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HomeMy WebLinkAbout1993-0123.Armes.94-11-07 ~ -1" r ( ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-7388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /Tt:LECOPIE (416) 326-1396 123/93 IN' THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Armes) Grievor - and - The Crown in Right of Ontario (Ministry of Health)Halton-Mississauga Ambulance Employer BEFORE: B Kaplan Vice-Chairperson J Carruthers Member F Collict Member FOR THE P Lukasiewicz UNION Counsel Gowling Strathy & Henderson Barristers & Solicitors \ FOR THE D Gorelle EMPLOYER Counsel Mathews Dinsdale & Clark Barristers & Solicitors HEARING March 25, 1993 - '!,-.. - l; ( ( 2. Introduction By a grievance dated March 1, 1993, Gord Armes, an Ambulance Officer employed by the Halton-Mississauga Ambulance SerYice, grieves a violation of the health and safety provision of the Collective Agreement. The case proceeded to a hearing in Toronto, at which time evidence and argument were heard In brief, the union alleges that on February 24, 1993 a certain work assignment jeopardized the grievor's health and safety The employer took the position that the assignment in question was well within its management rights and, moreover, that the grievor's health and safety was not placed in jeopardy because of it. Most of the facts were not in dispute The Union's Case Evidence of Gord Armes Gord Armes testified. He has been employed by the Halton-Mississauga Ambulance Service (hereafter "the Service") for more than twenty years. On February 24, 1993 the grievor was initially assigned to work at a particular station For reasons which will be outlined below, the grievor was directed to drive his ambulance to a different station On his way to that station he received a Code 4 call Code 4 is the highest priority call, and indicates either an unknown or life threatening situation. Upon receiving a Code 4 call, drivers are generally expected to respond as quickly as possible with lights and sirens on. When responding to Code 4 calls, drivers may cautiously exceed the speed limit, and may also go through red lights after making a complete stop. On this particular occasion, the incident in question was a motor vehicle collision. En route to the acciden.t, the grievor was advised that another ambulance was also responding on a Code 4 basis Ultimately,one person was transported by that other ambulance to the hospital . ( ~.. \ 3 According to the grievor, hi,s health and safety was jeopardized as a result of this assignment. He testified that Ambulance Officers do not know what they are going to find when they arrive in response to a Code 4 call If an Ambulance Officer arrives on the scene in an ambulance, but he or she is alone, as was the case on February 24, 1993, he or she is not permitted to transport a patient to the hospital as both a driver and an attendant must be present in order to do so The grievor testified that persons in need of assistance may not be familiar with this requirement, or sympathetic to it. In the result, Ambulance Officers arriving alone in an ambulance at an accident might be attacked if they refuse to transport someone to the hospital ' The grievor testified that he would have been subject to discipline had he not responded to the Code 4 call. In his view, an ambulance staffed by one Ambulance Officer, should not be directed to the scene of an accident, rather, the Service should direct one of two other types of emergency vehicle~ which it operates One of these other vehicles is referred to as the Emergency Support Unit. It is a large cube van equipped with some emergency equipment. It is not equipped for the transport of patients. The other type of vehicle is referred to as the Emergency Response Unit. It is a smaller van and is also equipped with some emergency equipment. It cannot be used to transport passengers Cross-Examination of Gord Armes In cross-examination, the grievor testified that when he received the Code 4 call he put a sign up designating that his ambulance was not in service. He also told the Board that Code 4 is a tiered response That means that r police, fire and ambulance services all respond to a Code 4 call. On ;;- 4 February 24, 1993, when the grievor arrived at the scene the Fire Department was already there. A fully staffed ambulance arrived within two minutes of the grievor's arrival The grievor was asked whether his health and safety was jeopardized in those two minutes, and he agreed that in this particular instance it was not, but noted that had the circumstances been different his health and safety easily could have been placed in jeopardy As local union president, and as an employee of long-standing, the grievor was familiar with various Service policies relating to the "first response" responsibilities of Ambulance Officers The policy in effect on February -, 24, 1993. was as follows: RESPONSIBILITIES It is the responsibi1ity of each employee, while on duty, I to respond to a call in an ambulance, emergency support unit or emergency response unit as a first response when required PROCEDURES A. General 1 Employees responding alone in an ambulance as a first response will ensure NOT IN SERVICE signs are prominently displayed in the front windshield and rear window 2 An employee responding on a first response should keep in mind his/her own personal safety (as with all calls) If a threat or possible threat to health and safety exists, the employee will remain in a safe area until appropriate back-up has arrived 0; 5 3 The employee responding will provide casualty care as required and remain at the scene until patient care responsibilities are transferred to appropriate personnel (Le ambulance crew,doctor) The grievor was familiar with this policy, and its predecessor He testified that he has long, been opposed to it, and noted that February 24, 1993 was the first time he was required to respond alone to a Code 4 call The grievor agreed that the other emergency vehicles which he described were primarily used for disasters There was no disaster on February 24, 1993 The grievor was asked a number of questions about downstaffing Ambulance Officers work in pairs. lf one employee books off sick, instead - of replacing that employee, which was the practice in the past, the Service attempts to "marry" the remaining employee with some other employee elsewhere in the Service who is without a partner And that explains why the grievor was alone 'driving an ambulance from one station to another on February 24, 1994 when the Code 4 call. came in The Employer.s Case Evidence of Peter Dundas Mr Peter Dundas testified on behalf of the Service He is the District Supervisor, and has been employed in various capacities with the Service since 1981 Mr Dundas testified that on February 24, 1993, the grievor was assigned to a shift beginning at 8 00 a m. When he arrived at the station, he was advised that his partner had booked off sick. In the result, the grievor was directed to a different station and a new partner While en route to that station, the grievor received the Code 4 call The Fire Department was at the scene of the accident when the grievor arrived at 08 34 14 The fully staffed ambulance arrived just over one minute later at 08 3S 41 A t the . I i 6 \ .- conclusion of the call, the grievor, as required, filled out an Ambulance Can Report. It was introduced into evidence, and it d,oes not refer to any health and safety concerns It does, however, express concerns with respect to the downstaffing practices of the Service Mr Dundas was asked a number of questions about the downstaffing policy He testified that the policy came into effect in 1991, and that the Service only engages in downstaffing during day shifts. If an Ambulance Officer calls in sick at any other time, he or she is replaced According to Mr Dundas, first response assignments will not always be the result of downstaffing In some instances, an Ambulance Officer may be working alone at a Station and be directed to a first response Sometimes supervisors are directed to first responses. Mr Dundas has responded to many first response calls in that capacity, and he told the Board that the job of the person responding to these calls is to render necessary i assistance until the fully staffed ambulance arrives Mr Dundas does not share the grievor's concerns with respect to health and safety Mr Dundas noted that the Service's policy, referred to above, gives the employee complete discretion not to respond until appropriate back-up assistance has arrived, and he also pointed that a first response is part of a tiered response. In the result, the person responding is well aware that other emergency vehicles are on their way if, in fact, they have not already arrived Mr Dundas testified that it would not be practicable to limit first response responsibilities to the Emergency Support Units and the Emergency Response Units These vehicles are not as well.,.equipped as ambulances, and are not sufficiently available . - ~~ ( ( 7 Cross-Examination of Mr. Dundas In cross-examination, Mr Dundas agreed that if the Service had more Emergency Response and Emergency Support vehicles they could be used for first response calls He also agreed that members of the public, seeing an ambulance arrive at the scene of an accident, or arriving in response to a call, would expect that ambulance to be able to take someone to a hospital. He testified, however, that transport to a hospital would usually only take place after the Ambulance Officers rendered immediate emergency care which generally takes some time. He also agreed that members of the public are not generally familiar with the concept of tiered response The evidence having been completed, the case proceeded to argument, Union Argument In union counsel's .submission, not only does the Service's first response policy potentially jeopardize the health and safety of Ambulance Officers, it also exposes them to civil liability given the requirements of the Ambulance Act. Counsel noted that section 23 of the Ambulance Act provides for a fine for persons contravening that Act or any regulation made thereunder Counsel explained in some detail how the Act and its Regulations were contravened in the circumstances of this case Section 1 of the Act provides "ambulance" means a conveyance used or intended to be used in an ambulance service for the transportation of persons requiring medical attention or under medical care, ---- ( 8 "ambulance service" means a service held out to the public as available for the conveyance of persons requiring medical attention or under medical care, and includes the service of dispatching ambulances, Regulation 41 provides An operator shall not refuse and shall not permit any employee to refuse to provide ambulance service unless directed or permitted to do so by a dispatcher Regulation 52 provides' Every operator shall ensure that each ambulance of the operator that responds to a call for ambulance services is staffed with a crew of at least two emergency medical attendants each of whom holds the appropriate qualifications " Regulation 54 provides (1) No person may drive an ambulance that is not available for the provision of ambulance service unless a sign is displayed in a conspicuous manner, both at the front and rear of the vehicle bearing the words "Not in Service" and the words of each sign are clearly visible to the public (2) No person may drive an ambulance that is available for the provision of ambulance service unless the staff required by section 52 for responding to a call are present in the ambulance and, (a) the ambulance is equipped in accordance with this Regulation and the ambulance and its equipment are in the condition and order required by section 17, or (b) where the ambulance accessory equipment or medical equipment is temporarily deficient, a dispatcher has directed that the c. ( 9 ambulance be used to provide ambulance services (3) Every operator shall ensure that every ambulance used in the operator's ambulance service is used only in accordance with this section Union counsel argued that this regulatory scheme did not anticipate the use of ambulances as first response vehicles Counsel noted that the regulations provided for two types of ambulances, those in service and those not in service, and argued that the regulations required that ambulances in service be staffed by two attendants. In counsel's submission, if an Ambulance Officer was in an ambulance, than he or she was providing ambulance services and this meant that two attendants had to be present. Accordingly, any time that an Ambulance Officer was alone in an ambulance, he or she could not, under the current regulatory scheme, lawfully respond to a call or an accident. And this meant that if an Ambulance Officer was driving alone in an ambulance and cal1'e across an accident, he or she was not, because of the Regulations, entitled to lawfully render assistance Union counsel pointed out that the public expects that ambulances will, as indicated in the definition, be avaiiable to assist and convey, and that it was inconsistent with this expectation, as well as the statute and regulations, to direct an ambulance to a first response on the basis that the ambulance was not in service. In counsel's view, every time an ambulance is directed to a call, the expectations of the public, the statute and the regulations demanded that it be staffed by two Ambulance Officers, and he noted that the Act ~ and Regulations did not make provision, as they might have, for the use of ambulances as first response vehicles. Nevertheless, ( ( 10 the evidence indicated that this is exactly how these vehicles were being used, and counsel argued that this use placed the grievor at risk given that the public had an exaggerated expectation of the services he could provide In anticipation of the employer's position that first response services were not ambulance services, union counsel pointed out that the Highway Traffic Act limited the use of sirens to ambulances as defined in the Ambulance Act, and further limited the right to proceed through an intersection without a green light to ambulances as defined in Ambulance Act The relevant sections of this Act, an extract from which was provided by union counsel, are as follows 43 In this Part (a) "ambulance" includes an ambulance' as defined in the Ambulance Act and a cardiac arrest emergency vehicle operated by or under the authority of a hospital, 18 Notwithstanding subsection (16), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so (6) No vehicle other than an ambulance, fire, or police department vehicle, public utility emergency vehicle or vehicle operated by the Ministry shall be equipped with a siren horn ora device producing sound which so nearly resembles that produced by a siren horn as to deceive or confuse Given these provisions, when the grievor turned his siren on to respond to the Code 4 call he was in contravention of the Highway Traffic Act. Counsel argued that this was another reason to find that the grievor's health and safety had been placed in jeopardy t . ( 11 ( Counsel referred to a number of cases in support of his submissions includrng Stockwell 1764/87 (Wilson), Watts/King 1367/90 (Kaplan) andRe Thibodeau-Finch. Express Inc. and Union des Chauffeurs de Camions. Local '06 30 L.A.C (3d) 58 -(Frumkin) Counsel argued that a precondition to the balancing of interests common in health and safety cases is the pursuit of a lawful objective In the instant case, counsel submitted, the -Service's objective, while laudable, was unlawful in that the Ambulance Act required two Ambulance Officers in every ambulance Accordingly, this was not, in the union's view, an appropriate case to balance the interests of the employee with those of the employer The only solution, counsel argued, was for the Act and Regulations to be amended so as to provide for the use of ambulances staffed with only one person as a first response In the meantime, counsel urged the Board to uphold the grievance and issue an order requiring the Service to cease and desist from directmg Ambulance Officers to first response calls if working alone in an ambulance Such a remedy, counsel observed, would not prevent the Service from directing Ambulance Officers to first response calls when driving an emergency vehicle other than an ambulance Employer Argument Employer counsel began his submissions by suggesting that this grievance was not really about health and safety It was, instead, about staffing, and counsel referred to both the grievance form and the grievor's February 24, 1993 Ambulance Call Report which make mention of the grievor's concerns with respect to downstaffing In counsel's submission, staffing was a matter of management rights, and the Board was, accordingly, without jurisdiction with respect to it. I 12 Assuming, however, for the sake of argument, that the grievance was really about health and safety, counsel argued that there was, on the facts of this case, no breach of the health and safety provisions of the Collective Agreement. Article 24 01 is as follows: The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Counsel argued that not only was there no violation of this provision in this particular case, but that the Service's policy with respect to first response granted employees the discretion to decide not to respond if, upon arriving at a call, they concluded that responding alone might place them at risk. On this basis alone, counsel asked that the grievance be dismissed Counsel referred to a number of cases in support of this submission including Brlek et al 1466/87 (Dissanayake), MacPhee et al 352/92 (Kaplan) and Sullivan 2889/91 (Gorsky) With respect to the requirements of the Ambulance Act. counsel argued that that statute dealt with the provision of ambulance services. When the grievor was directed to a first response while in an ambulance he was not, counsel submitted, providing ambulance services as defined in the Act The fact that he posted a sign indicating that the ambulance was not in service proved this point. Counsel took the position that there was nothing in the Act prohibiting the use of the ambulance for the provision of first response . ;; i ,~ 13 services Rather, the Act set oUt minimum staffing requirements for an ambulance providing ambulance services Accordingly, counsel asked that the grievance be dismissed. Union Reply In reply, union counsel argued that this case could be decided ina fairly straightforward way In counsel's submission, the dispatcher received a call for ambulance services. Those services, and their staffing requirements, are defined and established in law The grievor was in an ambulance and was directed to respond The public could only expect when the grievor arrived that he was arriving as an Ambulance Officer ready to perform ambulance services, and this included transporting patients to the hospital. The grievor, however, could not do so This placed his health and safety potentially at risk, and also placed him in contravention of the law Counsel again urged that the grievance be upre1d Decision Having carefully considered the evidence and arguments of the parties, we are of the view that this grievance should be dismissed. While it is true enough that the grievor, when responding to the Code 4 call on February 24, 1994, was driving an ambulance, that ambulance was not in service, and it was clearly designated as such The grievor, in responding to that call, was not rendering ambulance services Rather, he was rendering emergency medical services as part of a tiered response directed at ensuring the expeditious response to emergency calls. The fully staffed ambulance which arrived just over one minute after the grievor, and which subsequently transported a patient to the hospital, was rendering . ~ ,~ .' 14 ambulance services and was, as required by the statute, staffed with two Ambulance Officers There was, in our view, no breach of either the Ambulance Act or the Regulations made thereunder There also was, in our view, no breach of the provisions of the Highway Traffic Act referred to by union counsel. A reading of those provisions does not lead us to conclude that the gnevor, in turnmg on his siren, or in proceeding throu.gh an intersection without a green light, was required to violate the law One of those provisions refers to an emergency vehicle, and another explicitly provides for ambulances to be equipped with sirens Obviously, had we found that the Service was requiring the grievor to violate any statute we would have almost certainly upheld the grievance However, we have not found this to be the case, and there is, accordingly, no basis for us to uphold the grievance on this ground Turning to the allegation that the grievor's health and safety was somehow placed in jeopardy on February 24, 1993, we simply cannot find that this occurred The Service policy explicitly provides that employees, when on a <first response, need not respond if they have reason to believe that their health or safety might be jeopardized by doing so This policy gives effect to Article 24 01 of the Collective Agreement. While it is certainly possible that a member of the public, seeing an ambulance arrive at the scene of an accident or a call, will have the expectation that that vehicle will be in a position to transport patients to a hospital, we cannot find that that expectation, along with the grievor's concerns about how some members of the public might possibly respond to him after learning that he could not immediately transport a patient to the hospital, is a sufficient basis to '1) 15 ~ find that the Service was, on February 24, 1993, in breach of its obligations under the Collective Agreement. Certainly, it would not take long for the grievor to explain that another ambulance was on Its way, and that in the meantime he was there to render emergency medical care In this case, not only was the Fire Department already on the scene when the grievor arrived, but the fully staffed ambuiance arrived just over one minute later Accordingly, and for the foregoing reasons, the grievance is dismissed DATED at Toronto this 7th day of November , 1994 t;1/ ~------- ----------------- William Kaplan I, Vice-Chairperson~c ~ - ~ l---<< ~, .. .~~__1____ /tlc.c'c- ~~~.J J Carruthers Member a CJ. ~J :::to -------------- F Collict Member I ,