HomeMy WebLinkAbout1986-0918.Chan.87-09-28Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (John Ghan)
- and -
The Crown in Right of Ontario
(Ministry of Health)
Before: G.J. Brandt Vice Chairman
J. McManus Member
E. Orsini Member
Employer
For the Grievor: J. Ford
Grievance Officer
Ontario Public Service Employees Union
For the Employer: L. McIntosh
Law Officer
Crown Law Office Civil
Ministry of the Attorney General
HEARiNGS : January 15, June 29, July 9, 16 and 22, 1987
INTERIM DECISION
At the conclusion of the last day of hearing in this matter the Board,
through the Vice-Chairman, undertook to inform the parties of its findings as
soon as possible in order that neither party be further prejudiced by delay
in the preparation of a formal award.,
It is our understanding that the parties are agreed that at this stage of
the proceedings all that is desired is a finding~as to what incident, if any,
occurred on July 28. 1986. in other words the Board is not being asked, at
this stage, to determine what penalty, if any. should flow from our findings.
Specifically, we are not asked to determine whether or not the penalty of
discharge is appropriate for the alleged incident.
The decision to bifurcate the case into two separate stages renders it
somewhat difficult for us to honour our undertaking to inform the parties of
our findings. We are unable to state decisively whether or not the
grievances are allowed or dismissed since we have heard no argument on
the subject of penalty. Moreover, if we are to respond quickly in order to
accomodate the concern over delay, our findings can only be stated briefly
and cannot, at this juncture, be supported by the Sort of detailed reference to
evidence which would go into the preparation of a final award.
Thus we have some reservations aa to whether or not this manner of
proceeding will be of any assistance to the parties. However, with these
reservations and restrictions in mind, we are prepared to make the following
findings of fact:
2
1. The evidence does not establish that an act of semual
intercourse took place between the grievor and the patient, D.S.
2. We do not accept the evidence of the grievor that there was
no physical contact at all between himself and the patient.
3. The evidence does not support the conclusion that such
physical contact as there was consisted of cleaning the patient of fetes.
4. The evidence does support the conclusion that the grievor
was touching the patient with his hands in her pubic and perineal areas.
S. The evidence does not indicate that this contact was pIanned
or premeditated by the grievor. Rather it suggests that initiative was taken
by the patient and that the grievor succumbed to her advances.
Dated al LONDON, Ontario, this 28th day of %Pember _~, 1987
G. J. Brandt. Vice Chairman
J. McManus, Member
E. Orsini, Member