HomeMy WebLinkAboutBlake 05-11-18
11-24-2005 09:38am Frcm-RWBH 41S3409250 T-157 P.003/00S F-3S4
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In the matter of an arbitration between
THE CORPORATION OF THE COUNTY OF SIMCOE
(The Employer)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 303
(The Union)
Grievance of Dawn Blake
before
Paul Craven, Sole Arbitrator
A hearing was held at Barrie, Ontario on November 15, 2005.
For the Employer: P. Wolfenden, Counsel
and others
For the Union: J. Brewin, Counsel
and 'others
AWARD
I was appointed by the Office of Arbitration, Ontario Ministry of Labour, pursuant to the
Labour Relations Act, 1995, s.49( 4), to hear and determine the grievance of Dawn Blake
that she had been unjustly discharged from her employment effective August 29, 2005. The
grievance is dated September 3, 2005.
The parties agreed that the matter should be addressed via a mediation/arbitration
process as provided for in article 10.09 of the collective agreement. This process yielded a
framework for th<~ resolution of the grievance. Some differences of detail remained, which
the parties invited me to resolve in preparing and issuing this award.
There was no dispute about the relevant facts. The grievor is a paramedic. She works
full-time in that capacity for another municipality! and approximately four shifts per month
for the Employer. She was discharged for failing to report on two scheduled shifts (August
13 and 14, 2005) and for failing to submit her availability for October and November. There
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is no dispute that these were breaches of the scheduling and reporting requirements and
attracted discipline. The real issue is whether some lesser penalty ought to be substituted
for the discharge.
The Simcoe ambulance service was originally operated by Health Trust Pre Hospital
Services Inc. The service was taken over by the municipal corporation in January 2004.
References to (the collective agreement' in this award are to the agreement between Health
Trust and the Union. The parties have since negotiated a renewal collective agreement. I am
advised that the pertinent provisions are substantially unchanged in the renewal agreement.
The griever commenced her part-time employment in February 2002. Part-time am-
bulance personnel are governed by article 4(b) of the collective agreement which provides in
pertinent part as follows:
It is understood that regular part-time employees shall provide the Employer with
their availability ninety (90) days in advance, indicating a minimum availability for
six shifts per month. Employees shall accept shifts as scheduled to remain on the
roster, in accordance with the scheduling policy that may be amended from time to
time, provided the Local Union is given reasonable prior notice of the amendment
taking effect.
During the course of her employment with Health Trust and then with the present Employer,
the gTievor was disciplined on sever¿ù occasions for breaches of these requirements.
ThQ collective ag-roemem contains, in article 11.01, a (sunset' clause, providing, in
pertinent part:
Any adverse report, letter of reprimand, or notice of suspension which is not rescinded
by way of the grievance or arbitration procedure herein. will be removed from the
record of an employee eighteen (18) months following the receipt by the 'employee
provided that the employee's record has been discipline-free of identical or similar
infractions for such period.
Having regard to the operation of this provision, the grievor's record at the point of discharge
comprised:
1. A (final notice' dated 6 August 2003 indicating that the grievor had not showed up
for a shift and had refused a scheduled shift in contravention of article 4(b) of the
collective agreement, and warning that 'any further contravention of the collective
agreement with regard to the above article, will result in your immediate employment
termination.'
2. A le't.ter from Health Thust to the grievor, dated December 16, 2003, and headed
'Employment Termination', by which the grievor was advised that, having refused a
scheduled shift, she was suspended, 'pending your termination by the County.' When
the County assumed the operation of the ambulance service in January 2004, however,
no further action was taken in this regard and the grievor continued in her employment.
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3. A letter from the human resources manager of the present Employer) dated August
20, 2004, in reference to the grievor's failure to report for a shift several months earlier
(March 26, 2004), indicating that any recurrence 'will result in disciplinary action by
the Employer up to and including discharge.'
With respect to the August 13 and 14, 2005, failures to report, thE~ grievor had indicated
her availability on those dates and had been scheduled to work the two 8:00 p.m. to 8:00
a.m. shifts. She was at work on July 25, and sent an e-mail to the scheduling coordinator
on the Employer's e-man system indicating that she was nOw unable to work those two
shifts because they conflicted with two social events related to her impending wedding. The
scheduling coordinator replied by a-mail the following day, indicating that she would have to
work the scheduled shifts unless she could find someone willing to exchange shifts with her,
and suggesting a method she might use to find such a replacement. However, the grievor did
not see this reply as she was not scheduled to work between July 25 and August 131 and did
not come in to work to check for a-mail messages. Nor did she follow up with the scheduling
coordinator by telephone or otherwise to learn whether her request had been granted.
There can be no doubt that the grievor's failure to report for two scheduled shifts
was a serious breach of her obligations, and one for which she had been warned OD previous
occasions. The Employer is entitled to expect that employees in the paramedic service
will behave responsibly in compliance with their scheduling and reporting obligations. It is
obvious that such compliance is vítally necessary, not only to ensure efficiency of operations
and conformance to provincial government regulatioIlB governing ambulance operations, but
also because it can be literally a matter of life and death for persons requiring their services.
The August 2005 'no-shows' were the fourth and fifth incidents of noncompliance with
these fundamental operational requirements by this short-service employee. In the normal
course of progressive discipline, and in the absence of extraordinary circumstances, which in
any event are not present in the grievor's case, they would have been proper occasions for
termination of employment.
The Union submits that the Augllst 2005 incidents occurred some 17 months after the
incident referred to in the August 20, 2004, warning letter.
Having regard to the interruption in the course of progressive discipline likely occa-
sioned by the process of transition from Health Trust to the current Employer, as well as to
the grievor's personal circumstances and to the submissions of the parties, I have <:oncluded
that this is a proper case for the exercise of my discretion to substit.ute a lesser penalty in
order to afford the grievor a last chance to demonstrate that she ~an and will comply with
the scheduling and reporting requirements.
Accordingly, the grievor is to be conditionally reinstated in her employment as of Au-
gust 29, 2005, without loss of seniority but without compensation. The letter of termination
is to be withdrawn from her file and is to be replaced with a suspension of six (6) shifts.
The condition of her reinstatement is that she fulfills her obligations to comply with the Em-
ployer's scheduling and reporting requirements under the collective agreement, failing which
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the termination of the grievor's employment is confirmed. Having regard to the operation
of article 11.01, set out in part above, this condition shall be deemed to have been satisfied
when the six shift suspension is removed from her file.
I remain seised, as requested, to determine any issue arising out of the implementation
of this award, including any dispute as to the grievor's compliance with the condition of her
reinstatement.
r thank both counsel for their valuable cooperation and assistance in the determination
of this grievance.
Dated at Toronto, 18 November 2005,
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(Prof.) Pa.1tl Craven
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