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HomeMy WebLinkAbout1997-1660.Gaudette.99-08-04 Decision ONTARIO EMPLOYES DE L4 COURONNE CROWN EA1PLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB # 1660/97 OPSEU # 97F061 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uillon (Gaudette) Grievor - and - The Crown III Right of Ontano (Green's Ambulance ServIce) Employer BEFORE R. L Jackson Vice-Chair FOR THE L Harmer GRIEVOR Counsel GowlIng, Strathy & Henderson Barnsters & SOlICItorS FOR THE J Batty EMPLOYER AssIstant Manager Green's Ambulance ServIce HEARING May 14 1999 ThIS IS the gnevance ofMr Matthew Gaudette agaIllst the actIOns of hIS employer Green's Ambulance ServIce Mr Gaudette gneves that the employer vIOlated ArtIcle 4 01 (b) of the collectIve agreement between the partIes when It Imposed a two-day suspensIOn for hIS part III an IllcIdent that wIll be descnbed below After an unsuccessful attempt at medIatIOn on Apnl16 1999 the case went to arbItratIOn. Most of the facts are not III dIspute, as reflected III the followIllg agreed statement of facts, WhICh was prepared after the medIatIOn. Agreed Statement of Facts The IllcIdent gIVIllg nse to thIS gnevance took place on September 19 1997 shortly after 900 p.m It had been raIllIllg for much of the day and both partIes agreed that It was a dark, gloomy illght. A call for an ambulance at a resIdence on Lynn Valley Road was receIved by the Green's Ambulance ServIce, WhIch dIspatched the gnevor and hIS partner ElIzabeth Abbott, to pIck up a Nancy DIxon at 2139 Lynn Valley Road. The gnevor was dnvIllg, and the call was desIgnated "Code 4" WhICh IS the most urgent of SIX possIble patIent categones The gnevor and hIS partner were famIlIar wIth a Nancy DIxon at 1239 Lynn Valley Road, havIllg carned her III theIr ambulance on several prevIOus occaSIOns Thus, whIle the gnevor and hIS partner belIeved that the call had probably come from the Nancy DIxon they knew to resIde at 1239 Lynn Valley Road, there was some uncertaIllty on theIr part as to the correct patIent and address GIven the nature of the dIspute III thIS case, It IS necessary to set out III some detaIl the physIcal locatIOn of the laneway grass, and house The house IS set back from (north of) Lynn Valley Road, some 37 yards The laneway IS sItuated east of the house, and runs some 45-50 yards, from Lynn Valley Road north to a pOIllt beyond (that IS, north of) the house, where It sImply fades away IlltO grass The dnveway IS not paved and IS perhaps best descnbed as a tYPIcal country track through grass, wIth two ObVIOUS gravel tracks made bare and packed down by vehIcle wheels, wIth grass III between the tracks and on both sIdes In front of the house, and between the house and the laneway lIes lawn. At some pOIllt north of the house, the lawn Itself ends and, whIle the area IS stIll green, It IS weedy and gravelly The pOIllt where the lawn Itself ends IS not ObVIOUS HavIllg reached 1239 Lynn Valley Road, the gnevor turned left (north) off the road IlltO the dnveway The gnevor drove the ambulance up the lane way and stopped when the vehIcle was OpposIte the house - that IS, dIrectly east of the house His partner got out, went up to the house, and went IlltO the house to check that thIS was the correct locatIOn. It was, and Ms Abbott came back out to the ambulance and advIsed the gnevor Mr Gaudette then drove the ambulance further up the laneway (that IS, north), to a pOIllt beyond the house (northeast of the house), and made a 90-degree left turn, off the laneway and onto the grass, III order to turn the ambulance around. It was Mr Gaudette's Illtent to execute what IS known as a "four-poIllt turn" dnve back up the dnveway (south) to the same pOIllt OpposIte the house, from WhICh pOIllt the patIent could be loaded. Mr Gaudette backed up WIth aSSIstance from Ms Abbott, pulled forward agaIll III order to Improve hIS turillng radIUS, and then backed up for a second tIme 2 At thIS pOIllt, wIth the ambulance pOIlltIllg at 90 degrees to the dnveway (that IS, west) It became stuck. It had been raIllIllg for much of that day and the area had become soft. It turned out, too that the gnevor had turned onto the lawn, III other words, he had turned too soon, so that he was on the lawn rather than on the grassy area ad] OIllIllg the north end of the lawn. As soon as the vehIcle became stuck, Ms Abbott (the gnevor's partner) returned to the house to assess the status of the patIent and to advIse that the ambulance had become stuck. The gnevor wIth the permISSIOn and assIstance of a wIllIng bystander who appeared to resIde at the address, attempted to free the vehIcle by movIllg forward and backward, but to no avaIl Ms Abbott determIlled that Ms DIxon was III no dIstress III other words, there was no Immediate urgency (Code 1) In the meantIme, Mr Gaudette contIllued to try to free the ambulance, wIth the assIstance of the wIllIng bystander Unable to do so Mr Gaudette went IlltO the house and advIsed Ms Abbott that he was stIll stuck. They went back out together and, wIth the help of the wIllIng bystander tned agaIll to free the vehIcle, agaIll to no avaIl The patIent was left III the care of her mother dunng that tIme At thIS pOIllt, they notIfied the dIspatcher that the ambulance was stuck. Five mIllutes later they asked that the dIspatcher notIfy the duty supervIsor Andrew Weber Upon beIllg advIsed of the sItuatIOn, Mr Weber called a tow truck and hImself drove out to the Lynn Valley Lane address Upon arnval, he ordered another ambulance but, havIllg ascertaIlled that the patIent, Ms DIxon, was III no danger he cancelled It several mIllutes afterwards Shortly after that, the tow truck arnved and freed the ambulance Ms DIxon was then loaded IlltO the ambulance and transported to hospItal, none the worse for the delay Mr Weber carned out an IllvestIgatIOn, concluded that Mr Gaudette and hIS partner had faIled to carry out theIr responsIbIlItIes properly as a result of WhICh Ms Abbott receIved a wntten warillng and Mr Gaudette a two-day suspensIOn. The specIfics of the dIscIplIne were set out III the followIllg letter October 24 1997 Mr Matthew Gaudette 233 Uruon Street SImcoe, Ontano N3Y 2B4 Dear Mr Gaudette RE AMBULANCE CALL REVIEW 1239 LYNN V ALLEY ROAD # 185029 - SEPTEMBER 19, 1997 Please be advIsed that we have completed the reVIew of the above noted ambulance call where the vehIcle became stuck causIllg a delay As the dnver It was your responsIbIlIty to ensure the vehIcle was operated III a safe, responsIble manner and thus provIdIllg expedIent, safe transport dunng the call Your actIOns on thIS call were found to be careless and you faIled to demonstrate due dIlIgence III operatIllg III a safe responsIble manner More specIfically you 3 . attempted to turn the vehIcle around III an unsafe locatIOn gettIllg the vehIcle stuck. ThIS caused a delay to the call WhICh could have been detnmental to the patIents well beIllg. . showed dIsregard for the personal property of others by attemptIllg to turn around on the lawn causIllg damage to the lawn. . showed dIsregard for MiillStry property by leavIllg the gravellaneway and attemptIllg to turn around on a soft raIll soaked lawn, leadIllg to the need of a tOWIllg servIce WhIch resulted III an unwarranted cost to the company . dId not ImmedIately notIfy the dIspatcher of the vehIcle becomIllg stuck, resultIllg III a delay of 8 mIllutes These actIOns are unacceptable and wIll not be tolerated. Therefore you are suspended from work, wIthout pay on November 5 1997 and November 6 1997 In order to assIst you, I shall make arrangements for you to reVIew the dnver Improvement program and upon completIOn of the program your dnvIllg pnvIleges wIll be reIllstated. Please take the necessary precautIOns to aVOId a reoccurrence as future IllcIdents of thIS nature wIll result III a further dIscIplInary actIOn. Yours truly GREEN'S AMBULANCE SERVICE INC. Andrew Weber SupervIsor pc Uillon Steward For hIS part, the gnevor argues that, under all of the cIrcumstances, what happened could only be consIdered an accIdent, for WhICh he should not be dIscIplIned. He pOIlltS out that he and hIS partner had turned around III exactly the same locatIOn and manner on at least two prevIOus occaSIOns, wIth no mIshap Also relevant to thIS sItuatIOn IS a portIOn of the gnevor's Job descnptIOn, wIth ItS outlIne of dutIes and responsIbIlItIes III such sItuatIOns, as well as the Green's Ambulance ServIce polIcy and procedure wIth respect to the backIllg up of vehIcles, and the relevant portIOn of the "General Standard of Care" Job Description Responds to emergency calls to proVIde efficIent and ImmedIate care to the cntIcally III and IllJured, and transports the patIent to a medIcal facIlIty After receIvIllg the call from the dIspatcher dnves the ambulance to the address or locatIOn gIven, USIllg the most espedItIOus [sic] route, dependIllg on traffic and weather condItIOns Observe traffic polICIes and procedures concerillng emergency vehIcle operatIOn. 4 Upon arnval at the scene of an accIdent or Illness, parks the ambulance III a safe locatIOn to aVOId an accIdent. In the absence of polIce, enlIsts the assIstance of people avaIlable to create a safe traffic envIronment, such as placement of road flares, removal of debns, and redIrectIOn of traffic for the protectIOn of the IllJured and those assIstIllg III the care of the IllJured Backing Up Vehicles When backIllg up the vehIcles, the dnver must have someone outsIde at the rear of the vehIcle gUIdIllg you. If you are observed backIllg up wIthout the aid of a guIde, you wIll be dIsIplIned [sic] at the dIscretIOn of management. General Standard of Care 3 On arnval at scene perform an assessment of the envIronment. Park the ambulance III a safe place, as close to the pOIllt of patIent contact as possIble IdentIfy ObVIOUS and potentIal hazards to the patIent(s) and crew Where appropnate, IdentIfy routes of entry and eXIt, e g. for multIple patIent IllcIdents for potentIal vIOlence or confrontatIOn. It should be added that the gnevor took the Dnver-Improvement Program, WhICh was spread over a four-month penod, at the end of WhICh he wrote the test and passed wIth score of 96% He had taken a sImIlar course III 1994 and passed wIth a score of 92% Argument The employer argues that Mr Gaudette should have stopped on the hIghway and backed up the lane, to posItIOn the ambulance for a qUIck and safe departure wIthout the need to back up - WhICh, of course, IS Important III the event that the patIent IS III cntIcal condItIOn and needs the full attentIOn of the attendant. Instead, he drove straight up the lane, turned onto a pnvate lawn, and got the ambulance stuck. In addItIOn, he faIled to notIfy the dIspatcher for eIght mIllutes In dOIllg all of thIS, It IS argued, the gnevor Ignored hIS traIllIllg (especIally WIth respect to backIllg off the hIghway and up the lane) showed dIsrespect for pnvate property and vIOlated company polIcy For ItS part, the Uillon argues that what happened was sImply a mIstake - unfortunate, but not culpable and not deservIllg of a suspenSIOn. The gnevor exercIsed dIscretIOn, under a partIcularly tryIllg 5 set of cIrcumstances, and was wrong. There were no sIgillficant adverse consequences He has learned hIS lesson, both from the expenence and the dnver-Improvement program Award There IS no questIOn that Mr Gaudette erred III Judgement III decIdIllg to dnve straight up the lane and turn around on the grass, that IS self-evIdent from the fact that the ambulance became stuck. The employer IS qUIte correct III ItS assertIOn that, III VIew of the fact that It had been raIllIllg all day Mr Gaudette should have antIcIpated that the grassy area mIght be soft and therefore made sure he drove far enough up the dnve to ensure that he was on the gravelly area. He probably should have aVOIded that dIfficulty by backIllg off the hIghway and up the lane On the other hand, there were a number of CIrcumstances WhIch render these mIsJudgements mIllor The gnevor and hIS partner had done the same thIllg - that IS, turillng around on the grass, albeIt the gravelly/weedy area beyond the lawn - on other occaSIOns wIth no mIshaps They had been advIsed by the dIspatcher that It was a Code 4 but at what they suspected was a erroneous address, thus pOSIllg at least the possIbIlIty that they were at the wrong locatIOn for an emergency case, and thereby addIllg a specIal urgency to findIllg out. The lane was qUIte long (37 yards) and the illght dark, uillnvItIllg CIrcumstances for StOppIllg on the hIghway and backIllg all the way up the lane DnvIllg up the lane and turnIllg around would take less tIme than backIllg up the lane Thus, settIllg aSIde for a moment the fact that Mr Gaudette turned off the lane too early the fact that he chose to dnve straight up the lane and turn around on the gravel Illstead of StOppIllg on the dark hIghway and backIllg all the way up the lane does not seem to me to be wIldly Illappropnate, gIven all of the goverillng factors It was a Judgement call Mr Gaudette's other error was III turillng too early onto the lawn rather than the gravelly/grassy/weedy area Just beyond the lawn. Had he not done thIS, the ambulance would not have become stuck, dIscIplIne never Imposed, and no gnevance ever filed. Indeed, thIS was an Important 6 element III the employer's argument that Mr Gaudette drove the ambulance onto pnvate property and, Illdeed, onto a pnvate lawn. On the other hand, as noted, the demarcatIOn was unclear as eVIdenced by the fact that the owners themselves marked It WIth flags the next day As well, It was a dark illght. There IS another aspect to thIS Issue Mr Gaudette and hIS partner had turned around on the same area several tImes prevIOusly and, no doubt, the occupants of the house were aware of that fact. Yet there was no eVIdence that they had obJected, as they clearly would have, had there been any problem wIth It from theIr pOIllt of VIew On the eVIdence, It seems clear that Mr Gaudette turned onto the lawn by accIdent. GIven that there was no Illtent, then, I find that one of the employers stated grounds for dIscIplIne - "dIsregard for pnvate property" - IS not JustIfied. In short, whIle they were errors III Judgement, Mr Gaudette's decIsIOns not to back up the lane and to turn where he dId were understandable and Illvolved only a mIllor degree ofblameworthIlless, gIven all of the CIrcumstances In ItS argument, the employer made much of the fact that Mr Gaudette had not followed company polIcy wIth respect to both backIllg up and parkIllg the ambulance In pOIllt of fact, however the gnevor dId not vIOlate the backIllg-up polIcy because, III all cases, hIS partner was behIlld the vehIcle helpIllg to guIde hIm. The employer's actual argument IS that, If the patIent had been a Code 4 then the gnevor would have had to back up wIthout the benefit a guIdance from behIlld - at least by hIS partner who would have been occupIed wIth the patIent. The company polIcy the Job descnptIOn, and the "Standard of Care" polIcy are all very generally worded, leavIllg a hIgh degree of dIscretIOn, as of course IS appropnate for such a posItIOn. Management cannot possIbly antIcIpate all of the eXIgencIes that theIr ambulance dnvers wIll face, and thus must trust to theIr good Judgement, takIllg IlltO account the CIrcumstances and gUIded only by relatIvely general polICIes As noted by arbItrator Dorsey III Re Board of School Trustee of School District No 57 (Prince George) and United Brotherhood of Carpenters and Joiners, Local 2106 34 L.A.C (3d) 228 7 Judgement Illherently has the nsk of error WhICh IS not careless, neglIgent or otherwIse culpable and WhICh can result III mIsadventure that may sometImes have senous consequences When such errors occur the fact of the consequence does not III Itself gIve cause for dIscIplIne unless that [sic] IS a clearly establIshed employer rule to that effect Beyond pOIlltIllg out the IllevItable possIbIlIty of Illnocent mIstakes by people who must exerCIse Judgement and dIscretIOn, Mr Dorsey says somethIllg else wIth WhICh I agree that the actual (or III thIS case, potential) consequences of such a mIstake should not ordIllanly be a factor III decIdIllg on dIscIplIne Ambulance dnvers are III an Illherently nsky busIlless they deal wIth senously III and IllJured people, and It IS therefore IllevItable that some outcomes wIll be very bad. In determIllIllg dIscIplIne, therefore, the focus must be on the mIstake, not the consequence or potentIal consequence On the other hand, for that very reason - that the consequences of a mIstake can be senous -It IS partIcularly Important that ambulance dnvers thIllk carefully takIllg IlltO account current condItIOns and appropnately applYIllg the lessons of theIr traIllIllg and company polIcy when they make theIr Judgements WhIle the employer argued that the gnevor and hIS partner had delayed notIfYIllg the dIspatcher of the sItuatIOn for eIght mIllutes, and that thIS compounded the ongIllal SIll of gettIllg the vehIcle stuck, the UnIon argued that to try to extncate the ambulance was an appropnate and common-sense step to take before advIsIllg the dIspatcher I agree wIth the uillon, gIven that the gnevor and hIS partner had establIshed that the patIent was not Code 4 and could safely Wait to be transported, It was entIrely appropnate for them to attempt to free the vehIcle and, only when It became clear that they could not, to advIse the dIspatcher then. Indeed, gIven the very Important qualIficatIOn that Ms DIxon was III no danger had they Illformed the dIspatcher ImmedIately and then managed to free the ambulance, valuable resources and tIme could easIly have been wasted. If, on the other hand, they had assessed the patIent and found her to be Code 4 then they should have Illformed the dIspatcher ImmedIately It IS Important to revIew thIS sItuatIOn III the context of the purpose of Illdustnal dIscIplIne, WhICh IS not to pUillsh, but to remedy An employer should Impose dIscIplIne III order to commUillcate 8 to an employee III a way that he or she cannot possIbly mIstake that certaIll actIOns or behavIOur are unacceptable III some way and must be changed or elImIllated. In thIS context, let us reVIew what has happened to Mr Gaudette as a result of thIS mIshap First, he had the embarrassment of havIllg to Illform, first, the patIent and her famIly and, second, the company that he had gotten the ambulance stuck. Then, he had to face Mr Weber when he arnved at the house Next, he was the subJect of an Ill- depth IllvestIgatIOn by Mr Weber WhICh resulted III Mr Weber's letter of October 24 1997 Mr Gaudette was then reqUIred to take a dnver-Improvement course wnte and pass an exam and, dunng the four months of the course, was not allowed to dnve the ambulance, and so had to serve for that penod as attendant. With all of thIS, It seems clear that any reasonable person would have learned hIS lesson, wIthout the need for a suspenSIOn. AccordIllgly then, It IS my award that the two-day suspensIOn be rescIllded and that a wntten warillng (in the form ofMr Weber's letter of October 24 1997) be the only dIscIplInary actIOn. Mr Gaudette IS therefore to be reImbursed for two days' pay and any other compensatIOn WhICh was affected by the suspenSIOn. I am confident that, together wIth everythIllg else that has happened, thIS wIll be sufficIent to ensure that Mr Gaudette thIllks carefully about where he dnves and parks the ambulance III future I remaIll seIsed III the event that there are any dIfficultIes wIth the ImplementatIOn of thIS award. Dated at KIllgston, thIS 4th day of August, 1999 R. L Jackson, Vice-Chair 9