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HomeMy WebLinkAbout1994-1482POOLE95_12_20 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE r \",'- , t. SETTLEMENT REGLEMENT \ f, .rv"'/ ~ V' BOARD DES GRIEFS '11 ' \}/:i) . 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. MSG TZ8 TELEPHONEITEU!PHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILEITEU,COPIE (416) 326-1396 GSB # 1482/94 OPSEU # 94F344 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Poole) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Windsor Provincial Ambulance Employer BEFORE N Dissanayake vice-Chairperson FOR THE J Paul GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE J smith EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING August 16, 1995 2 DECISION This is a grievance wherein, the grievor, Ms Lori Poole grieves that she has been unjustly disciplined. The grievor was a member of the unclassified service since December 1990 and was employed at the Windsor Ambulance Service as an Ambulance Officer 2, commonly known as Driver/Attendant. On April 27, 1994, Ms. Poole had driving responsibilities for an ambulance. Her partner that day, with responsibilities as attendant, was Mr. Murdoch Gillies That day Ms. Poole backed up her vehicle in a parking lot, while Mr. Gillies was still seated in the vehicle with her. In so doing the ambulance struck a concrete bumper post causing damage to the rear of the vehicle The employer imposed a four shift suspension without pay on the grievor on the grounds that the grievor had failed to follow the employer's driving policy. The union argued that the discipline in this particular case should either be totally struck down or at least reduced The relevant portions of the employer's driving policy read: 5) All employees are aware and comply with the requirement that the attendant is to position himself at the rear of the vehicle, in view of the driver, in order to assist or guide the driver when backing up 6) The attendant should always remember that thp nr;vpr ;n pprfnrming his duties, is 3 more aware of his limitations and should not be "pushed" The vehicle and contents are the responsibility of the driver and it is he that will be held accountable in the final analysis should a mishap occur In short what happens behind the front seat is up to the attendant, the driver shall take those instructions from the attendant that concern the condition of the patient and can be executed safely, but the safety of the Passengers and Ambulance is the driver's prime concern. 7) When backing up a vehicle, it is the responsibility of the driver to ensure the attendant of his vehicle is at the rear, in view of the driver in order to assist or guide him when backing up The driver should not move his vehicle until directed by the attendant. When responding to calls, the driver should position the vehicle such that leaving will not require backing out whenever possible Mr Fred Rusk, Regional Manager for the Ministry's South West Region Emergency Health Services Branch, made the ultimate decision to discipline the grievor He testified that he used "progressive discipline", and took into account verbal and written reprimands for similar driving infractions he found in the grievor's record Since the grievor already had verbal and written reprimands on her record, he decided that the next step should be a suspension without pay In deciding on the appropriate length of the suspension Mr Rusk attempted to ensure that the monetary loss to the grievor would roughly equal the repair costs incurred by the employer as a result of the accident The repair costs amounted to $ 4 623 30 That roughly equalled earnings the grievor would make in four shifts Thus, Mr Rusk decided that it was appropriate that the employer recoup its loss by suspending the grievor without pay for 4 days. The union submits that the discipline imposed was invalid because of delay The accident occurred on April 27, 1994 It is pointed out that the grievor filled out an accident report the same day, and that the employer received repair estimates on April 29th Yet a discipline meeting was held only on June 8, 1994 and the suspension itself did not occur until July 4th. Union counsel points out that the employer's own Manual of Corporate Policy and Procedure required that "offenses are investigated and dealt with promptly" and submits that the delay from the date of offence (April 27/94) to the date of discipline (July 4/94) was contrary to that policy The union concedes that if the delay argument failed, some discipline was justified for the infraction However, it put forward a number of reasons as to why the four shift suspension was excessive. It is argued that the policy as written was ambiguous as to the respective responsibilities of the driver and the attendant Counsel pointed to the evidence that despite prior driving infractions, the employer had not sent the grievor for any training and that contrary to its own 5 policy requiring annual performance appraisals, the grievor had received only one performance appraisal since 1990 The union also points out that the grievor's partner Mr. Gillies received no discipline whatsoever, not even non- disciplinary counselling, for his failure to get out and provide directions to the grievor while she was backing up Counsel submits that the driving policy imposes a duty on the attendant to do so In the circumstances, it is submitted that to subject the grievor to a four shift suspension without pay amounts to unfair differential treatment The Board does not agree that, to the extent there was delay, it ought to invalidate the discipline imposed. This is not a case where the collective agreement stipulates mandatory time limits for imposition of discipline. The employer's own policy contains no specific time limits either. It has a very general provision that offenses are to be investigated and dealt with "promptly" Mr Rusk testified that the delay was due to scheduling problems he himself and others had The evidence is that the union willingly agreed to hold the disciplinary meeting on June 8th, on which date a meeting had already been scheduled to deal with another matter Considering the absence of any collective agreement provision and the circumstances within which the delay occurred, the Board does not consider that there has been any excessive or 6 unreasonable delay which would result in invalidating the discipline imposed The Board is also convinced that the lack of training, the alleged ambiguity in the driving policy or the failure to carry out regular performance evaluations on the grievor, ought to have no bearing on this grievance. The accident here did not occur because of a lack of skills on the grievor's part. She candidly admitted that at least from 1991 she was aware of the employer's driving policy which required the driver of the ambulance to ensure that the attendant gets out and gives directions for backing up. She admitted that she "made a mistake" on April 27, 1994 when she failed to follow that policy. In view of this, if the employer was in some way derelict with regard to the training, the drafting of its driving policy or the completion of performance evaluations, it does not in any way lessen the culpability of the grievor in failing to follow a simple common-sense policy of which she was fully aware The Board does not read the employer's driving policy as imposing equal responsibility on the driver and the attendant when backing up a vehicle Paragraph 7 of the policy is clear that "It is the responsibility of the driver to ensure the attendant of his vehicle is at the rear, in view of the driver in order to assist or guide him when backing up", and that 7 "the driver should not move his vehicle until directed by the attendant" The Board agrees with the union that paragraph 5 of the driving policy imposes a duty on all employees, including attendants to be aware of and comply with the backing up policy However, there can be no doubt that the primary responsibility for ensuring compliance is placed squarely on the driver of the vehicle. While the employer could, and probably should have at least counselled Mr Gillies for his failure to follow pOlicy, given that the driving policy clearly placed the primary responsibility for compliance on the grievor and that the grievor had prior discipline on her record, the Board does not find that there was unfair differential treatment as would justify intervention by the Board Apart from all of the foregoing, the issue still remains whether the quantum of discipline imposed on the grievor was reasonable in all of the circumstances. While the employer relied on a "record" consisting of four prior driving infractions, it was conceded that discipline (a letter of written reprimand) was imposed only with regard to one of those incidents - another accident involving backing up While the other three incidents only resulted in non- disciplinary counselling, they serve to establish that the grievor was made aware on each occasion that the employer expected her to comply with its driving policy 8 Therefore in light of all of the evidence, the Board finds that the grievor had received non~disciplinary counselling on three prior occasions, which ought to have impressed upon the grievor the necessity to be cautious in driving and the need for compliance with the driving policy. The letter of written reprimand she had received ought to have specifically drawn to her attention the backing up procedure set out in the driving policy Despite all of this, the grievor clearly failed to follow the backing up procedure in accordance with the policy Therefore, she deserved some disciplinary response from the employer. It is apparent that the past letter of written reprimand did not have the desired corrective result on the grievor, because she repeated the offence. However, the Board has concluded that the 4 shift suspension was not appropriate in all of the circumstances Despite the fact that she had not corrected her ways by learning from her past experiences with accidents, the Board found the grievor to be a very candid and truthful witness. She exhibited genuine remorse and accepted full responsibility for her failure to comply with the policy. That is a factor that the Board considers to be mitigatory of her culpability and the employer's disciplinary response 9 More significant is the formula Mr Rusk used to arrive at a 4 shift suspension. He testified that the initial decision reached in consultation with the Human Resources Department was to impose a 2 shift suspension However, he changed his mind when he decided that through the disciplinary response the employer ought to be able to recoup the repair costs it incurred as a result of the grievor's conduct. He sought to penalize the grievor by an amount equal to the repair costs. The Board finds this formula to be inappropriate for measuring the quantum of discipline for driving infractions The financial loss may be one relevant factor to be considered in deciding the degree of discipline. However, the degree of discipline must not depend solely on the extent of the financial loss incurred The primary consideration must be the gravity of the grievor' s misconduct In one case a very minor infraction by a driver may result in an accident which causes extensive property damage In another case an accident resulting from blatantly reckless conduct, eg driving while intoxicated, may only result in minor damage It could hardly be argued that the driver in the former case ought reasonably be subjected to more severe discipline that the drunk driver The Board disagrees with the union that the appropriate penalty ought to have been a written reprimand, because the evidence is that the previous written reprimand failed to 10 work In all of the circumstances, having regard to the principles of progressive discipline, it is the Board's conclusion that the appropriate penalty ought to have been a two shift suspension without pay The employer is directed to amend the records accordingly, and to compensate the grievor for her losses, subject to a two shift suspension without pay The Board remains seized in the event the parties have difficulty implementing this decision Dated this 20th day of December, 1995, at Hamilton Ontario ~ .~ ~ Ni~~~Y~e Vice-Chairperson