Retaliation leads to termination

R.V. was terminated by Unimin Canada after he retaliated against co-workers following his suspension.

The Havelock, Ont.-based employer fired R.V. on Nov. 5, 2013, after it became clear he was acting in an intimidating and retaliatory manner towards co-workers following his return from a 10-day suspension for violating the employer’s harassment prevention policy.

R.V. was suspended for 15 days — later reduced to 10 days — for breaches of the company’s "Harassment Prevention Policy — Sexual and Other Forms of Harassment." The main target of harassment was Stephanie Searle, the only full-time female employee at the facility. R.V. disparaged her size, eating habits and sexuality on numerous occasions throughout 2013.

Formerly very happy in her position, Searle began to dread going to work. A complaint was filed on or about Aug. 1, 2013. Several of Searle’s co-workers supported her in her complaint, testifying to the employer that in addition to attacking Searle personally, R.V. consistently made graphic sexual remarks about women that went well beyond the conventions of locker room talk.

R.V. denied the allegations and grieved the suspension.

The 15-day suspension was reduced to 10 days on the understanding R.V. would write a letter of apology to the employer and complainants, and the grievance against the suspension was dropped.

The apology letter, however, was not to the satisfaction of the employer. The employer said the letter failed to express remorse, say that he was sorry or take responsibility for his misconduct. The letter was not forwarded to the complainants for fear it would aggravate matters.

The employer chose not to further pursue the matter on the theory that the authenticity of an apology is not something that can be mandated.

After returning to work following his suspension, R.V. was advised that any direct or indirect retaliation toward the complainants would be subject to immediate termination. The employer became aware of that exact behaviour on or about Oct. 20, 2013.

Searle testified R.V. made her very uncomfortable upon his return. He refused to speak to her but would look at her in the lunch room, then look away, and whisper something to his table mate. She also heard from numerous colleagues that R.V. was saying words to the effect of "once the dust settles, I’m going after her."

Searle said she was particularly concerned her car would be tampered with.

One of the co-workers who supported Searle in her complaint against R.V. confirmed R.V. said he planned to retaliate against her. The co-worker also testified he heard R.V. talking in the lunchroom about making a list of the workers who had testified against him.

The union called this testimony hearsay, calling on arbitrator Dana Randall to give no weight to the claims.

Randall found Searle and her colleague to be entirely credible, while R.V.’s denials were found to be unreliable.

"I am willing to rely on the hearsay evidence," Randall ruled. "In my view, there is, based on the direct evidence alone, but bolstered by the hearsay evidence, a host of grounds to support the employer’s decision to terminate the grievor’s employment. He refused to accept that his conduct, which gave rise to his suspension, was deserving of correction. He continued to go on the offensive."

Randall found few mitigating circumstances in the case, ruling R.V. was a short-term employee who had shown no remorse and taken no responsibility for his actions.

The grievance was dismissed.