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HomeMy WebLinkAbout1993-0967.MacMillan.95-01-13 {~ ~~ /, ,..~ ONTARIO EMPLOYES DE LA COURONNE - .~~ CROWN EMPLOYEES DE L'ONTARIO I l 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTq (ON) M5G IZ8 FACSIMILE/TELECOPIE (416)326-1396 GSB# 967/93 OPSEU# 93E137 IN THE MATTER OF AN ARBITRA~ION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ) Before ( THE GRIEVANCE SETTLEMENT BOARD \ BETWEEN OPSEU (MacMillan) Grievor - and - The Crown in Right of ontario (Ministry of Health)Thames Valley Amb Ltd Employer BEFORE N Dissanayake Vice-Chairperson S Urbain Member D. Montrose Member FOR THE A. Lee GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P Whalen EMPLOYER Counsel Barristers & Solicitors HEARING January 26, 1994 April 22, 28, 1994 June 1, 1994 July 8, 1994 -r '-' -~ ~ ..:~ '. 2 DECISION This is a grievance filed by Ms Alison MacMillan, all~ging that she was dismissed without just cause The dismissal was effected by a letter dated June 3, 1993 The employer, Thames Valley Ambulance (TVA) is a corporation solely owned by Mr Bob Duffield It operates a licensed ambulance service, which is regulated by the Ambulance Act and is subject to the requirements and guidelines issued by the Ministry of Health It operates its ambulance service out of four bases in the London area TVA vehicles are dispatched by the London Central Dispatch Centre (LCDC) which is part of the ontario Public Service The grievor worked a shift on June 1, 1993 starting at 7 00 P m and ending at 7 00 a m the next day Her discharge resulted from events that occurred during this shift Based on all of the evidence, the Board makes the fOllQwing findings of fact The grievor commenced employment with TVA in June, 1985 as a part-time Driver/Attendant In April 1986 she assumed full-time status, but vOluntarily reverted to part-time in October 1991, when she obtained a position as dispatcher with the London City Police ~ I .t5 '" - ~ - 3 On the shift on June 1, 1993 she was partnered with Driver/Attendant Ms Tracy Garneau Upon arrival she realized that the vehicle assigned by her TVA shift supervisor, no ~ 1173, had not returned to base However, a second vehicle, no 1176 was available in the bay Short~y after 700 p m she started a vehicle check on no 1176, which included checking to ensure that the vehicle was properly stocked with the required supplies and equipment At 7 05 P m she was interrupted by a call from Mr McKaig the dispatcher at Leos During a very brief conversation, he informed the grievor that he was expel:iiencing a shortage of vehicles and that she was assigned to whatever vehicle was at base When the grievor ,inf ormed that the vehicle at base was no 1176, he stated that that would be the vehicle she would use The grievor indicated that when the other vehicle returns, she would take that Mr McKaig did not object, but stated that for t~e pre~ent, the grievor was to use no. 1176. 1 grievor received At 7 21. 30 P m the a call from Mr McKaig again All conversations between dispatchers and vehicles are routinely recorded The transcript of the tape of the call in question was filed in evidence and is as follows 1 Ring 2 Grievor Hello E ~ e 4 3 McKaig Hello How are you? 4 Grievor Good 5 MCKaig Ah, they shouldn't be too long coming back I got one UHMRI to South Street 6 Grievor o K I'll call you when the truck is checked 7 McKaig No Now Take the information now 8 Mckaig: 1 7 1, roger 9 Grievor (Hangs up no 1) 10 Ring, Ring 11 Grievor Hello 12 McKaig Hi, I said take the information now 13 Grievor Well, you started talking to somebody else 14 McKaig I rogered a car Eleanor Campbell UHMRI, CCTC at Vic, South street And I'll put you on it now 15 Grievor Occurrence number 16 McKaig Sorry? 17 Grievor Occurrence number 18 McKaig Call number is 514593 19 Grievor We'll go on it when we're finished our check with the vehicle when it gets back 20 McKaig You can explain that to the 21 Grievor (Hangs up no 2) 22 Ring Ring 23 Grievor Yes - 24 McKaig You'll go in 1176 and you'll go now 25 Grievor: Ah, no 26 McKaig Yes Are you refusing 27 Grievor Is this a Code 1? 28 McKaig Are you refusing the call? 29 Grievor: No I'm not What code is this? 30 McKaig Are you refusing the cail? 31 Grievor What code is this? 32 McKaig It's a Code 1 33 Grievor It's a Code 1 o K., I'll get back to you (Hangs up no 3) 34 Ring 35 Grievor: Standby please (Hangs up no.4) 36 McKaig: 7 3 Roger 37 Ring Ring Ring 38 Garneau Hello 39 McKaig Who's this? 40 Garneau Tracy 41 McKaig Tracy, go on the call ~n '76 please 42 Garneau OK, does she have the address? 43 McKaig You're ordering it 44 Garneau o K 45 McKaig It's an order 46 Garneau o K ~ c r; 5 47 McKaig o K Either do it or refuse it That's it 48 Garneau o K 49 McKaig o K Bye The forgoing exchange lasted a total of 2 minute~ and 19 seconds By the time this exchange ended, vehicle no 1173 had returned to base The grievor and Ms Garneau took it and completed the call in question The ultimate decision to discharge the grievor was made by Mr Duffield He testified that the incident came to his/ attention on June 2nd, through supervisorMr Chris Darby The (evidence indicate,s that Mr Darby became aware of t'he / exchange between the grievor and Mr McKaig, when the griever, after hanging up for the third time, called Mr Da'rby to complain about her perceived unreasonableness of Mr McKaig's insistence that she use car no 1176 to do a code 1 call immediately Mr. Darby acivised the grievor that he had no authority over dispatchers and directed her that she comply with the dispatcher's instruction Upon f indingout that there had been a problem between the grievor and a dispatcher, Mr Duffield instructed Mr John Mercer, operations Manager, to investigate Mr Mercer inquired from Mr Darby, who informed him that there had been a problem between the grievor and Mr McKaig, that Mr MCKaig had some difficulty getting a call done Mr ~ 6 Mercer obtained a written statement from Mr Darby Mr Mercer next visited the Dispatch Centre ,and obtained a copy of the tape of the exchange between the grievor and Mr McKaig FOllowing Mr Mercer's visit to the Dispatch Centre, Mr " McKaig's supervisor requested an incident report from Mr McKaig, which the latter filed A copy of this was also provided to Mr. Mercer Mr Merc~r reported to Mr Duffield and provided him the copy of the tape, the statement by Mr Darby and Mr McKaig's incident :r:eport Mr Mercer, then prepared two forms for the grievor and Ms Garneau respectively, requesting a report on the incident Through three questions set out, Mr Mercer wanted an explanation as to why they had not responded to the code 1 call using vehicle no 1176 right away, when the dispatcher so requested the first time The forms were placed on a tray where mail was usually placed for pick up by employees The form states that it is to be completed "on the first working shift that this request is received". Ms. Garneau replied, stating in essence that she was not privy to the excha~ge between the grievor and Mr McKaig and that since no 1173 was back by the time she answered the last call, they had taken it to do the call There was no response received from the grievor Having received the tape, Mr Darby's statement, Mr McKaig's incident report and Ms Garneau's report, Mr ~ - .. 7 Duffield had a meeting with Mr Mercer and Ms Irene Carruthers (Asst Manager) on June 3 , 1993 Based on the I information they had, they concluded that the grievor had refused to do a call dispatched by Mr McKaig and that such conduct contravened TVA rules as well as the Ambulance Act I They discussed discharge of the grievor as an appropriate response, but left the final decision to Mr Duffield The same day Mr Duffield decided to discharge the grievor That day the grievor was not scheduled to work, but was expected to come in to pick up her pay cheque On Mr Duffield's instructions, Mr MeJ;'cer withheld her pay chequ~, and instructed her to attend a meeting with Mr Duffield and Ms Carruthers on June 4, 1993. The grievor attended the June 4th meeting with two union stewards There is no dispute that Mr Duffield started the meeting by handing the letter of discharge to the grievor "- The union witnesses claim that after reading the letter,~they asked Mr. Duffield specifically whether he wanted to hear the grievor's side of the story and that Mr Duffield replied that he did not and that he had all the information he needed on tape They also testified that Mr Duffield denied their request that they be allowed to hear the tape Mr Duffield, corroborated by Ms Carruthers, denies that the union made either request He testified that while he did not want a "heated discussion", he was willing to listen - -- -.-.- -- t 0 . 8 Before turning to the merits of the parties' positions, we turn to the process followed by the employer In the absence of any requirement in the collective agreement for a particular procedure, an employer is legally free to make its disciplinary decisions in any manner However, it is the employer's responsibility to ensure that its decision is legally correct, because if the decision is challenged, the onus would be on it to establish just cause In these circumstances, it is very foolish for any employer, to not confront the grievor with the allegations and provide the grievor with a full opportunity to respond, before making any decision as to discipline. By not doing that the employer runs the risk that it may make its decision without knowledge of circumstances or an explanation which would exonerate the grievor or at least reduce the gravity of the,misconduct Why any employer would fail to take that very basic precaution is beyond this Board's comprehension In the case at hand, there is no doubt in our minds that the employer had no ,intention or desire to hear the grievor's side before making its decision While the request form was left for pick up, no one in management knew that the form had been picked up by the grievor Mr Mercer spoke to the grievor that day and yet did not bother informing her that there was an important form for her to pick up We find on J -I , ( ~ 9 the evidence that the grievor was not aware of the form and J did not pick it up Whether or not the union requested for an opportunity to present the grievor's side at the June 4th meeting, it is / clear that _Mr Duffield had made up his mind before the meeting. At the meeting the first thing he did was to hand over the letter of discharge He did not ask the union or the grievor for any explanation While Mr Du~field testified that he would have been willing to listen, we have no doubt that nothing the grievor would' have had to say would have affected Mr Duffield1s decision If he was interested in hearing the grievor's side, he would have given her that I opportunity before making the decision This was made clear by Mr Duffield during the cross-examination When counsel ( suggested that he should have met with the grievor before making his decision he replied "the tape said it all" Even during his testimony he was of the view that in view of the existence of the tape it was not necessary to hear any explanation the grievor may have had While we find that the process followed by the employer ( was not prudent and not appropriate, that by itself does not vitiate the discipline imposed In the absence of any mandatory procedure stipulated in the collective agreement, - -~- - - --- -- --- - , ~ 10 the Board must still inquire whether the employer, despite the I flawed procedure, reached the correct conclusion / Counsel for the employer submits that the grievor ) breached a number of company rules by her c;:onduct on June 1, 1994 Additionally, he claims that her conduct constituted "insubordination" and that she failed to follow the "obey now and grieve later rule" He submits that her conduct, considering that she was employed in the health care industry, was so grave that discharge was an appropriate penalty - The Board agrees with union counsel that the arbitral doctrine of ihsubordination and the "obey now" rule has no relevance or application to the facts in hand That doctrine deals with direct orders made by a supervisor Clearly, Mr McKaig was not a supervisor He was an employee of a different employer wpo had to interact with the grievor in the course of performing his duties as dispatcher Therefore the employer i s case boils down to an allegation that the grievor contravened company policy In the alternative, even if the grievor had not contravened any specific policy, she could be subject discipline, if her conduct on June 1, 1993 was so inherently inappropriate and culpable ~ \ .. 11 Mr Duffield when asked why he disciplined the grievor replied "In my opinion it was a blatant act She refused to do the call 4 times That is against the company policy and the Act Employees are hired to care for the sick I feel it was very serious" When asked what company policy was violated Mr Duffield refer~ed tq a number of provisions in the Operation Procedures Manual in effect at TVA Those are listed below numerically for convenience 1 Upon receipt of any call from CAe C , you will respond immediately and the ambulance should be mobile from the station with-in two minutes at the most after receiving the call from Dispatch, and indicate via radio that you are 10-8, giving destination 2 Ambulance crews rule not delay or refuse service of any ambulance calls under any circumstances 3 If the Ambulance officer has concerns about the nature of any duty assigned, he/she should record all information and, do the call, then when practical, contact the superintendent for clarification or discussion ( 4' REMEMBER - always respond to the assignment and if necessary express concerns afterwards - NEVER. REFUSE TO RESPOND Mr Duffield also referred to statements in the procedure manual which require all employees to be aware of and comply with policy and procedure and the Ambulance Act and \ regulations ~ ~ ~ 12 To understand the grievor's def~nce it must be noted that the company policy as published does not distinguish between different types of calls (Codes 1 to 4) in setting out the conduct expected fromemp loyees However, the evidence is clear that in practice, the employee response expected varied depending on the code of the call The dispatcher testified that the call he assigned to the grievor was a code 1, which was the lowest priority He further testified that the patient in question was being returned from treatment at a hospital and that this type of call took the lowest priority even among code 1 calls He testified that when dispatchers call an attendant to assign a code 1 call, it was not unusual for the two to engage in a casual conversation for a few minutes He also conceded that not infrequently, on receipt of a code 1 call, attendants would tell him that they would do the call after the break or after they finish a cigarette, coffee or meal He testified that that was acceptable practice This testimony was corroborated by all witnesses, including some of the employer witnesses The evidence also is clear that as a general rule, if a code 1 is dispatched before a vehicle check had been done, it was appropriate for the crew to complete the vehicle check before going on the call The evidence indicates that while generally code 1 calls are not expected to be treated with the same degree of urgency .oi, ~ 13 as other calls, on the day in question the dispatcher Mr McKaig was under pressure to have this particular code 1 call dispatched quickly The evidence is that June 1st was a very busy day with several code 3 and 4 calls Earlier Mr McKaig had dispatched a different crew to do the same code 1 call ~ that was later assigned to thegrievor That crew called back and reported that the patient was not ready when they arrived Sometime later Mr McKaig had a request again for the transfer of the same patient, who had a medical team with her The hospital was anxious to have her transferred quickly By the time Mr McKaig called the grievor to assign her that call, , the call had already been delayed by about 1-1/2 hours Mr McKaig had previously been disciplined for delaying the dispatching of a crew to a similar call We find that it was this which \ pressure caused Mr MCKaig to insist that the grievor proceed immediately On vehicle no 1176 rather than j wait for the return of no 11 7'3 and that she should not \ further delay responding by waiting to complete a vehicle check In other words, we fi~d that the urgency demanded by Mr McKaig was unusual for a code 1 call Nevertheless we find that it was within Mr McKaig's authority to use his discretion in the way he did, having regard to the particular circumstances of that call The grievor testified that she did not want to take vehicle no 1176 on the call because she had not completed --- ~' ~ - 14 checking it and because it was not equipped with a defibulator and portable radio Based on the evidence, we do not accept that that was the reason for the grievor's reluctance to comply with the dispatcher's instructions Normally, in a r code 1 situation, the grievor would have been allowed to w~it for the returning vehicle and to complete the vehicle check, before proceedinq on the call The grievor was not aware of the special circumstances of this particular call She therefore could not understand why on this occasion Mr McKaig was departing from usual practice She testified that -she felt that he was being "ornery", "stubborn" ang "unreasonable" In our view she felt that Mr McKaig.; was departing from what she understood to be the normal practice . and felt that Mr McKaig was being unreasonable We find that this is what in fact caused her to question his instructions ,~ The most serious allegation against ,the grievor, and \ according to Mr Duffield the reason for her discharge, was that she refused to do the cal~ During her testimony, the grievor explained her behaviour during the exchange with Mr McKaig She testified that she hung up the first time (line 9 on transcript above) because, Mr McKaig started to talk to another vehicle (line 8) The grievor made the same explanation to Mr McKaig when he called back (at live 13) I p., ~ ,"", 15 We find that at line 14 Mr McKaig had conveyed all of the information the grievor needed to do the call and by line 18 a call number had been obtained At line 19 the: grievor says that they would go when they finish checking vehicle no 1173 once it returns At line 20 Mr McKaig starts a sentence but is cut off The grievor test~fied that she hung up this- time because she did not hear Mr MCKaig speak Mr MCKaig calls back once again At line 24, he gives a clear dir,ection "You'll go in 1176 and you'll go now" The grievor gets verification that it is a code 1 call and at line 33 says "OK I'll get back to you" and hangs ,up She - testified that she hung up this time, intending to call a supervisor to complain that Mr McKaig was being unreasonable and hoping that the supervisor would intervene she called \ Mr Darby after hanging up Mr Darby informed her that he had no authority over dispatchers and directed that she should comply with the directions of the dispatcher While the grievor was on the telephone with Mr Darby, Mr _McKaig called again on the other phone The grievor picked it up, said "standby please", and hung up She testified that she did so because she was on the other phone speaking to Mr Darby Mr McKaig called back once again l Thi~ time Ms Garneau answered He made it clear that he was ordering them to do the call in no 1176 By then the grievor \ \; ~ ~ 16 also had a direction from her supervisor to comply At that time the dispute was moot because vehicle 1173 had returned to base The grievor and Ms Garneau used no 1173 to do the call The first issue to determine is whether from the foregoing facts it could be said that the grievor blatantly refused to do the call as Mr Duffield concluded In our I view, the evidence makes it clear that the grievor did not refuse to do the call She was willing to do the call, but was questioning the dispatchers instructions as to how the call was to be done. He wanted her to proceed immediately using vehicle no. 1176 She felt that was unreasonable and that it would be proper to wait for the return of vehicle no 1173 When Mr McKaig would not go along with her point of view she tried to enlist the support of Mr Darby Mr Darby gave a direction that she comply with the dispatcher's directions, i~e to take no 1176 without waiting for vehicle no 1173 to return However, by then no 1173 had returned and she took it We do not know whether she would have complied, if no 1173 had not returned at that time Mr Peter Bergsma, the Manager of the London Central Dispatch Centre testified in chief that in his view the \ exchange at lines 21 to 25 amounted to a "refusal,j However, under cross-examination he was asked whether any crew that ~~ J "- ( -, 17 does not respond immediately to a code 1 call, was engaging in "a refusal " He replied "No But what's missing here is a lack of communication between attendant and dispatcher, particularly the attendant A crew may tell the dispatcher they will go after finishing coffee break or lunch and based on the request the dispatcher Ir!.ay grant it " When asked "how about delaying to finish a vehicle check", he replied "In most; circumstances for a code 1 the dispatcher will allow it to be I finished" Mr John Hambides, Manager of Resource Development with the Emergency Health Services Dept of the Ministry of Health has responsibility for the education and trairving of staff at Emergency Health Services and to coordinate ambulance s'ervices throughout Ontario He was called by the employer In chief when asked for his opinion r~lating to lines 24 and 25 in the exchange, replied "It appears she is refusing the call" , employer counsel later asked "What if an attendant However, has a problem with the directions given by a dispatcher " Mr. Hambides replied, "That happens Then she should say what the problem is. She can make alternate suggestions That's acceptable But if the dispatcher instructs to proceed on the call the attendant should proceed without delay" In cross- examination, he was asked whether in his professional opinion, the fact that an attendant questioned the directions of a dispatcher was grounds for disc::harge He replied "No As / --- l ~ ~ 18 long as its done in a cooperative manner to determine if that's the system There are occasions when an attendant may question the dispatcher But the bottom line is if the dispatcher disagrees, the attendant must follow the instructions " In our view, the testimony of these two employer witnesses support our finding that what the grievor did was not refuse to do the call What she did inappropriate was the persistent questioning of the dispatchers directions and the manner in which she did so The person in the best position te assess what the grievor was doing was Mr McKaig. He was the one who gave tpe direction and he directly experienced the griever's response He was called by the employer to testify He testified very clearly that he did not take the grievor's response as a refusal He went on to state that if he had felt that the grievor was refusing ,he would have sa,id so in his report and that he deliberately avoided alleging a refusal because the grievor did not refuse to do the call Having concluded that the grievor did not refuse to do the call, the Beard must determine whether she nevertheless acted inappropriately so as to justify a disciplinary response on the part of the employer Having reviewed the grievor's conduct we must conclude that she did engage in culpable conduct which warranted and justified discipline We J ~ ~ " , 19 recognize that this was a lowest priority code 1 call The policy requiring a response within two minutes is not strictly enforced in this type of call Nevertheless, thel leeway allowed is that c;ln attendant may request the dispatcher for permission to vary his directions Therefore by initially suggesting that she would wait for vehicle no 1173, the grievor did no wrong However, the dispatcher clearly stated that he did not agree to her suggestion There was a disagreement between the attendant and the dispatcher It must be remembered that there was a third party involved in this, namely, the patient who was waiting for the ambulance Once the dispatcher made it clear that he was directing the call to be done, the debate ought to have ended. Considering the nature of the service being given by the employer, the patient should not have to be delayed while the attendant and the dispatcher carryon an argument That is not a tolerable state of affairs It is for this reason that the employer's policy (See p 11 suora) requires that the attendant comply with the dispatcher's instructions and complain later. The grievor clearly breached this policy We also find that the grievor's conduct was culpable in the manner she expressed her anger or annoyance with Mr MCKaig She felt that he was being unreasonable Her ~ reaction was to try to intimidate him into agreeing to her own terms. Thus she hung up without waiting for Mr McKaig to \. \; ~ '~ - 20 respond On another occasion she just said "stand by" and hung up without explaining that she was on another line To say the least, that was not professional conduct In a service such as emergency health care, that is not a tolerable attitude While on occasion hang ups may occur, we do not accept the union's position, that this type of conduct has been knowingly condoned by the, employer While this was a low priority call and while the grievor did not refuse to do the call outright as alleged by the employer, we nevertheless agree that it is simply not tolerable to have an attendant persistently carrying on a debate with the dispatcher when there was a call to t?e done The service to the patient must take priority over the resolution of any dispute between dispatcher and attendant. The grievor acted culpably by carrying on the debate once the dispatcher made it clear that he wanted the call done and by acting unprofessionally during the exchange by abruptly I hanging up. The next issue is whether the grievor's conduct in question justified the ultimate penalty of discharge. We have I concluded that the grievor's conduct was not as serious as the employer alleged. She did not refuse to do a call The evidence indicates that the grievor has been a competent and dedicated employee since she started in 1985 All of the ) .~ ! ~ ' } ~; 21 evidence supports that Most significant is the uncontradicted evidence that she has never had any discipline whatsoever prior to this incident She readily agreed that refusing to do a call was a serious offence and that she would never do that She also admitted that she unintentionally violated the TVA policy by not do~ng the call and que~tioning the dispatcher's reasonableness later Employer counsel recognized that the employer had not followed the principles of progressive discipline in \ discharging the grievor However, he subJ;llits that the grievor's conduct was so serious that it demonstrated that she was not suitable to be employed in the ambulance service industry, and that her conduct irreparably undermined her employment relationship Having regard to the nature of the grievor's infraction, and her record of employment, the Board cannot agree There is no indication from the evidence that the grievor would not respond positively to progressive discipline. The infraction I in question was an isolate departure from an attendant who previously had a flawless career at TVA since 1985. To uphold the discharge in these circumstances would be discard all of the jurisprudence stressing the importance of corrective discipline ( .~ (> 22 Having regard to the nature of the grievor's conduct and the mitigatory circumstances, we direct that the grievorbe reinstated in her position, subject to a suspension without pay for a period of 10 working shifts subject to that penalty, the grievor shall be entitled to be compensated for all monies lost, benefits and seniority The Board remains seized in the event the parties encounter difficulty in the implementation of this award '- Dated this 13th of January, 1995 at Hamilton, ontario ~g7--<-- N Dissanayake vice-Chairperson \, ~) -td.r UJ..~~ s. Urbain Member 'I Dissent' Dissent to follow 0 Montrose Member " -- ,::- II;..'" .~.... c->> ; r . r. - Partial Dissent .....--------------- Q67/93, MacMillan (MINISTRY OF HEALTH) THAMES VALLEY AMBULANCE LTD I agree with the award up to the duration of the penalty imposed ". The conduct of the grievor in this incident cannot be compared .to a delayed - response to a direct order on a factory floor, simply impeding production, but to a health care system coping with life and death situations To allow ,... ambulance crews to procede at their own time in the ambulance of their choice, could lead rapidly to a deterioration of service and patient c~re In addition, this Infraction, could cause the employer to lose or suspend the right to operate an ambulance service The grievor's unblemished .record of employment since 1985 dictates she should be reinstated to her part time position Her regular position is a dispatcher with the London City Police In view of this, the grievor should be reinstated without pay, benefits or seniority to her part time position at the Thames Valley Ambulance Ltd . ~~~ ...:;i\ .-::> D C Montrose