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HomeMy WebLinkAboutLarocque 05-31-07 . '\\- IN THE MATTER OF AN ARBITRATION AND IN THE MATTER OF THE GRIEVANCE OF NORMAN LAROCQUE BET WEE N: THAMES EMERGENCY MEDICAL SERVICES INC. the "EMPLOYER" - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL417 the "UNION" SOLE ARBITRATOR: Richard L. Verity, Q.C. FOR THE EMPLOYER: B. R. Baldwin Adrienne Couto Ron Liersch Richard Payne Jim Christie Kevin MacKay Counsel, Mathews Dinsdale & Clark LLP Student-at-Iaw General Manager Supervisor Operations Manager Supervisor FOR THE UNION: 1. Stephen Lavender Norman Larocque Lee Restorick John Rinehart Counsel, OPSEU Grievor Union Steward Local President HEARINGS: November 10, 2005 May 3, 4, 24, 2006 October 25, 2006 London, Ontario April 5, 6, 2006 July 27, 28, 2006 November 9, 2006 "" -2- A WARD 1]"1. Thames Emergency Medical Services Inc. operates the ambulance service for the City of London and the County of Middlesex. Norman Larocque is an experienced paramedic who had a clear disciplinary record until December 20,2004 when he was given a three day suspension by Operations Manager Jim Christie fer two incidents involving fellow paramedic David Mills - one on December 4 and a second on December 13. The employer took the position that while the incident of December 4, involving the transportation of the griever's father Florent Larocque to hospital, may be excused because of the grievor's emotional involvement, his conduct on December 13 constitutes serious misconduct which cannot be tolerated. The employer contends that the context of what transpired on December 4 is important in understanding the events of December 13. 1]"2. Mr. Larocque was given a three day suspension on December 20, 2004 for his alleged "threatening and intimidating conduct" towards David Mills. In a grievance, dated December 30, 2004, Nerman Larocque, the griever, maintains that he was unjustly disciplined. Initially, the employer considered termination as the appropriate response. The employer took into account certain mitigating factors - the griever's emotional involvement in the events of December 4, his lengthy service and clear disciplinary record. Therefore, the penalty was reduced to a three day suspension. 1]"3. It is common ground that the grievor and David Mills dislike each other personally- a fact which is well known to most ambulance attendants employed by Thames E.M.S. Inc. -3- 1]"4. There is little dispute as to what transpired on the night of December 4 and the early morning hours of December 5. At 10:55 p.m. on December 4, 2004, an ambulance crew consisting of David Mills (attendant) and John Blaauw (attendant-driver) were dispatched by C.A.C.C. London, from Station #1 to Mr. Florent Larocque's home in London. The ambulance was dispatched under a Code 4 (threat to life and limb) with flashing lights and siren on. Mr. Larocque Sr., the father of paramedic Norm Larocque, was experiencing chest pains at the time and the ambulance crew learned that he had suffered a recent cardiac attack. 1]"5. Mr. Larocque Sr. was treated at his home by the ambulance crew with aspirin and nitroglycerin spray. Further, he was given an oxygen mask and hooked up to a cardiac monitor. While at the home of Mr. Larocque Sr., the crew was told that the grievor was on the telephone and wanted to speak to a crew member. A family member told the crew that the grievorwanted his father taken to University Hospital. David Mills said that Mr. Larocque Sr. would be transported to the closest hospital, namely St. Joseph's Hospital and declined to take the grievor's call. 1]"6. The ambulance crew transported Mr. Larocque Sr. under a Code 4-CTAS 2 from his home at 11: 17 p.m. and arrived at St. Joseph's Hospital at 11: 19 p.m. At the relevant time St. Joseph's Hospital had an emergency department but, unlike University Hospital, it did not have a cardiac unit. 1]"7. The refusal of the ambulance crew to accept the grievor's telephone call and the crew's decision to ignore the grievor's request to take his father to University Hospital greatly upset the grievor. At approximately 11 :00 p.m. on December 4, 2004, the grievor, in an agitated state, telephoned Duty-Manager Supervisor Rick -4- Payne complaining that he had left "specific instructions" with Dispatch and at his father's home that his father was to be taken to University Hospital. 1]"8. According to Duty-Manager Payne, the grievor's complaint was to the effect that, despite the grievor's instructions to the contrary, paramedic Mills had taken the grievor's father to St. Joseph's Hospital. The grievor told the duty manager that Mills was "a piece of shit" and stated twice that he was going "to rip his face off". The grievor suggested to Mr. Payne that he (Payne) would be well advised to call St. Joseph's Hospital to get Mills and his partner to leave before the grievor arrived to see his father. 1]"9. Duty-Manager Payne called Dispatch to instruct Mills and his partner to leave St. Joseph's Hospital and return to station #1 and to complete the ambulance call report when he returned to the station. The ambulance crew left the hospital and returned to station #1 as instructed. 1]"10. David Mills explained to Duty-Manager Payne that he took Mr. Larocque Sr. to St. Joseph's Hospital "because it was a Code 4 return" and he, Mills, felt that pursuant to written instructions and protocol he had to take the patient to the closest hospital. Mr. Payne testified that he agreed with David Mills's reasoning based on the fact that "our policy states that Code 4 transportation goes to the closest hospital." 1]"11. Duty-Manager Payne stated that he received a second telephone call from the grievor approximately 20 to 30 minutes following the first call. Apparently the grievor apologized for his derogatory comments about David Mills in the original telephone call. Mr. Payne accepted that apology. The duty-manager testified that -5- he was aware of the stress that the grievor was under and told him that he, Payne, was not offended by the earlier call. 1]"12. By all accounts that ended the matter. Management would not have imposed any form of discipline but for a second incident which occurred on December 13. It is not without significance, however, that there was a brief conversation between the grievor and paramedic Jody Brenndorfer at approximately 1 :20-1 :30 a.m. on the morning of December 5. According to Ms. Brenndorfer, the grievor asked her if she had heard about the incident with his father. Ms. Brenndorfer said that she was aware of the incident. The grievor then said "that Mills, I'm going to kill him." The conversation ended abruptly when Ms. Brenndorfertold the griever that she "backed Dave Mills and John Blaauws' decision to take his father to St. Joseph's 100%." Ms. Brenndorfer reported the grievor's remarks by filing an Ambulance Incident Report shortly after the grievor's inappropriate comment. 1]"13. On December 13, 2004 David Mills and fellow paramedic Ron Hawkins worked the day shift at Station #5 in London between the hours of 7:00 a.m. to 7:00 p.m. Mills and Hawkins were replaced by the griever and paramedic Rob McBurney who were scheduled to work from 7:00 p.m. on December 13 to 7:00 a.m. on December 14. At shift change on December 13 at about 7:00 p.m., the grievorasked Mills to speak with him privately in the ambulance garage. Mr. Mills refused the suggestion to meet privately and told the grievor that anything he had to say could be said in front of the other two paramedics. 1]"14. According to the incident report of David Mills (Exhibit 4), the grievor began questioning Mills why he and paramedic Blaauw had taken his father to St. Joseph's -6- Hospital rather than to University Hospital. Mills explained that they were following protocol and standards and that, given Mr. Larocque Sr.'s cardiac and medical history, they assessed and treated him and acted properly by taking him to St. Joseph's Hospital. According to David Mills, the grievorwas upset and stated "you think you know my father better than me." Mills recalls saying to the grievor words to the effect that he (Mills) would hope and expect that his family would receive the same level of treatment if the roles were reversed. The grievor replied "you bet they would" followed by words "I never forget" repeated several times. 1]"15. Mills recalls saying to the grievor "what did you want us to do Norm, if something happened, if your dad arrested between St. Joseph's and University Hospital-you'd be the first one out to get me." According to David Mills, the grievor got out of his chair in the crew lounge near the door to the parking lot, confronted Mills at the door and with his right hand pushed Mills in the left chest and shoulder and began waving his index finger at him. After the push, David Mills told the grievor "to keep your hands off me." At the time of the alleged push, Ron Hawkins was standing in the parking lot beside his vehicle, some 20 feet away from the crew lounge parking lot door. Rob McBurney was in the lounge kitchen some 20 feet from where the grievor was sitting. At the hearing, Mills testified reaffirming his written report (Exhibit 4). In cross-examination, he was questioned at length about the medical procedures followed by the crew at the home of Mr. Larocque Sr. on December 4. Further, in cross-examination, he was questioned regarding the details of what transpired in the crew lounge in station #5 on December 13, 2004. 1]"16. The grievor's handwritten report of the events of December 13 (Exhibit 6) contain similar although not identical information to the report of David Mills (Exhibit 4). The -7- griever wrote in Exhibit 6 that he told Mills how disappointed he was that his father was taken to St. Joseph's Hospital rather than University Hospital, as the grievor has r:equested. In the grievor's words "I told Dave that if he or anyone else I werk with had asked me to take there [sic] family member to a certain Hospital I would have done everything possible to do that." and "I told Dave that I would not forget how he treated my family." 1]"17. There were differences between the written statement of Mills and the grievor's written statement. According to the grievor, as he was about to leave the crew lounge, Mills stated, "do you think you scare me." The grievor then wrote in his report in brackets "I believe he was trying to provoke me, rather than just leave." The grievor's written report continues "I got up and went to the door and pointed my finger in his direction (never did I touch him)" saying words to the effect that he, the griever, was not trying to scare Mills. In the words of the grievor's written statement (Exhibit 6), "I'm just very disappointed and I won't forget what you did." The incident ended as the grievor's partner Rob McBurney told him to sit down while Mills exited by the parking lot door. 1]"18. Surprisingly, the grievor chose not to testify at the hearing. In the absence of oral testimony from the grievor, Rob McBurney became the principal witness for the union. Mr. McBurney has been employed for a period of 14 years, 11 of which he served in a full-time capacity. Throughout his testimony, Mr. McBurney was critical of David Mills who he described as liking "to push people's buttons." He was familiar with the incident of December 4. McBurney criticized the failure of Mills to accept a telephone call from the grievor at the grievor's father's home on December 4. In Mr. McBurney's experience, it was not uncommon for an off-duty paramedic -8- to call on-duty crew who were in the process of transporting a family member of the off-duty paramedic to hospital. To accept a telephone call in these circumstances was, in Mr. McBurney's view, a "matter of common courtesy." McBurney, of course, was not present during the incident of December 4. 1]"19. Mr. McBurney was present on December 13, 2004 in the crew lounge during the exchange between Mills and the grievor. It was McBurney's evidence that David Mills was the aggressor and that while the discussion started calmly both Mills and the grievor used "slightly raised voices" as the discussions continued. The thrust of his evidence was to the effect that the grievor did not push er otherwise touch David Mills. 1]"20. At the request of Duty-Manager Rick Payne, Mr. McBurney prepared his comments of the incident of December 13 on a Message/Reply form as follows (Exhibit 8): Mills was standing in the open lounge door talking to Larocque at shift change. I took no part in the conversation. When the kitchen area became cold due to the length of time that Mills had the lounge door open, I walked into the lounge told Larocque to sit down, told Mills to go home and then shut the lounge door. 1]"21. Subsequently on December 17, 2004 Mr. McBurney wrote a second report, an Ambulance Incident Report, (Exhibit 25) which the parties agree that he gave to the union but not to the employer. Exhibit 25 reads as follows: As an addition to my original report on the Mills/Larocque discussion on December 13, 2004: their discussion started in the lounge as Larocque was starting his shift. As Mills was leaving he stood in the open exit door (to the parking lot) and continued to provoke the discussion. Larocque was initially seated in the lounge and then stood beside his chair near the door while he talked to Mills. At no time did he in any way impede Mills from leaving. At no time did Larocque stand close enough to Mills to touch him. Mills stated that he hoped that if Larocque was called to care for Mills's family that they would receive the same level of care. Larocque stated that they would. Larocque's comments about "I won't forget" came later in -9- the conversation and were not related to the discussion re Mills's family care. Larocque at no time said anything in a threatening manner towards Mills or his family. 1]"22. Unlike Mr. McBurney, Ron Hawkins initially submitted a full Ambulance Incident Report (Exhibit 7) on the events of December 13, 2004. According to Exhibit 7, Larocque told Mills that he had a few questions about the transportation of his father on the night of December 4 and suggested that they step into the ambulance garage to have a conversation. Mills is alleged to have replied that they should remain in the crew lounge where witnesses were present. What transpired thereafter, Ron Hawkins described as an "altercation." 1]"23. Hawkins evidence, both in Exhibit 7 and in his testimony at the hearing, was to this effect: The grievor asked Mills to explain why his father was taken to St. Joseph's Hospital Emergency Department rather than to University Hospital as he, the grievor, had requested. Mills replied that he assessed Mr. Larocque Sr. as CTAS 2 return and that transportation was to St. Joseph's Hospital which was the closest hospital. Mills stated to the grievor that his father had received the best care possible and that he, Mills, would expect nothing less from the grievor if Dave or a member of his family were in the grievor's care. The grievor replied repeatedly "I won't forget" or "I'll never forget" referring to the incident of the previous week. 1]"24. At the hearing, Hawkins testified that the grievor stated "I won't forget" three times with anger and vengeance in his voice inferring that there could be repercussions. In both his written incident report and in his testimony at the hearing, Mr. Hawkins interpreted the grievor's words as "a threat" towards Mills and his family. -10- 1]"25. According to Hawkins, he left the crew lounge to go to his car as the grievor and Mills "bantered back and forth." He stood by the door of his car some 20 feet away where he observed Mills and the grievor standing face to face at the doorway of the crew lounge. He testified that he heard Mills say "don't touch me" and saw the grievor"shaking his index finger in Mills's face." Further, Mr. Hawkins spoke to Mills in the parking lot and told him to "document, document" the incident. In his incident report (Exhibit 7), Mr. Hawkins wrote "I did not see any physical contact or body movement to indicate any contact." 1]"26. The arguments may be briefly summarized. The employer contends that what took place on December 13, 2004 must be viewed in the context of what transpired on December 4 when paramedic David Mills transported the grievor's father to St. Joseph's Hospital after refusing to take a telephone call from the grievor and ignoring the grievor's instruction that his father be taken to University Hospital. After a review of the evidence of the principal witnesses, Mr. Baldwin, counsel for the employer, contended that the grievor by his actions "threatened and intimidated" David Mills in the doorway of Station #5 on the evening of December 13, 2004. Mr. Baldwin asked me to prefer the evidence of Ron Hawkins to that of Rob McBurney. Further, Mr. Baldwin asked me to draw an adverse inference by the grievor's failure to testify at the hearing. ;I27. The employer referred to the following authorities: Murrav v. Saskatoon [1952] 2 D.L.R. 499 (Sask C. of A); Re Douglas Aircraft Co. Ltd. and United Automobile Workers, Local 1967 (1976),13 L.AC. (2d) 410 (Gorsky); Re Canada Post Com. and Canadian Union of Postal Workers (1992), 25 L.AC. (4th) 137 (Shime); Re Canada Safewav Ltd. and United Food and Commercial Workers Union. Local 832 -11- [1998] M.G.A.D. No. 51 (Hamilton); Coutrice Steel Inc. and United Steelworkers of America, Local 8918 (unreported September 23, 1994 (Verity)); McCaskill and Treasury Board (Indian and Northern Affairs Canada) [1990] C.P.S.S.R.B. No. 53 (Chodos); Re Great Atlantic and Pacific Co. of Canada Ltd. and Retail. Wholesale and Department Store Union, Local 414 (1992), 26 L.A.C. (4th) 125 (Craven); TIW Western. a division of Canadian Erectors Ltd. v. International Assn. Of Bridge Structural. Ornamental and Reinforcing, Iron Workers. Local 805 rShoomen's Union} [2001]A.G.A.A. No. 36 (Tettensor); CambridaeBrassv. United Steelworkers of America, Local 4045 [2005] O.L.A.A. No. 457 (McLaren); Peace Country Maintenance Ltd. v. British Columbia Government and Service Employees' Union [2000] B.C.C.A.A.A. No. 149 (Keras); Re Maole Lodge Farms Ltd. and United Food and Commercial Workers Union (1985), 21 L.A.C. (3d) 321 (Swan); Siemens VDO Automotive Inc. v. National Automobile, Aerosoace. Transoortation and General Workers Union of Canada (CA W - Canada) Local 1941 [2006] O. L.A.A. No. 158 (Crljenica); Vancouver (City) v. Canadian Union of Public Emoloyees, Local 1 004 [2003] B.C.A.A.A. No. 285 (Moore); Re Alcan Smelters and Chemicals Ltd. and Canadian Auto Workers, Local 2301 (2004), 135 L.A.C. (4th) 226 (Hope); Re TRW Canada Ltd. and Thomoson Products Employees' Association (2001), 103 L.A. C. (4th) 411 (Barrett); Re Canadian National Railway Company and Canadian Auto Workers (2004),133 L.A.C. (4th) 190 (M. G. Picher); Canadian Timken. Limited. and United Steelworkers of America. Local 4906 (unreported, 27 September, 1993 (Brent)); Fraser Lake Sawmills Ltd. v. Industrial Wood and Allied Workers 0; Canada. Local 1-424 [1999] B.C.C.A.A.A. No. 476 (Dorsey); Re Public General Hosoital Society of Chatham and Service Employees' Union, Local 210 (1996), 52 L.A.C. (4th) 153 (Hinnegan); Re Johnson Controls, L. P. and Canadian Auto Workers, Local 222 (2006),150 L.A.C. (4th) 303 (Etherington); Re City of Vancouver -12- and Canadian Union of Public Emolovees. Local 1004 (2006),148 L.AC. (4th) 406 (McPhillips); Re Worthington Cvlinders and United Steelworkers of America, Local 9143 (2006), 149 L.AC. (4th) 417 (Roberts); Re McMaster Universitv and Service Emplovees' International Union. Local 532 (2000), 86 L.AC. (4th) 129 (Surdykowski); Re International Woodworkers. Local 1-85 and MacMillan and Bloedel Ltd. (1956),6 L.AC. 139 (Carrothers); Re Toronto Transit Commission and Amalgamated Transit Union. Local 113 (2006), 149 L.AC. (4th) 69 (Roberts); and Re Steel Co. of Canada and United Steelworkers. Local 1 005 (1991), 21 L.A C . (4th) 242 (Rayner). 1]"28 Union Counsel Stephen Lavender stated that the union made no allegation that David Mills gave poor service to the grievor's father. Union counsel contends, however, that David Mills was not candid in saying that he was pushed in the chest by the grievor on the evening of December 13 in that neither attendant Ron Hawkins nor Rob McBurney saw any such push. According to the union, the real credibility test is between Hawkins and McBurney. 1]"29. The union adopts the position that, the employer has condoned the grievor's comments on December 4 because Duty-Manager Rick Payne testified that in the second call on the night of December 4 he, Payne, forgave the grievorfor his earlier comment regarding David Mills. Since no discipline was administered by the employer for the comments on December 4, the union contends that the employer cannot now rely on the incident of December 4, 2004. The union maintains that the grievor neither threatened nor intimidated David Mills on December 13, that there was no push as Mills alleges and that Mills's conduct both on December 4 and December 13 were designed to provoke the grievor. The union characterized the -13- exchange between Mills and the grievor as a "mutual argument." Accordingly, the union contends that the three day penalty should be reduced. ~30. Further, Union Counsel Stephen Lavender asked me not to draw an adverse inference because of the grievor's failure to testify at the hearing. The union argued that the grievor's failure to testify at the hearing was merely a neutral factor. 1]"31. The union cited the following authorities in support of its position: R. v. McCraw [1991] S.C.J. No. 69 (S.C.C.), [1991] 3 S.C.R. 72 9S.C.C.); R. v. Clemente [1994] S.C.J. No. 50 (S.C.C.), [1994] 2 S.C.R. 758; Re New Fiver Industries Ltd. and CAW Loc. 3003 (1996), 53 L.AC. (4th) 414 (Teskey); Re Printing Soecialties and Paoer Products Union. Local 466 and DomtarPackagina Ltd.. Carton Soecialties Division (1964),14 L.AC. 339 (Cross); Re Retail, Wholesale and Deoartment Store Union, Local 579 and Northern Food Marts Ltd. (1969), 20 L.AC. 214 (Godin); and Re Firewest Transit Services Inc. and Amalgamated Transit Union, Local 1722 (2003), 123 L.AC. (4th) 413 (McEwen). ~32. The relevant provisions of the collective agreement read: ARTICLE 2 - CONDITIONS OF EMPLOYMENT AND RELATIONSHIP 2.02 (a) The Employer and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by any of them or by any of their representatives or members and includes the obligation of the parties under the Ontario Human Rights Code and Regulations and amendments pursuant thereto. ARTICLE 6 - MANAGEMENT RIGHTS 6.02 Without limiting the generality of the foregoing, Management's rights include: -14- (h) The rightto hire, assign, discharge, transfer, promote, demote, direct, classify, layoff, recall or discipline employees, provided that a claim of discriminatory transfer, promotion, demotion, classification or a claim that a seniority employee has been discharged, disciplined, without a reasonable cause, may be the subject of a grievance, and dealt with as hereinafter provided; (i) The right to operate the ambulance service, so as to provide adequate service in a manner consistent with the obligations of the Employer to the general public and its obligations under the Ambulance Act 1]"33. The employer made reference to s.25(2)(h) of the Occupational Health and Safety Act R.S.O. 1990, c.0.1 which reads: DUTIES OF EMPLOYERS (2) Without limiting the strict duty imposed by subsection (1), an employer shall, (h) take every precaution reasonable in the circumstances forthe protection of a worker; 1]"34. Counsel for the union recognized, quite properly I think, that a threat of harm to a paramedic co-worker and his family is a serious matter. Further, I would agree with union counsel that the standard of proof in a case such as this is the civil test of proof upon the balance of probabilities on clear, convincing and cogent evidence. 1]"35. The issue for determination is whether or not the employer has established on the civil test set out above that the grievor engaged in "threatening and intimidating conduct" towards David Mills at shift change at station #5 on the evening of December 13, 2004. 1]"36. The first matter to be addressed is the effect, if any, of the grievor's failure to give evidence at the hearing. I do not accept union counsel's argument that the grievor's failure to testify should be viewed as a neutral factor. If the grievor, who attended -15- each day of the hearing, expects an arbitrator to find him a credible witness, in my view, he is obliged to testify at the hearing or he risks the consequences by failing to do so. In my opinion, the grievor's failure to testify entitles me to draw an adverse inference that his testimony would be unfavourable. In these particular circumstances, I draw the inference that had the grievor given evidence at the hearing, it would not have supported his case and, in all likelihood, would have strengthened the case against him. It is useful to refer to the rationale of Chief Justice Martin of the Saskatchewan Court of Appeal, where he stated in Murray v. Saskatoon [1952] 2 D.L.R. 499 at p. 506: The party affected by the inference may, of course, explain it away by showing circumstances which prevent the production of the witness; but where the failure to produce the witness is not explained, the inference may be drawn that the unproduced evidence would be contrary to the party's case or at least would not support it. In the pages in Wigmore on Evidence following the above quotation many authorities are referred to which indicates that in the Courts of the United States the rule is of wide application. In addition to Murray v. Saskatoon, supra, see generally, Re Douglas Aircraft Limited and United Automobile Workers. Local 1967 (1976), (Gorsky), supra; Re Canada Post Corooration and Canadian Union of Postal Workers (1992), (Shime), supra; and Re Canada Safeway Ltd. and United Food and Commercial Workers Union. Local 832 (1998), (Hamilton), supra. 1]"37. Another matter should be addressed at the outset. The union argued that the employer, having imposed no discipline for the incident of December 4, had effectively condoned that conduct and, therefore, was barred from attempting to revive the incident of December 4 when reviewing the incident of December 13. I do not accept that argument. The employer's decision not to discipline the grievor for the events of December 4 was based on the grievor's false representation to -16- Duty- Manager Payne in a second conversation in which he apologized for remarks that he made to the duty-manager in an earlier telephone conversation that night. At approximately 1: 15 on the morning of December 5, 2004 the grievor had a conversation with paramedic Jody Brenndorfer in which he used totally inappropriate language in referring to Mills. In that regard, I accept the rationale of Arbitrator Roberts in Re Toronto Transit Commission and Amalgamated Transit Union, supra, where Mr. Roberts stated at p. 78: As a matter of equity, an employee should not be permitted to hide behind the shield of condonation when the alleged condonation was induced by his own false representation. Arbitrator Roberts rationale applies with equal force to the facts of the instant grievance. 1]"38. Counsel for the union claims that following the events of December 13, the employer conducted a faulty investigation in the sense that General Manager Ron Liersch and Operations Manager Jim Christie did not interview the grievor prior to imposing the three day suspension. Although management did review the grievor's written statement regarding the December 13 incident, it would have been better investigatory procedure for Messrs. Liersch and Christie, who imposed the discipline, to have given the grievor the benefit of an interview. I agree with the union that the better procedure for those imposing discipline is to talk to every witness to allow that witness the opportunity to explain his or her recollection of events. In these particular circumstances, however, I do not find that management's failure to interview the grievor is sufficient reason to overturn the result. -17- 1]"39. To begin with, it is useful to refer briefly to the testimony of two witnesses whose evidence stands uncontradicted. Tracy Gosling is a part-time supervisor with Thames E.M.S. Inc. She is also employed part-time at Victoria Hospital as a basic life support co-ordinator. In that capacity she prepared Exhibit 20, which was the audit of the Ambulance Call Report (Exhibit 16) prepared by David Mills on Mr. Larocque Sr. on the evening of December 4, 2004. The purpose of an audit is to ensure that a patient has been properly assessed and treated by a paramedic. Ms. Gosling testified at some length at the hearing. In sum, she concluded that the content of David Mills's Ambulance Call Report on the night in question was satisfactory in that it was a thorough AC.R. Indeed, in final submissions, Union Counsel Lavender acknowledged that the union did not impugn the treatment given by David Mills to Mr. Larocque Sr., although it did impugn Mr. Mills's credibility. 1]"40. The second witness I wish to mention briefly was Kevin MacKay, a supervisor at the Strathroy station of Thames E.M.S. Inc. Mr. MacKay testified that on Friday December 17, while working with the grievor on a shift, the grievor advised him in casual conversation that David Mills had filed a harassment complaint against him. Although MacKay was uncertain regarding the grievor's exact words, he maintains that the grievor acknowledged that he had "touched" David Mills's shoulder. Mr. MacKay does recall the grievor saying "you know Mills, you blow on him and he falls over." According to MacKay, the matter was not pursued further. 1]"41. Credibility is a factor in assessing the sufficiency and weight of the evidence adduced. In that regard, I am mindful of the oft-quoted words of O'Halloran, J.A of the British Columbia Court of Appeal in Faryna v. Chornv, [1952] 2 D.L.R. 354 where he stated at pp. 356-8: -18- If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919),50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460,17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. 1]"42. Two paramedics were present on the evening of December 13 who witnessed the exchange between the grievor and paramedic David Mills, namely, Rob McBurney and Ron Hawkins. Both witnesses were required to write an incident report as to what transpired between the grievor and David Mills on December 13, 2004. Rob McBurney, who was beginning a shift with the grievor, wrote a virtually meaningless report on a Message/Reply form (Exhibit 8) on December 14, 2004 which he gave. to management. Ron Hawkins who worked the shift with David Mills filed a fully documented Ambulance Incident Report (Exhibit 7) on December 14 which recorded a number of statements allegedly made by the grievor to Mills which in Hawkins's words represented "a threat to Mills and his family." -19- 1]"43. Subsequently, on December 17,2004 Mr. McBurney wrote a second document, an Ambulance Incident Report (Exhibit 25) which, surprisingly, he gave to the grievor but not to the employer. This second report referred to David Mills in Rob McBurney's words, as continuing "to provoke the discussion" about the care given earlier to the grievor's father. The report goes on to state that "at no time did the grievor stand close enough to Mills to touch him" and "Larocque at no time said anything in a threatening manner towards Mills or his family." 1]"44. From both Mr. McBurney's written statement and his oral evidence, I gleaned the impression that this witness was not objective in his numerous negative comments about David Mills - for example, Mills's tendency "to push the grievor's buttons" and his (Mills) tendency to provoke the g rievor whenever he found an opportunity to do so. In my view, Mr. McBurney was unduly partisan in his recollection of relevant events and, accordingly, I did not find him to have been a credible witness. 1]"45. On the other hand, I found Ron Hawkins testified in a candid and straightforward manner. Although Hawkins stated that he did not observe the grievor push David Mills, that is understandable given that Hawkins was standing next to his vehicle in the parking lot facing Mills's back. He did, however, witness the grievor shaking his index finger at Mills's face. According to Hawkins, the grievor asked David Mills to explain why he took the grievor's father to St. Joseph's Hospital rather than to University Hospital as the grievor had requested, and further he inquired as to why Mills had ignored his telephone call at the grievor's home. Mills replied that he assessed the grievor's father's condition as CTAS 2 return and that ambulance transportation should be to the closest hospital. David Mills is alleged to have said -20- that Mr. Larocque Sr. had received the best care possible and that he (Mills) would expect the same type of treatment for himself or a family member. 1]"46. Hawkins candidly acknowledged that he was unable to recall the exact words used but that the grievor's words were spoken in anger and implying vengeance towards the grievor and his family. According to Hawkins, it was a heated exchange initiated and pursued by the grievor which Hawkins interpreted as a threat towards Mills and his family. I am satisfied that Mr. Hawkins was a credible witness and that his testimony is to be preferred to that of Mr. McBurney. From the evidence of Ron Hawkins, I am satisfied that the grievor was the aggressor throughout the incident of December 13 in both the grievor's words and actions towards David Mills. If the grievor insisted on having a discussions with David Mills on the evening of December 13, this would have been an opportunity for the grievor to have offered some form of apology for his inappropriate remarks about Mills to the duty-manager on December 4, 2004. The grievor offered no apology to David Mills. Further, the grievor has accepted no responsibility for his conduct on either December 4 or December 13, 2004.. 1]"47. As between the grievor's written statement as to the disputed events of December 13, 2004 and David Mills's written account of these events and his oral testimony, I have no hesitation to accept the testimony of David Mills where there is any dispute as to what transpired. I find that David Mills was a credible witness - straightforward and honest in describing the incident of December 13, 2004. On the evidence viewed in its totality, I accept the testimony of Mills and Hawkins that the grievor made a threat - subtle but nevertheless real - of possible harm to Mills and -21- his family in the event of the grievor being called upon to transport any of them to hospital. 1]"48. I find as a fact that the grievor with his right hand pushed David Mills in the area of his left chest and shoulder followe.d by the grievor shaking his index finger at Mills's face. It is not without significance that the employer made no reference to the push incident in the letter of suspension, dated December 20, 2004. I am satisfied that the employer's disciplinary response was as a result of the threat to Mills and, in particular, to his family. The minor assault which I find did occur played no part in the employer's disciplinary response. I am satisfied that the employer has established on clear, convincing and cogent evidence that the grievor's actions 'toward David Mills constituted "threatening and intimidating conduct". I am satisfied that the grievor was the aggressor in the incident of December 13, 2004. I accept the evidence of Mills and Hawkins that the tone of the grievor's voice was threatening. Further, I accept the evidence of David Mills that prior to exiting the crew lounge he asked the grievor "are you threatening me?" I accept Mills evidence that he used those words in response to the grievor's repetition of the words "I'll neverforget." The grievor's conduct on December 13 constitutes intimidation which is specifically prohibited in article 2.02 a) of the collective agreement. In my view, the grievor's actions on December 13 were planned and deliberate and were designed to bully, threaten and intimidate Mills. Obviously, the grievor's actions on Decembei 13 constitute seiious misconduct which meiits some fOim of discipline short of termination. In these circumstances, I find that a three day suspension was a reasonable response on the part of the employer. -22- 1]"49. In retrospect, I have difficulty accepting the fact that the grievor, an experienced paramedic, was convinced that David Mills had misconducted himself by failing to accept the grievor's telephone call to Mr. Larocque Sr.'s home on the night of December 4 and by making the decision to transport Mr. Larocque Sr. to the closest hospital. Apparently, Thames EMS Inc. has no policy on the acceptance of telephone calls made to the on-duty crew. There was a clear policy to transport a patient in these circumstances to the closest hospital. While it may be understandable that an off-duty paramedic would request that a relative be taken to a particular hospital, the grievor should have realized that the final decision as to where to take a patient remains with the on-duty crew. For all of the reasons stated above, the grievance is hereby dismissed. DATED at Brantford, Ontario, this 31st day of May, 2007. .. ./e.t:';.Z:~E;;:~......."................ SOLE ARBITRATOR