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HomeMy WebLinkAboutSchelhaas 02-07-15 Concerning an arbitration ~ Between: '~ Thames Em~rgency Medical Services Inc. and Ontario Public Service Employees Union, Local 147 I , I Grievance of Pat Schelhaas, discipline for insubordination I , I ; "~ Arbitrator: Joseph W. Samuels ,,' ,', >, ~ For the Parties ,\1: "> ~' Union Mitch Bevan, Grievance Officer John Rinehart, Advisor Pat Schelhaas, Grievor Employer B. R. Baldwin, Counsel Ronald Liersch, General Manager Ian MacLeod, Assistant Manager Chris Darby, Duty Manager Hearings in London, March 7 and June 12,2002 "1" 1 Pat Schelhaas is a ~ Primary Care Paramedic, a member of an ambulance crew. On October 27, 2001, during her evening shift, she was directed by a Duty Manager to '~witch from a vehicle operating out of Station 2 to a vehicle operating out of Station 1. She refused, saying she was going home sick inste~d of continuing her shift. She was suspended for two days without pay for failing to comply with the direction, and she grieved that there was no just cause for the discipline. On the evening in question, the grievor was to work from 7PM on October 27 to 7 AM on October 28. She was to work out of Station 2, which is in the south end of London and is her normal base. She was to ride with Gord Kinney, an Advanced Care Paramedic. Based on the testimony of Ms. Schelhaas and Mr. Kinney, I find that, when the shift started, she mentioned to Mr. Kinney that she had a headache and did not feel very well. Nonetheless, she began the shift and continued to work as if nothing was wrong and her state of health did not appear to come up again in conversation, nor cause any difficulty with her work. Ms. Schelhaas told us that she intended to see how the shift went and how she felt as time passed. Back in the Duty Manager's office at Station 1, Chris Darby, who was Duty Manager for the evening, learned at the start of his shift that he would need to make a crew switch at some point in order to accommodate the training and certification needs of a part-time Advanced Care Paramedic, Paul Robinson. Mr. Robinson was in the process of requalifying as an Advanced Care Paramedic under the rules for certification established by the "Base Hospital", London Health Sciences Centre, and needed to work hours with another Advanced Care Paramedic. He was scheduled to work out of Station 1 from 8PM on October 27 to 3AM on October 28, but was not scheduled into a vehicle with another Advanced Care Paramedic. Mr. Robinson was scheduled to ride with Gord 2 Marsh,. a part-time PrimaFY Care Paramedic. This scheduling was based on the staff member whom Mr. Robinson was replacing that night. When such a crew switch is~ecessary, the Duty Manager must do the best he can at the time of the switch. How the switch will be done and with , .. whom must be determiIted according to the circumstances at that time-who is free to make the switch? where are the vehicles which will be involved? are questions that can only be determined at the critical time, and depend entirely on the calls which have come in during the evening and on the assignments which have been made by the çlispatcher. It is important to realize that the dispatch function is handled by a Ministry of Health facility, Central Ambulance Communications, and is not under the control of the Duty Manager for Thames Emergency Medical Services. So there is Mr. Darby in his office, knowing that, around 8:30PM, he must switch Paul Robinson into a vehicle with an Advanced Care Paramedic. Robinson and his shift partner would come to work at 8PM and would take roughly half-an-hour to do the initial check of their vehicle and its contents. Normally, there is an Advanced Care Paramedic in one vehicle at each of the five stations. But, on that evening, there were only two such vehicles-the Schelhaas/Kinney vehicle out of Station 2, and a vehicle out of Station 3, whose Advanced Care Paramedic (Gelbard) was also the Station 3 Manager that night. About the time when he needed to do the switch, Mr. Darby heard over the radio in his office that Schelhaas and Kinney were just pulling out of Children's Hospital and were not on another call. Children's Hospital is close to Station 1, where Robinson was about to start his work. So Mr. Darby asked dispatch to direct Schelhaas and Kinney to Station 1. When they arrived at Station 1, Mr. Kinney saw Mr. Robinson and knew immediately that the reason they were called was to enable Mr. Robinson to ride with Mr. Kinney in order that Mr. Robinson could acquire more hours towards his certification. Ms. Schelhaas went up to the 3 Duty Manager's office to ask Mr. Darby what was going on. Mr. Darby said that she would ride with Mr. Marsh out of Station 1 until the end of Robinson's shift. She said she wo~ld not work downtown. The vehicle assigned to' Marsh and Robinson that night could be expected to make a numbet of calls to downtown drinking establishments, and is known as the "bar car". It appears that it is likely that the paramedics in the "bar car" would have to make more calls in the evening than other vehicles. There is some dispute about when and in what manner Ms. Schelhaas told Mr. Darby why it was that she did not want to work in the "bar car". According to Mr. Darby, Ms. Schelhaas left his office and he followed her down the stairs to the garage to try to change her mind. On the way to the garage, Ms. Schelhaas said that she was going home. There were other crews in the garage and the conversation continued in the presence of some of them. Mr. Darby repeated his direction. Ms. Schelhaas said that she thought that there had to be 24 hours' notice of a station change, and Mr. Darby told her that it was just a crew change for part of a shift. She said she was going home. He asked her if she was refusing to work, and she said she was sick. It was the first time she'd mentioned to him that she was sick. He said "You're not sick" and he testified that she didn't look sick. But she was adamant. She said she had a headache and left Station 1 with Kinney and Robinson, getting a ride back to Station 2, from where she headed home. Mr. Darby was left to arrange for someone else to ride with Mr. Marsh out of Station 1. According to Gord Marsh, who was to ride for his shift with Ms. Schelhaas, he was standing in the garage during the interchange between Darby and Schelhaas. He says that Ms. Schelhaas was louder than normal, a bit angry, and initially gave no reason for refusing to ride with him, and then she said she would go home sick. He characterized her manner as "sarcastic", when she said "I have a headache. I'm sick". In his report, ,"F 4 Mr. Marsh said that Ms. Schelhaas' actions were "unwarranted, inappropriate and unprofessional". Mr. Marsh was no longer an employee of Thames Emergency Medical S~ices when he testified at our hearing. According to Ms. Sçhelhaas, when in Mr. Darby's office, she first offered to ride with Mr. ~arsh out of Station 2. But Mr. Darby denies this, and the Union agreed that this point had never been mentioned to higher management until Ms. Schelhaas said it in her examination-in-chief at our hearing. I find that she did not make this suggestion to Mr. Darby. Furthermore, Mr. Darby testified that, had he heard the suggestion, he would have thought about it but there was need for a vehicle with Advanced Care capability in the south end of the city, and he would have wanted the Kinney/Robinson car at Station 2. Secondly, Ms. Schelhaas says that she was not "sarcastic", nor loud, nor angry, when she told Mr. Darby that she was going home sick. In my view, it is undeniable that Mr. Darby had good reason to switch crews to enable Mr. Robinson to accumulate the hours he needed working with an Advanced Care Paramedic. Secondly, Mr. Darby acted reasonably when he made the decision to do the switch with the Kinney/Schelhaas vehicle. By fortunate happenstance, they were free and nearby when he needed to make the switch. Thirdly, Mr. Darby made his direction perfectly clear to Ms. Schelhaas. Fourthly, Mr. Darby had the authority to give the direction. And, fifthly, Ms. Schelhaas refused the direction. The critical issue is whether or not Ms. Schelhaas had a good reason to refuse the direction, because she was too ill to do the assignment. The Union acknowledges that this is the critical issue. I think it is very significant that, though Ms. Schelhaas mentioned that she did not feel well to Mr. Kinney at the start of her shift, she appears to have had no difficulty in performing her duties and the matter did not 5 come up again until Ms. Schelhaas refused the switch to the "bar car". I , i accept Mr. Darby's testimony that she didn't look sick. No one else said anything about her looking sick. Ms. Schelhaas knew that, if she could not do her shift, she was to report tp-is'to the Duty Manager, preferably before the shift starts so that suitalile arrangements can be made for a replacement, but she made no mention of her illness until she had to justify her refusal to work downtown. Ms. Schelhaas is a very experienced paramedic. She has worked the job for 17 years. She knows or ought to know that it is critical that ambulance crews be ready to answer calls as they come in from dispatch and that it is very important that a crew member be fit and able to fulfil the duties of a shift. As well, she knows or ought to know that one cannot know in advance what a shift will bring. It is in the very nature of an emergency service that one only knows what will happen when it happens. It could be that, on that evening, she would wind up making bar calls even in a vehicle based at Station 2, because, when dispatch had to send a team downtown, this might be the vehicle closest to the call or might be the only vehicle available for the call. I have serious difficulty accepting her evidence that she was well enough to handle the Station 2 shift, but too sick to even commence the Station 1 assignment. In my view, there was no justification for her peremptory refusal to follow Mr. Darby's direction. She had no difficulty handling the shift up to the trip to Station 1. She did not look sick. Indeed, to a disinterested bystander, Mr. Marsh, her actions seemed "unwarranted, inappropriate and unprofessional". She did not raise illness as a reason for refusing the assignment until Mr. Darby persisted with his direction. The only supporting evidence she offered for her illness was a doctor's note, obtained on November 2, 2001, which said that she went home from her shift on October 27 because of illness. And the doctor wrote this because Ms. Schelhaas told her that this is what had happened. 6 This is no substantiation~ of Ms. Schelhaas' condition on the night of October 27. Curiously, some time aftt?f the suspension had been served, Ms. Schelhaas claimed sick pay for' the ten hours she missed on October 27/28, and it was paid. Mr. Litrsch, the General Manager, explained that he thought the Company would be putting Ms. Schelhaas in "double jeopardy" by suspending her and disallowing use of the sick bailie But he never accepted that she was validly ill on October 27. In my view, while Mr. Liersch's explanation lacks logic, it is sufficient to rebut the Union's argument that, by paying the sick leave, the Company had demonstrated that it accepted the truth of Ms. Schelhaas' claim of sickness. There was no admission of fact here. In sum, I find that Ms. Schelhaas was insubordinate. She had no good reason to refuse to try the assignment to which she was directed by Mr. Darby. She was able to work as a paramedic at the time of the direction. She could not say for sure what the evening would bring in the "bar car". If she was unable to work later in the evening, she could call the Duty Manager and be replaced. There was no evidence to support a conclusion that her health and safety would have been endangered by her commencing work in the "bar car". The Union then argued that, even if Ms. Schelhaas was deserving of discipline, the two-day suspension was not justified. In my view, given that the insubordination took place within the context of an emergency service, and given that Ms. Schelhaas refused a direction in the presence of other employees, a two-day suspension is well within the reasonable range of discipline which might have been imposed here. I share the general disinclination of arbitrators to upset a penalty if the penalty is within reason. We ought not to "tinker" with management's decision. I share the view expressed almost twenty years ago by Arbitrator 7 R. O.MacDowell in Re Rolland Inc. and Canadian Paperworkers Union, Local 310 (1983), 12 LAC (3d) 391, at page 401: .~ As a general rule, we do not believe that it is desirable for i board of arbitration to attempt to "fine tune" a managerial decision respecting discipline which is not in itself unreasonable 0 r excessive. To do otherwise' would merely encourage costly litigation as grievors, hoping for perhaps minor gains (whatever the over-all cost) press their bargaining agents to carry every discipline matter forward to arbitration. Likewise, employers might be encouraged to impose more extreme sanctions at the outset, on the expectation that an arbitrator inclined to tinker might be disposed to "split the difference" and substitute something within the general realm that management might otherwise have chosen in the first place. It is one thing for a union and employer, in the grievance procedure, to haggle about the penalty, "saw it off", "split the difference" , or bargain a concession in anticipation of future considerations. It is quite another for an arbitrator to hold, on the basis of objective evidence and reasoned consideration, that an employer's disciplinary response is unwarranted and should be modified. This is not to say that arbitrators should shrink from modifying a penalty which is clearly inappropriate in the circumstances or excessive when measured against the nonns of the industrial community. But this requires more than some "gut feeling" or vague impression that the arbitrator, standing in the shoes of management, might have done something somewhat different- not least because the litigation process provides, at best, only an imperfect appreciation of the enterprise as a whole and the human and business relationships which must somehow be fitted into a legal mold. For all these reasonSl, I dismiss the grievance. Done at London, Ontario, t~s 15th day of June, 2002 , 8