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HomeMy WebLinkAbout1995-1591ALLEN97_03_17 / ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO ON M5G 1Z8 TELEPHONE/TELlEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1591/95 OPSEU # 95E436 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Allen) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Green's Ambulance Service Employer BEFORE O.V Gray Vice-Chairperson FOR THE R Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J. Batty EMPLOYER Assistant Manager Green's Ambulance Service HEARING November 25, 29, 1996 .--- Decision ThIS gnevance concerns a 10 shIft suspension wIthout pay that the em- ployer Imposed on the gnevor, a part-time ambulance attendant, as a result of hIS faIlure to arnve at work wlthm 8 mmutes after bemg called m to work whIle workmg a stand-by shIft. The faIlure IS admItted. The umon says that the em- ployer's response to It was exceSSIve m the CIrcumstances. One of the CIrcum- stances on whIch the umon partIcularly relIes IS that on a prevIOUS occaSIOn the employer Imposed a one day suspenSIOn on another employee for what the umon argues was a SImIlar offence m SImIlar circumstances. When an employee IS scheduled to be on stand-by, the employer's pohcy IS that the employee must be able to arrIve at the ambulance base in uniform withm 8 mmutes after the dIspatcher calls a telephone number supplIed by the employee for that purpose FaIlure to do so may result m the dIspatcher con- tactmg someone else, m which case the employee loses both standby pay and call-m pay and may be dISCIplIned as well. The employer Issues pagers to em ployees on stand-by who prefer not to remam at a fixed locatIOn (and do not have a cellular telephone) The umon agrees that the employer's pohcy IS reasonable On the occaSIOn m questIOn, September 9, 1995, the gnevor was on stand- by He had told the dIspatcher he would be at home, and he was He was dressed m hIS umform and otherwIse ready to go Unfortunately, he fell asleep on a couch, and dId not hear the telephone rmg when the dIspatcher called at 18.24, nor when the dIspatcher called again about 4 mmutes later I The dIspatcher left I The dIspatch record that the dIspatcher prepared as events occur recorded these two calls. A report the dIspatcher was asked to wflte after the event also referred to a call placed one mInute after the first. I ruled that I would receIve the fIrst mentIOned docu ment as evidence of Its contents WIthout the neceSSIty of callmg ItS author, SInce It clearly fell WIthIn the scope of the bUSIness record exceptIOn to the rule against relYIng on hearsay eVIdence. It dId not appear to me that the second, after the.fact narratIve reo port fell WIthIn that category RecogmzIng that I had the JUrISdICtIOn to reCeIve hearsay eVIdence but not to rely solely on hearsay when It would be unfaIr to do so (Re G~rvm et (contInued on next page) 2 -- a message on the gnevor's answermg machine durmg at least one of these calls. The grIevor woke up a few mmutes after the last call. He noticed that he had a message on his answering machme, listened to it and called the dispatcher at 18 36 In the meantime, however, the dIspatcher had alerted a supervIsor about her inability to contact the grIevor The call for whICh the stand-by crew was needed was a Code 4 call, meamng that the CIrcumstances of the patient ap- peared hfe threatemng The supervIsor and other call-m crewmember were de- partmg m an ambulance when Mr Allen arrIved at the base at 18 38, 14 mmutes after the dIspatcher's first call. Afterwards, the employer asked the grievor to explam why he had not re- sponded He admItted that he had fallen asleep He testified that he was nor- mally a lIght sleeper, and thought the telephone would wake hIm up He could not understand why It dId not. Smce that time, he said, he has taken precautIOns not to fall asleep while on standby The employer deCIded to Impose a 10 shift suspensIOn, and gave the gnevor this letter. RE: DISCIPINARY [sic] SUSPENSION RESPONSE TIME FOR STANDBY In completIOn of the reVIew mto the ambulance call on September 9, 1995 (#420006) at [location] It has been determined that the delay m response was caused by yourself by not respondmg to the call wIthm the deSIgnated tune as per polIcy, ThIS exceSSIve delay resulted in a SupervIsor bemg called in to do the ambulance call. Furthermore, this delay was not an unaVOIdable occurrence but was caused by your neglIgence. ThIS performance is unacceptable and will not be tolerated as It may have had a detrrmental effect on the health and well bemg of the patIent. As you have already reCeived a wntten warmng on July 13, 1993 for the same problem you are hereby suspended from work WIthout pay for 10 scheduled shIfts WhICh WIll commence September 1 9 1995 and run consecutIvely at. and Consumers' Gas Co (1973), lOR. (2d) 421 (ant. DIV Ct.)) I ruled that I would not gIVe weIght to the report, whIch was essentIally a WItness statement, WIthout hear mg from the WItness herself. In any event, nothmg turns on whether there were two calls or three - 3 -- Furthermore, any reoccurrence of thlS problem and you will be subject to unmedIate dIsmIssal. If you have any further questions on thIS matter or u I can be of any assIstance please contact myself. As the disclphnary letter mdlcates, the grlevor had prevIOusly been gIven a dIsclphnary warnmg for faIlure to respond m July 1993 On that occaSIOn the dIspatcher dId reach the grIevor by telephone, but the grIevor's locatIOn was too far from the base for hIm to get there m 8 mmutes - he arrIved 13 minutes after recelvmg the dIspatcher's call. The gnevor had also been dlsclplmed for lateness, for whIch he was warned in July 1993 and October 1994 and gIVen a one hour suspension m July 1995 He was also warned m May 1994 about faIlmg to renew hIS first aId certifi- catIOn before It expIred and m June 1995 about faIlmg to properly mspect his ve- hIcle. In November 1994 another ambulance attendant, referred to here as "E P ," was gIven a one day suspensIOn for faIlure to respond. The dlscIphnary letter m that case read as follows RE: DISCIPLINE - FAILURE TO RESPOND On November 4, 1994 pnor to your scheduled 4-12 on call shut you received a pager and fresh battenes for your on call shut. A test page was completed and It functlOned properly At 17'04 hrs. and 1708 hrs. you were paged to respond to work for an emergency call. The dIspatcher also attempted to contact you by telephonmg your reSIdence at 17 10 hrs. WIth no answer Subsequently, you failed to report for work. Not bemg able to confirm your aVaIlabIlIty a replacement was made for the standby shift. Upon your return at the end of the shIft, the pager was tested five times at dIfferent locatlOns and functlOned properly ThIS was done WIth the same battenes. As per company polley when you use a pager for you standby shift you assume the responsibility for ItS functlOn Furthermore, a reVIeW of your employment record mdIcates that you reCeIved a wntten warning for the same occurrence on June 8, 1993 You are hereby warned that your failure to respond could have resulted m a detnmental delay to an emergency response and It wul not be tolerated. As you have receIved a pnor wntten warning, you are hereby suspended from work for one day WIthout pay In addItIOn, you will not receIve the pay for the standby shIft that you mIssed. Your day of suspenslOn WIll be FrIday, November 18, 1994. 4 -- Please take whatever precautlOns are necessary so that thIS does not happen again as any future mCIdents of thIS nature will result in further disciplInary action. If I may be of any assistance please feel free to contact myself. The June 8, 1993 warmng to E P referred to in the fourth paragraph of the No- vember 1994 letter read as follows RE: WRITTEN WARNING FAILURE TO RESPOND On June 6, 1993 durmg your scheduled 4.12 on call shIft you receIved a pager and fresh battenes for your shut. A test page v\ as not done as recommended by company polley and by your own adnnsslOn you stated you failed to assure your pager was turned on. Subsequently, you were paged at 17.23, 17.27 and 1731 to respond to the office for work. You failed to show As per company polley when you use a pager for your standby shut you assume the responsibility for Its functlOn. You are hereby warned that your failure to respond could have resulted m a detrrmental delay to an emergency response and will not be tolerated. Please assure that pagers are checked and tested prior to leavmg the office and use a back up telephone number whenever possible as any future occurrences of thIS nature will result m further dIscIphnary actlOn. Furthermore, you will not receive standby pay for that. scheduled shIft as you illd not respond and you had to be replaced. John Batty IS the employer's assIstant manager He testified that he made the decIsIOn to Impose a 10 day suspenSIOn on the grlevor He said that m makmg that decIsIOn he took mto account the serIOusness of the offence, the gnevor's faIlure to respond m a timely manner two years earlIer, and what he referred to as an "extenSIve" hIStory of counsellIng and warmngs arIsmg out of other offences. With respect to the serIOusness of the offence. Mr Batty noted the potentIal consequences to a patIent of, and the potentIal lIabIlIty of the employer for, a faIlure to respond in a timely manner He observed that the patIent m- volved here later dIed In cross-exammation, Mr Batty acknowledged that the patIent dIed some time after the ambulance transported hIm or her to the hospItal, that he could not say that the delay caused by the gnevor's faIlure to respond contributed m any way to that outcome, and that no proceedmgs had been commenced or threatened agamst the employer as a result. 5 ~ Mr Batty also acknowledged that he had wntten the June 1993 and No- vember 1994 warmng and suspension letters for E P, that E P had worked for the employer for about as long as the grievor had, and that the incident that re- sulted m E P 's one day suspenSIOn also mvolved a Code 4 call. Durmg hIS testi- mony he saId the reason E P 's case was treated dIfferently was that "It mvolved eqUIpment faIlure or at least was questIOnable whether It was eqUIpment faIl- ure" He saId E P's faIlures to respond "could have been blameless" The gnevor's faIlures, he saId, were both blameworthy He added that although the call m E P 's case was also a Code 4 call, as It turned out the patient was stabI- lIzed and dId not dIe There IS no doubt that the grievor's conduct warranted dlsclplme. Crews are kept on standby so that the ambulance servIce can respond to emergent pa- tient needs wlthm a reasonable tIme When a standby crew is called m, Its prompt attendance at base can literally be a matter of hfe and death. A crew- member's faIlure to ensure that the dispatcher has a means of contactmg hIm or her Immediately IS a senous concern. The unIon does not challenge that. It SIm- ply says that a leap from a warmng for a first offence to a 10 day suspensIOn for a second offence of faIlure to respond of this sort IS mconsistent WIth prmclples of progreSSIve dISClplme, partIcularly m lIght of the employer's pnor treatment of E P' s second offence In Brown and Beatty, Canadz,an Labour Arbaratzon (3rd ed., Canada Law Book, December 1996), the authors make these observations at paragraph 7 4414 DLscnmmatwn. ArbItrators have generally been sensitIVe to the baSIC prmclple that SImIlar cases must be treated m a like fashIOn, WhICh SImply reflects a umversal precept of faIrness and Justice. Accordmgly, m assessmg the reasonableness of a sanction Imposed on an employee arbItrators have regarded the penalties mvoked by the employer m srmilar CIrcumstances m the past as tendmg to reveal the actual concern that management has for such behaVIOur Accordmgly, when an employee is able to prove that other employees who engaged In the same conduct for whICh he was dIsclphned were eIther not dIsclphned at all, or suffered much less severe dIscIphnary sanctIOns arbitrators generally will find the employer to have dIscrrmInated agamst that employee even though It may be estabhshed that the employer dId not act In bad faIth or dId not Intend to dIscnmInate agaInst her personally Srmilarly, makIng an example of one or more of those who engage In the same mISconduct IS dIscnmInatory and InCOnSIstent WIth the concept of Just cause. In the former CIrcumstances arbItrators would hkely completely exonerate the employee of any wrongdOIng while In the latter, the penalty Imposed would be reduced to conform to that whIch was or had 6 - ~ been tradltionally Imposed In the past. However, It is obvious that the prInciple demandIng equahty of treatment is only apphcable where It can be shown that the materIal circumstances of the grievor's case substantially conform to the CIrcumstances of those who were treated more lemently Therefore, where it is found that the penalty imposed on the grIevor was based on materially dIfferent circumstances, an allegatIOn of dIscrImInatory treatment will necessarily fail. (Footnotes omItted) In hIS attempt to dlstmgUIsh between E P's offence and the grlevor's, Mr Batty suggested that E P mIght not have been gUilty of blameworthy con- duct. Umon counsel correctly noted that If E P's faIlure to respond was not blameworthy, then It should not have attracted any disclphne at all. In my VIew, the contents of the November 1994 suspensIOn letter are the most rehable eVI- dence of what the employer thought was worthy of a one day suspenSIOn at the time In any event, the letter was the only notIce the union and those It repre- sents had of the basIs for the dlsclplme Imposed on E P The November 1994 suspensIOn letter spoke to the possiblhty that E P's faIlure to respond was due to eqUipment faIlure. It asserted that the pager had been tested both before and after the mCldent, and was functIOmng properly at both pomts m tIme. The mference that would naturally be drawn from those as- sertIOns IS that the pager was also functIOnal when the dIspatcher tned to con- tact E P The most charItable of the several conclusIOns that mIght be drawn from E P 's faIlure to respond m those CIrcumstances IS that E P faIled to turn the pager on. Anyone readmg tills letter would have taken It that that was the basIs for Imposmg dlsclphne. There IS no eVIdence that E P grIeved the suspension for faIlure to re- spond, eIther successfully or at all. If the suspenSIOn was not successfully gneved, then E P would not be allowed to suggest m subsequent proceedmgs that the pumshment Imposed was exceSSIve or that he or she had not been gUilty of the offence for which the employer Imposed It. SImIlarly, when it comes to as- sessmg whether the employer's treatment of the grievor was dISCrImmatory havmg regard to its earher treatment of E P, I do not thmk the employer can be allowed to explam ItS treatment of E P away by suggestmg that E P was not gUilty of the blameworthy conduct for whIch It purported to Impose a one day suspenSIOn. - 7 - ~ The grIevor here fell asleep believmg that the telephone would awaken him If it rang There is no evidence that he had any reason to thmk otherwise at that pomt. HIS earher faIlure to respond had resulted from hIS bemg too far from base, not from falhng asleep By contrast, before E P 's second faIlure to respond E P knew the consequence of falling to ensure that a pager was turned on. As It turns out, the telephone dId not awaken the grIevor HIS fallmg asleep prevented the dIspatcher from gettmg m touch wIth hIm by means of an otherwIse functIOnal telephone, Just as somethmg that E P dId or faIled to do prevented the dIspatcher from getting m touch WIth E P by means of an other- WIse functIOnal pager E P's fallure to respond m November 1994 was a second offence, Just as the grIevor's was m September 1995 If only these factors are con- SIdered, there could be no JustIficatIOn for Imposing a greater penalty on the grIevor than had been Imposed earher on E P Mr Batty's letter to the grIevor says the grIevor's delay may have had a detrimental effect on the health and well bemg of the patient. I recogruze that whenever the ambulance servIce is asked to respond to a Code 4 call there is a very real possibIhty that delay may have that effect. That is why any employee conduct that delays a response IS a serIOUS matter, and that IS so whether the delay actually causes harm or not. The conduct of E P was no less blameworthy than the grievor's as regarded ItS potentIal for harm. There is no evidence that the grIevor's delay here actually caused harm to the patient, so I do not have to deCIde whether that should be an aggravatmg factor m assessmg penalty Although it IS not mentIoned m the suspenSIOn letter, Mr Batty testified that he also took mto account the grIevor's record WIth respect to other offences two warnmgs and a one hour suspenSIOn for lateness over the course of two years, one warnmg about faIlmg to renew hIS first aId certIficatIOn before it ex- pIred and one warnmg about faIlmg to properly inspect hIS vehICle Smce he re- ferred specIfically to other consIderatIOns m the letter, and partIcularly to the earlIer faIlure to respond. It seems to me that Mr Batty's faIlure to mentIOn other aspects of the grlevor's record IS eVIdence that he dId not regard thIS as a weIghty consIderatIOn at the tIme The uruon argues that these are unrelated offences that should not be taken mto account at all m assessmg the proper penalty On an earlIer occaSIOn 8 ~ (m Re Brewery, Malt and Soft Dnnk Workers, Local 304 and Labatt's Ontano Brewenes, unreported decIsion dated November 23, 1988) I addressed a sImilar argument thIS way. The pnmary object of dIscIpline (short of dIscharge) IS correction rather than retribution (Galeo Food Products Ltd. (1974), 7 L.A.C (2d) 350 (Beatty) at p 356) I agree that Properly admImstered, penalties should be only severe enough to correct, warn and reform the employee as well as to deter that employee and others from SImIlar conduct. (Steel Company of Canada Ltd. (1975) 8 L.A.C (2d) 213 (Abbott) at p 217 I recogmze that a penalty should reflect the senousness of the offence m questIOn. It seems to me that thIS formulatIOn accommodates that pnncIple.) AmenabilIty to reform can vary from mdlVIdual to mdIvidual. A "first offence" IS responded to with a dIsciplmary penalty which IS hoped to be suffiCIent to reform the offender If the offender thereafter engages m srmilar mIsconduct, one may farrly conclude that the first penalty was not severe enough to reform that offender m respect of that mIsconduct and that, accordmgly, the second occurrence should be dealt WIth more severely than the frrst. Counsel for the umon contends that unless the sItuation has gone beyond correctIOn to contemplatlOn of dIscharge, past dIssinlllar or unrelated mIsconduct cannot properly support dIscIphne more severe than would otherWIse be warranted. I am not sure that is always so. If an employee's record dIsclosed a repetItIOn of mIsconduct for which slbe had prevIOusly been dISCIplined, this mIght support an mference that the employee m questIon was generally less amenable to reform than one mIght otherwise have supposed and that, consequently, correctIOn of even a frrst occurrence of some other unrelated sort of mIsconduct by this employee might requrre a more severe penalty than one mIght otherWIse have rmposed. I do accept, however, that when the employee's record conSIsts of a smgle mstance of misconduct of a sort whIch has not recurred smce It was the subject of dISCIpline, that cannot ordinarily warrant respondmg to subsequent dISSImilar or unrelated mIsconduct more severely than would have been the case but for that record. Indeed, non recurrence of an offense for whICh the employee has been appropnately mscIplmed tends to mdIcate that slbe can be reformed by rmpositIOn of dISCIplIne appropnate for a first offence The proper applicatIOn of progreSSIve dISCIplIne IS certamly not a matter of mechamcally applymg a penalty Incrementally more severe than that last Imposed on the employee WIthout regard to the nature of the offence for WhICh that prevIOUS penalty was Imposed. In short, m matters of dIscIplme short of dIscharge, a record ofpnor discIplme for dISSImIlar offences IS salIent only msofar as It speaks to the employee's amena- bIlIty to dISCIplIne generally It may be Said that the repeated latenesses m the gnevor's record weIgh m favour of a slIghdy hIgher penalty for hIS second faIlure-to-respond offence. At .-? 9 - ...- the same level of mICroanalysIs, the greater sImIlanty between E P' S first and second failure-to-respond offences as compared with the grievor's would warrant a slIghtly higher penalty In E. P's case than In the gnevor's. Given that E p's penalty was only a one day suspensIOn, however, neither conSIderatIOn should by Itself lead to a variatIOn from that penalty and, in any event, these mICro- adjustments cancel each other out In all the CIrcumstances, a 10 shIft suspension was unjust The gnevance IS allowed The employer IS dIrected to substItute a one (8 hour) shIft suspenSIOn on the gnevor's record, and to compensate hIm for the loss he suffered as a result of the ImpOSItIOn of the exceSSIve penalty I leave It to the partIes to work out the detaIls of thIS compensation. I remam seised with that Issue, and WIll resolve It If the partIes are unable to agree. Dated this 17th day of March, 1997