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Expanded Case Details

Manitoba (2012), 224 L.A.C. (4th) 116 (Gibson)

In Manitoba (2012), 224 L.A.C. (4th) 116 (Gibson), the decision turned largely on the issue of credibility. The employer relied on Winnipeg Sun, [1999] M.G.A.D. No. 74 (Hamilton), wherein the arbitrator adopted the test in Faryna v. Chorney. Arbitrator Hamilton also referenced the following passage from Canadian Labour Arbitration, Gorsky, Uprich and Brandt (Carswell, 1994) dealing with the issue of interested parties:

… Under the best of circumstances, a person’s perceptions and recollections of an event is subject to numerous frailties. The effect of these is exacerbated by an interest in the outcome of a grievance or by an inclination in favour of one of the parties. Although the witness may attempt to be perfectly honest, these factors tend to influence both what the witness may think he or she observed and what the witness recollects. Accordingly, the evidence of a disinterested witness would ordinarily prevail over that of a witness who might be interested in the outcome …

Arbitrator Gibson commented that even where a witness is relatively independent, her evidence is still subject to the tests in Faryna v. Chorney. She then referenced the decision in Western Grocers, [2002] M.G.A.D. No. 47 (Man. Arb. Bd.) (Graham), where arbitrator Graham commented on the application of the “credibility tests”:

… when faced with two competing versions of the same event, in order for one version to be accepted over the other, that version must be more probable, and preferably substantially more probable, than the alternate version.

In dismissing grievances by two employees who were heard (but not seen) engaging in oral sex in a work place washroom, arbitrator Gibson stated that such evidence was sufficient to at least require that the grievor’s provide an explanation for what had been heard. The allegations were considered to have been proven in that their denial was not credible and they had not offered any alternative explanation for what was heard to have transpired.

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