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HomeMy WebLinkAbout2012-3989.Cross.13-07-30 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-3989 UNION#2012-0290-0041 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cross) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Janice Johnston Vice-Chair FOR THE UNION Laura Josephson Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel HEARING July 11, 2013 - 2 - Decision [1] This matter came on for arbitration before me on July 11, 2013. The union filed a grievance on behalf of Mr. Gregory Cross alleging that he had been terminated without just cause and that the Ministry in discharging him had discriminated against him. [2] Mr. Cross was employed as a social worker at Roy McMurtry Youth Centre, Ministry of Children and Youth Services. At the time of his discharge he had approximately three years of service. [3] Mr. Cross was terminated based on an allegation that he had engaged in the sexual harassment of a fourth year social work placement student. Prior to his discharge the Ministry retained a third party investigator to conduct a formal investigation. I was provided with a copy of the results of this investigation. The parties agreed that I am not in any way bound by the conclusions reached by the investigator. There is no dispute that I have the jurisdiction to hear and determine this matter based on the evidence before me. [4] The parties agreed that this matter would proceed pursuant to Article 22.16 which states in part: 22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. 22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise. [5] I have carefully considered the evidence in this case and the submissions of the parties. I do not accept all of the findings of the investigator. I conclude that the Ministry did not have just cause to discharge the grievor. While he may have made some poor decisions I am not satisfied that his conduct amounted to sexual harassment warranting his termination. [6] However, I am of the view that the employment relationship has been irreparably harmed and that it is not appropriate to reinstate the grievor. I hereby refer this matter back to the parties and direct them to craft an appropriate remedy. - 3 - [7] I shall remain seized in the event that the parties have any difficulties reaching agreement on a remedy or have difficulties with regard to the interpretation or implementation of this decision. Dated at Toronto, Ontario this 30th day of July 2013. Janice Johnston, Vice-Chair