HomeMy WebLinkAbout1996-0211PALAZZO97_06_19
ONTARIO EMPLOytS 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 1ZS TELEPHONE/TELfPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZS FACS/MILE/TELECOPIE (416) 326-1396
GSB # 211/96
OPSEU # 96B469
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Palazzo)
Grievor
- and -
the Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE o V. Gray Vice-Chair
FOR THE R Murdock
UNION Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE D Chondon
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HEARING October 26, 27, 1996
December 4, 1996
Decision
This proceedmg concerns two 3 day (36 hour) suspenslOns Imposed on the
grievor on Apnl 5, 1996, one for certain alleged conduct on and after Febru-
ary 14, 1996, and the other wIth respect to certain conduct on March 19 and 20,
1996 The grievor says that both suspenslOns were excessive and wIthout Just
and sufficIent cause
Background
The grievor IS an ambulance attendant employed by St. Lawrence & DIS-
tnct Ambulance ServIces ("the employer") smce May 1989 The employer oper-
ates an ambulance semce from bases m Prescott, Winchester, KemptvIlle, Mor-
risberg, Fmch, Castleman and Embrun and two bases in Nepean. Ronald Dal-
gleIsh IS the owner-operator (through a corporation) He and two off-road manag-
ers manage the operation from offices m Prescott. There are also working super-
VIsors or senior workmg supervisors at the bases They fall withm the bargammg
umt represented by the umon.
Pnor to December 1995, the grIevor worked out of one of the bases m Ne-
pean. In December 1995, as a result of changes bemg made to the servIce gener-
ally, he was assIgned to the Winchester base. That base IS about 52 kllometres
from the base at Queensway HospItal m Nepean. By then, the gnevor and hIS
WIfe had bought a home m the Nepean area. TheIr first chIld had been born m
November 1996 The change m base meant the gnevor saw hIS famIly less often.
He was not happy about that, but the change m base was management's pre-
rogative (as far as It was concerned) and the gnevor dId not gneve It.
Denms McMahon IS the workmg supervIsor at the Wmchester base He
and the gnevor were workmg together as a crew at and before the tIme of the in-
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cidents m questIOn. They were m conflIct before the end of January 1996 Mr
McMahon was crItIcal of the grIevor's work and work attItude. The grIevor felt
that Mr McMahon was unfaIrly predIsposed to be critical of hIm, and had been
that way even before he arrIved at the base On January 23, 1996, Mr McMahon
prepared and, he says, handed the grlevor a document entItled "VERBAL
COUNSELLING" The document gave several dIrectIons, includmg "feet off the
dashboard."
Mr McMahon testified that the grlevor glanced at thIS document and
threw it aSIde. The grIevor testIfied that when he receIved the document from
Mr McMahon (which he says was after a dIscussIon he had WIth Mr Dalgleish
on February 1, 1996), he noted that It was not on company letterhead. He said he
dId not know It was official. HIS understanding was that management at head
office normally admimstered verbal counselling He put It aside, but dId take m
that It saId "feet off the dashboard."
On about February 1, 1996, there was a union-management meetmg
about allegedly fraudulent meal claIms made on the baSIS of receIpts the em-
ployees themselves had written out by hand. After the meeting, the grIevor ap-
proached Mr DalgleIsh. He said that he understood from the President of the
local UnIon that management felt he was skatmg on thm Ice. Mr DalgleIsh saId
that although those words had not been used, he had heard from Mr McMahon
that the grIevor was actmg m an mapproprIate manner and neglectmg hIS as-
SIgned dutIes. The grIevor told Mr DalgleIsh that he had heard that even before
he arrived at Winchester, Mr McMahon had said that that there would be no
foolIng around, that he would make the grIevor do hIS Job
Mr DalgleIsh asked that the grievor do hIS Job approprIately He saId he
would speak to Mr McMahon, and that he expected both of them to dISCUSS IS-
sues m a non-confrontational way The grIevor replIed that he would do that if
Mr McMahon dId The grIevor says that he receIved Mr McMahon's "verbal
counsellmg" document the day after Mr DalgleIsh saId he would speak to Mr
McMahon, and that thIS convmced hIm that they could not get along He testIfied
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that he heard that at some pomt McMahon had said to one of hIS partners "It'S
either hIm or me, one of us has to go.
Ambulance attendants work a 12 hour shift. Durmg theIr shift, they are
obhged to comply with the dIrections of the dIspatch centre for the area. The dIS-
patch centre IS operated by a thIrd party With respect to meal breaks, Schedule
"F" of the apphcable collective agreement provIdes that
The employer will make every reasonable effort to provIde the employee
meal breaks of thIrty (30) minutes wIthin the stipulated time gUldehnes. The
Employer or designate will make every reasonable effort to contact the
rnspatch centre in an attempt to make alternatIve arrangements in the event
the employee call him or her pertaming to a low priOrity call during or
unmediately before a meal break.
Schedule "H" prOVIdes that
Each full-tune employee IS ehgible to claim a maxunum of seven dollars
($7 00) for a meal when unable to return to base due to call assignments.
The First Suspension
Facts
On February 14, 1996, the grIevor was workmg WIth Mr McMahon. They
drove a patient from Winchester to the Ottawa CIVIC Hospital ("OCH") Theyar-
rived near the end of theIr lunch window, and had not yet had lunch. When the
grlevor contacted the dIspatcher to confirm the name of the patient they had de-
livered, the followmg conversatIOn ensued between the grIevor ("Crew") and the
dispatcher ("E/C")
E/C Ha, we got one to go back now, Just hke that, Just got off the phone
WIth them
Crew Hum IS thIS a one
E/C Ya
Crew You know we haven't had lunch hey
E/C No want lunch III Ottawa
Crew No, well no we want to have lunch back at base That's where my
lunch IS
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E/C Ho, Doesn't make a whole lot of sense, to send you back to
Wmchester have lunch brmg you back and do the call If your sIttmg
right at the CIVIC and there is a patient going to Winchester
Crew Doesn't matter, the pomt IS that I'm entitle to my lunch
E/C Ya, that's fme, you're entItle to eat in Ottawa to, If you there's
patients to go back
Crew Ya, but if I don't have any money what am I suppose to do
E/C Well, we'll call your management, Ok, stay at the phone, bye
ThIs conversatIOn concluded at about 13 59 The reference to the call bemg a
"one" IS to the call's priorIty classIfication. A "PrIOrIty I" call is the lowest prIor-
Ity, a deferrable call. The grIevor's last comment was not hypothetical. He had
left lus cash and bank card at the base, and had no money
The grievor told Mr McMahon about hIS conversation wIth the dIspatcher
EIther then or at some later point, Mr McMahon offered to lend the grIevor
money to buy lunch. The grlevor declmed the offer
MeanwhIle, the dispatcher spoke to Jeff McNeIl, a semor workmg supervI-
sor at the employer's Queenway Hospital ("QH") base m Nepean. Mr McNeIl
telephoned the grIevor at the hospItal. The grievor told hIm that he had food to
prepare at the Winchester base and wanted to return there for lunch. When
Mr McNeIl suggested that he eat m the CIty and get reImbursed, the grIevor saId
he had no money Mr McNeil testified that when he suggested that the grIevor
borrow the money from Mr McMahon, the grIevor "cIted personal reasons not
to." The grIevor testified that he referred to hIS "hIStOry" with Mr McMahon as a
reason for not borrowmg from hIm. Mr McNeIl then saId It mIght be possible to
lend hIm money from the petty cash at the "QH" base He put the grIevor on hold
whIle he called Mr DalgleIsh at the company office m Prescott. He and the
grievor dIffer about what he saId when he came back on the hne and spoke agam
to the grIevor
Mr McNeIl testified that Mr DalgleIsh agreed WIth hIS suggestIOn of
loamng the grIevor money from petty cash, and that when he got back on the lme
WIth the grIevor he saId that that could be done Accordmg to Mr McNell, the
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grIevor declmed the offer, saymg that thIS was not addressmg the "lunch Issue."
Mr McNeil says he replIed that It dId, because It gave the grIevor 30 mmutes for
lunch that would be paId for by the company He says he repeated to the grIevor
that he was to come to the QH base, get money, go buy his lunch and then do the
call the dIspatcher had asked them to do. At the end of this conversatIOn the
grIevor asked If either Mr DalgleIsh or Derr1l1 Buchanan (one of the off-road
managers) was available in the Prescott office. Mr McNeil said they were. He
added that smce thIS order was commg from them, he did not foresee them
changing their minds. He saId If the grievor wanted to call them, "go ahead."
The grIevor testified that Mr McNeIl dId not say anythmg about borrow-
mg money when he came back on the lme. He claims that Mr McNeil SImply
saId It stIll stood that he was to eat hIS lunch m Ottawa and then do the call, and
that if he dId not lIke that he should call Prescott. In cross-exammatIon, the
grievor denied saying that the offer of a loan from petty cash dId not address the
lunch issue. He saId that what he told Mr McNeil was that "thIs" was not ad-
dressmg the problem that It mIght happen agam m future that someone mIght
come mto town and be stuck wIthout any money He denied that Mr McNeIl had
saId they were unlIkely to change theIr mmds, but acknowledged that he had
saId thIS was commg from Prescott, that he had Said or impbed that he was Just
the messenger, and that "if you're not satisfied, call Prescott yourself."
The grIevor then telephoned the Prescott office and spoke to Mr Dal-
gleIsh, who saId It dId not make sense for hIm to return to Wmchester base for
lunch. Mr DalgleIsh testified that he told the grIevor that the company would
pay for hIS lunch, and asked hIm to put Mr McMahon on the lme The grIevor
testified that before askmg for Mr McMahon, Mr DalgleIsh suggested that he do
the call (take the patient to the Winchester area) and have lunch at the Winches-
ter base afterwards The grIevor says he responded to that by saymg that there
was a hIStOry of gomg back to base for lunch and bemg called out on a priOrIty
call wIthout gettmg lunch. The grIevor ways that It was after he asked "what If I
go back and there's a call" that Mr DalgleIsh asked to speak to Mr McMahon.
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Mr Dalgleish asked Mr McMahon If he would lend the grIevor money
Mr McMahon said he would, but that the grievor would not accept it. They had a
further dIscussIon. The grievor testified that despIte hIS mdIcating to Mr McMa-
hon he wanted to speak to Mr Dalgleish again, Mr McMahon hung up the tele-
phone and told the grievor that Mr DalgleIsh dId not want to speak to hIm. Mr
McMahon also told him that he'd been instructed to take hIm to the QH base,
where Mr McMahon was to pIck up someone to replace the grIevor Mr Dal-
gleish testified that replacmg the grIevor was an optIOn that was dIscussed at
one point, but he later abandoned it when Mr McNeil pomted out that the
grievor would then have no way to get back to base.
After Mr McMahon told him he was to be replaced, the grIevor telephoned
the Prescott office again. He asked to speak to Mr Dalgleish. Derrill Buchanan
came on the lme Instead. They had a discussion that the grIevor says lasted 10 to
15 mmutes. At the end of the dIScussIon, the grievor had agreed to go to the QH
base, get money from petty cash, buy his lunch and then take the call. He and
Mr McMahon drove about 11 kIlometres south-west to the QH base, where the
grIevor got $1000 from petty cash. They then drove back to a Harvey's restau-
rant 27'2 kIlometres east of OCH, where he obtamed a meal and a machme
printed, time-stamped receIpt. The grievor testified that spent approxImately 30
minutes there. They then arrived back at OCH at about 16'05, to pIck up the pa-
tient who was to be transported to the Winchester area.
Mr McMahon testified, and the grIevor conceded, that It IS not uncommon
for ambulance attendants to have to take theIr lunch away from base and that
they sometimes do not get lunch at all.
The grIevor claimed that durmg hIS telephone conversatIOns WIth Mr
Dalgleish, Mr McNeIl and Mr Buchanan he raised a concern about purchasmg a
meal because of the outstandmg Issue of fraudulent meal claIms and a resultant
concern that he dId not know what sort of receIpt would be treated as valId The
proposItIOn that the grIevor had raIsed such a concern WIth them was not put to
eIther Mr DalgleIsh or Mr McNeIl durmg theIr testimony, whIch preceded the
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gnevor's. In reply testimony, Mr DalgleIsh demed that any such concern was
raIsed WIth hIm.
Records introduced by the employer durmg reply eVIdence show that,
apart from the occaSIon in question, the grievor applied for and received reIm-
bursement for meals he purchased whIle away from base on February 10 (four
days before) and 27, and on five occasions m March 1996, all whIle the fraudu-
lent meal claIm Issue remamed unresolved between the umon and the employer
These facts were not put to the grievor in cross-examinatIOn, however, so It
would be unfaIr to draw any adverse mference from them.
The employer's discIplInary notice imposmg the 36 hour suspension read
as follows.
You created an unnecessary and unreasonable delay, by debatmg the terms
of and eventually the method by whIch you took a meal break. More
unportantly, you delayed the prOVISIon of ambulance servIce to a patient and
compromised emergency coverage.
In addition to the above, you disregarded a drrect request from management
to submit an occurrence report outlinmg your actIOns and the ratIOnale for
same.
Also, you dIsregarded a legItunate work mstructIOn for an mordmate perIod
of tune.
See the Collective Agreement:
Schedule "F" Page 57 (attached)
Meals Page 60 (attached)
Schedule "A" #5 Page 43 (attached)
CONCLUSION
1 Had you promptly obeyed instructIOns by Ron Dalgleish Derrill
Buchanan, Jeff McNeIl and C.A.C C to take a meal break at the CIVIC
HospItal, a two (2/ hour delay m pIcking up a patIent would have been
aVOIded.
2. Emergency coverage reinstatement by usmg standby would have been
reduced by two (2) hours If you had followed mstructIOns.
Management therefore, feels It IS appropnate to.
A) retam thIS wrItten reprImand m your personal file for a perIod of twenty
four (24) months
B) levy an on-SIte, thIrty-sIX (36) hour suspensIOn
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The assertIOn that the gnevor had compromIsed emergency service refers to the
fact that there was only one ambulance to serve the Winchester area. WhIle it
was away from its base In Winchester, that ambulance was not In a posItion to
respond promptly to an emergency that arose wIthin the area served by that
base The reference to "Schedule 'A' #5" IS to that portIOn of Schedule "N' that
says that certaIn conduct "deemed to be Just and sufficIent cause for discIphnary
action, up to and Including dIsmissal", Including the follOWIng'
5. Refusal to obey a legItimate work mstruction gIVen by a member of
supervision unless complymg WIth such instruction would place the llle,
health and safety of an employee or patIent in Jeopardy or would be ill
contraventIon of any legislated Act or RegulatIon to such Act,
The grievor denies having been asked by management to submit an occur-
rence report. It was not clear from Mr DalgleIsh's testImony that he personally
asked the grievor for such a report, and no one else testIfied to having done so.
Argument
The employer argues that the grievor allowed problems In hIS personal
relatIOnshIp WIth Mr McMahon to Interfere with his carrying out of hIS duties It
says he should have taken the loan offered by McMahon, got on WIth hIS lunch
and then attended to the patIent returnIng to the Winchester area, as the dIS-
patcher expected. It submIts that, at most, the grIevor's delay can be excused
only up to the point at whIch Mr McNeil identified the petty cash option and
conveyed management's the InstructIOn that he was to take hIS lunch In Ottawa
and then do the call. The delay thereafter was a result of the grIevor's Inappro-
priately debatIng the lunch issue further WIth management. The employer sub-
mIts that even If there was not a dIrect order that the grIevor dIsobeyed, hIS con
duct In debatIng the way he would take hIS lunch after beIng told he could take It
In Ottawa was worthy of seriOUS dISCIplIne because of the delay In servIce It
caused Employer counsel CIted MacMillan, 967/93 (January 13, 1995, Das
sanayake), Re Fanshawe College and Ontarw Pubhc Sermce Employees Unwn
(1976), 12 L.A.C (2d) 189 (O'Shea), Re Mount Smm HospLtal and Ontarw
Nurses' Assoc~atwn (1978), 17 L.A.C (2d) 189 (Brandt) and Re Lev~ Strauss Can
9 -
ada and Amalgamated Clothmg and Text~le Workers Unwn (1980), 26 L.A.C
(2d) 91
The union argues that the employer mduced the delay It complams of by
engaging or mdulgmg the grlevor in debate, thereby walvmg Its own pohcy on
response time. It submits that the employer could have brought the debate to an
end at any time by gIving a clear order, but dId not. As a result, It says, the
grlevor bears no responsiblhty for the delay In the alternative, the UnIon sub-
mits that any blame the grlevor bears for the delay IS mitigated by a number of
cIrcumstances, includmg his poor relatIOnship with Mr McMahon, for which the
UnIon says the employer bears some responsibIlity, hIS subJective concern arlsing
out of the employer's response to alleged fraudulent meal claIms, hIS unhappI-
ness about his transfer to Winchester and the employer's faIlure to gIve a clear,
dIrect order The UnIon acknowledges that hIS not having money to pay for a
lunch was the grlevor's problem, but says that haVing partIcIpated m attempts to
solve that problem the employer must bear at least some responsibIlIty for the
delay those attempts occasIOned. It submIts that the pUnIshment Imposed went
beyond what was needed to send a sIgnal that the grlevor should not be away
from base without the means to buy lunch. It notes that the partIes have made
express provision for progressIve dlsciphne m ArtIcle 11.05, which provIdes as
follows
11 05 An employee found to be ill vIolation of thIS agreement may receive,
dependmg on the infractIOn.
A) A "Record of Counselling"
B) A "Record ofWarmng"
C) A "Written Reprimand"
D) A "SuspensIOn"
E) A "DIsmIssal"
Decision
One of the charactenstIcs of the gnevor's employment as an ambulance
attendant was that he mIght not be able to return to base for hIS mId shIft meal.
That was hIS experience, and It was ImphcIt m the prOVISIOn of Schedule "H" that
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provides for reimbursement for meals purchased under those conditIOns It was
also ImphcIt, both m that prOVISIon and otherwIse, that It was up to the em-
ployee to ensure that he had the means to have hIS meal away from the base if
that became necessary As a practical matter, that meant that If he had to leave
base before he had had a meal, he should take money (or a meal) with hIm. On
"". the occasion in question, the grievor did neIther Tills was partIcularly problem-
atic when he was not prepared to borrow money from hIS partner, nor to go wIth-
out a meal. He made hIS unWIllingness to do eIther of those thmgs qUIte clear m
hIS testimony No doubt he made It equally clear to the supervisor and managers
to whom he spoke that day about the problem.
The dIspatcher clearly told the grIevor that he and hIS partner were to
take their lunch m Ottawa and then take a patient from where they then were
back to the area their ambulance covered. It was a perfectly reasonable directIon.
Having been given it, the crew was expected to take a half-hour lunch and then
carry on wIth theIr work. The problem that the dispatcher's dIrectIOn created for
the grievor was not the sort of problem m whIch Schedule "F" contemplates that
the employer will intervene at the request of an employee. That prOVISIOn,
quoted earlIer, is concerned with allowmg a crew to take or complete a thIrty mI
nute meal break m the face of a dIspatcher's dIrectIOn that the crew respond to a
low priOrity call. The dispatcher had already authorized a full lunch break. There
was nothmg more to arrange in that regard.
The problem for the grIevor was not whether he would get a full lunch
break, It was how he would obtam a lunch away from base durmg the assIgned
break. That problem was a consequence of hIS faIlure to provIde for that entirely
forseeable contmgency It was h~s problem. What transpIred must be assessed
from that perspective
The grIevor's handhng of hIS problem was unprofessIOnal and chIldIshly
self-centred. The ambulance m whIch he was servmg was held out of use for an
hour and a half more than would have been necessary, 50 kllometres away from
the area it was supposed to serve, because the grIevor was unwlllmg to borrow
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lunch money from his partner I recognIze that the grIevor's stramed relatIOnshIp
with hIS partner made the prospect of borrowmg from him dlscomfortmg It was
a dIscomfort he ought to have endured, in order to minImize the impact on the
ambulance servIce and those who rehed on It of what was, agam, h~s problem.
Instead, he persistently sought permIssion to return to base for lunch. This was
clearly not a reahstic optIon, as he was repeatedly told, when hIS base was 50
kIlometres a way
The ensumg dISCUSSIOns reached a critIcal Juncture when Mr McNeIl told
the grIevor what "Prescott" had deCIded he was to do. It IS common ground that
Mr McNeIl told the grIevor that he was to take hIS meal break m Ottawa and
then take the patient waltmg at OCH back to the Wmchester area. The grIevor
clearly understood that this message was commg from management at Prescott,
and that Mr McNeIl was Just the messenger The only substantial COnflIct in
theIr testimony IS about whether It was part of the message that the grIevor
could borrow money from petty cash at the QH base m order to buy lunch.
I beheve Mr McNeIl's testimony that thIS was part of the message he con-
veyed to the grIevor Even on the grIevor's verSIOn, however, he had rectlved a
clear mstruction from management on wruch he was evidently unwllhng to act.
Mr McNeIl told him that if he dId not hke the message he should call Prescott.
He was SImply stating the ObVIOUS, that If the grlevor wanted to argue about the
content of the message he should argue WIth ItS author, not WIth the messenger
ThIS dId not amount to permISSIOn to challenge the mstructIOns m the message
or otherwise dIsregard them. Even If the InstructIOns dId not mclude the offer of
a loan from petty cash, they were not InstructIOns that the grIevor was entItled
to dIsregard.
Rather than comply, the grlevor chose to argue WIth management about
the mstructIOn conveyed to hIm through Mr McNeIl. ThIS added at least 30 mm
utes to the delay m returnmg the ambulance to servIce It IS mapt to characterize
management's response as mdulgence, partIcularly If that IS meant to Imply
condonatIOn. It had an mterest m gettmg hIm, or at least the ambulance to
- 12 .
which he was assIgned, back to work. He was not respondmg to InstructIOns
Management was trying to find a way to get hIm to respond It consIdered sImply
replacmg hIm, but abandoned that alternative m hIS mterest. It finally got hIm
to agree to do as It had earher instructed The fact that management then al-
lowed him time for lunch beyond the delay he had already caused was not a con-
donation of that delay, nor of the grIevor's earher refusal to follow the Instruction
conveyed by Mr McNeIl.
No doubt the grievor's unhappmess about working wIth Mr McMahon
and his unhappmess at havmg to work out of Winchester base played some part
m the course hIS conduct took on February 14, 1996 That does not mItIgate the
serIOusness of hIS mIsconduct. As the decisIOn m MacMillan illustrates, delaymg
ambulance servIce by debatmg clear mstructIOns is seriOUS mIsconduct for whIch
a multI-day suspension may be appropriate, even when the delay only affects a
priOrIty one call. ArtIcle 11 05 of the partIes' collectIve agreement does not reo
qUIre that every form of mIsconduct, no matter how serious, be responded to at
first instance wIth Just counsellIng or a warning
The employer Imposed a three day (36 hour) suspenSIOn as dIsclphne for
the grievor's mIsconduct on February 14, 1996 and his alleged dIsregard of a dI-
rect request that he provIde an occurrence report. I am not satisfied that there
was such a request. Accordmgly, the penalty should be reduced to reflect that the
grlevor was not gUilty of one of the several serIOUS acts of mIsconduct for whICh
the 3 day suspensIon was imposed A two day (24 hour) suspenSIOn IS to be sub-
stituted, and the gnevor is to be compensated for the loss of 12 hours' pay
The Second Suspension
Facts
The employer's dlscIplmary notice lmposmg the second 36 hour suspen-
SIOn read as follows
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On March 19, 1996, whIle parked at 1600 MenvaI Road, you were observed
sittmg m the passenger seat of 4172 with your feet on the dash Later, you
were cautIOned about thIS act but you would not respond.
On March 20, 1996 while returning to Winchester from Ottawa, you were
observed placing your feet on the dash of 4172 after bemg cautIoned about
this Just a day prior
CONCLUSION
1 Your actions indIcate dIsrespect for government property
2. Your actIons mdIcate dIsrespect for your fellow workers who strive to
mamtain a clean and undamaged vehIcle whIch m turn projects
professionahsm.
3. Your actIOns mdIcate total dIsregard toward your ImmedIate supervIsor
and ultImately your employer (See Collective Agreement Schedule tlA" #5
Page 43 attached)
Management therefore feels it IS appropriate to
A) retam thIS wntten reprImand in your personal file for a penod of twenty
four (24) months,
B) levy an on-SIte, thIrty-sIX (36) hour suspenSIOn.
Mr Dalgleish testified that it IS a pohcy of the company that attendants
not put theIr feet up on the dash m the cab of an ambulance. Domg so scuffs and
dIrtIes the dash, he said, damagmg government property and creatmg an un-
pleasant enVIronment for those who accompany a patIent by rIdmg m the cab
with the attendants. He conceded that thIS pohcy was not wntten down.
Mr McMahon testified that he was concerned about the effect that put-
tmg feet on the dash has on the appearance of a vehicle and the ImpreSSIOn that
makes on the public. He testIfied to havmg counselled the grIevor about thIS on
March 19, 1996, as described in the dlsclplme notIce, and m the verbal counsel-
lmg letter he gave the grIevor m January He testified that the grIevor dId It
agam on March 20, 1996, as set out in the second paragraph of the disciplme no-
tice.
The grIevor admItted that on March 19, 1996, Mr McMahon saw hIm SIt
tmg m the ambulance WIth hIS foot on the dash. He admItted that Mr McMahon
made a dlsapprovmg comment at that time, but saId that he thought thIS was an
off-hand remark. He also admitted that he put hIS foot up on the dash agam the
followmg day, whIle Mr McMahon was drIvmg the ambulance back from Ottawa
- 14 -
to Winchester He testified that he was tired, was trymg to make hImself com-
fortable for the trIp back, and had put hIS foot up WIthout thmking He acknowl-
edged that when he receIved the letter of January 23, 1996, he saw that he was
being counselled agamst puttmg hIS feet on the dash. When It was put to hIm
that upon readmg the letter he knew that domg so was dIsapproved, he re-
sponded that he only knew that it was an annoyance for Mr McMahon. He
added that he had not done It "to get under his [Mr McMahon's] skm." He con-
ceded that he had made no effort to tell Mr McMahon that at the time, nor m
the months prior to the hearmg
Argument
The employer argues that the grIevor had been told he was not to put IDS
feet on the dash. His havmg Ignored that instructIOn warranted dlsciphne.
The UnIon argues that there was condonatIOn. that ambulance officers had
not been discIplIned prevIOusly for puttmg their feet on the dash, that the grlevor
had not been dlsclplmed prevIOusly for domg so and that there had been no prIOr
mdICatIOn that the employer regarded this as serIOUS misconduct. It argues that
m those CIrcumstances no dIsciplme was warranted and, m the alternative, that
the discIphne Imposed was exceSSIve.
Decision
The grIevor had been told that he was not to put hIS feet on the dash of an
ambulance If he had been told thIs dIrectly by a manager, there would have
been no question that hIS puttmg hIS feet up thereafter would have been cause
for some dIscIplme It was Mr McMahon, someone deSIgnated by the employer
as the grIevor's supervIsor, who gave hIm that mstructIOn, both orally and m a
letter he handed to the grievor earher Although the grIevor says he dId not know
thIS letter was "offiCIal", he dId not challenge It or mqUIre about whether It and
Mr McMahon's oral mstructIOns reflected the WIll of management.
The eVIdence does not estabhsh that the employer condoned SImIlar con-
duct by other employees
- 15 -
The employer IS entItled to expect that employees wIll abIde by reasonable
rules conveyed to them through persons it had desIgnated as supervisors. The
UnIon does not suggest that a rule agamst feet on the dash IS unreasonable.
WhIle fatigue and habIt may have played some part, the grIevor's faIlure on
March 20, 1996 to abIde by Mr McMahon's earher mstructIOns reflected dIsre-
gard, and perhaps a degree of defiance, of the authority management had con-
ferred on Mr McMahon by the employer The grIevor's dIfficulty dealmg wIth
Mr McMahon as fellow worker and partner does not excuse the mIsconduct, nor
should It have been treated as an aggravatmg factor m these CIrcumstances.
ThIS was the first occaSIOn for a clearly dIscIphnary response to eIther hIs
puttmg his feet on the dash or hIS appearmg to dIsregard Mr McMahon's dele-
gated superVISOry authority By themselves, these were not particularly senous
instances of eIther sort of mIsconduct. The fact that there were two Instances a
day apart is of some SIgnIficance. That and the element of dIsregard of delegated
authonty warrant sometrung more than a warnmg, but a three day (36 hour)
suspensIOn was clearly exceSSIve The employer IS to substitute a half day (6
hour) suspension for the 36 hour suspenSIOn It origmally Imposed for thIS mIS-
conduct, and shall compensate the grIevor for the loss of 30 hours' pay
Result
In summary, a two day (24 hour) suspensIOn IS to be substituted for the
three day (36 hour) suspenSIOn orIgmally imposed WIth respect to the events of
February 14, 1996, a half day (6 hour) suspenSIOn IS to be substituted for the
three day (36 hour) suspenSIOn Imposed WIth respect to the events of March 19
and 20, 1996, and the employer is dIrected to compensate the grIevor for the loss
of a total of 3 ~ days' (42 hours') pay I remam seIsed of any Issue arIsmg out of
these directIOns
/---'
Dated thIS 19th day of June, 1997 a~v~
Owen V Gray, VICe-ChaIr
I