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HomeMy WebLinkAboutAubertin 20-04-17IN THE MATTER OF AN ARBITRATION BETWEEN: West Nipissing Hospital (the Employer) And Ontario Public Employees Union, Local 662 (the Union ) Grievance of Mr. Jean Aubertin Arbitrator: Barry B. Fisher Counsel for the Employer : Michael Allen Counsel for the Union: Dan Hales Motion heard by telephone and ZOOM on April 15, 2020. INTERIM AWARD 2 This award deals with a motion by the Employer to dismiss the grievance brought by the Grievor on the basis that he has engaged in conduct intended to intimidate certain people from testifying in his upcoming hearing, which is scheduled for July 2020. By way of a very short background the Grievor was put on a Last Chance Agreement with respect to harassing behavior towards a co-worker. It is alleged by the Employer that he then violated the Last Chance Agreement and was thus terminated. The grievance before me relates to the termination. Following the filing of the grievance the Grievor has engaged in an extensive social media campaign against certain employees of the Employer, including the person whom he originally harassed (which led to the issuance of the Last Chance Agreement) and in particular towards the CEO. I do not intend to set out in this award the details of these comments, however I can say that they are extensive, vile, intensely personal and threatening. The comments consist primarily of Facebook posts which can be accessed by the public. These comments are not found in private communications. In fact they are clearly intended to be accessible to a large number of people, including employees of the Employer. It should also be noted that this Employer is located in a small town in Northern Ontario and therefore the individuals targeted by the Grievor would more likely be known by the general population than if the Employer was located in a larger city. The motive of the Grievor in posting these offensive comments is not relevant. What is important is their likely effect on potential witnesses. I am satisfied that any reasonable person who was the subject of these posts would be adversely affected so that they would likely be reluctant or unwilling to be a witness in these proceedings. In other words, the Grievor’s actions constitute witness intimidation. Pursuant to Section 48 (12) (1) of the Labour Relations Act, I have the power to dismiss this grievance if I were to find that the Grievor engaged in witness intimidation. However, I am prepared to give the Grievor one last chance for him to change his ways. I am therefore directing the Grievor to follow this order until the completion of the final argument in his grievance. Any breach of this order will mean that the grievance will be 3 dismissed. Moreover, I reserve the right of setting the terms of any hearing regarding whether or not this order has been breached, including conducting the hearing by way of video conferencing instead of a face to face hearing. My order is as follows: 1. From the date of this Order until the close of final argument in the grievance, the Grievor is not to make any public comments about the circumstances of his termination of employment or about any of the following individuals, any of whom may be witnesses at the arbitration: Cynthia Desormiers Mireille Mageau Judy Perrin Stephanie Pilkey Amanda Sergerie And any immediate family members of the above. 2. For further clarity, “public comments “ shall include the use of all social media ( including but not limited to any use of Facebook ), all publications, speeches, broadcasts, newspapers, blogs, radio, television, cable or similar mechanisms. Of course, nothing in the Order in any way restricts the Union from prosecuting this case as it is solely intended to limit the Grievor’s personal actions. Therefore, this Order in no way restricts the Union from talking to or dealing with any person, subject to the usual rules of who can contact who in a litigated matter. I truly hope that the Grievor strictly follows this order so that the merits of this case can be determined in July. Dated at Bala, Ontario this 17th day of April 2020 “Barry B. Fisher”