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

Decision

1This 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.

2Mr. 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.

3Mr. 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.

4The 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.

5I 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.

6However, 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.

7I 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.