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HomeMy WebLinkAbout1996-0787BOWES_BELL97_06_01 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO -' GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 1OO DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 118 TELEPHONEJTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 118 FACSIMILE/TELECOPIE (416) 326-13Q6 GSB # 787/96, 788/96 OPSEU # 96B813, 96B814 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bowes/Bell) Grievor - and - the Crown in Right of ontario (Superior Ambulance Ltd ) Employer BEFORE L. Mikus Vice-Chair FOR THE A. Lee GRIEVOR Grievance Officer ontario Public Services Employees Union FOR THE E Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING December 4, 1996 February 17, 18, 1997 March 6, 1997 -- The grievors, Karen Bowes and Steve Bell, were dIscharged from theIr posItions as ambulance attendants for what the Employer alleges was neghgent and unprofeSSIOnal behavIOur whIle on an ambulance call. The mCIdent gIvmg nse to the termmatIons began wIth an ambulance call from the Neo-Natal IntensIve Care Umt (NICU) at Chedoke-McMaster HospItal in HamIlton (Heremafter referred to as "MUMC") requestmg an ambulance for a transfer of a VSA (vItal SIgns absent) baby from Guelph General HospItal (Heremafter referred to as "GGH") to MUMC By all accounts, the call did not begm on a good note and detenorated thereafter The call came m at 0847 hours on June 17, 1996 Because of the volume of calls and a dIscussion of what crew to dIspatch, the gnevors were not notified of the call until 0853 hours. They left the base at 0857 hours but dId not arrive at MUMC until 0924 hours. The reason for the 27 mmute delay was an unauthonzed ten mmute stop at Tim Horton's for coffee. The Employer took the posItion that, notwIthstandmg the blameworthy conduct of the gnevors dunng the entIre call, It rehed solely on that unauthonzed stop as grounds for dIscharge. THE FACTS Ms. SllenzI was the nurse m charge of the MUMC neo-natal team that mormng and wrote a letter of complamt about the call m general and the gnevors specIfically Her letter sets out her verSIOn of the events of June 17, 1996, and, aSIde from her subjective comments about the attItude of the gnevors durmg that call, gIves an accurate descnptIOn of the events. To best understand the senous nature of the gnevors conduct, I have deCIded to mclude It in its entirety It reads 1 ~',,,, /' ~ 2 The NICU at Chedoke-McMaster Hospitals received a call from the Guelph General Hospital at 0845 for a 32 week gestation Infant who had been born with absent vital signs. The infant was being resuscitated at the time of the call Hamilton dispatch was called for a stat ambulance. Dispatch asked for the patIent status and was told the above information. The NICU Transport Team was notified that a crew would be right there. The NICU transport team arrived in the E.R. at 0855 At 0910 dispatch was called again and we were told they were 5-10 minutes out. A supervisor from Hamilton ambulance (Paul), was in the E.R. and 5 minutes later called dispatch himself. At 0920 a crew arrived and stated they were only there to assist with the 11ft. When we told them how long we had been waiting, they Said that they would take us. Also they told us that crews are not allowed to go Code 4 to the hospital to get our team. Dispatch would not let them take us and told them the team was 2 mmutes out. At 0927 the second team arrived. They would not speak, did not ask about the patient etc. The first crew lifted the incubator into the ambulance, while the 2nd crew watched. The 1 st crew told me not to say anything about the delay or they would be even more upset! I then told one team member that thiS was a code 4 call. We left MUMC at 0930 While in the ambulance I noticed that we were stopped at a red light m Westdale. I agam asked if we could please go code 4 My understanding was that the crew knew the status of our patient. I said I had already asked for a code 4 We proceeded to go slowly along the 403 No sirens. On the 401 I saw a sign for Cambridge. I reminded the driver that we were gOing to Guelph. He said he was well aware of where we were going. When I saw the sign for Kitchener, I once again said we were going to Guelph and that it was the 1 st eXit off the 401 He got angry but continued mto Kltchener He called Cambridge dispatch to get directions. At this pOint we were now travelling faster Cambridge dispatch called for our location and asked what priority we were travelling and gave directIOns to Guelph. TWice more I had to give directIOns to the hospital. During thiS time the drivers partner was "cross-stitching" With absolutely no regard for our delay Cambridge asked for our ETA again. We arrived at Guelph General 1035 hrs. The transport team proceeded to the nursery The crew followed With the transporter to the nursery They did not ask about the patient nor did they offer any assistance. They both sat In the nursery and one crew member contmued to do crafts. We then had a diSCUSSIOn about 12 volt power aVailability in the ambulance as we would need it to plug in the transporter for our return The crew then said that all ambulances in the province have had the 12 volt power disconnected due to a fire hazard. Since I had not heard of thIS provmce Wide problem, I called P Bosher in the NICU at MUMC to make some calls to confirm thiS event. Many phone calls were made between us and Hamilton and Guelph ambulance. No one had heard of the power bemg unavailable. It was deCided that we would return to HamIlton via Guelph ambulancc Thc HamIlton crew contmucd to --'~ --' 3 SIt III the Guelph nursery One member doing crafts. In a phone conversation wIth Paul Macdonnell he would not speak wIth the crew but told me to tell them to return to Hamilton with the Guelph teams' stretcher All this took me away from the patient, causmg anxiety to the transport team and the patIents famIly We called for the Guelph team who arnved In 10 minutes. We left Guelph at 1245 travellmg code 4 to Hamilton. Amved MUMC 1320 The issues we would like addressed are: A) Who decides the priorIty of the call? B) Why can't a team come code 4 to the hospItal, and what is the criterIa? C) What responsibIlity does the ambulance have for checking eqUIpment, power etc. prior to a call? D) What responsibility do EMCAS have m locatmg regional hospitals? E) If a vehicle IS travellIng code 4, what does that mean? LIghts, sirens, speed lImit? This mcident was less than optimum. The behaviour of the crew was unprofessional and patient care was compromised due to what appears to be aVOidable delays. I request an Immediate response to A-E above. Thank you in advance for your attentIOn to this matter Laurel SIlenzI R.N Transport Resource Nurse NICU, CMH (Sic) Ms. Sllenzi testified at the heanng. Her eVIdence, for the most part, was an elaboratIOn of her letter She has been employed by the NICU umt for SIxteen years and has been the Co-ordmator of the Transport Team for three years. As well as the obvIOUS concerns expressed m her letter, she was especially concerned about the fact that the father of the baby was present durmg the dIScussIon WIth Mr Bell over the electncal plugs and she had to allay hIS fears over the transport of hIS baby to MUMC She has been mvolved m numerous transfers m the past and, although thIS call raised general concerns over the polICIes of the ambulance servIce generally, m her VIew the actIOns of the gnevors was unprofeSSIOnal and neglIgent. She described the trIp as a "mghtmare" and stated that the gnevors showed a "complete dIsregard for the patIent's status. ~'-' ",.. 4 Mr Macdonnell, referred to m Ms. Silenzi's letter, IS the Acting Manager of the Central Ambulance CommunIcatIon Centre (CCAC) He IS responsible for the overall operatIOn of the dispatch centre. He first became aware of the problems m the ambulance call when he received a call from Ms. Bosher, Manager of the NICU at MUMC, advismg hIm that there was a problem with the electncal outlets in the ambulance and askmg for his assIstance. She also told hIm about the unacceptable delay m the response of the ambulance crew to MUMC. He spoke to Ms. SIlenzI and Mr Bell at the GGH m an attempt to venfy Mr Bell's mformatIOn about the plugs. Ultimately he deCIded to send a Guelph ambulance to the GGH to transport the baby rather than nsk a malfunctIOnmg plug m the gnevors' ambulance. It was ills eVIdence that It was normal practIce to send an ambulance out under a Code 3 in these circumstances and that it would be up to the transport team to deCIde what code to travel under between hospitals. He stated that it would normally take apprOXImately 40 minutes to drive from MUMC to GGH. In tills case it took the gnevors over an hour He also stated that, If an ambulance stops durmg a call, ItS crew is reqUIred under the Ambulance Act to msure that dispatch IS aware at all times ItS location. It was his opmIOn that If the gnevors had requested permISSIon from dIspatch to stop for coffee, they would have been refused. Mr Bnan Tutty is the Dlstnct SupervIsor who made the deciSIOn to dIscharge the gnevors. On the day ofthe mCldent he receIved two telephone calls about the day's events. One was from Mr Jim Kmg, the AssIstant RegIOnal Manager of Ambulance SerVIces m HamIlton and concerned a complamt he had receIved about the gnevors from Ms. Bosher Mr Kmg adVIsed hIm that there had been an unacceptable delay m the response time of the crew and adVIsed hIm that he would be conductmg an mvestIgatIOn. After that call Mr Tutty contacted Mr Waugh, the superVIsor of the -...;:.--, ~, . ""r 5 gnevors' home base, and mstructed hIm to questIOn the gnevors about the delay In getting from the base statIOn to MUMC. He also receIved a call that day from Mr Paul Macdonnell, who asked hIm If he was aware of an electncal problem wIth the plugs In the ambulance. He explamed to Mr Tutty that he had been contacted by Ms. Bosher, who had, in turn, been contacted by the GGH, because Mr Bell had told the NICU team that all of the plugs for the mcubators had been dIsconnected due to a fire hazard. Mr Tutty was unaware of any such fire hazard and adVIsed Mr Macdonnell to contact Mr Waugh. Mr Waugh first heard about the problems with the electncal plugs from Mr Macdonnell, who had called to ask whether he was aware that the outlets had been dIsconnected for safety reasons. Later that afternoon he receIved a call from Mr Tutty advismg hIm that there had been a delay m the response of the gnevors' ambulance and asking lum to make inquiries about the reason for the delay When the gnevors returned to base he removed the tachometer card from theIr ambulance which indIcated there had been a 10 mmute stop en route. It was his eVIdence that Company rules forbId any stops dunng a call for personal reasons and that the gnevors were aware of that rule. He and Mr Bell attended the same commumty college and were taught the reqUIrements of the varIOUS codes. He expressed surpnse that anyone would stop on a Code 3 for any reason. A Code 3 IS urgent and reqUIres a prompt response WIthout delay In his VIew the gnevors' conduct was contrary to provmcIaI guidelmes, Company polICIes and common sense Mr Waugh asked the gnevors to complete an InCIdent report of the tnp to MUMC, whIch they dId. In them they acknowledged that they had made a stop at Tim Horton's for coffee, although Mr Bell - 6 suggested it was only for two mmutes. Mr Waugh checked the tachometer card from the vehIcle and noted that the ambulance travelled for about ten mmutes, stopped for approxImately the same period of tIme and travelled for another SIX mmutes. There was some eVIdence about the relIabIlIty of the tachometer cards but, gIven that It was agreed that It usually takes fifteen minutes to dnve from the gnevors' base statIOn to MUMC, and that the tnp m question took 27 mmutes, I am satlsIfied that the gnevors stopped for approxImately ten mmutes en route to MUMC The next mommg, on the way to hIS office, Mr Tutty stopped to talk to Mr Waugh about hIS Inquiries. Mr Waugh told hIm that the gnevors had admItted they stopped for coffee Mr Tutty revIewed the tachometer card, the Incident reports and the Ambulance Call Report whIch had been completed by the gnevors. On that form It was noted that the call went out as a Code 3 and returned as a Code 4 Mr Tutty returned to hIS office, called Mr Macdonnell, adVIsed hIm that he was mvestIgatIng the call from the preVIOUS day and asked him for a summary of the events. Mr Macdonnell revIewed, over the phone, the Calls DetaIl Report, whIch set out the tIme the call was receIved, the tIme the crew left the statIon, the tIme It arnved at the hospItal, the tIme It left MUMC for Guelph, the tIme It arrIved at GGH, the tIme It left Guelph and the tIme It arrIved back at the statIOn. Mr Macdonnell adVIsed Mr Tutty that the gnevors had taken the wrong eXIt and gotten lost on the way to the Guelph hospItal. Mr Tutty called DIspatch and asked for a copy of the tape of the conversatIOn between the gncvors and Cambndge DIspatch. -..:.-.--., - ,r-. 7 He then spoke to Ms. Bosher She was very upset about the conduct of the ambulance crew and asked Mr Tutty to speak to the nurse who had been m charge of the NICU team that mormng, Ms. SilellZl. She advised Mr Tutty that Ms. SilenzI had told her about the delays in gettIng to MUMC and the GGH, about the misunderstandmg concernmg the electncal plugs for the mcubator, about the HamIlton crew gettmg lost en route and the fact that ultimately, It was another crew who transported the baby to MUMC Mr Tutty's understandmg of the mcident, on June 18,1996, was formulated on the basIs of thIS mformatIOn. He was satIsfied that the gnevors had been dispatched on a Code 3 to MUMC to transfer a VSA baby from GGH back to MUMC En route to MUMC the grievors stopped for approxImately ten minutes to pIck up a coffee and arrived at MUMC twenty-seven mInutes after they had been dispatched. Another ambulance had been sent to MUMC to assIst the gnevors hft the heavy eqUipment mto the ambulance. That crew arrived at the hospItal before the gnevors. Mr Tutty determmed, on the basIs of that InfOrmatIOn, there were sufficIent grounds to termmate the gnevors' servIces for unprofessIOnal and neghgent conduct. It was hIS VIew that the gnevors had breached company policy and placed a patient and the company at nsk. He explamed that when a crew IS dIspatched on a call they are told the Pnonty Code to travel under for that call. In thIS case the call came In as a Code 3 That Code IS defined by the Mimstry of Health SerVIces Branch as "Prompt, a call that should be performed WIthout delay e g. senous Injury or Illness e g. stable fractIOn" Under no CIrcumstances IS a crew to make any unauthonzed stops on a Code 3 Code 4 IS defined as "Urgent - a call that must be performed Immediately e g. where the patIents "hfe or ~"....,.- -- 8 11mb" at nsk e.g. VItal SIgns Absent patient; unconSCIOUS head mJury" These Mimstry rules are taught to all ambulance attendants during theIr training as Emergency MedICal Care Attendants. Both gnevors attended a commumty college for theIr traimng and were or should have been aware of the senousnesss of a Code 3 call. As well, company polIcy dIctates that attendants "do not do personal errands whIlst on duty unless authonsed by the company or dispatch" Mr Tutty testified that It was vital that dIspatch be aware at all times of the locatIOn of the ambulances, especially dunng a call. In thIS Instance, the NICU team from McMaster called dIspatch to request that the 11ft team take the call SInce they were at the hospItal and the other crew had not yet arrIved. DIspatch, who did not know that the crew had stopped for coffee, refused, behevmg that the ambulance would be there momentanly The gnevors knew about the company poliCIes and theIr disregard for them In these CIrcumstances Justified discharge. Later that day, that IS on June 18, 1996, Mr Tutty arranged for a meetmg WIth the gnevors and Mr Peter Morgan, a Union representative. After a bnef diSCUSSIOn WIth each gnevor separately, Mr Tutty adVIsed them that they were bemg termmated. He later prepared letters of termmatIOn, dated June 19, 1996 Mr Tutty subsequently receIved a wrItten transcnpt of the conversatIOns between Dispatch and the gnevors en route to GGH, the Call Details Report and the wrItten complaInt of Ms. SIlenzl. The gnevors testIfied on theIr behalf. Mr Bell had been employed by the Company on a part-time ~ 9 basIs In 1985 and on a full-tIme basis smce 1986 He was the dnver on the call. Ms. Bowes recieved the call and advIsed him that they were bemg sent on a transfer from MUMC to the GGH. She did not telllum what code they were to travel under but he assumed, because she used the word "transfer", It was a Code 1 If he had known it was a Code 3, he stated that he probably would not have stopped for coffee. He acknowledged however that there would be no dIfference In the way an ambulance responded to a Code 1 or a Code 3 It was hIs deCISIOn to stop for coffee. He did not dISCUSS It WIth Ms. Bowes. Although he has been advised the ambulance was stopped for ten mInutes, it remaIned lus perceptIOn that they were stopped for only two mmutes. He acknowleged that he was aware of Company policy agaInst stopping for personal reasons WIthout notifying dIspatch. He stated that, In hIndSIght, he felt he was wrong for makIng the stop, but only because he has been told it was wrong. At the time he did not think so It was, accordIng to hIm, not the first tIme he has stopped on a call for personal reasons. He was also aware of others who had made similar stops. He stated that he had done so WIth a superVIsor and that he takes hIS guidance from lus supervIsor so that, if hIS superVIsor stopped on a call, It "must be rIght" He stated that he was not adVIsed the trip to GGH was a Code 4 untIl about thirty seconds after he left MUMC. As soon as Ms. SIlenzI told hIm it was a Code 4, he drove accordIngly He did not realIze he had mIssed the eXIt to Guelph untIl Ms. SIlenzI pomted It out to hIm. He could not turn around so deCIded to proceed on hIghway 7 until he could confirm the dIrections to the hospItal WIth dIspatch. He demed the suggestlOn that he was lost en route and mamtamed that he was simply confirmIng hIS understandmg of the route. When he was asked why he dId not ask the transport team for dIrectIOns to GGH, he stated that It was agamst polIcy for an ambulance crew to rely on them for - "' ./" ~ - 10 dIrectIOns. He agreed that by missmg the eXIt for Guelph he caused a sIgmficant delay In arrIving at GGH. He explamed that hIS understandmg about the dIsconnectIOn of the electrIcal plugs arose dUrIng a maintenance check on hIS ambulance when he was told by the mechanic that all of the plugs m the provmce were bemg dIsconnected for safety reasons. When the mcubator was removed from hIS ambulance, he notIced that It was plugged In and determIned that he should advIse the transport team that there was no power m the outlet. In cross-exammation It was suggested to hIm that, even though he had acknowledged he made a mistake, he did not belIeve he had done anythIng wrong. He stated that "we dId what was commonly done and therefore dId not make a mIstake" Ms. Bowes graduated from Niagara College m Welland m 1988 She began workmg wIth the Company In 1989 On June 17, 1996, she receIved a call from dIspatch that they were to take a team from MUMC to the GGH under a Code 3 She relayed that mformatIOn to Mr Bell but could not remember whether she told hIm It was a Code 3 She agreed With Mr Bell however that there would have been no dIfference In the way the call was answered, IrrespectIve of the Code Although there was no dIScussIon between them about stoppmg for coffee, she admItted that she dId not object when Mr Bell stopped. At the tIme, she dId not thInk about the polIcy agamst stoppmg for personal reasons, although she was aware of It. Not untIl Mr Waugh spoke to her dId she appreciate that what she had done was wrong. She has, m the past, stopped on a call wIthout notIfymg dIspatch, - -' - ,-- 11 even when she was wIth a supervIsor She was also aware of others who had stopped wIthout notifyIng dIspatch. She acknowledged, however, that she had never stopped on a Code 3 She stated that she regretted havIng stopped not only because she had been dIsmissed but also for the problems it has caused. She stated it would not have happened agaIn, even if she had not been caught thIS time, because she would have thought about the fact It was a Code 3 She admItted to workIng on her cross-stitchIng whIle on the route to Guelph. She dId not feel she needed to watch the road SIgns sInce she belIeved the gnevor knew where he was gomg. When It became apparent he had mIssed the exit to Guelph, she put down her crafts and tned to reach the Cambndge dIspatch. They dId not respond so she tned to find the map for Guelph but the only maps she had were for HamIlton. She wanted to confirm that Highway 7 went to Guelph. As well, because they were coming to the hospital by another route, they needed the names of the streets near the hOspItal. She said they dId not ask the transport team for dIrectIons because, If they were wrong, the grievors would be responsible for takmg dIrectIOns from them rather than dIspatch. After they removed the Incubator from the ambulance, she accompamed the transport team to the NICU Mr Bell and Ms. SIlenzI were dISCUSSIng the electncal plugs. She was unaware of any problem WIth them and sat down to contmue her craft work. She had no further dutIes at the time until the baby and Incubator were ready for transport. She dId speak bnefly to Mr Macdonnell about the outlets when Ms. SIlenzI was called away from the phone. She was ultImately adVIsed that a Guelph ambulance would be takIng the baby to MUMC She and Mr Bell loaded the Guelph ambulance stretcher Into theIr ambulance and she drove the vehIcle back to the base She demed ~ , - - 12 being lost and mamtamed that they knew where they were gomg and only needed to confirm theIr route. She agreed, however, that the mIssed eXIt caused a sIgmficant delay Later that afternoon she was asked by Mr Waugh about the delay in arnvmg at MUMC She admitted to the stop for coffee and filled out an mcident report as requested. The next day she was called to a meetmg wIth Mr Tutty, Mr Waugh and Mr Morgan. She answered Mr Tutty's questions and was later advIsed that she no longer worked for Supenor Ambulance. She was surpnsed. She was aware, after speakmg wIth Mr Waugh the day before, that she had breached Company policy but was not expectmg to be termmated for It. She has only been dIsCIplined once before when she receIved a verbal warmng for faIlmg to promptly report a faulty brake lIght on an ambulance Mr Peter Morgan is the secretary of the Local. He spent about five mmutes With the gnevors before theIr meetmg With Mr Tutty They told hIm they beheved the meetmg was about the call to MUMC the day before. It was hIS opmIOn that, although they expected to be dIscIphned, they dId not expect to be dIscharged. He testIfied that the gnevors were very upset after the meetmg. Ms. Bowes was dIstraught and It took some tIme to calm her down. He and Mr Tutty had a brief dIscussion after the gnevors left and Mr Morgan adVIsed hIm that the Umon would be gnevmg the termmatIOns. Mr Morgan testIfied that he has stopped on a call wIthout mformmg dIspatch. He stated that he had hIS radIo wIth hIm and was aVailable at all tImes. In partIcular, he recalled an mCIdent wIth a supervIsor, Mike GIOVIanazzo about a week after the gnevors' termmatIOn. They had been called IIIr --- 13 for a Code 3 to Fergus HospItal. They had pIcked up the nurse from MUMC and were en route when they stopped for a coffee Mr Morgan protested vehemently Because he was aware that the gnevors had been termmated for that very conduct, he refused to particIpate. Mr GIOVIanazzo called dIspatch and advIsed them that they were stoppmg for coffee. Mr Tutty mvestigated the mCIdent and exonerated Mr Morgan. Mr GlOvianazzo was ultImately disciplmed for his part m the mCIdent. In cross-examinatIon Mr Morgan conceded that the request to stop for coffee came from the nurse, who was aware of the condItIOn of the patIent. He also conceded that Mr GIOVIanazzo had called dIspatch to mform them he was stoppmg for coffee. Mr Tutty testified that Mr Giomannazzo was disciplmed not because he stopped for coffee on an ambulance call but because he dId not report either the stop or Mr Morgan's objection to the stop Mr Tutty learned about the incIdent at a subsequent Unemployment Insurance heanng some time after the mCIdent. All four ambulance attendants were who mvloved m the events of June 17, 1996, gave eVIdence. WhIle they added nothmg to the actual events, they dId testIfy about the rules and poliCIes the gnevors have allegedly breached. Mr Santo Pasqua and Mr Seamus O'Connor were the HamIlton crew that were dispatched to MUMC to assIst the gnevors WIth the eqUIpment. Mr Pasqua testIfied that they, meanmg the employees at Danver Ambulance SerVIce, do not make any stops dunng a call. Mr O'Connor testified that he does not always mform DIspatch that he has made a stop However, he stated that the only stop he would make on a Code 30r 4 would be for another emergency or a breakdown In hIS vehICle In eIther case, he would inform dispatch of the delay Ms. Michelle Gow and Mr Dwayne Buhrow are employed by Royal CIty Ambulance, Guelph and _. ~ -- 14 were the team members who transferred the baby back to MUMC on June 17, 1996 It was Ms. Gow's eVIdence that she has stopped on a call Wlthout advismg dIspatch. On one occaSlOn she was on a Code 3 and her partner became ill. She pulled over to a gas statlOn washroom and dId not mform dIspatch about stopping. Mr Buhrow testified that he has stopped dunng a call WIthout advIsmg dispatch but never on a Code 3 ARGUMENT Ms. Keenan, counsel for the Employer, took the posItion that the gnevors were dIscharged for Just cause. TheIr conduct was unprofessional and neghgent and showed a flagrant dIsregard for the patIent, the neo-natal transport team and the Company Itself. There IS no dIspute about the events gIVmg rise to the termmatlOns. The grievors responded to a Code 3 call to MUMC by makmg an unauthorised stop for coffee en route. What should have been a 12-15 mmute tnp took 27 mmutes. F or a ten mmute penod no one knew the 10catlOn of the ambulance. The gnevors were aware of the Company pol1cIes and the Mimstry of Health rules regardmg ambulance calls. As well, the Ambulance Act reqmres that an ambulance team keep m contact WIth dispatch at all times. TheIr conduct durmg the rest of the call was equally blameworthy They showed no concern for the patIent. Even at the heanng they refused to acknowledge that they got lost on the way to GGH. There was eVIdence before thIS Board that other employees also breach the Company rules regardmg unauthonsed stops. Ifthat IS the case, the Company IS unaware of these mstances. If It had known, -. --- 15 It would have acted. That IS no excuse for the grievors' conduct. Ms. Keenan contended that the gnevors, as professIOnals, are expected to function m a manner consIstent WIth the standard of care prescribed by the legIslatIOn and dIctated by the Employer TheIr responsibilIty to the publIc, the patIent and the Employer are onerous. They are in posItlOns of trust and they betrayed that trust. Ms. Bowes testIfied that she sImply dId not thmk of the rules when she allowed Mr Bell to stop for coffee. As a professional, she IS expected to thmk about her responsibIlItIes all of the tIme she IS on duty NeIther gnevor showed genume remorse There IS no assurance that they will not do It again. In these CIrcumstances, there IS no alternative but to uphold the declSlon of the Employer In support of Its posItion the Company relIed on the followmg cases Re British Columbia Hydro and Power Authority and International Brotherhood of Electrical Workers, Local 258 (1984), 17 L.A.C (3d) 113 (M. Thompson) and Re Macmillan Bloedel Ltd. , Powell River Division and Canadian Papenvorkers Union, Local 76 (1990), 14 L.A.C (4th) 343 (D.H. Vickers) Ms. Lee, for the Umon, took the posItlOn that the Employer has faIled to show, by clear and cogent eVIdence, that there IS Just cause for the terminatlOn of the gnevors. WhIle the gnevors admIt to some culpable conduct, theIr actIOns do not Justify termmatIOn. Mr Morgan, Mr Pasqua, Mr O'Connor, Ms. Gow and Mr Burhow all testIfied that It was common practIce to stop WIthout mfomllng dIspatch. It IS clear that there was an ongomg practIce that was mconsIstent WIth the rules ~,..,. --- 16 and pobcies regardIng unauthonsed stops. The Employer had maintaIned that the only reason for the discharges was the stop for coffee at Tim Horton's. In fact, It was the gnevor's faIlure to call dispatch that caused the termInatIOn. If the gnevors had called dIspatch and receIved authonty for the stop, there would have been no problem. If dispatch had denied penmSSIOn, the gnevors would not have stopped and there would have been no reason for dlscipbne. The Union took the position that the faIlure to notify dIspatch was not sufficIent grounds to Justify the pumshment. The Union submitted that the Employer's Investigation of the Incident bolsters Its argument that the other IncIdents of the call should not be consIdered by tills Board In detenmmng whether to mItigate the penalty It IS clear from Mr Tutty's eVIdence that he dId not take any of those facts Into consIderatIOn when he decided to termInate the gnevors. He dId not even Investigate them before he actually ternllnated them. Even If thIS Board were to consIder those events In ItS deliberatIOns, there was a SIX mInute delay In dIspatchIng the gnevors In the first Instance. As well, there was a superVIsor and another ambulance crew at the hospItal. If there was a genUIne concern about the delay, It was dispatch's deciSIOn not to sent the first crew at the hospItal to Guelph. There was a complaInt that the gnevers did not proceed to Guelph qUIckly enough. Mr Bell's eVidence was that, as soon as he reahsed that the tnp was Code 4 he proceeded With all necessary speed. As far as the outlets are concerned, Mr Bell VOIced a genuIne concern about the operatIOn of the electncal outlets. He was worned about returnIng to HamIlton Without a functlOmng v~ ~~..... 17 mcubator The Umon also asserted that Mr Tutty's mvestigation of the mCldent was madequate and hIS subsequent declSlon to termmate the gnevor on the basis of that mformatIOn was premature. He never consIdered the gnevors' past record and never consIdered a lesser penalty He was m too much of a hurry to termmate them. In support of Its posItIOn the Umon referred to Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd. (1961), 14 L.A.C. 356 (Reville) In that case the Board set out the factors to be considered In decldmg to exerCIse discretion to mitIgate a penalty Applymg those factors to the mstant case, the Umon made the folloWIng submIssion. 1 The prevIOus good record of the gnevors. The gnevors had no preVIOUS dlsclphne except for a verbal warmng In the case of Ms. Bowes. 2 The long service of the gnevors: Mr Bell has been employed for ten years, Ms. Bowes for eIght. 3 Whether or not the offence was an Isolated mCIdent m the employment hIstory of the gnevor There was no eVIdence that the gnevors have ever stopped before en route to a Code 3 ambulance call. 4 ProvocatIon, not apphcable 5 Whether the offence was commItted on the spur of the moment as a result of a momentary aberratIOn, due to strong emotIOnal Impulses, or whether the offence was premedItated, There was no decIsIOn to breach any rules or pohcies. Mr Bell deCIded, on the spur of the moment, to stop and pIck up a coffee because he knew hIS lunch was gomg to be delayed. 6 Whether the penalty Imposed has created a speCIal economIC hardshIp r'" , I -- 18 for the gnevors in the lIght of theIr partIcular cIrcumstances, The gnevors have lost theIr jobs. As a result of theIr termmatIOns, theIr future careers as ambulance attendants are m Jeopardy 7 EVIdence that the company rules of conduct, eIther unwntten or posted, have not been umformly enforced, thus constItutmg a form of discnminatIon, The evidence has establIshed there was an ongoing practIce of not followmg the rules and polIcIes to the letter 8 CIrcumstances negativmg mtent; I.e. liklihood the gnevor mmnderstood the nature or mtent of an order gIven to hIm, and as a result dIsobeyed It: not applIcable 9 The seriousness of the offence m terms of company polIcy and company obligatIOns. There is no questIon of the senousness of the offence. Nevertheless, there IS no eVIdence It has happened before. The gnevors made a prompt admiSSIon of gUilt. They expressed remorse for theIr actions and stated It would not happen again. The Umon also relIed on the followmg cases. Re Surrey Memorial Hospital and British Columbia Nurses' Union (1995), 50 L.A.C. (4th) 333 ( K. KmzIe), Re Powell River General Hospital and British Columbia Nurses' Union (1995), 46 L.A.C (4th) 177 ( McPhillips), Re Ministry of Health (Thames Valley Ambulance Service and OPSEU) (MacMillan) (January 13, 1995), GSB # 967/93 (DIssanayake) DECISION In a dIscharge case the first duty of a Board of ArbItratIOn IS to determme whether the gnevor, or gnevors as the case may be, are mdeed gUilty of the mIsconduct alleged. If the answer to that questIOn IS yes, the next Issue IS whether the penalty Imposed by the Emplover was exceSSIve m the CIrcumstances and, If so, whether the Board of ArbItratIOn should exerCIse ItS dIscretIOn to mItIgate that penalty --'"T.- ./ -- 19 In the mstant case, there has been an admisslOn by the gnevors that, contrary to Company policIes and Mimstry of Health dIrectives, they made a ten mmute unauthonsed stop for coffee whIle on a call. They, and the Union, have acknowledged that some penalty IS warranted but mSlst that dIscharge IS exceSSIve given the gnevors' prompt admIssIons of gUilt and expreSSlOns of remorse. The sole Issue between the partIes then IS the reasonableness or justness of the dlsciphne Imposed. There are several factors that bear dIrectly on that question, not the least of whIch IS the nature of the offence and the employment context m which the mIsconduct occurred. In tlus case, the gnevors were dIspatched on an Code 3 ambulance call to transfer a VSA baby from MUMC to GGH. The senous nature of that callIS WIthout question. The very hfe of a newborn baby depended on the response of the gnevors' ambulance to that call. MUMC has the facilIties to handle tlus emergency Guelph General HOspItal does not. The ambulance was sent out under a Code 3, which requires a prompt call that is to be performed Without delay The gnevors were aware of theIr responsibihtIes durmg an ambulance call, in particular a Code 3 They were also aware of the Company rules regardmg unauthonsed stops en route. Their decislOn to stop and pick up a coffee on the way to MUMC was a senous breach of the rules that could have had sIgmficant consequences to the patIent and the Company By theIr actlOns they placed the patIent and the Company at unnecessary nsk. The declslOn of a board of arbltratlOn or arbItrator to mItigate a penalty is based on the facts of the case before It. However, over the years, several addItional factors have been accepted by arbItrators and boards of arbltratlOn as appropnate gUIdelmes to conSIder III assessmg the penalty Imposed by an employer agamst the actlOns of a gnevor Some of those factors weIgh agamst the gnevors III the ~ . - 20 10stant case. By theIr own admIsSIon, both gnevors have, 10 the past, made unauthonsed stops while on an ambulance call. They were both aware of the rules and yet appear to have made a practice of Ignonng them. While the declSlon to stop for coffee was not discussed 10 advance between the grievors, It was not the result of a momentary aberratIOn brought on by emotIOnal Impulses. It was, 10 the case of Mr Bell, a ratIOnal deCISIOn based on a past practice of Ignor1Og Company rules. It has long been accepted that a prompt admISSIon of gUilt and a genu10e expreSSIOn of remorse weIgh heavily 10 a gnevor's favour 10 persuadmg a board of arbItratIOn or an arbItrator to mitIgate a penalty In the mstant case, there was a prompt admISSIon of the unauthonsed stop However, while the gnevors expressed remorse for theIr actIOns, I have some concerns that they, particularly Mr Bell, contmue to excuse theIr behaVIOur, in part, on the fact that the rules were observed more 10 the breach. He mamtained, even at the hearmg, that If hIS superVIsor was WIth him durmg an unauthonsed stop, he dId nothmg wrong. Although I appreciate the Employer dId not rely on the actIOns of the gnevors dunng the remamder of the call, Mr Bell's msistence that they were not lost on theIr way to GGH was frankly mconsIstent with the transcnpt of hIS conversatIOn WIth Cambndge DIspatch. He even referred to themselves as "lost souls" dunng that conversation. Ms. Bowes, however, dId express what I conSIder to be genume remorse. She stated It was not Just because she was fired but because she was sorry for all the problems It had caused. I took that to mean more than Just the problems she has encountered personally She testified that she SImply dId not thInk about the fact she was on a Code 3 when Mr Bell pulled m at TIm Horton's. If she had, she would have -- - ,/ -- 21 objected. It dId not occur to her untIl she was confronted wIth her actIOns that she reahzed she had breached the rules. WhIle that does not excuse her, It does explam why she dId not speak up when Mr Bell stopped the ambulance There are, nevertheless, factors that weIgh m the grievors' favour There was uncontradIcted eVIdence that they were not the only ones who ignored the rules. Ms. Bowes testIfied that she had seen other ambulances stopped for coffee and assumed, because she heard no dIScussIons over the radIO WIth dIspatch, that they had not sought pemllSSIOn to stop. She acknowledged, however, that they mIght have used another radIO frequency There was also uncontradIcted eVIdence from both gnevors that they had made unauthorised stops during a call WIth a supervisor The only actual example presented to me mvolved Mr GIOVlannazzo and Mr Morgan and the facts of that example were dIfferent. In that case the stop was requested by the nurse, who had a better understandmg of the urgency of the call. In any event, Mr GlOviannazzo called dIspatch for authonsatlOn m accordance WIth the pohcy Nevertheless, there was n6 challenge to the eVIdence that ambulance dnvers have made unauthonsed stops durmg calls and that their superVIsors were aware of those stops. While It IS clear that Mr Tutty was unaware of thIS practIce and would not have condoned It had he known, other superVISory employees knew and partICIpated m the practIce. Even though all of the WItnesses, mcludmg Mr Bell, testIfied they had never and would not stop on a Code 3, the uncontradIcted eVIdence IS that Mr Bell dId not know he was to proceed to MUMC on a Code 3 As far as Ms. Bowes IS concerned, she was aware of the fact she was on a Code 3 However, she dId not know m advance that Mr Bell intended to stop and, m her own words "Just ~ , - 22 dId not thInk" WhIle theIr actIOns show an alarmmg lack of Judgment, they are not so egregIOus m the CIrcumstances that theIr Immediate termmatIOn was the only appropnate course m those circumstances. As well, the gnevors are long servIce employees. Mr Bell has been employed by the Company for 11 years, Ms. Bowes for 8 years. Mr Bell's record, at the tlme of the hearmg, was dIscIplme free. Ms. Bowes only dIscIphne mvolved a warning about a delay m reportmg faulty brakes on an ambulance. They made a senous error of Judgment whIch, to some extent, was based on theIr mIstaken behef that the Company was aware of and accepted the breach of the rules prohibItmg unauthonsed stops on a call. Agam, whIle that does not excuse theIr conduct, it has persuaded me that they should be remstated. I am convmced that theIr termmatIOns have taught them a lesson. They now appreciate that a faIlure to obey the rules and pohcIes of the Company carry sIgmficant consequences. I beheve, m the cIrcumstances, that the gnevors' future prospects for acceptable behavIOur are favourable. Nevertheless, I cannot Ignore the senousness of theIr breach of the rules and the mterests of the Employer m assuring that not only the gnevors but all employees understand that a deliberate floutmg ofthe rules and pohcIes wIll not be condoned. For those reasons. I have decIded to exerCIse my discretIOn to substItute the termmatIOns for lengthy suspenSIOn. The gnevors shall be remstated as of June 18, 1997, but WIth no compensatIOn, seruonty or benefits. TheIr records WIll be amended to reflect a one year suspenSIOn. / --- 23 Dated thIS 1 st day of June, 1997 /~ ~~ Loretta Mikus, Vice-Chair