HomeMy WebLinkAboutSterling 10-11-09
2 CSb~ Jj<; l\ l\-OOl~"
~~,
IN THE MATTER OF AN ARBITRATION
B ETWE E N:
THE CORPORATION OF THE COUNTY OF NORTHUMBERLAND
(The "Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 344
(The "Union~')
AND IN THE MATTER OF THE GRIEVANCE OF JASON STERLING
David K. L. Starkman
Arbitrator
APPEARANCES FOR THE EMPLOYER
Mark Mason
Lisa Ainsworth
Tarmo Uukkivi
Bill Pyatt
Counsel
Director, Human Resources
Deputy Chief Quality Assurance
Chief Administrative Officer
APPEARANCES FOR THE UNION
John Brewin
Joel Usher
Counsel
Steward
A Hearing in this matter was held on October 22,2010 at Cobourg, Ontario
2
AWARD
The grievor, Jason Sterling, alleges that the Employer did not have just cause to
suspend him for five days in September, 2009. The suspension letter provided as
follows:
September 14,2009
Dear Mr, Sterling,
This letter is to advise of your unpaid suspension from Northumberland
County EMS. This suspension is as a result of the email that you sent to
Chief Administrative Officer Bill Pyatt on August 17, 2009.
The content of the email is inaccurate. Furthermore, your communication
was p.erogatory and insubordinate and the memb~rs of County Council
and ~r. Pyatt were deeply offended by both the content and tone of your
emait The email is a direct violation of our Code of Conduct and
Wor place Harassment Policies. Your actions in this regard lack the
prof ssionalism and judgment which are required for all employees of
Nort umberland County EMS.
Acc rdingly, you are suspended without pay for the following scheduled
shift :
. Monday, September 14th, balance of 0600 -1800 shift
. Tuesday, September 15th
. Friday, September 18th
. Saturday, September 19th
I . Sunday, September 20th
YOU1 next scheduled shift will be Wednesday, September 23rd.
We t~ust that you will/earn from this incident and govern your future
conduct accordingly. However, you must be aware that any future
incidents of this or a similar nature will result in the termination of your
employment.
3
Sincerely
Dan Collins
Chief of Emergency Medical Services
The County of Northumberland
Cc: Employee file
The background facts are not substantially in dispute. On August 14, 2009 Mr. Bill
Pyatt, the Chief Administrative Officer of the Employer, sent an e-mail memorandum to
all Northumperland County EMS Employees, which was copied to County Councillors
!
,
concerning abuse of sick leave. The memorandum provided as follows
To: Northumberland County EMS Employees
,
Frorrj: Bill Pyatt, Chief Administrative Officer
i
Re: Abuse of Sick Leave
Datet August 14, 2009
C.C.' County Councillors
MEMO
This [is the first occasion in more than twenty years as a senior manager
that I have been in the position of having to write this sort of message to
I
the s~aff of one of my department$.
I am extremely concerned and disappointed with recent incidents in our
EMS Department and hope that this communication will cause certain
peoRle to seriously reflect on their actions, and the risks their actions pose
to th~ citizens we are here to serve.
I
The bounty of Northumberland has fair and reasonable policies with
resp ct to vacation requests and the backfilling of positions. On any given
shift, we allow up to four EMS staff to be on vacation at one time. Further,
up t this point, we have allowed a further four persons to take vacation if
we c n find paramedics to backfill them. On day shifts, this meant that we
allo ed up to 56% of the staff to be on vacation, and on night shifts, it is
66% I can assure you that no other department is allowed anything close
to these percentages.
4
The Collective Agreement with your OPSEU Local 344 clearly outlines the
procedures for requesting and providing availability (for PT staff). County
EMS management respects and follows the provisions of the Collective
Agreement, as I am certain OPSEU would expect.
Recently, we have received numerous requests for vacation which are in
excess of what is provided for in the Collective Agreement. We have tried
as much as possible to accommodate as many of these last-minute
requests as possible. However, when we are unable to find staff to backfill
these shifts, we must deny the request. We then have had these same
staff phone in "sick" on their requested vacation days. Often staff do not
bother requesting vacation, likely knowing that vacation allotments are
maxed out, and they simply choose to call in "sick".
On Wednesday, August 12, 2009, five paramedics called in sick and
between Thursday, August 13 and Friday, August 14 a further seven
called in sick. With this many staff absent, we simply cannot find coverage
for all the positions and ambulances have had to be downstaffed. On
August 12th there was a Code 4 call in Brighton, and the Brighton car was
downstaffed. This Code 4 call had to be responded to from the Cobourg
base.
At least one paramedic has been heard saying that the reason
ambulances are downstaffed is that "Dan Collins wants to save money by
not backfilling". This is absolutely false. Downstaffing occurs during a
situation like, the past few days, where so many staff call in sick and we
have exhausted the part-time availability and full-time staff who could
work overtime. By comparison, a total of three people called in sick on
August 13th out of the three hundred employees in the other eight
departments combined. I wish to be clear; I am not suggesting that all the
EMS absences this week were invalid, but we know for certain - that they
were not all legitimate sick days.
I am extremely concerned that if this "work action" continues we are going
to have a very serious incident, and a child or an adult will suffer
unnElcessary harm. If this happens, there will be many losers - most
importantly it will be the individual and the family. The County, our EMS
staff and paramedics everywhere will have their reputations irreparably
damaged.
I want to emphasize that these types of actions and the blatant disregard
by some of their responsibilities will not be tolerated. Further, any EMS
staff counseling their colleagues to participate in this "job action" will also
be held responsible. The County will not condone the abuse of sick leave
and vacation provisions within the Col.lective Agreement and we intend to
closely monitor work absences and will respond with the appropriate
disciplinary actions, where applicable.
5
The County has many dedicated, highly skilled and professional
paramedics. It is a shame that the actions of a few place so many at such
great risk.
The grievor sent a reply memo as follows;
From: Sterling, Jason
Sent: Monday, August 17, 2009'10:25 AM
To: Pyatt, Bill
Cc: Thompson, Linda; Finley, William; Herrington, Christine; Delanty,
Peter; Coombs, Marc; Lovshin, Mark; Macmillan, Hector
Subject: EMS Crisis
To: Bill Pyatt, CAO
From: Jason Sterling, Paramedic, NEMS Re: Management Failure
D~e:Augu~17,2009
c.c. County Councillors
Mr. Pyatt,
I was shocked and extremely disappointed to have reported to work this
morning and been subjected to your manifesto containing such glaring
mistruths, misinformation and slanderous allegations.
The paramedics that serve Northumberland County do so with a level of
pride and professionalism that is beyond reproach. The workplace
environment that our employees have been forced to endure this last few
years, and specifically last several months, knows no precedent in a
modern workplace. Despite these egregious working conditions, 99% of
which can be solely laid at the .feet of senior management, the paramedics
have continued to provide top level, compassionate care to the citizens we
serve. Ask anyone who has been helped by our paramedics, and you will
hear nothing but glowing commendations.
The recent crisis at which we find ourselves is simply the product of
several years of mismanagement culminating in the near total failure state
at which we are currently operating.
In response to your allegations about staffing levels, and managements
"fair and reasonable policies" I present you with these FACTS:
. The hiring of part time staff is at the sole discretion of management,
NEMS had every opportunity to hire qualified, part time staff, from a
notably large and deep pool, and declined to do so. Most EMS agencies
our size will hire 10-20 part time staff before the start of the busy summer
6
season. NEMS elected to hire 1 or 2.
. County management has elected to NOT keep spare units operational
and FULLY EQUIPPED. I personally was witness to 2 cases in the course
of a couple hours on Thursday, Aug. 15, where crews reported to duty, and
had no equipped ambulances to respond to emergency calls in. This is
directly as result of managements POLICY of forcing crews to share
equipment between vehicles. In the cases of note on Aug. 15, crews, at a
certain level of personal liability and out of a sense of duty, chose to
respond to scenes in under-equipped ambulances with the hope of being
able to procure the equipment needed to do their job right from other crews
on scene. On other occasions, crews, particularly ACP crews, ferry
equipment for the vehicles between stations in their own vehicles ON
THEIR OWN TIME so that they may have the tools to do their job. This
type of situation occurs with frightening regularity.
Senior management has had part time staff sitting at home, ready, willing
and able to come in to work, and has directed his shift supervisors NOT to
call them in, EVEN IF THIS RESULTS IN A DOWNSTAFF SITUATION.
This is because they sent their availability in from a "non preferred" email
address or it was a day or two late (but still 6-8 weeks BEFORE the time
frame in question). Just to make this 100% clear, he, the shift supervisors,
and the staff all know the staff in question are available, yet it is still not
done.
As a result of the low number of part time staff the County HAS CHOSEN
to employ, on occasion, they have had to have been paid 'overtime, under
the Employment Standards Act. As a direct result of management's
unwillingness to do so, upper management HAS DIRECTED the shift
managers to not call in part time staff to cover shifts if it will result in
overtime. Inexplicably, management seems to have no problem with
working Full Time up to 84 hours a WEEK, and paying them the resultant
overtime, often at a higher cost.
Management has recently gone to an arbitrator to receive a ruling that
allows them to pass over the dedicated, hard working part time staff, some
of whom have but in YEARS of meritorious service, in order to hire staff
from outside the part time ranks, in order to save some non-essential
training costs. This has demoralized them (and all staff), and forced them
(the part time staff) to devote the lion's share of their availability to other
services, where dedicated and hard working staff are motivated by the
opportunity of an eventual full time position.
Lastly, and perhaps most importantly if not as tangible, is the current
poisoned work environment we find ourselves in. Senior management's
practices seem without reason, and without practical or empirical basis in
fact. Many of them, from the decrepit stations, unreasonable deployment
plans, arbitrary denial of basic benefits granted in the collective agreement,
endless schedule and partner shuffles, are seemly designed to create
unrest, and demoralize staff. We are simply seeing the reaping of what has
7
been sown.
Mr Pyatt, the fact that you haven't seen a situation like this in your 20 years
of being a senior bureaucrat should speak volumes about the situation that
has been allowed to develop here, under the auspices of the current
regime. The crisis situation we find ourselves in is a DIRECT RESULT of
management's practices and policies.
The fact that you would go on record making such unfounded,
irresponsible, and slanderous allegations against the dedicated
paramedics of the County is unbelievable to me. Surely someone with your
claimed level of experience would know better then to go on record with
such garbage, and to even include third party hearsay and rumour is
unconscionable, and can only further inflame the situation. It is
unprofessional, un ethical, and possibly illegal.
Is suggest to you, Mr. Pyatt, that the current crisis we find ourselves in, is
simply a matter of things in the EMS department reaching a breaking point,
and staff absences are a direct result of the staff being worn out and
exhausted, from an increasingly high call volume, forced end-of-shift
overtime, long hospital off load delays, management's Draconian work
environment, and failure to respond to the needs of the service, staff, and
County.
The dedicated and professional paramedics of Northumberland County are
ready and willing to work WITH the County in finding long term, fair and
sustainable solution to these problems, but we need to be given the
opportunity to do so. Attempt's to have staff meetings and
employee/employer relation committee meetings have been constantly
stymied by management, any that have occurred have been perfunctory in
nature, with no incentive to make any progress on any issues by
management.
We need INDEPENDENT, EMPIRACLE, (sic) 3rd party intervention in the
matter. We are not asking that you take our word for any of this
information, although the facts are indisputable, and will hold up to
scrutiny, unlike your slanderous, ill conceived mistruths. Is implore the
County, and any concerned councillors, to immediately find and appoint a
professional, 3rd party consultant to look into the matters surrounding the
operations of Northumberland County EMS, before further damage is
done, resulting in increased costs and reduced service delivery to the
citizens of the County, of which we proudly serve.
Jason Sterling
Paramedic
Northumberland County EMS
705 930-4563
sterlingj county.northumberland.on. ca
8
Mr. Pyatt testified that he had been advised by the Director of Human Resources that
there was going to be a job action in the month of August because of a dispute as to
how many paramedics could be on vacation at anyone time. He took no action and
decided to wait and see what transpired. On the morning of August 14, he received a
telephone call from County Council advising that at one of the six bases the night before
there had been no ambulances on duty, and that is why in consultation with Ms
Ainsworth, the Director of Human Resources, he sent the memorandum to all
paramedics.
Mr. Pyatt indicated that when he read the e.;mail fro Mr. Sterling he was shocked and
upset. He found it to be hurtful and demeaning and that it challenged his credibility with
County Council. He indicated that he subsequently met with the County Council and
they discussed all the options and settled on a five day suspension.
In response to questions from counsel for the Union Mr. Pyatt stated that he did not try
to contact Mr. Dan Collins, the Chief of EMS, during the week of August 14th as Mr.
Collins was on vacation.
Ms Lisa Ainsworth testified that she assisted Mr. Pyatt in the preparation of the
memorandum. Mr. Dan Collins the Director of EMS was on vacation. Ms Ainsworth
stated that she tried to contact him on August 14th without success.
9
Ms Ainsworth indicated that, in early 2009, there had been a grievance about the
scheduling of part-time paramedics, inasmuch as these paramedics were not scheduled
if they did not submit their availability ten weeks in advance of the schedule. In June,
2009 a part-time paramedic submitted his availability late for the August schedule.
When he was not placed on the schedule he was upset and appealed to Ms Ainsworth.
When Ms Ainsworth confirmed that he would not be given pre-scheduled shifts for
August, the paramedic said "wait and see, the shit will hit the fan in August".
Ms Ainsworth testified that in July, 2009 two paramedics said to her that there was going
to be a job action in August due to the paramedics not being pre-scheduled due to late
submissions of their availability. Ms Ainsworth indicated that she had talked to the
Executive of the Union and was advised that they were not aware of any job action.
There was also an issue concerning the number of paramedics who could be on
vacation at anyone time, and that as a result of paramedics calling in sick on August
13th, and 14th, one of the stations did not have a staffed vehicle on those days. Ms
Ainsworth stated that it was not the disputed facts in Mr. Sterling's memo that were a
problem but rather it was the disparaging comments and the attack on the credibility of
Mr. Pyatt that formed the basis of the discipline.
The grievor testified that he was not aware of any planned job action during the month of
August, and that when he arrived at work and read the memo from Mr. Pyatt he was
upset. He stated that he could not believe that Mr. Pyatt believed the information in the
10
memorandum to be factual, and he concluded that Mr. Pyatt was not being truthful. Mr.
Sterling acknowledged that he should have chosen his words more carefully and that his
attack on Mr. Pyatt's character was inappropriate.
The grievor stated that he was nevertheless concerned that wrong information was
being sent to the Councillors about the paramedics. In his view his e-mail was intended
to be critical of the policies of senior EMS management. He also stated that this was the
first opportunity he had to express any sort of regret for some of the words chosen with
respect to Mr. Pyatt. He stated that he sent the reply e-mail without discussing the
matter with anyone else.
DECISION
The employer submitted that a five day suspension was appropriate. The grievor's
behaviour was not a knee jerk reaction, as he had time to consider his response. In its
view the memorandum was insubordinate as the words chosen were a personal attack
on Mr. Pyatt and intended to belittle him and in this regard reference was made to the
decision in Re Squamish Terminals Ltd. and International Longshoremen Workers'
Union, Local 514, (1998) 72 L.A.C. (4th) 5 (D.C. McPhillips),
The Employer also submitted that, if I find that there was just cause for discipline, I
should respect managerial discretion and not tinker with the penalty. As noted in Re
Weyerhaeuser Co. And United Steelworkers, Local 1-207, (2007) 159 L.A.c. (4th) 56
11
(G.E. Power) at p. 351:
One might be tempted to tinker with the suspension but that is not really
the proper function of an arbitrator where the discipline selected by the
employer is within the range of what is reasonable, as it was in this case.
It is sufficiently severe that it indicates that the misconduct was serious, yet
it draws up short of a termination, which recognizes that there were
mitigating circumstances, all of which is consistent wit the reasons given in
letter of suspension...
Similar comments can be found in Re Coast Capri Hotel and Hotel, Restaurant and
Culinary Employees and Bartenders Union, Local 40, (2000) 87 L.AC. (4th) 345 (D.L.
Larson); Re Rolland Inc. And Canadian Paperworkers Union, Local 310, (1983) 12
L.AC. (3d) 391 (R.O. MacDowell), and Re Toronto Transit Commission and
Amalgamated Transit Union, Local 113, (2002) 109 L.AC. (4th) 364 (L. Slotnick).
The Union submitted that in assessing the grievor's behaviour, I should remember the
context. In its opinion Mr. Pyatt's memo was inaccurate, provocative and inflammatory
and was intended to cast paramedics in a poor light in the eyes of County Councillors
and the grievor was only responding to what he perceived as deliberate falsehoods.
Reference was made to the decisions in Re Volvo Canada Ltd. and Canadian
Automobile Workers, Local 720, (1990) 12 L.AC. (4th) 129 (B. Outhouse) and Re
William Neilson Ltd. And Milk and Bread Drivers, Dairy Employees Caterers and Allied
Employees, Loeal547 (M.D.), (2008) 176 L.AC. (4th) 187 (R.L. Levinson).
12
I accept that the grievor may have been extremely upset with Mr. Pyatt for sending a
memorandum to all paramedics and to the County Councillors using strong language
and accusing some paramedics of abusing sick leave as part of a work action, but this
does not excuse the grievor from responding with a personal attack on Mr. Pyatt is
integrity. The reply directly and deliberately endeavoured to belittle and embarrass Mr.
Pyatt in the eyes of paramedics and County Councillors. As noted in Re Highland Valley
Copper and United Steelworkers of America, Local 7619, (1999) 82 L.A.C. (4th) 310
(B.M. Greyell) at pp. 316-17:
Insubordination can take many forms, all of which involve a rebuke of
management's authority to direct the workplace. Insubordination can cover
many types of behaviour. It can be an overt refusal to follow a lawful
direction, it may be an insult or rude remark (sometimes made as a result
of a flare-up of temper), or it may be a less obtrusive behaviour, but with
an intent to undermine and challenge management's authority. The range
of disciplinary response for insubordination varies widely. Insubordination
is usually considered by arbitrators to be a serious offence, the penalty for
which can be mitigated if the conduct is the result of a momentary
outburst... .
It may be that Mr. Pyatt could have chosen different words, or perhaps he did not need
to send the memorandum to County Councillors, and it may be that the allegations in the
memorandum are incorrect, but, in my view, the grievor's reply comments were a
personal attack on Mr. Pyatt's integrity and were intended to undermine the authority of
Mr. Pyatt and senior management, in the eyes of paramedics and County Councillors.
As such they are properly characterized as insubordination and attract a disciplinary
response.
13
There is a wide range of possible disciplinary responses to insubordination of this kind,
but, after considering all the facts and submissions of the parties, I have concluded that
a five day suspension is within the range of reasonableness. The grievor was angry
when he read the memorandum from Mr. Pyatt, but there was no urgency to respond to
what he considered to be factual errors in the memo. The grievor's response was not on
the spur of the moment. He had time to consider the response and to key board a
lengthy reply. At no time, until giving evidence at the hearing, did the grievor
acknowledge that any of the language in his e-mail was inappropriate. I am therefore
not convinced that I should exercise my discretion to substitute a different penalty.
For these reasons the grievance is dismissed.
Dated at Maberly, Ontario this 9th day of November, 2010.
IJJYlQ
David K.L. Starkman