HomeMy WebLinkAboutHart 18-11-01IN THE MATTER OF AN ARBITRATION
BETWEEN:
ADAM HART
(The "Grievor")
ONGWANADA
(The "Employer")
-AND-
OPSEU LOCAL 433
(The "Union")
Before: Paula Knopf, Arbitrator
Darryl Korell, Counsel for the Union
Vincent Panetta, Counsel for the Employer
Hearing via Teleconference: October 30, 2018
-2 -
ORDER
1. The Union filed grievances, Nos. 2017-0433-0006 and 2017-0433-0007 (the
"Grievances"), asserting that the Grievor's termination was unjust and seeking
full redress and any remedies that the Arbitrator deems fit;
2. The Grievor was terminated as the result of an investigation by the Employer that
concluded that he had inappropriately touched the genitals of a male resident.
The Grievor was subsequently criminally charged, as well, for the same events
which led to his termination;
3. The matter was referred to arbitration before me, but adjourned on consent on
November 29, 2017 pending the outcome of a criminal trial based on the same
facts that the Employer alleged as cause for discharge. The condition of the
adjournment was the Union's undertaking to waive any claims for retroactive pay
after September 1, 2018;
On October 12, 2018 the Grievor was convicted for the offences of sexual
exploitation of a person with disabilities and sexual assault under s. 153.1 and
s. 271 of the Criminal Code (the "Convictions"). His sentencing hearing is
expected to conclude in January 2019;
4. The Grievor has indicated his intention to appeal the Convictions once the
sentencing process is concluded;
5. A conviction on the basis of the same facts that form the basis of the grounds for
discharge results in the reality that the same issues cannot and should not be
relitigated in an arbitration hearing, see Toronto (City) v. C.U.P.E., Local 79,
[2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.);
6. In this case, the Convictions of the Grievor on the basis of the same facts that
formed the basis of the discharge establish just cause for discharge and for
dismissing these Grievances;
7. Accordingly, I find that the discharge is upheld and the Grievances are
dismissed, but on the following conditions;
a. I shall remain seized with these Grievances pending the outcome of the
Grievor's appeal;
b. If no appeal is filed or the appeal does not succeed in overturning the
conviction, the Grievances are thereby dismissed and conclude any
further claims by the Grievor and the Union arising out of these facts;
IBM
c. if the appeal of the Convictions results in the Convictions being
overturned, I will commence the hearing and consider the available
evidence;
d. The Union's waiver of a claim for compensation for retroactive pay after
September 1, 2018 shall remain in effect;
8. On the basis of these terms, the hearing scheduled for November 8, 2018 is
adjourned.
DATED at Toronto on this 1st day of November 2018.
Paula Knopf, Arbitrator