FPSLREB Decisions

Termination (disciplinary) - Sexual harassment - Correctional officer - Burden of proof - Assessment of credibility - the grievor was a correctional officer employed in the Federally Sentenced Women's Unit (FSWU) of the Saskatchewan Penitentiary - the employer terminated the grievor's employment for an incident of sexual harassment which he allegedly perpetrated against a female correctional officer, a casual employee, while both were on duty in the FSWU - the female correctional officer testified that, as she entered the office where the grievor was, he grabbed her by the back of her arms, bent her over a desk and thrust himself against her buttocks - although she struggled and told the grievor to let her go, for about 30 seconds she could not get away - the grievor denied that the incident occurred - as there were no other witnesses to the incident, it was necessary for the adjudicator to assess the credibility of their respective versions of what had happened - the adjudicator indicated that, when dealing with such a serious allegation, the employer must demonstrate by clear, convincing and cogent evidence that the misconduct had occurred - while the burden of proof is not that of criminal cases requiring proof beyond a reasonable doubt, it requires more than a mere preponderance of proof - having analyzed all the evidence adduced before him, the adjudicator concluded that the grievor had, in fact, sexually harassed the female correctional officer, as alleged - the grievor had conceded that, if the adjudicator found that the alleged incident had taken place, the penalty imposed was appropriate. Grievance denied.Cases cited:Samra (166-2-26543); Faryna v. Chorney, [1952] 2 D.L.R. 354; Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (C.L. grievance O.G.S.B.A. No. 40 (unreported). ________________________