

improbable that they would have sat quietly as he loaded the magazine of the gun and

threatened to kill four or five people, then stood up in an orderly and by Katona and

Bryson‟s accounts, unrushed or unexcited manner and walked out of the room without

warning or saying anything to others who were left behind in the lunchroom. By the

58

evidence of all, Sohan walked out first. If one accepts Panghli had a loaded gun in the

lunchroom, one must also conclude Sohan got up and walked out in an orderly way and

left others with Panghli, before he knew of Panghli‟s departure from the lunchroom. In

addition, he could not have known how long it might take to find Ward while he left

others exposed to Panghli with a gun. On the other hand, if Sohan did know Panghli

was going to follow him, according to him, Panghli had a loaded Beretta and he had no

way of knowing that Panghli would not shoot him from behind, yet he walked out in an

orderly manner.

When Sohan was asked why he took no steps to overthrow the table or take other steps

to disarm Panghli in the lunchroom his only answer was that the “Safety Committee had

not developed a procedure to deal with such a situation.”

Then, according to Katona and Bryson, there was hollering from the hall outside, for

many seconds which could be heard in the lunchroom. That is when voices were

agitated as if some threat might actually have occurred and caused fear and/or

excitement.

There are myriad possibilities about what actually did occur between Panghli, Sohan

and Manjit on the morning of January 26, 2009. In my view, one reasonable possibility

is to conclude, after considering all of the evidence, that Panghli did say something

about going home to get his gun before he left the area, during the brief hollering heard

by Katona and Bryson in the hall outside the lunchroom door. Whatever was said could

have caused Sohan to be „scared‟ and go to find Ward to alert him and, consequently,

others to the threat of potential violence. That would also be consistent with Manjit‟s

statements to Katona and Bryson that Panghli had gone home to get a gun or gone to

get a gun. It would also be consistent with Katona and Bryson‟s evidence of Manjit

demonstrating a rifle; as having not yet seen the gun, Manjit would not have known

what kind of gun Panghli was going to get. Further, it would make sense of Ward‟s firm

recollection at this hearing that by the Trim Ladder Sohan only told him that “Sam‟s

gone to get a gun – he‟s gone.”

I return to Mr. Bavis‟ argument that Sohan and Manjit had no opportunity to conspire on

their story. It will be remembered that Sohan and Manjit were alone when they placed

59

the call to 911 and that Ward gave evidence that he locked them in the supervisor‟s

room alone, for their own protection, until the RCMP arrived. They would have been

together alone for approximately 10 minutes which would have provided them with

ample time to discuss their stories.

In coming to this conclusion about the events of January 26, 2009, I have considered in

particular all of the comprehensive viva voce testimony before me, as well as the

documents submitted, the actual table in the lunchroom at which Panghli, Sohan and

Manjit were sitting, the chair Panghli sat in, and measurements in the lunchroom, all of

which were in evidence as well as a replica Beretta, bullets and magazine clip.

Additionally, I have considered the Union‟s argument that the Employer was biased

against the Grievors. I accept that Facey‟s opinions of Sohan and Manjit may have had

an influence on him and others and that errors were made in this complicated

investigation such as not providing Sohan and Manjit the opportunity to sign their

statements, as others did. However, I am satisfied, nonetheless that Facey conducted

the Employer‟s interviews fairly in a non-inquisitorial manner with a view to discover

whether the allegations of the Grievors about Panghli were accurate or not. He was

forthright and careful in providing his own evidence at this hearing. I note in Sohan‟s

testimony, he agreed that Facey had dealt with him honestly in the past.

Based on the foregoing, I am satisfied that the Employer has provided sufficient

evidence, on a balance of probabilities, to support the conclusion that the Grievors‟

story that Panghli had a gun and loaded it with bullets in the lunchroom, and while so

doing, threatened to kill four or five people is inherently unlikely. The evidence leads me

to conclude that it is more “in harmony with the preponderance of the probabilities

which a practical and informed person would readily recognize as reasonable in that

place and in those conditions,” that Panghli did not have a gun or bullets in the

lunchroom at the Mill on the morning of January 26, 2009.

In the result I do not believe that Panghli had a gun, bullets, or loaded a gun with bullets

in front of the two Grievors in the Mill lunchroom on the morning of January 26, 2009.

Given the harm to Panghli and to the Company caused by the Grievors‟ false

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accusations, I find that the answer to the first question in Wm. Scott, supra, is in the

affirmative.

Having concluded the first question of Wm. Scott, supra, is answered in the affirmative,

and discipline is appropriate I turn to consideration of the second question. The conduct

of the two Grievors in this case was extremely serious. Their dishonesty to the RCMP

and the Company was exacerbated by further tailoring of their evidence and

contradictions at this hearing. Their malice and injury to their co-worker Panghli has

caused him grievous harm and their actions have caused the Company to mistrust their

credibility as employees. I am satisfied there are no mitigating factors to overcome the

severity of the two Grievors‟ conduct. The answer to the second question is that the

penalty of discharge was appropriate in all the particular circumstances of this case.

In the result, the grievances of both Sohan and Manjit are dismissed.

It is so ordered.

Dated this 5th day of November, 2010 in the City of Vancouver, in the Province of British

Columbia.

JUDI KORBIN, Arbitrator