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HomeMy WebLinkAbout1998-1142.Ward.99-04-28 Decision ONTARIO EMPLOYES DE LA COURONNE . CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ... SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-139tS GSB #1142/98 OPSEU #98B564 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before , THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc SerVIce Employees Umon (Pat Ward) Grievor - and - The Crown In Right of Ontano (West LIncoln Ambulance ServIce) Employer BEFORE Stanley M, Beck V Ice-Chair FOR THE Andrew M. PInto GRIEVOR Counsel FOR THE Donald K. RobInson, Q C EMPLOYER Counsel Mathews, DInsdale & Clark Barnsters & SolICItors HEARING Apn1 7, 1999 - - : I 2 This grievance concerns the discharge of patricia Ward ("Ward" ) by her employer, West Lincoln Ambulance Service ("the Company" ) , on October 19, 1998, for a driving incident on September 29, 1998, which was treated as a culminating incident and resulted in Ward's discharge on October 19, 1998 Ward is a member of the Ontario Public Service Employees Union, Local 264 ("the Union") Ward grieves that the incidents in question did not justify discharge and seeks reinstatement with payment of all wages and benefits lost The facts are as follows Ward is a part-time Paramedic I, who has been employed by the Company for some eight years As a Paramedic I, she is required to respond to ambulance calls and to "perform appropriate and proper patient care and transportation" She is also required to "drive all Company and Ministry of Health vehicles in a professional and safe manner and in accordance with the Highway Traffic Act" There are usually two Paramedics involved in an emergency call, a Paramedic I and a Paramedic II, the II being the higher category with grea~er training The - evidence was that the driving is shared between the Paramedics and is often on an alternate basis on the same shift I 3 Under Article 24 02 of the collective agreement, an employee's record may not be used against him/her with respect to an incident that occurred more than 18 months prior Accordingly, the Company was only entitled to rely on the incident of September 29, 1998, and a previous incident which resulted in discipline on July 26, 1997 The discharge letter is in the following terms October 19, 1998 Miss patricia Ward Paramedic # 1 OASIS # 62014 Dear Miss Ward Re. September 29, 1998 Driving Incident This letter is to advise you that we have completed our investigation of this matter and, when considered with other disciplinary incidents on record and the counselling related to your driving, we are left with no alternative but to terminate your services effective this date Attached is a history of your disciplinary record since you were hired in 1990 and while the impact of Artlcle 11 02 is appreciated we point out that a large number are connected with your operation and care of a vehicle owned by the government and for which we are responsible In addition, as you are aware, this Service is responsible for the health and safety_ of our employees and frankly we are at the point of employees requesting assignments to avoid working with you We thought that the additional training and counselling 4 provided to you following your July 26, 1997 accident would have made you particularly aware of your circumstances In any event, following our investigation and a review of your record together with the ~ttempt to provide you with training less than one year ago we must terminate you for cause Should you have any questions with respect to your final pay, benefit status and separation papers, please contact me This information and your cheque will be provided to you as soon as possible Yours truly, A McDooling, Co-owner, Operations Manager While, as noted above, the Company is only entitled to rely on incidents within the previous 18 months, it is clear from the dlscharge letter that the Company appeared to rely on Ward's complete discipllnary record, as indicated in the first paragraph of the letter This is a matter that will be referred to later in these reasons In the event, as a result of the September 29, 1998, incident, as well as the July 26, 1997, accident, "and a review of your record together with the attempt to provide you with training less than one year ago [following the July 26, 1997, accident] we must terminate you for cause" Ward grieves that on an examination of the two incidents in question, - - discharge was not justified and asks for reinstatement with full \ compensation 5 The first incident which the Company was entitled to rely on was an accident that occurred on July 26, 1997 A consideration of Ward's own incident report, the police report of the accident, and Ward's interview with Alan McDooling ( "McDooling" ) , the Company's Operations Manager, indicates that Ward was driving the ambulance with a priority 4 patient being cared for by Mark Maynes, a Paramedic II A priority 4 patient is one who is in a life threatening condition, and is the top priority category While proceeding to the hospital, Ward came to an intersection where the light was red She did not come to a full stop, but rather only slowed her vehicle down As a result, there was an accident whereby the ambulance collided with the right rear side of a car that had entered the intersection There were no injuries with respect to anyone in the ambulance or the other car as a result of the accident, and the patient was safely transported to hospital in another ambulance Following an investigation, Ward was issued a summons for "Emergency vehicle proceed when unsafe, section 114(20), Highway Traffic Act" It seems, although this was not clear, that it was the type of summons whereby Ward had to appear in cour~ but in which there were no proceedings against her , 6 As a result of the July 26, 1997, accident, Ward was suspended for three working shifts and was told that she would not be allowed to drive an ambulance again until she had completed "an approved on-road defensive driving program on your own time and at your own cost" The letter contains no final warning As a result of the letter, Ward took a one-day defensive driving program and, accordingly, was allowed to return to driving on emergency calls in early 1998 The second incident, which was taken as the culminating incident, occurred on September 29, 1998 In that case, Ward was driving and Mark Milhalides ("Milhalides") was the Paramedic II looking after the patient Initially, the call was a priority 3, but because of the patient's deteriorating conditlon, Milhalides upgraded it to a priority 4 while en route to the hospital What occurred is taken from McDooling's interview of Ward and Ward's own incident statement Ward was proceeding along Regional Road #24 to the QEW and turned onto the new South Service Road, on which there was still c some construction, from which she would take a ramp onto the main \ highway Ward told McDooling that she was travelling between 80 7 km and 100 km per hour and missed the on-ramp to the highway As a result, she had to proceed somewhat further along the road to turn around to approach the on-ramp In her words, "the QEW Nlagara ramp came up rather quick I turned right but had to apply brakes for the turn The sudden braking caused my partner (Milhalides) to be thrown off the bench seat " Milhalides did not receive any particular injury at that time but, when the ambulance arrived at the hospital, he felt lower back spasms Examination showed that Milhalides suffered a lower back sprain when he was thrown from his seat onto the floor, and he was put on medicatlon McDooling reported, in hlS Duty Officer's Report, that Milhalides told him that he would not work with Ward again McDooling's note of this is "I attempted to discuss this issue with him but he replied in an arrogant that he was too upset to discuss the issue of Pat Ward" The next day Milhalides wrote the following note to McDooling As to our telephone conversation following the incident that occurred on Sept 28/98, I would appreciate that in the future, if at all possible, that I am not scheduled to work with Pat Ward #62014 I feel personally "uncomfortable" and unsafe with her driving abilities I 8 According to Milhalides, the reason for the written note was that during his telephone conversation with McDooling with respect to the incident, McDoollng said that he could not do anything about Milhalides working with Ward, unless Milhalides put hlS complaint in writing Milhalides, in his evidence, said that he felt that he had to do so when he learned from McDooling the speed at which Ward was driving the ambulance , On all of the evidence, it does appear that Ward, in driving between 80 and 100 kph was going somewhat fast to turn onto the ramp to the QEW, particularly on a dark road As a result, she had to brake hard to slow down to make the turn, which caused Milhalides to fly off the seat, and the patient, who was in an upright position on the stretcher, to fall back into a prone position The patient was not injured but, as noted, Milhalides suffered a lower back sprain Two Paramedic IIs testifled on Ward's behalf Ken Kohut ( "Kohut" ) has been a full-time employee for some ten years He said that in a priority 4 situation, there is often pressure to get to the hospital very quickly He said that he had worked with Ward frequently, as often as once a week, and therefore some 50 9 times per year She is often the ambulance driver, as the Paramedics alternate on a shift He said he found her driving no different than anyone else's, and he had not heard of complaints from his fellow Paramedics or had heard of anyone feeling unsafe with her, other than Milhalides In cross-examination, Kohut said that he had been both a union steward for a time and president of the Association , Ken Smalko (" Smalko" ) has been a Paramedic I, part time, for some nine years He said that he had often worked with ward and had never been concerned about her driving abilities, and had never heard any of his colleagues express a concern On the basis of the above evidence, counsel for the Company said that there had been no concerns with respect to Ward's paramedic capabilities, but there had been serious concerns wlth respect to her driving abilities The concern is for the health and safety of patients who are being transported to the hospital, for fellow employees, for Ward herself, and for the public, when ambulances are being driven at high speed And the Company also had legitimate concerns with respect to the liability that flows - from the unsafe driving of an ambulance Here, the employer had , 10 tried to take positive corrective action in terms of the defensive driving program that Ward was required to take, but it had not had the desired results In short, positive corrective action had not had the effect that the Company had hoped for Accordingly, the Company was entitled to treat the incident of September 28, 1998, as a culminating incident and to discharge Ward Counsel emphasized the high standard that employees in the health care industry are held to, and cited a number of cases to that effect He also cited a number of cases with respect to safety violations that had, ultimately, resulted in discharge when past disclplinary action had not corrected the problem Counsel for the Union argued that the onus was on the employer to justify discharge, and the appropriate standard had not been met here There had been one accident on July 26, 1997, for which Ward had been suspended for three shifts, and had been required to take a defensive driving program, which she did The culminating incident was braking at high speed in order to turn onto a ramp to the QEW Those two incidents do not call for discharge Indeed, the Company had to rely on cases that call for a higher standard ln the health care industry to justify the discharge As to Milhalides and his concerns, although his 11 incident report had referred to him being turned into "a projectile", the only injury he suffered was a back sprain He was clearly upset by the incident, but he was the only one of Ward's fellow employees that expressed any concern about driving with her In all of the circumstances, and on a consideration of the very serious accident cases where there was a culminating incident that resulted in discharge, I have no doubt that the facts here do not justify discharge And I would emphasize that the Company lS only entitled to rely on the two incidents The first was failing to come to a stop when there was a red light at an intersection, with the result that there was some damage to a vehicle that had entered the intersection The second incident involved hard braking to get onto a highway ramp when it appears that Ward was driving at too high a speed on a road that was under construction, when looking for the ramp In both cases, however, the patient was a priority 4, that is, a life- threatening condition, and some speed was to be expected On these two incidents, I don't find a record of carelessness or lack of concern for public or patient safety, that would justify discharge , 12 I am also concerned that the dlscharge letter of October 19, 1998, attached a history of Ward's disciplinary record since she was hired in 1990, and while the letter does refer to the terms of the collective agreement which limits the Company reliance to the previous 18 months, it does go on to state that "a large number are connected with your operation and care of a vehicle owned by the government and for which we are responsible" And, most importantly, the sentence which contains the termination decision, states that " following our investigation and a review of your record together with the attempt to provide you with training less than one year ago we must terminate you for cause" (emphasis added) It seems clear that the employer took into account Ward's entire past record in deciding on discharge, which it ought not to have done That apart, I am of the opinion that the two incidents which it relied on at this hearing did not justify discharge As to the incident of September 29, 1998, it did not justify a 5-1/2 month suspension without pay, nor did that incident, combined with the July 26, 1997, incident, justify such a lengthy suspension In all of the circumstances of the case, I think a - suspension without pay from October 19 to the end of the year, , I 13 December 31, 1998, was justified In the result, Ward shall be taken as having been entitled to reinstatement as of January 1, 1999, and shall be awarded full compensation and benefits, without loss of seniority, from January 1, 1999, to the date of this Award, and it is so ordered The employer, however, does have legitimate concerns with respect to the safe driving of its ambulances, in terms of the safety of the patients, the public, and the Paramedics themselves These two incidents do indicate a degree of carelessness on Ward's part Accordingly, in returning her to work, I am of the opinion that a final warning should be entered on her record to the effect that if she has another culpable driving incident in the 18 months following the date of this Award, that incident shall entitle the Company to discharge her Dated at Toronto, Ontario, this 28th day of April, 1999 ( 11/vl~(k '" .......-/ Stanley M Beck, Vice-Chair