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HomeMy WebLinkAboutWright 08-12-11 4 Hi!) fI tJ1i 13 tancaslel 1228:10 12-10-2008 4 f20 IN THE MATTTER OF AN ARBITRATION Pursuant to the Ontario Labour Relations Act RECEIVl~~D JAW 9:1 P.o..1 ' Between: GRIEVANCE OEPARTMENT THE CORPORATION OF THE COUNTY OF SIMCOE PARAMEDIC SERVICES Sector 1 . Ambulance (The Employer/Service) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 303 (The Union) Re: Dismissal Grievance of Jerry Wright - OPSEU File 2007-0303-0018 AWARD PAULA KNOPF - ARBITRATOR Appearances; For the Employer: Philip J. Wolfenden For the Union: Boris Bohuslawsky The hearing of this matter was conducted In Barrie, Ontario on March 18, September 23, November 4 and December 3, 2008. 41 toOl f!l,~13 lancasteL 1 ;1:211:21 12-19~2008 5 f2U This is a discharge case. The Grievor is a paramedic who was employed on a part.time basis, The stated grounds for discharge were his failure to provide timely proof of immunization, his absence from work for more than three scheduled shifts because of his lack of immunization and his failure to provide the Service with his availability for scheduling as required under the Collective Agreement. The Union asserted that the Employer failed to establish any grounds for discipline or, in the alternative, that discharge was excessive in all the circumstances. The factual background to this case revolves around the requirement for paramedics to maintain up-to-date immunizations, which include Tetanus, and for part-time employees to submit their shift availability to the Service. Tetanus protection is statutorily mandated. Much of this case also turns on the operation of the Collective Agreement. The relevant provisions are: 4.02 Part-time Emplovee (prE) A "Part-time Employee" is an employee who is hired to fill a part-time position for an indefinite time and is scheduled in advance as required. Part-time employees will not normally be scheduled for more than sixty (60) hours in any pay period. However, when operationally required or in times of peak demand, the Employer may schedule Part-time employees for up to eighty-four (84) hours in any pay period. It is understood that Part-time employees shall provide the Employer with their availability ninety (90) days in advance, for a minimum of sIx (6) non-consecutive shifts per month. Employees shall accept shifts as scheduled to remain on the roster, in accordance with the scheduling policy that may be amended from time to lie, provided the Local Union is given reasonable prior notice of the amendment taking effect. 12.04 Seniority shall terminate and an employee shall cease to be employed by the Employer when that employee: (e) Js absent from work for more than three (3) consecutive scheduled working days without leave, as provided for in the 41li\)f f!,g(J lancastel 12;18:44 12.10-2008 6/20 2 collective agreement or failing a reason acceptable to the Employer: ARTICLE 27 - CONDITIONS OF EMPLOYMENT 27.01 It is each employee's responsibility pursuant to the Ambulance Act and Regulations to ensure that their qualifications are kept current and valid, including immunization certificates or medical proof of contraindication. 27.02 Copies of all renewals as referenced above must be submitted prior to individual expiry dates. Failure to provide proof in a timely manner may result in temporary or permanent layoff without pay. The Grievor's Tetanus protection was due to expire on July 10,2007. On June 4, 2007, the Service sent the Grievor a reminder of his need to renew this protection via internal email (WebmaH) advising that his failure to provide updated information could affect his eligibility to work. He was sent a second reminder on July 5th, advising that he must deliver proof of an updated Tetanus shot by July 8lh or he would be "removed from active duty due to non compliance". The Grievor did not provide that proof. He was sent a third emaH on July 9th stating that he had missed the deadline and therefore was "no longer qualified to work as a paramedic". He was told that his next shIft was cancelled. He was also advised as follows: Once you have proof of an updated tetanus shot, please ensure that proof is hand delivered to [Robert Duquette, Manager-Quality Programs and Professional Development] or Leigh Anne Marley (HR). Your employment status will be evaluated at that time. He was then sent another notice via Webmail on July 11lh advising that he was "removed from the schedUle". As a consequence, he missed his next scheduled shifts, beIng July 11, 12 and 21. He did not have any scheduled shifts after that date because he had not sent In any indication of further availability beyond that point. Taking the Grievor's evidence at its best, he testified that he faxed in proof on July 24th that he had received his Tetanus shot that day. There was some ~ lliUU"iJ/J lancilsl.cL 1" 2U: 01 12-1 U~200B 7I2U 3 confusion in the evidence about this because a copy of this fax did not reach Human Resources until the Grievor sent it again on August 101h. But the important aspect of this fax is the reason he gave for the delay in receiving his Tetanus shot and submitting proof to the Service. He wrote: "I apologize for the delay but as I said I have difficulty sitting in Emerg for a Immunization [sic). My family physician always gives me a 2 week wait time for non essential visits." Notes were also taken by EMS scheduling staff of a conversation with the Grievor on July 18 about the delay. Those notes were filed on consent. The notes indicate that the Grievor had been called several times to update his Tetanus status and he had indicated that: . . . . he had not had his shot yet because he didn't want to go to the hospital to get it and he stated he didn't have a chance to see his family doctor yet. He also said he didn't think it was important enough to go to the hospital to get the shot. Jerry also mentioned he's been on vacation and he didn't want to do it on his vacation The Employer felt that these reasons for his failure to provide timely proof of immunization were unacceptable. Management considered the Grievor's handling of the immunization issue, resulting In three missed shifts. along with the fact that he had not provided any indication of his availability beyond the already scheduled and missed July 2151 shift. His failure to provide his availability 90 days in advance was not In accordance with Article 4(b) and had been a source of concern in the past. On December 8, 2006, he had received a warning letter advising that he had been late on six occasions and non-compliant on one other occasion since January 2006. He was warned that a continued failure to comply with Article 4(b) "will result in a reassessment of your status as a regular part-time employee, including dismissal." A second letter was issued to him on July 3, 2007, regarding his continuing failure to submit availability on three more occasions. He was again advised that his status would be reassessed and that he could face dismissal. The Grievor does not dispute that he was non-compliant with regard to submitting 4 HiH!f!JIif3 I anca stet 1 ;1.;W:32 12-19~2008 8 f2U 4 availability in 2007. But he has consistently asserted that he never received the July 3rd letter before his termination, He explained that the letter was left in a mail slot at his "home base" of Collingwood. The parties agree that the system for part-time employees to receive mail is for them to designate the station at which they want to receive communications, and mail is left there In their slot. As a part-time employee, the Grievor had designated Collingwood as his mail drop off. However, his own home was far from Collingwood. As things turned out, he did not even go near the Collingwood base after July 3 and therefore never picked up or knew about this letter. While there might have been different ways of delivering the letter to him or for him to receive communications, he had never provided the Employer with a home Email address or his fax number. He had been sent other letters from the Employer via regular mall to his home and he had received phone calls regarding problems in the past. But he maintains that he never received this second warning letter about his continued lack of providing availability, and he said that he did not realize that this was posing a problem. Further, he asserts that he did not provide any indication of his availability after the Tetanus issue arose because he understood that he could not be scheduled without proof of Immunization. Further, when asked what would prompt him to file his availabillty in the normal course, he said, "If I was late, I'd send my availability in when I needed to do so." When asked if he thought it was the schedulers' responsibility to contact him to determIne his availability, his response was: "I don't know their job descriptions:' When the Employer looked at the situation as a whole, taking into consideration the Tetanus and scheduling issues, it concluded that the Grievor had exhibited a "cavalier" attitude towards his responsibilities and decided to terminate his employment. The letter of termination is dated August 7th. The Grievor was advised of this orally, albeit unofficially on August 10, and he received the actual letter by mail at his home on August 1 ih. 4 Hi{J/!!iiJl3 lancas(el 122U:5/ 12.1!J-2001l u 120 5 The Grievor testified on his own behalf to explain these circumstances. Turning first to the Tetanus issue, the Grievor says that he first became aware of the need to renew his immunizatIon when he checked the Webmail system on June 29th while on duty. He claims that although the Webmail system is set up so that it can be accessed off-site, he was unable to do this successfully from his home computer. He also added that he did not feel it was his obligation to attempt to access the Employer's Webmail system when he was off duty. Further he said that he often did not have time during shifts to check for emails because of other duties or the need for other employees to use the computer terminals. As a result, he says he did not receive any of the Employer's reminders regarding his need to update the Tetanus protection until the end of June. Similarly, he says he was unaware of the amaH reminders that were sent to him July 5, 9 and 11. However, he did admit in cross-examination that it was his responsibility to ensure that his immunizations were up to date. He also knew that the Tetanus shot is a statutory requirement for his position. He says he sImply did not think about this until it was brought to his attention. He also admitted that he was receiving voice messages about the need to renew his immunity, and he knew that he was ineligIble to work because of the lack of the Tetanus update. As a result. he says that he called his supervisor before each shift and advised of his continued ineligibiJjty. His home phone records confirm several calls to the Employer during this period, The Grievor did ultimately get his Tetanus shot on July 24th. He testified about why he failed to renew his immunity on time. First, he said that his comments about not wanting to go to a hospital to get the shot should not be taken out of context He admitted that he had said that he didn't think it was "important enough to go to the hospital", but he said that he had meant that comment in the context of not wanting to take up the valuable services of emergency staff who are busy taking care of more important medical issues. He also said that he did not want to wait the two weeks that would have to go by before he would be able to get an appointment with his family doctor for "non-essential" visits. But he 41hll(I!JII/3 fanC3slel 12 :;0: 23 12-11)-2008 10/2lJ 6 stressed that the most important reason for the delay was that he is not in favour of vaccinations, for reasons of "conscience", He admits that he never mentioned this rationale to his Employer, and that the first time he raised this was at the arbitration hearing, He said that he did not reveal it to his Employer at the time because he knew others had lost their jobs because of refusals to get the influenza shots, and he was not sure if his "personal reasons were valid". But he tried to show the depth of his feelings by the testimony of both he and his wife about the fact that they believe that vaccinations are not beneficial to one's health. As a result, they have declined to have their young son immunized. His wife has signed a "Statement of Conscience or ReligJous Belief Affidavit" affirming that the requirements of the Immunization of School Pupils Act, 1990 conflicts with her "sincerely held convictions based on religion or conscience". This affidavit is necessary for the child to be able to attend school without immunization. However. by July 241h, the Grievor had come to the conclusion that he needed to stay employed and he knew that others had lost their jobs with this Employer for failure to maintain their Influenza immunizations, He was not prepared to lose his job over this issue. So he went into a convenient V.a.N. office and had the nurse on duty Inoculate him on July 241h, The Grievor said that he faxed a copy of his proof of the inoculation to the Employer's offices on July 241h. He says he left numerous phone messages thereafter asking when he would be put back on the schedule and to ensure that his Fax had been received. He did not hear from the Employer until August 7th when he received a voice mail message from Rob Duquette saying that he had not yet received any record of a Tetanus renewal, and adding, 'We still have you on a holding pattern." As a result. the Grievor again faxed a copy of the proof of immunjzation on August 10th, He then submitted his availability for October shifts on August 13th, although it had been due July 201h. The Grievor spoke to Greg Bruce, a supervisor, on August 14th to fInd out about his status, and was advised "in confidence" that a decision had been made to terminate his employment. He received the formal notification on August 1 ih via 4 I tiO (f till 13 lancasle! 1230:4U 12,lU,2008 11 /20 7 regular mall. The termination came as a shock to the Grievor. He testified that up to that point. "As far as I knew, everything was going fine. I'd received no indication that anything was wrong until August 17lh." The Grievor said that he now realizes that his handling of the Tetanus issue was a "huge mistake" and says that if the issue were to arise again, he would maintain his immunizations as required. He says he would like to continue to work for this Service because he enjoys the people and because he now lives within the county and has more time to devote to the position. THE SUBMISSIONS OF THE PARTIES The Submissions of the Employer The Employer argues that there are three independent and/or interwoven reasons that justify termination under this Collective Agreement. It was also said that the Grievor's testimony at this hearing has confirmed the Employer's view that the Grievor should not be returned to employment with this Service. First. the Employer relies upon the "deemed termination" provisions in Article 12.04(e). It was stressed that the Union agreed to the facts set out by the Employer in the opening statement that included the assertion that the Griever had missed more than three scheduled shifts without leave and that he had failed to provide reasons that were satisfactory to the Employer for his absence. Arguing that the Employer has the discretion to determine whether the reasons for absence were satisfactory, the Employer took the position that the reasons given by the Grievor were completely inadequate. It was stressed that the Grievor bears the responsibility of keeping track of when he has to renew his shots, that the evidence suggests that he simply did not want to take the time to sit in Emergency to await the attention of the staff, and that he could or should have seen his own doctor sooner by stressing the seriousness of the situation. 41 h!lII~)[I13 lancastel 1:t3111 12-10..2008 12/20 8 The Employer discounts the Grievor's claim that he was dealing with an issue of "conscience" over immunizations, stressing that this "excuse" was only raised at arbitration. Counsel for the Employer likened this explanation to the Grievor trying to pull "a rabbit out of the hat" in an attempt to justify his refusal to live up to his responsibilities 8S a paramedic. The Employer also challenged the Grievor's credibility ;n relation to the claim of "conscience", in summary, the Employer argued that it has established all the criteria necessary to invoke the deemed termination effect of Article 12.04(e) resulting in there being no discretion to relieve against the penalty of discharge. The second ground asserted to justify the discharge was the application of Articles 27.01 and 27.02. It was argued that these clauses confirm the Employer's right to permanently "layoff" the Grlevor for his failure to ensure that his immunization was "kept current" and/or provide proof before the expiry date "in a timely manner", It was stressed that the evidence established that the Grievor has been treated the same way as other employees who failed to maintain their immunities. Accordingly, it was said that since there is no allegation or evidence of arbitrary, discriminatory or bad faith treatment of the Grievor. the Employer's discretionary right to impose a "permanent lay-off" should be given respect and upheld. Further, it was argued that the responsibility to maintain proper immunization should be read as a "condition of employment". The third ground that was asserted to justify the discharge was the operation of Article 4.02. It was stressed that the agreed facts establish that the Grievor failed on nine occasIons in the last 18 months of his employment to advise the Service of his availability for duty. It was said that this amounts to a failure to fulfill his responsibilities and justifies discharge. Finally, and in the alternative, the Employer argues that the totality of the evidence establishes just cause for termination. The Employer cited the ways that the Grievor failed to advise scheduling about his availability for duty, his ~ 1 [i(1f t:,Ilf] lanGil~1 el 1;1 :11.30 12.1U.200fi 1:3 f2B 9 failure to maintain his immunity and his unavailability for scheduled shits while he was delaying his taking of the Tetanus shot. In addition, the Employer asserts that the Grievor exhibited a "careless attitude" towards his responsibilities, both while at work and during his testimony at this hearing. It was stressed that he expressed no remorse, no acceptance of blame and instead suggested that the Employer was at fault for failing to notify him about issues that are his own responsibility under this Collective Agreement. Counsel for the Employer submitted that the Grievor had displayed "almost a defiant attitude of entitlement", It was argued that the Union bears the onus of establishing that there are mitigating factors and that nothing in the evidence supports such a conclusion. Finally, it was stressed that because the Employer provides emergency services, a paramedic in this bargaining unit has to be flexible. responsible and willing to work. It was said that the evidence shows that the Grievor has not fulfilled those expectations and that the discharge was therefore justified. The Submissions of the Union The Union began by arguing that the deemed termination provision, Article 12.04(e), cannot be invoked by the Employer because the facts only reveal that the Grievor missed three scheduled shifts, Le., July 11, 12,21. It was stressed that the deemed termination clause is only "triggered" when more than three scheduled shifts have been missed. Further, it was said that the Grievor's absence during those shifts should be treated as being provided for under Article 27.02, or as a temporary lay-off. It was submitted that by the parties negotiating the specific concept of a "lay-off' in the case of an inability to work because of the lack of the Tetanus shot, the generalized deemed termination clause cannot be invoked In these circumstances. The Union also argued that the Grievor's missed shifts due to his lack of immunizatJon should be deemed to be authorized absences. It was stressed that 41lion:,1113 lanca,;Lcl. 1;1 J1~!J 12-19~2008 14 flU 10 the Employer was always aware of the reasons for the absences; he was told that he was being removed from "active duty" and put in a "holding pattern" pending submission of his proof of inoculation. Therefore, it was said that he was effectively put on an "unpaid leave" until he submitted the required documentation. It was stressed that this situation is very diffefent from the circumstances of an employee who is AWOL. Further, since the Grievor was terminated before the Human Resources department received the proof of inoculation, the Employer was criticized fOf breaking its promise to evaluate his employment status after the proof was submitted. Counsel for the Union stressed that an employer can only rely upon a deemed termination provision if it is strictly applied. The following cases were cited in support: Quality Meat Packers Ltd. and UF.C. W., Local 175 (2002) 109 L.A.C. (4th) 183 (Newman); Good Humor-Breyers, Simcoe and u.F.C. W., Loca/175 (2005) 80 C.L.A.S. 326. 2005 CLB 10291 (B. Kirkwood); St. Peters Hospital and O.N.A. (2007) 91 C.L.A.S. 256,2007 CLB 12780 (L.Trachuk). The Union further submitted that since the Employer had failed to establish the grounds for relying upon the deemed termination provisions in the Collective Agreement, the substantive issue in this case should be recognized as being whether there was just cause for discharge. It was argued that the Employer should not be able to rely upon the Grievor's failure to provide timely notice of his availability because he had not had the benefit of progressive discipline. It was stressed that he had only received one warning letter because the second letter remained in the Collingwood mail drop off unopened until after the discharge. It was argued that this "cannot be said to fairly reflect fault" on the part of the Grievor. The Union faulted the Employer for allowing the letter to sit unopened in the Grievor's mail slot and for failing to notify the Grievor by way of regular mail or phone calls as it had done on past occasions. It was said that it was the Employer's responsibifity to ensure that its communications got through to the Grievor and that he had no obligation to travel several kilometers on his own time "to ferret out information" himself. It was submitted that since the Grievor never 41oUOtil1r} tancaSleL 12: 32: 25 12-HI-200B 1512!J 11 received the secand letter, it should not be considered as part of his disciplinary record" Reliance was placed on Corporation of the City of Timmins and C. U.P.E. 1140, (1990) 12 C.L.A.S. 369.1990 CLB 11860 (R.M. Brown); Quality Meat Packers Ltd. and u'F.C.W. (1999) 57 C,L.AS. 78. 1999 CLB 13470 (M. Levinson). Further, it was stressed that the circumstances giving rise to the failure to submit availability after July 2007 are so "inextricably tied to the Tetanus Issue that the unavailability ought not to be allowed to stand as an Independent allegation." It was conceded that the Grlevor was expected to have filed his latest availability for service on or before July 20th. However, it was said that by that date he was already "off schedule" due to his lack of immunization. Therefore, it was suggested that there was no point in submitting availability until he was eligible for service again and he did so on August 13th, three days after he had resubmitted his proof of immunization. Further, it was argued that the Grievor was being subjected to "double jeopardy" by being held off schedule while he had na immunization and then being "nailed" for failing to submit his availability during the same period. It was suggested that the "only real issue" in this case is the Grjevor's admitted failure ta provide timely proof of immunization, The Union initially submitted that the Grievor did not commit any culpable misconduct warranting discipline. It was argued that Article 27.02 and the use of the word "lay-off' ought to be read as the parties' agreement that there should be a non-disciplinary response to any fallure to maintain inoculations. It was submitted that the fact that the contract allows for a "temporary lay.off' should be seen as recognition that the situation can be cured, that a person can remain "off.schedule" without pay and not be subjected to discipline, Alternatively, it was conceded that the use of the word "may" could be read as the Employer reserving the right to impose discipline for a breach of the article. but that this imposes a burden on the Employer to explain why an adminlstrative sanction such as a "lay-off' is not sufficient. It was submitted that 41697751\73 lancaslel 12.32:50 12-10-2008 Hi f20 12 the Employer has failed to justify the discharge of the Grievor when he could have been easily reinstated after he provided his proof of Immunization. Further, the Union stressed that the Grievor's reasons for delaying the immunization should be respected. It was said that this was not a case of carelessness or irresponsibility. Instead, this was said to be a situatlon where the Grievor was wndergoing a "bona fide struggle of belief and conscience". For this reason, the Union submitted that "justice demands that he be treated differently" than someone who simply ignored his duty to maintain his immunizations. It was said that it would be "inappropriate to impose discipline for behaviour motivated by a genuine concept of ethics or morals", The Union suggested that this should be treated analogously to someone who held sincere religious beliefs. Accepting that the Human Rights Code has no application to this case, it was submitted that the same principles should be applied. Reliance was placed on Canadian Timken Ltd. and U,S. WA., Loca/4906, (1987) 31 L.A.C. (3rd) 365 (J, Samuels); Ste/co Wire Products Co" - StelcD Inc, Frost Works and USW Local 356, (1986) 25 L.A.C. (3rd) 427 (G. Brent). In the alternative, it was argued that If it is found that some discipline is warranted, discharge was too severe a penalty in all the circumstances. The two mitigating factors that were stressed were: 1. The delay in dealing with the Tetanus issue was the result of the Grievor's "genuine struggle with his conscience"; and 2. He ultimately resolved the issue In the Employer's favour. It was also stressed that the Grievor has come to realize that his actions were, In his own words. "a huge mistake". It was said that one could be confident that the Grievor would not permit a recurrence of the difficulties that gave rise to this case. It was argued that the relevant evidence does not paint a picture of an employee who disregards his responsibilities. Under these circumstances, it was suggested that the appropriate disciplinary response ought to be a reprimand or 4 Hi~Jn5Rl3 lancasleL 12:33:14 12.19-20011 1! /2[.1 13 a short suspension. In addition, it was submitted that compensation is warranted because the Employer should be held responsible for misplacing the first Fax that the Grievor sent regarding proof of immunization. It was also stressed that the Grievor was treated unfairly by being discharged before his proof of immunization was received by Human Resources even though he had been told that his situation would be evaluated upon its receipt. Finally, the Employer was criticized for the fact that the Grievor learned about his termination unofficially, rather than it being handled with professionalJsm and dignity. The Employer's Reply Submissions The Employer took great umbrage to the fact that the Union had agreed to all the facts set out in the Employer's opening statement and then challenged the factual underpinnings of the Employer's case during closing submissions. Specifically, it was said that the Union should not be allowed to challenge the allegation that the Grievor was absent for more than three scheduled shifts. Further, it was said to be unfair and Inappropriate for the Grievor to try to rely on the fact that he was not scheduled for any shifts beyond July 21 when the reason for that was his own failure to submit his availability to the Service. Responding to the suggestion that the specifics of Article 27.02 override Article 12.04(e), the Employer argued that both are specific provisions. Further, it was argued that it would be absurd to treat the Grievor's absence from duty because of his lack of immunization as an "approved leave of absence" when the Employer is statutorily preclUded from allowing him to work without an up-to-date Tetanus shot. Further, it was stressed that the Grievor never applied for or received a leave of absence as provided for under the Collective Agreement. Turning to the failure to provide proof of immunization, It was stressed that the Grievor was aware that this Employer has consistently terminated other paramedics for their failure to comply with Article 27.02. His actions were said to 41697/5813 lancasLel 12:33:38 12-19-2008 18 f29 14 be "careless and irresponsible" because he did not come to terms with his responsibilities well before July 2007. The Grievor's pleas for mitigation were discounted, with the Employer challenging his credibility on several aspects of his testimony and arguing that his history of employment and the Tetanus issue combine to establish just cause for discharge. Finally, it was stressed that the Grievor's testimony indicated no acceptance of responsibility for any of his misconduct and instead tried to deflect blame to the Employer. It was argued that this ought to be weighed negatively against the Grievor in any consideration of arbitral discretion to relieve against the imposition of discharge. THE DECISION The case is somewhat unusual in that at the outset of proceedings, the Union indicated that it was in agreement with aU the factual assertions set forth in the Employer's opening statements. It was then indicated that the thrust of the Union's case would be to put forward the mitigating circumstances that would explain the Grievor's conduct and show that the Employer was precluded from relying on the "deemed termination" provisions in the Collective Agreement. In the course of final argument, the Union then argued that certain Inferences should be drawn by the Employer's failure to call certain witnesses and/or that the Employer had failed to establish the factual underpinning of its case. In particular, the Union stressed that the Employer had failed to prove that the Grievor had missed more than three scheduled shifts and could therefore not rely upon the deemed termination clause. This caught the Employer by surprise. As a result, the Employer argued that it had been prejudiced by the Union's tactics in agreeing to the factual underpinnings of the case and later arguing that the Employer had not met Its burden of proof. Given that this is a discharge case, with the outcome having great importance to the parties and the Grievor, it would be most unfortunate if the outcome of the case was determined on the basis of one party's failure to adduce evidence it understood was not required or on the basis of the other party's misunderstanding of the implications of its agreement 4 1 tlfrfltl,~n lancasleL 1234:03 12-10-20011 1 9 /29 15 about the facts at the outset. Fortunately, the case can be decided without having to resort to the implications of any technical or procedural machinations. The parties agreed to many facts, filed a great deal of documentation on consent, and witnesses testified. Therefore it is possible to decide this case on the basis of that evidence alone. Neither party need be affected by the tactical decisions that may have been made with regard to the presentation of this case. Ultimately, after a consideration of all the evidence, it has been concluded that the Employer has established just cause for discharge and that there are insufficient mitigating factors that would warrant the substitution of a lesser penalty. The following analysis explains that conclusion. Article 12.04 is a deemed termination provision. The Union is correct that for an employer to be able to rely upon the provision, it must strictly prove each condition that would allow for the operation of the clause: Quality Meat Packers Ltd. and U,F.C.W" Local 175; Good Humor-Breyers, Simcoe and UF.C.W., Local 175; St. Peter's Hospital and D.N.A., supra. In this case, for the deemed termination to come into effect, the facts would have to be that the Grievor missed more than three consecutively scheduled working days without leave as provided in the Collective Agreement. It is true that the facts only clearly establish that three scheduled shifts were missed. He did admit in cross examination that he was taken off the schedule after he had missed the three. implying that more shifts had been scheduled before he was removed from the roster. The evidence is unclear on this point, perhaps because of the fact that the Employer understood from the Union's concessions that no evidence was required on this point. Does the fact that there is no clear evidence of him missing more than three scheduled shifts result in a situation where the automatIc termination aspect of the clause cannot be applied? In normal circumstances, that would be the case. In this case, that question will not be answered because it would be unfair to allow the Grlevor to rely upon the absence of further scheduled shifts when this may only have happened because of his failure to submit availability. How could he be scheduled when he was not 41 twf foHn lanc<lslel 1;1:34:29 12-10-2008 20/ZU 16 supplying his own availability to the Employer? How can it be fair for him to use this as a defence to the operation of Article 12.04(e)? On the other hand, how can the Employer rely on a deemed termination clause when one of the critical elements that would trigger the termination has not been established? Is this a situation where the lack of evidence Is due to the way the parties agreed to present the case? Given the ultimate disposition of this case, the issue of whether the deemed termination provision applies will not be resolved. The Union is also correct in asserting that all the issues in this case revolve around the Grievor's late submission of his proof of immunization for Tetanus. it must be remembered that current immunization for paramedics is mandated by Regulation 257/00 of the Ambulance Act, R.S.O.1990, c.A.19. Further, the Collective Agreement makes it clear that it is the paramedic's responsibility to ensure that the immunization is kept current and that renewals are submitted prior to expiry dates, These obligations are listed as "Conditions of Employment" under Articles 27.01 and 27.02. The consequences for failure to comply are serious for both the Employer and the paramedic. An Employer cannot put someone In service as a paramedic without there being valid proof of immunization. The inability to schedule someone could have implications upon the workload of the rest of the bargaining unit, affect complement, and compromIse the Service's abllity to serve the public. That must be why the parties included in their Collective Agreement the provision that prescribes that failure to provide proof in a timely manner may result in "temporary or permanent lay-off', The Union suggested that this wording should be read as the parties' agreement that no disciplinary response Is warranted. That cannot be correct. Those words allow for the possibility of an alternation in the employment relationship, either permanent or temporary. There would be wisdom in the parties' agreeing to those choices, to aI/ow for the many reasons why timely proof may be unavailable. Some reasons may be quite legitimate and/or beyond the control of the paramedic. That is probably why Article 27.02 is not a deemed termination provision. But nothing about this wording suggests that no discipline 41fiUf/:'lJf3 lancaslel 12:34:55 12-19-2008 21 /29 17 can be issued if timely proof is not supplied. That option is not taken away from the Employer. Although the term "permanent lay~off' may not be a disciplinary term. per S8, it does connote a permanent severing of the employment relationship. Further, it would be absurd to conclude that an employer could never discipline a paramedic for a failure to provide proof of immunization. This would result in the Employer being unable to sever the employment of a paramedic that it could not put in service. That is not what the parties have negotiated in this Collective Agreement. It would take much clearer or explicit language to fetter management's discretion to discipline or discharge an employee for their failure to maintain one of the fundamental conditions of employment in this Collective Agreement. Therefore, It Is clear that it is within the Employer's right to discipline a paramedic who has failed to fulfill his responsibility to ensure that his immunizations are kept current and/or who fails to provide proof of this prior to the expiry dates. The Grievor failed to meet both these requirements with respect to his Tetanus immunity. His initial explanation was that he forgot about the 10 year renewal date and that he was unaware of the Employer's efforts to remind him until it was too late to make timely arrangements. Both these excuses are without merit. First, they Ignore his own obligation to maintain valid immunity and to provide proof. Second, they cast blame upon the Employer in a way that is entirely inappropriate. He has tried to deflect responsibility rather than accept his own obligations. Even if one allows for the fact that someone might have forgotten that the Tetanus shot needed to be renewed, this man is a paramedic who has a contractual and statutory responsibility to ensure that his immunity is current. He cannot blame the Employer for the fact that he "forgof'! about the need to renew his shot or for the fact that the Employer's efforts to remind him were not initially successful. He claims he did not receive the Employer's Email reminders. If he was having trouble receiving Webmall from the Employer when he was not on site, why did he not make this known much earlier and/or why did he not make alternative arrangements, such as providing his home Fax number? Further, his 4HHlrr:'1i/3 lancaslel 12:35:21 12-Hl-200B 22f'lU 18 claim that he was unable to access the Employer's webmail system is hard to accept. He had received training on the system. He had access to a computer and internet at work, at home and with his full time employer. He is an intelligent man who uses a computer as part of his work and who uses Email in other situations. It defies credibility to accept that he was unable to access the webmail either off site or at work. The more likely explanatIon is his admission that he made no effort to access the webmail system unless he was on duty with this Service, and even then on a very infrequent basis. It is clear from his testimony that he made no real effort to access the Employer's communication system on any sort of regular basis. Therefore, he simply could not be bothered to keep himself informed about issues that were relevant to his duties with this Service. Third, his position reg~rding the late Tetanus shot ignores the following facts: 1) he received phone calls about the need to renew the immunization from the Employer, 2) he could have made arrangements to get the Tetanus shot on time if i) he had been willing to ask his doctor for a speedy appointment because of the seriousness of the situation, or Ii) he had been willing to wait in an emergency room until he was attended to, or Iii) he had simply walked into the V.a.N. clinic and received the shot with little inconvenience to anyone. including himself, which is what ultimately happened. This leaves the question of whether failure to get the immunization on time can be excused by the Grievor's claim that he was dealing with an issue of "conscience", The Employer challenged the credibility of this claim, primarily because other excuses were offered before the discharge and the claim was first articulated during this arbitration hearing. It can be accepted that one might be reluctant to reveal certain personal beliefs. It can also be appreciated that the Grievor mIght have felt his job would be in jeopardy if he told the Employer that ~ 1 h!J1/5I.ll3 lancaslet 123545 12.10.2008 23 f20 19 he might refuse to take the immunization. Other paramedics at this Service had been terminated for failure to obtain influenza shots. So even if one gives the Grievor the benefit of the doubt about the timing of his revelation, one must examine exactly what he is saying. He said his reluctance to renew his immunity was based on his "conscience". He explained this by saying, "1 am not in favour of vaccinations. . . . My wife and I believe that vaccinations are not beneficial to one's health." Counsel for the Union characterized the Grievor's situation as a "struggle of conscience, with the Grievor trying to reconcile his personal beliefs with his employment responsibilities, but ultimately deciding in the Employer's favour." Accepting that witnesses are not expected to be able to articulate their positions as eloquently as skilled advocates, it still cannot be concluded that the Grievor's testimony establishes a genuine "struggle of conscience". First of all, he said nothing to that effect. At its highest, the Grlevor stated his personal opinion that vaccinations are "not beneficial to one's health", He stated no moral or spiritual objection to vaccinations, simply a lack of belief in their value. It is recognized that his wife signed an affidavit saying that she had objections to their son being vaccinated on the basis of her "religion or conscience". But she made it clear that this was based upon the conclusions she had reached after researching the body's ability to heal itself. More importantly, she also indicated that she recognized that her husband had to make his individual choice about the issue. Her affidavit cannot be taken as evidence of his state of mind. While one can accept that he may not believe in the value of Immunizations, that does not elevate his opinion to the level of "conscience". One's moral beliefs may well amount to relevant and mitigating factors in situations where employment obligations conflict with deeply held spiritual or moral beliefs. But this is a case involving a statutory obligation to maintain immunity because of the risks posed to the pubic and co.workers. There was no evidence about his "spiritual or moral" concerns in relation to a Tetanus shot. Taking the Grievor's words at their best, it can only be concluded that the Grievor may have genuinely believed that vaccinations offered little benefit to anyone. Nor did he "resolve the issue in the Employer's favour", as the Union wants to suggest. The Grievor simply decided 416~J (lba/3 lancaslet 12:36:12 12-19-2008 24 f29 20 that he wanted to keep his job. That is what made him get the shot, not an acceptance of his Employer's needs. Taken together, his evidence falls far short of establishing a moral or spiritual justification for failing to live up to the requirements of Article 27.01 or 27.02. Further, the Grievor also works full time as a paramedic for another Service. The issue of immunizations was not new to him. Therefore, it strains credibility to accept that he was suddenly incapacitated by the "struggle" about whether to get a Tetanus shot In July 2006. He has had to maintain Immunizations during his entire career as a paramedic, with this Service and for his full-time position. The evidence leads to the conclusion that he simply ignored the issue until he found himself off the roster and then he obtained the shot at a time and place that was most convenient for him. Therefore, none of the reasons that the Grievor has offered for the delay amount to appropriate or justifiable excuses. In this situation, the Employer had just cause for taking a disciplinary response. This leads to the question of whether discharge is appropriate under all the circumstances of this case. The Employer has argued that anyone of the grounds set forth in the termination letter warrant discharge or that the misconduct should be viewed in its totality. This Award is based on the evidence as a whole. Therefore, all three allegations of misconduct must be viewed as a whole. As concluded above, there were grounds for discipline for the untimely delivery of proof of Tetanus immunization. It must also be concluded that there was no reasonable excuse for his missing three scheduled shifts. He missed the shifts because he failed to renew his immunization. Therefore. the two issues are tied together. Even if he was struggling with his conscience, he should have initiated and resolved that struggle long before the immunity expired so that the shifts did not have to be reassigned on a day~by.day basis. This situation would disrupt scheduling and put an added burden on others in the bargaining unit. It cannot be concluded that his missed shifts amounted to a leave of absence or that they 41 fiOl/58 13 lancaslel 12:36:37 12.10-2008 25/29 21 were condoned by the Employer, as the Union tried to suggest The missed shifts were entirely because of the Griever's delay in dealing appropriately with his responsibilities. The Employer did not accept or condone this in any way. It sImply put him "on hold" or "off schedule". This is entirely different from the granting of a leave of absence. Further, while Article 12.04(e) does contemplate that the Employer might find reasons for the missed shifts "acceptable", the Griever's reasons were not acceptable to this Employer. The reasons given at the time were not accepted. The evidence shows that this Employer has never accepted a refusal to maintain valid immunizations, nor could this be accepted, given the statutory requirement for the immunization, Further, Article 4.02 contemplates that part.time employees "shall accept shifts as scheduled in order to remain on the roster". This indicates the importance of fulfilling scheduled shifts and ties this to continued employment. Therefore, the Grievor has not been treated differently than other employees, the Employer's decision was not arbitrary and there is no suggestion of bad faith. While the automatic termination aspect of Article 12.04(e) may not have come into play on the facts of this case, it must still be concluded that the Grievor's absence from three scheduled shifts without there being a reason acceptable to this Employer or any other reasonable explanation amount to justification for a serious disciplinary response that must be tied Into consideration of the Tetanus issue as a whole. The last justification for disciplining the Grievor was his continuing failure to provide the Employer with an indication of his availability for duty. He acknowledges that he did not meet the obligations under Article 4.02. He admits that he received the first warning letter in December 2006 and that he continued to neglect to submit his availability on time, The Union argues that the second disciplinary letter that was issued to him should not be considered as part of his disciplinary record because he never received it. In principle1 the Union is right. If the purpose of progressive discipline is to bring a matter to the employee's attention so that the problem can be corrected, a notice of discipline that has not 41 (iOI f!j1l13 lancaslel 12:37:03 12-19~200B 26 f;W 22 been delivered cannot form part of that record. See Corporation of the City of Timmins and C.U,P.E. 1140, and Quality Meat Packers Ltd. and U.F.C.W., supra. However, the question at this stage is not whether the second disciplinary letter should constitute part of the disciplinary record. The question is whether the Grievor's overall failure to supply the Employer with an indication of his availability for shifts can be considered as part of the circumstances that would justify discharge and/or discipline. The obvious answer to that must be "yes". Even if only the first reprimand is considered, the Grievor himself admits that the issue was brought to his attention and then he effectively ignored it. He continued to submit his availability late, despite receiving numerous calls from the Service. As he said: "If I was late, I'd send my availability in when I needed to do so." This indicates that he sent in his availability to suit his own needs and without regard to the needs of the Service or the provisions of Article 4.02. In addition, he made no effort to maintain any effective communication with the Employer. He ignored the mail drop. He suggested no alternative method_ His claim that he could not communicate through the Web mail system lacks credibility. It is simply clear that he only communicated with the Employer when it suited his own Interests. Further, the Union's suggestion that his failure to submit his latest availability in July should be tied to his "struggle of conscience" cannot be accepted. The facts show that he was due to submit his availability on Dr before July 20th, He did not do this. He got the Tetanus shot on July 24th. Even jf one accepts that he had been having a crisis of conscience, he had resolved the "struggle" at that point. It is true that he had been told that his status was on hold, but nothing prevented him from submitting future availability when he faxed in the proof of immunization on July 24th, If he actually wanted to be put back into service, submitting availability would have provided some indication of his willingness to fulfill his obligations. It must be recognized that the parties have drafted Article 4.02 for a significant reason. It allows for the use of part-time paramedics only in certain circumstances. The scheduling of part-timers is carefully prescribed as a 41fiY{/bllf3 lancaslel 1237:29 12-19-2008 21/29 23 limitation of management rights. The complexity of scheduling a Service that meets the demands of the public and the rights of the bargaining unit cannot be underestimated. That must be why the parties have Included the requirement that part-timers submit availability 90 days in advance. The Grlevor never seems to have appreciated or respected the importance of this provision. He admits that he repeatedly failed to meet its requirements even after he had been warned and that he was not in compliance in the time leading up to the events that gave rise to his discharge. Therefore, the Employer was within its rights to consider this misconduct as a factor in the disposition of discipline, The only question remaining is whether there are circumstances that would warrant the exercise of arbitral discretion to substitute a lesser penalty. The "just cause" standard has been set because fairness demands that one should not lose employment opportunities unless the employer can show good and sufficient reason that a lesser response would not be appropriate. Therefore, all aspects of the case must be considered. The Grievor has been a member of this bargaining unit for eight years, but this number is not reflective of his actual service. He did work full time for some period, but has been on a part-time basis since 2005 by choice and is only required to work six shifts per month. Therefore, he cannot be considered as a long service employee. Nevertheless, discharge is a very serious penalty, even for a part-time employee. The Union cites the Grievor's "struggle of conscience" and its resolution in the Employer's favour as mitigating factors. They have been taken into consideration as mentioned above. It is also true that the Employer subjected the Griever to the indignity of hearing about his termination unofficially, days after the decision had been made, while he was awaiting word about his status and before the termination letter was delivered. This was unprofessional, unacceptable and puts the Employer in a very poor light. But when the evidence as a whole is taken into consideration, it establishes an employee whose actual service is modest, who disregarded statutory and 41fiunt>H/3 lancaslel 123f:54 12-1{I-2008 28 129 24 negotiated requirements, who Ignored the contractual obligation to provide availability, and who came to this hearing blaming the Employer for everything that happened. Further, while the Grievor admitted to the factual basis of the case, he expressed no apology or remorse about how the situation developed. It is true that he Insisted that he would not let his immunizations lapse in the future. However, this is far from an expression of contrition and he did not begin to address the other misconduct. In addition, it is clear that he does not respond to progressive discipline or direction. After receiving a letter of reprimand about his failure to supply his availability, he continued to be non.compliant. Even when he received calls about his availability, he only responded when he felt he needed to. Finally I he testified that even up to the day of his discharge he did not think that anything was wrong. How could he have thought that "nothing was wrong" after he failed to comply with so many statutory and contractual provisions resulting in him not being considered as part of the roster? His perception indicated a complete disconnect with his responsibilities to this Service. Actions sometimes speak louder than words. Had there been any indication that the Grievor is someone who will respond to corrective action or respect the provisions of the Collective Agreement, this case may have had a different outcome. Nothing in his conduct at any of the relevant Urnes suggests that he felt any sense of obligation to fulfill all the requirements of the Collective Agreement. His testimony at this hearing also raised serious concern about hIs reliability, He changed his stories from examination in chief to cross examination. For example, in "chief' he claimed that he had been unsuccessful in trying to regain a full time position with this Service, yet in "cross examination" he was forced to admit that he had been offered a full time position and turned it down. On another issue, he initially claimed that he had worked with this Service "without a blemish on my record", and then had to later concede that he had received the warning letter and follow-up calls regarding his failure to submit availability. Further, while one of the reasons he gave the Employer for not being able to get his Tetanus shot in July was that he did not want to do this while he was "on 41liUIf:Jtl/3 lancaslel 12.:i1i:21 12-19-2008 29/20 25 vacation", he later admitted in cross examination that he had taken no vacation in June and taken only one day in July. This demonstrates that his explanations differ, depending on the impression he is trying to convey. These examples reveal that the Grlevor's words are not reliable and his credibility is very much in question. Therefore, he presents as a person who is undependable, both in terms of his words and his actions. In a situation where he is trying to establish that there are mitigating factors that warrant the reduction in the penalty for misconduct, he has presented nothing that would give rise to any basis to believe that his behaviour would improve. Part-time employees are important to this Se/Vice because of their skills and their availability. If they cannot be relied upon to maintain their eligibility for duty or they cannot be scheduled because they failed to provide availability, they are not meeting their responsibilities under the Collective Agreement or the governing statute. As a result, on the basis of the evidence at this hearing, it must be concluded that the Employer had just cause for discharge and that there are insufficient mitigating factors to warrant the substitution of a lesser penalty. Accordingly, the grievance Is dismissed.