Reinstatement would undermine employee confidence: Arbitrator
An employee was fired as a result of discriminatory conduct, and an arbitrator has ruled he will stay fired.
Kevin Gavin, a radiation therapist since 1998 at the London Health Sciences hospital in London, Ont., was fired in August of 2014 after a number of women in the bargaining unit came forward saying he had harassed them in the office.
Testimony from the three complainants included incidents where he had touched one employee’s buttocks, kissed the back of the neck of another, hugged, and tapped another on the buttocks with a binder. Gavin also reportedly made offensive comments, including, "You’re giving me wood right now" and "We took a poll and your ass wins casual Friday."
Two of the three witnesses came forward only after Gavin was fired, and two others testified via statements. Of the latter two, one suffered a disability, and stated the grievor had made fun of her disability to the point where it caused her to suffer an emotional breakdown.
She complained to the union in May of 2014 and her statement was submitted as evidence along with a written letter of apology she had received from the grievor.
On the same day he was terminated, the Ontario Nurses’ Association (ONA) filed a grievance arguing that termination was excessive.
Seeking reinstatement, Gavin said since being fired he had tried unsuccessfully to find another radiation therapist position in Ontario and had been working for minimum wage since.
Gavin justified his behaviour toward his coworkers by comparing them to a family — in his mind, it would not be uncommon for a staff member to "pat another on the back."
It was not until he heard testimony from the employer’s witnesses and those who had complained against him that he said he realized his gestures were "misunderstood" and he should have been more "sensitive." He added that, for him, "humour was a way of life."
The ONA echoed Gavin’s argument, adding that he had a clean record and was a 15-year veteran of the hospital. While discipline was warranted, termination was overly harsh, the union said.
The hospital disagreed. It was clear to the employer that Gavin had sexually harassed and assaulted a number of employees over the years — there are many reasons a victim does not come forward to make a formal complaint, though that is not indicative of a so-called clean record. It had conducted a review by a human resources consultant, who took care to let the grievor know the accusations against him, and gave him opportunity to respond.
The employer felt it was justified in terminating Gavin’s employment as his actions violated its health and safety policies and code of conduct, as well as harmed other employees.
Arbitrator John McNamee agreed with the hospital and dismissed the union’s grievance.
"I have considered the impact that a reinstatement might have upon the bargaining unit, which is mostly female," McNamee said.
Reference: London Health Sciences Centre and the Ontario Nurses’ Association. John McNamee — arbitrator. Brian O’Byrne for the employer, Rob Dobrucki for the union. Aug. 13, 2015.
