HomeMy WebLinkAbout1980-0271.Whittle.81-05-25IN THE 4IATTER OF AN ARBITRATION
Under The
CROWN E.WLOYEES COLLECTIVE BARGAINIX ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. James Whittle Grievor
- And -
The Crown in Right of Ontario
(Ministry of Health) Employer
Before: E. B. Jolliffe, Q.C. Vice Chairman
A. G. Stapleton Member
I. J. Thomson Member
For the Grievor: G. Richards, Grievance O<fficer Ontario Public Service Employees Union
For the Employer: R. Love Ministry of Health
Hear%: March 19, 1981
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DECISION
On Sunday, October 21, 1979, at about 9:47 a.m.,
Mr. James Whittle, while~driving an ambulance in the City
of Ottawa, was involved in a collision with another vehicle.
The results of the accident were somewhat costly. The ambu-
lance was considered a "write-off", being a loss to the
Ministry of Health of approximately $12,000. The other
vehicle sustained damage estimated to cost between $2,500
and $3,000.
There were also personal injuries. Mr. J.
Montgomery, the Attendant accompanying the vehicle,
suffered minor bruises and sprains, and was off work for
two days.' Mrs. L.'Pierrard, a Student Attendant also on
duty in the ambulance, had other minor injuries. The
driver of the second vehicle, Mr. E. Albrecht, was said
to have “sustained possible cervical injury (whiplash)"
and the accident report also noted "this person previously
treated for same injury".
On the same day the grievor, Mr. Nhittle, was
"grounded", i.e. relieved of duty as a Driver pending
investigation of the accident. "Grounding" is normal
procedure in such cases and simply means that the employee
continues to function as an Attendant but is not allowed
to take the wheel. Ordinarily, the ban remains in force
for only a few days; in Mr. Whittle's case'it was prolonged
for a month or more. His Union now takes the position that I
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this was a disciplinary penalty, but Mr. Whittle did not
grieve against it.
The grievance before this Board relates to a
suspension, reduced from three days to one in the course
of the grievance procedure. The original penalty was im-
posed in a memorandum to the grievor, dated November 29,
1979, from Mr. N. L. O'Brecht, Co-ordinator in the Ambu-
lance Services Branch of the Ministry of Health. Since
this document, Exhibit 2, sets out the Employer's grounds
for taking disciplinary action, it is reproduced in full
below:
With reference to the Bearing conducted in Ottawa, Friday, November 23, 1979 ooncern-
ing your inuoZvement in two incidents on
October 2~1, 1979.
I find that you, as the driver of Vehicle #548 on 2I October 1979, stopped for coffee
white enroute to Code 1 call #256867, pick-
up Zocation was Orleans which was in the
opposite direction to the route you were
taking on Riverside Drive. After receiving
the call you continued to proceed in this
opposite direction to a coffee shop at Bill-ings Bridge.
It was established that you made this coffee
stop without the knowledge of or permission
from C.A.D.S. Ottawa. This was contrary to
instructions to all employees issued in a memo, dated 27 June 1979 from F. Payette,
Manager, Ottawa Ambulance Service, as we22
as contrary to Section 63(a) of Ontario
Regulations under The Ambulance Act.
In respect to the second incident; on re-
turning to your vehicle you were advised by
John Montgomery, attendant of Vehicle #548 of
re-assignment to a Code 4 call, #256872, pick-
up location Alta Vista Drive. While proceed-
ing east on Riverside~.Drive you were involved
in a M.V.A. collision at the Riverside Drive,
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PZeasant Park intersection, as a direct
result of which:
a) You, Louise Perrand, John Montgomery,
Emile AZbrecht, driver of 2nd vehicle
were injured, treated and released from
Riverside Hospital.
bl Response to Priority Code 4 ca 21 #2568?2
to Alta Vista was delayed.
cl Vehicle #548 was damaged beyond repair.
On your own admission, I find that you
faiZed to follow instructions contained in
the letter from G.J. Ventura, Director,
Ambulance Services Branch dated August 27,~
1979 concerning responsibilities of the
driver of an ambulance while responding to
an emergency, in that you did not come to’
a complete stop and proceeded through the
intersection with lights only. There was
some discussion to the effect that you couZd
not readily recall this letter in detail,
however, it tias subsequently,determined that
you were given a’ copy of this letter to read
by your Shift Supervisor and that you did sign the reverse of such copy.
While I have taken &to consideration your
past good performance, in view of the very
serious nature of these matters in respect
to your duties and responsibilities as an
ambulance officer, you are hereby removed
from empzoyment, without pay for three days fotlowing which you are to be returned to
ful2 duties as a driver attendance.
You are counsetled that repetition of offences
of this nature could Zead to imposition of a
fine, or removal from employment without pay for up to one month, or dismissal. I sincerely
trust that this will not occur as I believe you
have excellent potential and prospects in ambu- lance service.
There is no need to reproduce a second communica-
tion, the letter addressed to Mr. Whittle in April, 1990,
by Mr. Fred C. Rusk, Regional Manager of the Service for
Eastern Ontario. It reiterated the reasons for discipline
set out above, adding one other, but reduced the suspension
i
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from three days to one.
The testimony of the grievor before this Board
does not contradict the allegations made by the Employer
but refers to what might be termed "extenuating circum-
stances". In effect the principal defence advanced on
behalf of Mr. Whittle is that the rules cited by the Em-
ployer's witnesses are not consistently enforced.
The grievor admits that before leaving the
Riverside Hospital, he did not report his availability by
telephone. This was contrary to rule number 5, stated by
Manager F.C. Payette in a memorandum to all employees on
June 27, 1979, as follows:
On completion of calls from hospitals,
crews are to check by Zandline with dispatch and when departing base or
hospital, crew must book on the air
immediately .
The grievor points out that although he did not
report by "landline", i.e. by telephone from the hospital,
he reported to dispatch by radio immediately after leaving;
Such an availability report by radio is known as a "lO.g",
and it is frequently used.
On leaving the hospital grounds, Mr. Whittle
turned left on Riverside Drive and proceeded west. There
was some talk about whose turn it would be to buy coffee.
About this time a radio message was received to take an
assignment in Orleans, a suburb east of Ottawa. This was
allow-priority call, known as a "10.1". Mr. Whittle
. .
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considered doing a U-turn, but his partner, Mr. Montgomery,
pointed out that a Billings Bridge coffee-bar was not far
away, and it would be a better place to make the turn. At
Billings Bridge, Mr. Whittle volunteered to buy three coffees,
which took, he says, not more than a minute or two. When he
returned, Mr. Montgomery told him of a call just received:
it was "10-4", or high priority call to an emergency a mile
or more away in the Alta Vista area. Mr. Whittle at once
headed east on Riverside Drive, retracing the route he had .
taken on leaving the hospital.
The Employer's witnesses say that it was wrong
to stop for coffee at Billings Bridge, failing to advise
dispatch, but the grievor claims that rule 4 is "not
strictly enforced", at least in respect of coffee pick-ups.
It is as follows:
When employees are picking up lunch, crews
wJill advise dispatch of pickup area.. .
It is obvious' from a map of the district,
Exhibit 9, that Mr. Whittle travelled only a few hundred
metres before reaching the corner of Pleasant Park Road.
There was a red light against him and a car approaching
from the south on Pleasant Park Road‘. The grievor's
version of what happened was put on record the same day
in a report signed by him, Exhibit 4, as follows:
On call #256872 I was proceeding east on
Riverside Drive with emergency warning
system on (excluding siren). As I
approached the intersection of .?iver&ide
. ,I.
,
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Drive and Pleasant Park Drive I slowed and
perceived a green car appmching from
P,leasant Park Drive proceeding north. I
thought he was braking and proceeded thru
and realized he wasn’t ‘and I braked myself
which locked the wheels and with the pave-
ment wet from the morning rain I skidded
and colZided with the other vehicle. It
did not appear to me that after he initially
e Zowed, that he attempted to brake at all
until he was on top of me. The light for
myself was red.
In his testimony before this Board, the grievor
did not give further details except to explain that his
siren was not on (contrary to rule) because he had tried
it earlier in the day and knew it to be defective. His
supervisor, Mr. Lyle Messender, testified that he had no
knowledge of such a defect having been reported, but he
also said the sirens were not satisfactory and are being
replaced by a different model, and he added that he had
not been on duty Saturday or Sunday, October 20 or 21, so
that he would not know of a report on either day.
At this point it is necessary to explain that
earlier in 1979 there had,been a change in the law of
great importance to ambulance drivers. This was in Bill 90,
enacted at the 1979 session of the Legislature, amending
Section 96 of the Highway Traffic Act. The change was
clearly explained in a memorandum of August 27, 1979,
Exhibit 5, circulated by Mr. G.J. Ventura, Director of the
Ambulance Services Branch, to "All Ambulance Operators" and
.l Dispatch Centres". I- t was as follows:
I -a-
Section 96 of The Highway Traffic Act has
recently been amended to include ambulances
as emergency vehicles. Under this amend-
ment, the driver of an ambulance, when
responding to an emergency call or tran-
sporting a patient or injured person, in an
emergency situation, may, with the vehicle’s
warning system (lights and siren) in use,
proceed through a red traffic signal after
coming to a complete stop and ensuring that
he/she may proceed through the’ intersection
in safety.
Notwithstanding the above amendment, Section
82191 of The Bighway Traffic Act which permits
police and fire department vehicZes in emer-
gencies to exceed the posted speed limit, has
not been changed at this time to include ambu-
lances. Therefore, ambulances are still re-
quired, under The Highway Traffic Act, to
operate within posted speed Zimi tations.
I have attached, for your convenience, a copy
of the amendment to Section 96. Please bring
this amendment to the attention of your ambu- tance personnel and ensure that they are fully
aware of their responsibilities under this and
other pertinent sections of The Righway Traffic
Act.
Should you have any questions regarding this
matter, kindly contact your Regional Co-ordinator.
The Ventura circular was apparently received in
the Ottawa office on September 4,,1979, and the grievor
does not deny having seen it prior to the accident of
October 21.
It seems perfectly clear that (apart from several
other infractions during a period of less than 30~minute.s)
the grievor not only failed to observe operating rules but
also broke the law in failing to come to a complete stop
before proceeding through the red light at Riverside and
Pleasant Park. It seems equally clear to the Board that if
he had stopped there would have been no collision. More-
over, when his siren was not working he had no right to
assume that the other driver would notice the special
status of an emergency vehicle.
It has been suggested that the'grievor's mis-
takes should be excused because the rules are not enforced
consistently. For example, his supervisor, Mr. Messender,
admitted that other drivers, including himself, had merely
been "counselled" for going through red lights, and such
offences did not seem to stand in the way of promotion.
The Board cannot accept the argument. The accident of
October 21, 1979; had serious consequences, and it is more
by luck than good management that they were not far more
serious. ~Many lives have been lost at red lights and
stop signs.
The other argument in defence of the grievor is
that he was unfairly treated -- or visited with a double
penalty. -- by being deprived of the right to drive an
ambulance for 30 working days. That measure seemed unfair
to the grievor in view of the evidence that management's
n investigation of the accident took only 10 days, after
which Mr. O'Brecht said (in his memorandum of November 20)
that he had taken into consideration the grievor's "past
good performance" and that he believed the grievor had
"excellent potential and prospects in ambulance service".
It would have been more consistent with standard practice
if the ban on driving had been lifted as soon as management's
inquiries were complete. However, Mr. Whittle-did not pre-
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sent a grievance in relation to that issue, and thus the
Board can do no more than express an opinion.
In conclusion, it must be said that the penalty
complained of, -- a one-day,suspension -- was lenient
rather than severe. The grievance therefore fails and
must be dismissed.
DATED at Toronto this 25th day of May, 1981.
A. G. Staple
_ _- .-~
Member