HomeMy WebLinkAbout1994-2624.Montgomery et al.95-09-01 DecisionEMPLOYES DE LA COURONNE
DEL ONTARIO
COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
2100, TORONTO, ONTARID M5G
2100, TORONtO (ONTARIO) M5G z8
TELEPHONE. (4 326- 388
(4 16) 326- 1396
I GSB # 2624/94, 2625/94
I i
IN THE MATTER OF AN ARBITRATION
OPSEU ## 95C376, 95C418 OPSEU ## 95C376, 95C418 I i
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (MontgomeryRankin)
Grievors
and
The Crown in Right of Ontario
Ministry of Health, Ottawa-Carleton Regional Ambulance Service)
Employer
BEFORE H. S. Finley Vice-Chairperson
D.M. Clark Member
J.C. Laniel Member
FOR THE; Terry D. McEwan
GRIEVORS Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
David M. Chondon
Mathews, Dinsdale & Clark
Barristers & Solicitors
EMPLO YER Counsel
HEARING April 11, 1995
GSB 2624/94, 2625/94
INTERIM DECISION
John Montgomery and Blake Rankin, ambulance attendant partners, were
dismissed from their positions with the Ottawa/Carleton Regional Ambulance Service on March
7, 1995. It is alleged that on December 14, 1994 they
refused or neglected to serve citizens requiring services which are part of the normal
performance of [their] duties by delaying, and by failing to complete, an emergency call
assigned to [them].
The partners had proceeded to base, having received a call from central dispatch and there is a
question as to whether or not that communication was directing them to a particular call.
Following this, they were suspended with pay until their dismissal. They had been partners for
approximately one year. The Employer held a pre-disciplinary hearing over a three-day period in
February 1995. The hearing was chaired by David Hunter, Administrator of the Brockville
Psychiatric Hospital. The findings of the pre-disciplinary hearing are not relevant for the purposes
of the Interim Relief application, however, the recommendations of Mr. Hunter in relation to the
Grievors’ ongoing involvement in the workplace are, in that they illustrate a remedy which an the
Administrator of
a provincial psychiatric hospital, considered acceptable in the health-care
context. He recommended a one-month suspension and reassignment to other partners. On
March 7, 1995, the Grievors were dismissed by Mr. Graham Brand, Director of Emergency
Health Services, Ministry of Health who is located
in Toronto, based on information provided to
him and on his assessment that the allegations were correct.
One
of the aspects of this case which differentiates it from those cited below, is that there
are two grievors, with, as one would expect, different personal and financial situations, and,
distinctive employment histories and seniority dates. Their grievances arise out of the same
situation and the same discipline, and they are seeking the same relief.
JURISPRUDENCE
The Board was referred to the two decisions of the Grievance Settlement Board in which
Grievors have asked for reinstatement:
OPSEU (Leeder) and The Crown in Right of Ontario (Ministry of Health},
January 1995, GSB 2498/93, 164/94, 296/94 (Finley)
OPSEU (Stewart) and The Crown in Right of Ontario Ministry of the Solicitor
General and Correctional Services), May 1995, GSB 1000/94, (Gorsky).
In Leeder, the grievor, a Registered Nurse in a provincial psychiatric facility, was dismissed for
allegedly failing
to discharge the assigned professional duties of a Registered Nurse in relation to
charting and treatment of a critically-ill patient assigned to [his] care and.. [that
he] slept during portions of both the aforementioned shifts.
He was seeking reinstatement, as interim relief. A few months prior to his dismissal he had been
subjected to a disciplinary transfer. At the time of his dismissal he had been employed at the
hospital for approximately 8 1/2 years. He was married, with two school-aged children. His
spouse was employed with a net income of $800.00 every two weeks. Mr. Leeder was in receipt
of Unemployment Insurance benefits of $708.00 net, every two weeks. This was a major
reduction in income which meant that the family had to make changes to their standard of living
and risked the
bank foreclosing on their mortgage during the time that the hearing was taking
place. The Panel recognized that this Grievor had been financially responsible, had attempted to
find other employment and had undertaken training, in spite of the emotional and psychological
impact that the financial stress and the question of his professional future was causing him. The
Grievor was denied interim relief. The rationale for the denial was the following:
A review of the Employer’s situation and the potential harm or
inconvenience which the Employer might incur shows several distinguishing
features, when considered in relation to the cases cited above. One of the most
noteworthy is the presence of “patients” and the concomitant high duty owed by
both the Employer and its employees to these individuals. Some of the patients,
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particularly in the Psycho-geriatric Ward have both physical and psychiatric
problems and are unable to articulate their needs and discomforts. Care of others,
most markedly in the Forensic Unit, demands the existence of a particularly high
level of mutual trust amongst staff. As well, the role of a Registered Nurse at
Brockville Psychiatric Hospital involves the supervision of the Practical Nursing
Assistants. This supervisory role is delegated by the Employer and involves the
trust and confidence of the Employer, those supervised, and the patients. Further,
there is the trust placed in the Grievor as a professional by the College of Nurses,
and although he still retains his professional status, he is the subject
of a pending
disciplinary hearing. Therefore his professional standing is under a cloud. Mr.
Strang argued that the Grievor’s reinstatement would replace “a dedicated
employee by someone who had ignored his duty”. However, it has not been
proven that the Grievor “has ignored
his duty”. That is still only an allegation.
The Employer gave uncontradicted evidence that there were only
two
nursing positions available at the Hospital which did not involve patient contact,
one in Staff Education the other in Nursing Education neither of which, in the
Panel’s opinion, would be appropriate placements, under the circumstances. It
was
also explained to the Panel by Mrs. Peever, that the Hospital did not have
adequate staff to assume the special level of supervision which she judged would
be required should the Grievor be reinstated on an interim basis.
The Panel has weighed the potential harm and inconvenience to the
Grievor,
Mr. Leeder, and to the Employer, the Brockville Psychiatric
Hospital/Ministry of Health and has concluded that the interim reinstatement of
Mr. Leeder would be more disruptive to the Employer than the failure to reinstated
would be to the Grievor. This, however, does not preclude the Union
from
seeking interim relief, other than reinstatement, closer to March 1995 when the
Grievor’s situation may have become less fluid.
In the result, the Grievor’s application for interim relief in the form
of
reinstatement is denied. It is also the decision of this Board that no other interim
relief is appropriate at this time.
In Stewart, the Grievor, a Correctional Officer, had been dismissed following an allegation
which she denied, that she had
Knowingly formed a relationship of a personal nature with an offender which
resulted in a conflict of interest and a breach of security,” which action was said to
be “in direct contravention of Policy and Procedures AD1 02 05 01 and the duties
and obligations [of the Grievor’s] role as a Correctional Officer.” The alleged
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relationship was said to have “resulted in the endangerment of one inmate, and the
inclusion of another inmate in an attempt to transmit personal correspondence of a
conflicting nature in a secretive manner.”
The Grievor, who had a good record of employment in the almost 10 years she had been
with the Ministry, was a mother of one child and the spouse of a self-employed trades person
who had operated a losing business for the past three years. The Grievor’s Unemployment
Insurance was coming to an end, the family had no benefits, had sold one car but retained the
other as they resided in a rural area, were behind in their debts, and had received financial
assistance from a family member. She was faced with applying for General Welfare Assistance
when her Unemployment Insurance ran out. All of this, had taken an emotional toll on the
Grievor and on her relationship with her spouse. The Board went on to find that
. . . a position was available for the Grievor which she could perform in the Main
Entrance Control
(MEC). The evidence also indicated that there was no inmate
contact in the case of an employee in the MEC position (Exhibit 10 at the interim
hearing);
and that
In all of the circumstances [the Panel members] were not satisfied that returning
the Grievor to work in the MEC position would create a problem for the Employer
that could approximate the seriousness of the harm to the Grievor if she is not
reinstated.
In that case
there was no disagreement between the parties that there was an opening in the
MEC and that the Grievor could be assigned to and could carry out the duties and
responsibilities of that position, and that the Grievor’s position (along with at least
one other) [had] not yet been filled. The MEC position is a three-person post with
only two CO’s currently scheduled for it.
The Board concluded that
In all of the circumstances we are not satisfied that returning the Gnevor to
work in the MEC position would create a problem for the Employer that could
approximate the seriousness of the harm to the Grievor if she is not reinstated.
4
EVIDENCE
The Board heard evidence of the situations of each of the grievors and it is necessary to
set out some of those persona1 details here.
John Montgomery
John Montgomery has a seniority date of December 1973. He ranks sixth on the seniority
list at the Ottawa-Carleton Regional Ambulance Service (OCRAS). Prior to his employment with
OCRAS he had worked as both an ambulance attendant and a nursing orderly. He has been in the
Health Care field since 1968. Until the incident referred to above his disciplinary record with
OCRAS showed nothing for the past three years. [This should not be read to imply that there was
or was not discipline previously. The three years refers to the retention period set out in the
Collective Agreement. He has been involved in a number of both work and volunteer activities
for which he has received complimentary letters of appreciation. He has not received a
performance appraisal from the OCRAS, that he could recall. Throughout his career, he has
continued to upgrade his skills through required and non-required courses. Most recently he has
been taking courses in the hope
of qualifying for a paramedic position, as a paramedic program is
being instituted
in the Region. Due to his suspension, he was ineligible to apply for the initial
placements, and this, he testified was a disappointment to him. Mr. Montgomery has also been
involved in teaching in the emergency care program at Algonquin College and in the College’s
clinical placement program of which OCRAS is a part. In Almonte, where he resides, he
continues to be a member of the local Volunteer Fire Department for which he is paid $6.00 per
hour, In conjunction with that, he is
also a fire inspector, that is, a local representative of the fire
marshall’s office, and a member of and instructor for the Lanark County Rescue Service. Mr.
Montgomery has held a part-time position with Almonte Hospital Ambulance Service for several
years and is currently working there in a regular part-time capacity. This service was aware of his
dismissd by the OCRAS but chose to continue his employment.
5
Mr. Montgomery is forty-five years of age, married with two teen-aged children. His
spouse is employed in the banking industry and earns between $30,000 and $35,000 annually.
Mr. Montgomery’s earnings from OCRAS in 1994 were in the range of $41,000, from Almonte
Hospital Ambulance Service ($1 5.78 per hour) $19,000, from the Volunteer Fire Department
$452.00 and from a small photographic business he took in approximately $4,000 (It was not
clear if this was gross or net, although Mr. Montgomery did testify that he could no longer afford
to carry on this business and therefore one is led to conclude that the figure was gross, that is
before expenses and that the business did not show a profit) In 1994, their gross family income
was, therefore, $95,452.00, or approximately $7,953.00 gross per month which would be reduced
considerably by income tax. Their current income varies: Mr. Montgomery’s spouse receives a
maximum of $2916 gross. Mr. Montgomery receives a minimum gross income of $573. Per
month which can be topped up by Unemployment Insurance to the maximum which would be
approximately $1 522 per month.
The Montgomerys have the following assets:
House valued at (approximately) $160,000
RRSPS
(His) $ 19,000
RRSPS (Hers) $ 5,000
Two vehicles ??
Their liabilities are:
Mortgage $22,000
Car and consolidation loan $20,000
Credit card $ 2,200
Overdraft $ 2,300
Charge cards (paying interest only) $ ??
Personal loan $ 1,100
Legal expenses for pre-disciplinary $ ??
hearing)
6
Their fixed major monthly expenses are:
Mortgage (pit) $ 585.
Utilities $ 150.
Benefits retention $ 162.
Car loan payment $ 276.
Credit card interest $ ?? .
We did not receive evidence of other expenses. This does not include, food, clothing or activities
for four individuals, maintenance, fuel or transportation for the cars, or basic maintenance or
insurance for the house. Child care is not an expense.
Mr. Montgomery has applied for one job citing the
shifts at his regular part-time
employment with the Almonte Hospital Ambulance Service as a factor inhibiting him from
applying more widely. He has not consulted anyone as to financial possibilities but pointed out
that his RRSPs were only taken out the previous year as part of an insurance plan into which he
had paid for twenty-three years, the length of time he and his spouse have been married. He
believes that they will suffer a tax penalty should he withdraw them. Further, it is his opinion that
if he is not reinstated, they will find it necessary to sell the house and one of their cars. Mr.
Montgomery is committed to his career as an ambulance attendant and hopes to have the
opportunity of serving as a paramedic in future
BIake Rankin
Blake Rankin had been employed with the ORCAS since 1983. This followed his
graduation from the Ambulance and Emergency Care program at Algonquin College. He worked
that year as a part-time ambulance attendant and then came on full-time in 1984. He has a
seniority date of July, 1984. Prior to that, Mr. Rankin had worked as a driver for UPS, as a
participant in the Katimavik social and community programs, as a teacher/labourer with Frontier
College, as a sales clerk at Canadian Tire, and prior to that as a member of the Governor
General’s Foot Guards, as a Supply Technician in the Middle East and as a Corporal /Section
leader. Throughout
his career as an ambulance attendant he has continue to upgrade his skills and
knowledge in the field. Some
of this professional development has been a requirement, some he
7
has taken for personal interest and advancement, in particular to advance to a position as a para-
medic. He was, however, rendered ineligible for the initial group, given that he was suspended at
the time. Mr. Rankin has been working as an ambulance attendant for 12 years and testified that
during that time he has never been subject to discipline by the Employer.
Mr. Rankin is 39 years old, married for the past 6 years, and has two daughters who
would recently have begun elementary school. During the past few years, he has become a
member
of the Russell Volunteer Fire Department where he has the added responsibility of being
part
of the initial response team. As well, he volunteers as a front-line “peer debriefer” for
emergency response team members who may experience post traumatic stress. He has also
served as a proctor in the Algonquin clinical placement program with
OCRAS and gives training
in first aid. He recently taught a course in Cardio-pulmonary Resuscitation (CPR) to the
professional and support staff of a dental office in the village where he resides. After paying for
the training and materials, he earned $50.00 for this. However, he hopes to develop some training
opportunities so that he does it more frequently and, without the expenses, it could then be more
remunerative.
The Rankin family resides in Russell, Ontario. Mr. Rankin’s spouse is employed part-time
at the Children’s Hospital
of Eastern Ontario as a casual employee, and annually earns
approximately $20,000, or $1,600 a month gross. Her usual employment is 2 days per week, but
she now has 2 extra regular days weekly due to a maternity replacement. If she gets the fifth day,
that is a bonus.
$40,000 or $3200. Monthly, gross. Since Mr. Rankin was dismissed, he has received
Unemployment Insurance benefits of $1540, net per month and $100.00 from the Russell Fire
Department which may be deducted from
his Unemployment Insurance.
When Mr. Rankin was working at OCRAS he was earning approximately
The Rankins have the following assets:
House
Cars (2)
Pensions (locked in)
$ 123.000.
$ ??
$ ??
8
They have the following liabilities:
Mortgage July 1, 1995
Personal Loan
Credit Card
Charge card
Personal loan (family)
(@ 5%) ($3,000 since dismissal)
They have the following fixed monthly expenses:
Property Taxes
Personal loan
Benefit premium
Insurance (Life, cars house)
Credit card
Charge card
Utilities
Personal loan repayment
$ 88,371
$ 6,500
$ 2,050.
$ 575.
$ 15,000
166.
245.
162.
178.
Minimum payment
Minimum payment
175
0 currently
This does
not include food, clothing or activities for four individuals, fuel or maintenance for the
cars or basic maintenance for the house. There are no child care costs at this present time since
Mr, Rankin is not employed. However, should he find employment, then child care would
become an expense.
Mr. Rankin has found both the suspension and the dismissal demoralizing. He perceives
that they have caused him to lose face in the eyes
of his friends and fellow employees. In spite of
the fact that he has tried to be active and has increased responsibilities for child care, he has,
nonetheless, found that the past months have been a depressing
and stressful time for him and for
his family, to the point that they have sought counselling to assist them through this period.
Mr. Rankin has sent out a number of resumes in the wider Ottawa area, and when he had
an opportunity to travel to Nova Scotia, he looked into the job market in his field but discovered
that they were not hiring. He does not believe that it would be worth his while to apply to
9
ministry-run ambulance services even though his provincial number has not been pulled. He has
been hired on a call-in list for a home care service and was going on the day following the hearing
to work for them for two hours. He calls in to confirm his availability each week. The rate is
$6.50 per hour. It is Mr. Rankin’s belief that should he not be reinstated that he and his spouse
will have to consider selling their home. Mr. Rankin testified that he is committed to his work as
an ambulance attendant and hopes to have the opportunity of serving as a paramedic in future
Lyle Massender
Nr. Massender is the Manager of OCRAS, a position which he has held for the past 10
years. He has, in total, 29 years experience in the field. Mr. Massender was away at the time of
the alleged incident and did not attend the pre-disciplinary hearing. He stated that he would have
concerns about the reinstatement of the two Grievors based on the serious allegation and on the
possibility that the conduct of which they are accused may occur again. He had, he testified,
because of the severity of the allegations, a concern regarding potential risk to public safety, and
the possibility of liability and consequent legal action over the failure to provide service in case of
a recurrence and the impact
on the operations of OCRAS and the morale of staff. Mr.
Massender testified that while there was no non-patient contact position available or appropriate
for the Grievors, the Grievors’ positions were currently being filled by contract employees and
that there was no impediment from that perspective to returning them to their positions.
Mr. Massender acknowledged that the complaint which instigated the investigation was
not a complaint from a member of the public but was from the dispatcher who had a role to play
in the incident and who had not been disciplined. He agreed that the member of the public on
whose behalf the call was made was not endangered because of the response time of the
ambulance and that
no civil suit or claim had been made against OCRAS as a result of the
incident. He testified in cross examination that he had known Mr. Montgomery in the work
setting for twenty years and
Mr. Rankin for twelve and had observed them to be competent and
diligent officers. He was, he stated, aware that Mr. Montgomery had continued to function as an
ambulance attendant at the Almonte Hospital Ambulance Service. Mr. Massender indicated in his
10
testimony that he could appreciate the practical and emotional impact that the dismissals were
having on the Grievors. Mr. Massender was asked what his response would be if the Board were
to order reinstatement and he acknowledged that “we would have to honour it”, but, that he
would consult with Human Resources to avoid having them in the workplace and to continue
paying them.
ARGUMENT
The parties agree that there is no issue with respect to jurisdiction, that the first test of the
existence of an arguable case has been met, and the second test is the balance of potential harm to
the parties.
The Union
Terry McEwan, Counsel for the Union, submitted that the second test is a test of
potential harm and that evidence of actual harm is not necessary, that it is sufficient if there is an
inference. This makes, he commented, eminent good sense because it can prevent the occurrence
of damage which may not be compensable by the recompense of full back pay. In weighing the
balance
of potential harm to the Employer and to the Employee, the economic circumstances of
the Employee are proper subjects for consideration. It is sufficient, he maintained for the Board
to find that the Grievors have suffered a financial
loss resulting in difficulty or potential harm and
it is not, necessaria to find that the degree of that harm or loss has been severe. He acknowledges
that the figures are not complete, but points out that it is uncontradicted that the jobs of the two
Grievors provide more than 1/2 the family income and that the current incomes do not meet the
family expenses. While Mr. Montgomery’s financial situation is not as dire as Mr. Rankin’s, it is,
nonetheless real and sufficient for the purposes
of the Board. There is, Mr. McEwan stated, a
potential for emotional and mental harm which is not compensated for
in the typical award.
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Mr. Montgomery and Mr. Ranlun are, Mr. McEwan submitted, highly trained and
dedicated men whose commitment goes beyond the ambulance service and into their communities,
They are, at present, denied the opportunity of carrying on work both do well and from which
they derive a great deal of personal satisfaction. Their evidence of other work negates, Mr.
McEwan argued, the speculation of danger alluded to by the Employer. We are not, he
submitted, dealing in the criminal justice system in which persons are presumed innocent until
proven guilty. Rather, in a dismissal situation, the onus is on the Employer to prove the grounds
for dismissal and this is analogous to “innocent to be proven guilty”; and. these are no more than
allegations and the balance in this case must weigh in favour of the Employees.
Mr. McEwan the looked at the issue of reinstatement from the Employer’s side and
submitted that there is no evidence of prejudice to the Employer, that the positions of the
Grievors are open and that there would be no dislocation of permanent staff by returning them to
their positions. There has been no complaint regarding Mr. Montgomery from the Almonte
Hospital Ambulance Service and both
Mr. Montgomery and Mr. Rankin continue to function as
volunteer fire fighters, a similar position with to service to the public. The risk
of recurrence is,
he maintained, “slight to the point of being infinitesimal”. This is not a case in which those who
are seeking reinstatement would be off on their own . They can be supervised and their actions
recorded, as is every communication between the ambulance drivers and dispatchers as a matter
of normal practice.
In this regard, the instant case is distinguishable from Leeder. Should
something untoward occur during the time they are reinstated, the Employer could, following
that, seek further interim relief
from the Board. Mr. McEwan concluded that on balance there
would be no harm to the Employer and considerable harm to the Grievors who, at the time of the
application for Interim Relief, had been
off work for four months. He asked the Board for an
order which specified that the Grievors are to be reinstated to the workplace, and not simply paid
and told to stay home. This is not, Mr. McEwan stated, simply about money.
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The Employer
David Chondon, Counsel for the Employer, submitted that the context of this case, is the
public sector and the nature of the position in the public sector is significant. This is, he argued, a
case of positions involving direct contact with members of the public and service to them. It has
been agreed, he maintained, that the purpose of an ambulance service is to provide transportation
and medical care to the sick and injured, and to provide it in a swift and capable manner. The
OCRAS is responsible for serving the public in emergency situations and David Hunter, who
conducted the pre-disciplinary hearing was concerned about the diligence of the two Grievors
based on the evidence about the incident.
Mr. Chondon, disagrees with Mr. McEwan regarding the presumption of innocence and
referred the Board to Leeder, at page 29:
Until recently, when employees subject to the Collective Agreement
between Management Board of Cabinet and the Ontario Public Service Employees
Union were dismissed from employment, they alone bore the burden of
inconvenience pending the outcome of the hearing. The power of the Board to
grant interim relief, in the form of reinstatement or other appropriate remedy, has
changed that. It has not, however, simply shifted the interim burden from
employees to employers. Nor has it resulted in a presumption that the employee
will be reinstated unless the employer proves why this should not occur.
The context of the allegations was a
high priority response to an emergency involving a small
child. It is the balance of potential harm to both employer and employee which must be looked
at, and the employee must show that the harm he or she
is suffering is beyond that which generally
occurs when someone is terminated. The employee must demonstrate more than loss of
reputation, negative impact on one’s family and one’s relationships, and on one’s financial
situation, according to
Mr. Chondon. In this case, the Grievors have failed to do so, Counsel for
the Employer submitted, and he commented that, “their continuing public duty suggests they are
leading pretty fulfilling lives in terms of their calling and their desire to serve the public”. They
have not, he maintained, established anything beyond normal upset in terms of their individual
situations. Therefore, the Board is left, he maintained with a purely financial situation to deal with
and on that basis, the application is premature suggesting that the financial harm is not real
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enough to warrant reinstatement at this time. Leeder suggests that if the case drags on, then the
the Grievors could reapply to the Board for interim relief. Further, the fact that other employers
choose to hire or to continue to employ these individuals, is not the concern of the Ministry of
Health. Its concern is limited to the Ministry itself.
When one considers the financial situations of each of the Grievors one does not find a
picture of financial strain, harm or crisis. Mr. Chondon disputes that the Montgomery family is
presently reduced to half of its pre-dismissal income and maintains that it currently has a family
income in the range
of $50,000. to $60,000 and the family income has not dropped significantly.
While Mr. Chondon recognizes that Mr. Rankin’s financial situation is more serious than Mr.
Montgomery’s, he argues that it has still not reached the stage which would warrant the
intervention of the Board
in the form of interim relief Their joint income allows them to meet
their expenses,
his, the major monthly expenses, and hers the ongoing, daily expenses. The fact
one cannot afford a vacation with one’s family, does not constitute a financial crisis for that
family, he argued. Mi-. Chondon submitted that the situation of neither Grievor approached the
situation in Stewart, and he likened Mr. Rankin’s to that of Mr. Leeder, in that case. The single
crisis which is looming
is that Mi. Rankin may have to give up one of his cars by the end of
August, 1995. Further, in the case of Mr. Montgomery, he has not, with his single job
application, met the obligation to mitigate set out at page 7 of the Stewart decision.
The potential harm to the Employer is based on the severity of the allegations, allegations
which the Employer believes are true,
in the face of the duty of care owed to the public by the
OCRAS. The level of supervision suggested by Counsel for the Union, is not available or feasible
and a recurrence could have serious consequences for the public and the Employer. These
Grievors can,
Mr. Chondon submitted, be adequately compensated at the end of the day, Nothing
is preventing a future application for interim relief when their financial situations are more serious.
Should the Board order reinstatement, the Employer would, as he stated, honour its order, but
would seek a way to do
so to avoid having them on the road. Mi. Chondon committed to work
with Counsel for the Union to develop an agreed statement of facts in order to reduce the number
14
of witnesses that would need to be called.
Mr. Chondon submitted that there has been delay
in this case, and that some attempt
should have been made to seek relief prior to the hearing on the matter, however, he
acknowledges that the issue of interim relief does not turn on that.
The Union
The balance of potential harm between employee and employer, according to Leeder, at
pages 29 and 30, requires that there be evidence of potential harm, and in this case, Mr. McEwan
argued, the Employer has not come forward with anything other than
Mr. Massender’s list of
“unarticulated concerns”. The Employer, Mr. McEwan submitted, wants to argue that the fact
these allegations are serious should supersede everything. The pre-disciplinary hearing found that
there was a communications problem and the Employer chose to take
no disciplinary action
against the dispatcher who was involved. This was not the result of a complaint
from the public.
Mr. McEwan referred the Board to Stewart at page 6, Item 10, in which the issue of safety is
addressed:
Where issues of safety are raised on an application for interim relief, “There should
be evidence before the Board which would lead the Board to believe that there is
a
risk of unsafe conduct OCCURR ing should the employee be reinstated for the interim
period pending the disposition
of the main application.” See Uni ited Food and
Comme rcial Wo rkers’ Internat’ ional Uni ’on v. Shirlon Plast ics Inc. (OLRB)
(Shouldice), dated August 8, 1994, referred to at pp. 18-19 of Leeder, were
emphasis was added.
There is nothing here, Mr. McEwan maintained, to suggest any unsafe condition. This alleged
conduct is a complete aberration in the context of the work history and volunteer history of these
two individuals. One has to ask, he commented, why men of this dedication and experience
would throw away their careers. The test of potential harm to employees, is not one which
requires people to lose houses, go
on General Welfare Assistance or lose their savings to get
relief, and no relief is to be found in speeding up the hearing.
I5
DECISION
The Board has considered the evidence and argument presented concerning the Grievors,
Mr. Montgomery and Mr. Rankin, and the Employer, the Ottawa-Carleton Regional Ambulance
Service. It has reviewed this evidence in the context of the Grievance Settlement Board
jurisprudence involving the interim relief of reinstatement, one in which the reinstatement was
denied (Leeder) and one in which reinstatement was granted (Stewart). Both of these cases are in
the public service, and both deal with employee/client contact. In that respect they are similar to
the case at hand. Further, in all three cases, a duty of care is owed to that client and in each, the
allegations, are serious, and call into question the professionalism of the Grievors. In the case at
hand, the financial situations are not dire, as in the case of Stewart, and speaking in general terms,
it could be said that
Mr. Rankin’s financial situation is similar to the situation in Leeder, while Mr.
Montgomery’s is better.
The balance weighed in Ms. Stewart’s favour primarily because of the ongoing financial
crisis and imminent financial ruin. The other factor was that the Employer had a non-client
contact position available into which she could be placed. The potential dissatisfaction of other
staff was considered a matter for the Employer to deal with in a positive and proactive way. The
balance did not weigh in
Mr. Leeder’s favour because he functioned as the only charge nurse on
the ward, with direct responsibilities for the physical and mental care of a number of patients and
for supervising a single individual of a lesser professional rank. As well, his professional status
was in limbo at the time of the hearing on the interim relief matter and the Employer’s evidence
was, that, particularly with the downsizing and staff cut backs being experienced in the provincial
psychiatric hospitals, it did not have a non-contact position into which he could be placed, nor
was it possible to provide an acceptable level of supervision.
decision that, had his financial situation been worse, he would have been reinstated at the time the
request was made, or even at a later time should a further request have been put forth. In fact, the
suggestion that he might return for interim relief should his financial situation worsen precluded
an application for reinstatement.
It was not suggested, in the
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There is a danger that these two cases will be seen as benchmarks for the degree of
seriousness, or severity which needs to be reached before interim relief can be granted or denied,
or the conclusion that Stewart stands for the proposition that one should not be reinstated unless
the proverbial wolf is at the door. However, it is all the relevant circumstances faced by both
the employee and the employer, considered as a whole, and in conjunction with each other which
will determine the balance. For instance, if the employer can show no potential harm, and the
Grievor’s financial position has changed as a result of the dismissal but he or she is in no financial
jeopardy, it may well be that, other circumstances considered, the balance may swing in favour of
the employee. Further, to have imminent financial ruin a prerequisite for interim relief is
problematic in that it rewards the employee who has not been a good financial manager, or who
has simply been unlucky in the matter of finances, or who is early in his or her career and has built
up no assets. The other side of the coin
is that it works against the employee who has been a
good financial manager and accumulated savings, who may have taken on extra work and made
sacrifices to attain and maintain a comfortable standard of living and who may be further along in
his or her career, even one who may be approaching retirement. The degree of financial stress
also comes into the question of delay, since the longer one delays, the more financially stressed
one would normally find oneself So when it is argued, at the same time, that an application has
been delayed, and the financial situation of the applicant has not deteriorated sufficiently for that
person to be eligible for interim relief, there is a certain inconsistency. The Board does not accept
that a Grievor must be in desperate financial straits, or deplete
his or her assets and/or savings in
order to be eligible for interim relief based on other circumstances.
The circumstances in the situation at hand are the following:
0
The Grievors are employees of long-standing - 21 1/2 years and 11 years;
e
There was no evidence of a disciplinary history;
The Employer acknowledged that they were competent and diligent officers who had
performed their duties in a satisfactory manner, except in the event that the allegation
should prove true;
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The Grievors have retained their provincial ambulance attendants’ number;
Both Grievors have continued to function in the public service and health care fields
Mr. Montgomery has had increased hours at his part time ambulance attendant position
Mr. Rankin has sought other work and has been hired on in the health care field at
minimum wage, if and when he gets called. He has also taken on an increased
responsibility for child care;
Both individuals believe they have suffered loss of reputation and opportunity;
The allegations are not part of a pattern of behaviour but appear to be inconsistent with
the pattern of behaviour which is typical for these two individuals;
There
is no evidence of financial irresponsibility on the part of either;
Their positions have not been filled;
Reinstatement would not involve the displacement of permanent staff,
There was no evidence of specific morale problems;
The Chair of the Pre-disciplinary Hearing is the Administrator, although not the chief
medical professional of a provincial psychiatric hospital. He
is charged with seeing that
patient care is carried out and patients are not placed at risk;
The recommendation of the Chair of the Pre-disciplinary Hearing was that the two
individuals in question be reinstated following a suspension of a month, a period of time
which they had already served at the time of the Predisciplinary Hearing, which would
have meant that, had his recommendation been followed, they would have been reinstated
immediately.
The Board has weighed the above reasons in the context
of the balance of potential harm
and has determined the potential harm to the Grievors outweighs the potential harm to the
Employer and that this is an appropriate case for reinstatement. It believes that the
recommendation of the Chair of the Predisciplinary Hearing that the Grievors be assigned to work
with partners other than each other would be in the interests of all concerned. Further, the Panel
recognizes that certain changes will need to be made to scheduling in the work place and that this
may require some time, It is therefore ordering that the Grievors be reinstated and placed on the
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regular schedule as of September 1, 1995
It
is important that reinstatement not be viewed as a means of extending the duration of
the time period over which the hearing takes place. The hearing will proceed on August 30, 1995
and will continue on dates prior to December 3 1 , 1995 which are to be set no later than August
30, 1995.
Dated at Kingston
D.M. Clark, Member
Dissent to follow
J.C. Laniel, Member
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