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HomeMy WebLinkAbout1997-0583_LITSTER98_08_26 I ONTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARKJ t 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-13Q6 GSB # 0583/97,0584/97,0585/97, 0586/97 OPSEU #97B631, 97B634, 97B635, 97B636 IN THE MA'ITER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU(Doug Lltster) Grievor - and - The Crown m Right of Ontano (Mimstry of Health) Employer BEFORE L Mikus Vice-ChaIr FOR THE M.A. Kuntz UNION Gnevance Officer Ontano Public SefVlce Employees Uruon FOR THE D Strang EMPLOYER Counsel, Legal SefVlces Branch Management Board Secretanat HEARING November 25, 1997 March 10, 11, 12, 1998 April 28, 29, 30, 1998 May 7, 1998 ,,- 1 The gnevor, Doug Lltster, was tefffilnated from ills employment as an ambulance attendant on May 2, 1997 The reasons for the tefffilnatIOn were set out m a letter sIgned by Mr Graham Brand, DIrector, willch stated, m part, as follows On March 6, 1997 you were suspended, WIth pay, pendmg an mvestlgatIOn mto allegatIOns of profeSSIOnal misconduct and Improper work place behavIOur whIch mvolved you It was alleged that on January 24, 1997 you refused to transport a patlent and you acted m an mappropnate and discourteous manner to the RegIstered Practical Nurse (RPN) m the presence of a patient. Furthermore, on February 25, 1997 you refused to complete an mCldent report as reqUIred and requested by your manager relatmg to the above mCldent, and acted m an mappropnate and msubordmate manner As you are aware, the mvestIgatlon IS complete and a meetmg was held With you on April 14 1997 to dtscuss the findIngs, COpies of whIch were proVIded to you I have had an opportumty to conSider the mvestIgatIOn findmgs and your position on the matter I have also taken mto account past mCldences which you demonstrated msubordmate and mappropnate behaVIOur for whIch you were repnmanded. Based on all the mformatIOn prOVided to me and takmg mto account your past behaVIOur, I have concluded that you have senously breached Sections 41 27 (l)(c) and 38 of RegulatIOn 19 of the Ambulance Act and you have acted m a manner contrary to the Emergency Health ServIces Branch Code of Conduct and the Manual of Corporate Poltcy and Procedure AccordIngly and m recogmtIOn of the very senous nature of thIS matter, you are hereby dismissed from the Ontano Publtc ServIce under SectIOn 22(3) of the Publtc ServIce Act. ThIS dtsmlssalls effectIve as of today, Mav 2, 1997 There were four gnevances before me, one concernmg the dIsmIssal, one concernIng a suspensIOn of March 5, 1997, one allegmg harassment, and a fourth allegmg a VIOlatIOn of ArtIcles 22 144 and 22 14 5 regardmg dIsclosure Although there are some dIfferences m the accounts of the WItnesses to the mCldents referred to m the letter of dIsmIssal, for the most part there IS no matenal dIspute over what happened. \. .....' 2 Dealmg first wIth the mCldent of January 24, 1997, Ms Shan Shauber was the RegIstered PractIcal Nurse (RPN) mvolved. She works With the Wmdsor Victonan Order of Nurses and, m 1995, became the dlstnct nurse for an 8-block radIUs willch mcluded a semor cltlzen's bUIldmg on RiversIde Dnve One of her patIents was a woman m her 80's who had moved to Canada from Poland some twenty years preVIous and who lIved m a small one bedroom apartment m that buildmg. In January of 1997 the patIent was expenencmg some health problems, mcludmg an elevated blood pressure She had been m and out of the hospital wIth temporary Ischeffilc accIdents (TIA's) and was becoffilng more and more confused Ms Shauber had been to see her earher m the mornmg and, because she was concerned about her, returned later m the day When she arnved the patIent's physIOtherapIst told her that the patIent had been stumblmg. Ms Shauber observed that the patIent, was short of breath, sweatmg and mumblIng. Although she could understand Ms Shauber, she responded m PolIsh. Her blood pressure was very elevated She was concerned about the patlent's condItIOn and contacted her case manager for authonzatIOn for a non-emergency ambulance call The Central Ambulance CommurucatIOns Centre (CACC), because of the supervIsor's response to routme questIOns, sent an ambulance to the sIte as a Code 4, willch IS an urgent call that must be performed Immediately The gnevor's ambulance responded to that call and, accordmg to Ms Shauber, from the moment he entered the apartment, he appeared to be angry When he entered the apartment the patIent was sIttmg on the bed puttmg on her sweater and, when Ms Shauber attempted to gIve illm an account of her condItIOn, he Said, m a loud, angry and condescendmg VOIce, that he would not bnng tills patIent to the hOSpItal as she was not an emergency He then pIcked up the phone beSIde the patIent and yelled at the person on the other end of the Ime to call the supervIsor to pIck up the patIent. '-. '- 3 When she tned to talk to illm about the patIent, the gnevor mterrupted her by askIng her, m a very loud VOIce, to Identrfy herself When she told illm that she was a nurse, he stormed out of the room. She asked ills partner for ills name and was pIckIng up the telephone to call her case manager when the gnevor stormed back mto the apartment and yelled at her to "shove the phone up my ass" Ms Shauber testIfied that she was very fughtened for her safety and the safety of her chent She saId her patlent had become very fearful and began to pray and count her rosary beads Ms Shauber stated that she was thankful that hIS partner stood between her and the gnevor because she was afraid he was gomg to become VIolent. She asked rum to leave The gnevor's partner told her that It had been a bad day and that was why hIS partner was so upset. They left and ultImately another ambulance transported the patIent to the hospItal. Ms Shauber's eVIdence was that the gnevor was angry and agItated from the moment he entered the apartment, used an extremely loud VOIce and was very unprofessIOnal m hIS manner When the gnevor used the phone besIde the patIent's bed, she became very upset because he was yellmg. The patIent has a medical phone that nngs dIrectly to the ambulance and she kept pushmg the button on that phone, because, m Ms Shauber's oplmon, she knew she needed help Dunng tills tlme she was spealang m PolIsh and contmually countmg her prayer beads In cross-eXaffilnatIOn, Ms. Shauber agreed that she had told the ambulance attendants that the patIent had been taken to the hospItal tWIce that week and sIgned herself out She conceded that It was possible that the patIent was upset because she was bemg taken back to the hospItal and not because of anytillng that the gnevor sald or dId, When It was suggested to her that the second ambulance \ 4 team was at the apartment for more than tillrty ffilllutes because It took them a long tIme to persuade the patIent to go to the hospItal, she saId she was unable to assess how long they were there What Ms. Shauber dId not know was that there had been some dIssenSIOn about the ambulance call m the first mstance It had been snowmg all day and It was more dIfficult to get around the CIty than usual. In addItIOn, the gnevor's ambulance had been at Hotel Dleu HospItal Just pnor to tills call and they had encountered some dIfficulty m gettmg theIr stretcher released because there were no beds at the hospItal to transfer the patIent to When he receIved thIS call at 15 38 P.M., he was adVIsed that there was a Code 4 at 255 RIverSIde Dnve, that the patIent was complalrung of shortness of breath and was a possible CV A (cardIo-vascular aCCIdent) Based on the transcnptIOn of the tape recordmg of that dIScussIon, the gnevor's response was "fine, I'll go but you send another car, I'm trred, I can't do no more, I'm sorry" The dIspatcher asked whether he was gomg to respond to the call and the gnevor SaId "First response, I'm trred, I can't carry anybody else, I've done enough today I'm trred." A "first response" means that the attendant WIll attend at the scene and walt until another ambulance amves to do the actual transfer The dIspatcher SaId "Roger, I'll see If! can get somebody else to head over there for you." The dIspatcher then made some attempts to find another ambulance and ultlmately called back to the gnevor to advIse illm that there was no other urut available The gnevor testIfied that he fully mtended to respond to the call but mamtamed that he could not have camed anyone else that day The problems With the call contmued, The ambulance proceeded as a Code 4 wIth lIghts and mens but had dIfficulty parkIng at the apartment buildmg. Apparently the door closest to the servIce ~ 5 elevator was blocked and they had to go through the main door, willch was more dIfficult In any event, they took the stretcher, cardIac morutor and standard eqUIpment up to the hallway of the patIent's apartment. The gnevor was antlclpatmg an unconscIOus or semI-conscIOus patIent suffenng from a CV A or stroke. They knocked on the door and were admItted by the nurse They could see the patIent m the bedroom. The nurse gave them her usual report, mcludmg a qUIck summary of the patIent's vItal SIgns She told them that the patlent had been taken to the hospItal tWIce that week and sIgned herself out and that she needed to go back to the hospItal to Walt for a placement m a long term facilIty The gnevor asked Ms Shauber why she kept sendmg her back If she dId not want to go to the hospItal. He asked the patIent If she wanted to go to the hospItal. She sald no At that pomt the gnevor beheved that the CCAC was sendmg another car He saw the RPN reach for the phone to call someone. He told her ills name and told her to do whatever she felt was necessary He walked out of the bedroom, gathered the equIpment outsIde the front door of the apartment and returned to the ambulance He conceded that he was probably bemg "snotty" dunng the conversatIOn. He had heard the nurse ask hIS partner who he was and when he went back mto the apartment to gIve her hIS name and I.D number, he conceded he had spoken to her m an unprofessIOnal manner DUflng tills altercatIOn m the patIent's apartment, the dIspatcher was still trymg to find another ambulance to take the call At 15 48 P ,M. the dIspatcher was told by the Home Care Manager that the ambulance had left the apartment and that they had "told the nurse to stlck the phone up her ass" The dIspatcher was also told that the ambulance attendant had Said he would not take tills patIent to the hOSpItal. At that pomt the supefVlsor adVIsed the dispatcher that she was speakIng to the nurse ;. "- - - 6 on another lme who was m tears and repeated the request that another ambulance take the call because "I don't want the client to have a heart attack on the way to the hospItal." At 15 50 P.M. the gnevor had another discussIOn With dIspatch dunng willch he was advIsed that the . supefVlsor was tIed up ill a traffic Jam and would be unable to relieve illm. The gnevor then said "tills lady has apparently been m the hospItal tWIce, sIgned herself out both tImes, she's standmg m her bedroom gettmg dressed, the VON has got other thmgs she has to do, we're not takIng thIs lady mto Hotel Dieu and have her tIe up a bed. The last tIme we were m there they were gomg to put the car out of servIce cause there's no beds left. We don't have tIme (unreadable few words) here" The gnevor was told that he could clear the locatIOn and return to the statIOn and that the dIspatcher would send another umt shortly A subsequent call dIrectly from the ambulance to the Hotel Dleu HospItal at 1637 P.M. stated as follows "Hotel Dleu 1100 to your locatlon wIth an elderly female patIent, A VON was on scene at her resIdence, they state she IS unstable on her feet and she's a httle hypertensIve At present her B.P IS 180 over 90, pulse of about 90, strong and regular, will be at your facilIty m about 10 ffilnutes A later call between the dIspatcher, Mr B Parent and the crew member of another ambulance went as follows Ambulance Crew'" What dId you do With Doug?" Mr Parent chuckles "I dIdn't do anytillng wIth illm," Ambulance Crew' "He's tlred. " Mr Parent "Huh?" Ambulance Crew' "He's tlred " - Mr Parent "No, he's Just, he dId 13 calls m 8 hours." - 7 Ambulance Crew' "Ohya." Mr Parent "Ya, one of those days. Anyways, I, ya he, I had to mute rum out there because, you dIdn't hear half of what he said. Ambulance Crew' "Oh, really" Mr Parent chuckles "Oh srut? If I'd a put rum, I'd a left rum unmuted there I would'a got a call from the F, FCC, (more chuckles) Ambulance CreW' "Oh really" Mr Parent "He was mad at everybody, anyway" Ambulance Crew' (unreadable) Mr Parent "No, No, Just on that call because you know, like I SaId It was Just number thIrteen, and thIS patIent hke kInd of like sIgned herself out of the hospItal tWIce m the last couple of days, and like, It was hke a no need call, you know what I mean. " Ambulance Crew' "RIght. " The gnevor's verSIon of the events IS somewhat dIfferent from that ofMs Shauber He cannot recall tellmg her to "stIck the phone up her ass." He SaId he did not trunk he would have Said that to a nurse because rus own spouse IS a VON nurse He agreed that he dId not do an assessment of the patIent but mSlsted that he had heard the nurse's report and knew that the patIent was not a medIcal emergency He agreed that rus behavIOur was very unprofessIOnal He never filled out an mCldent report on the call because he never actually made the transfer and no one ever asked rum to fill out a report. In fact he heard notrung more about the mCldent until March 5,1997, when he was suspended WIth pay pendmg mvestlgatIOn. In cross-exaffilnatIOn the gnevor agreed that he was not happy about havmg to take a call that late \ 8 m the day He had to get back to home base, a 30 - 45 ffilnute dnve and clean the ambulance He had been detamed at Hotel DleU longer than usual dunng rus preVIOUS call and knew that If he took another patIent to Hotel Dleu for adffilsslon the same trung would happen, When he was asked whether he claImed to be physIcally mcapable of movmg another patIent, he said that they had been . almost rut on the way to the hOSpItal because of road condltlons, that the system was Jammed, he was trred, rus feet were soakIng wet, rus back hurt and he had Just had enough for the day Although he was trred and saId he could not do another call, he agreed to go to the apartment. He said that he had been reheved before m SImilar sItuatIOns and saw nothmg wrong WIth askmg to be reheved agam. He agreed that smce the patIent was walkIng around, she could have chmbed onto the stretcher herself and would not have needed to be hfted However, he mamtamed that she dId not want to go to the hospItal. He agreed, however, that If a clIent or patient refused to be transported, there IS a form to be filled out statmg the reasons for the refusal and requmng the chent's SIgnature walvmg hIs/her nghts m the crrcumstances When he was asked whether he was POSItIve that the patIent dId not want to go to the hOSpItal, he saId that she came to the door and thanked rum as he was leavmg. Mr Fred Thomas was the gnevor's partner on that call. He testIfied that they got a Code 4 call and were asked to clear emergency at Hotel Dleu, Although they proceeded to the call With hghts and srrens, the gnevor was upset. He had thought they were gomg back to the base after a very busy day When they amved at the apartment, Mr Thomas Said that the patIent was "flIttmg back and forth puttmg clothes on." The nurse began by gIvmg a report on the patIent's condItIOn and adVIsed them that she had been m the hospItal tWIce that week and sIgned herself out In rus VIew, there was no \,-" 9 apparent urgent problem. He could not remember the gnevor saymg "stIck the phone up your ass" Mr Thomas recalled that the gnevor's VOIce was loud and that he was upset. He told the nurse to make whatever phone calls she had to make and to "shove the phone where the sun don't srune." or somethmg like that. After the gnevor's telephone conversatIOn WIth the dIspatcher, he told Mr . Thomas that another ambulance was on Its way to reheve them. The nurse told them to leave The patIent was confused but waved at them as they were leavmg. He testIfied that the gnevor told the nurse that he dId not have tlme for thIS and that the patIent was not gettmg m hIS ambulance Mr Thomas thought that the patIent was "pleasantly confused." He dId not trunk that she realIzed who they were at first and was fussmg With her coat and hat. When It was suggested to rum that she was gettmg ready to go to the hospItal, Mr Thomas suggested It was Just as likely she beheved she was gomg to the market. When It was suggested to rum that the patIent dId not understand Enghsh and could not have known what they were saymg, he saId that she dId understand them and clearly saId "no" He saId that they dId not take the patIent's vItal SIgns because the nurse had Just taken them, He dId not fill out the ACR because that IS normally done by the attendant and he was the dnver on that sruft Mr Thomas was ultImately gIven a 3-day suspensIon for a failure to complete the refusal of care voucher Mr Charles Kelley has been a paramedIc WIth the Windsor Ambulance ServIce smce 1991 His ambulance was called to 255 RIversIde Dnve on January 24, 1997, after the mCldent mvolvmg the gnevor When he and rus partner amved at the apartment, they were greeted by Ms. Shauber She pomted to the patIent, who was walkIng around the apartment, and told rum that she belIeved she was \~ 10 haVIng TIA's because she was speakIng m broken Enghsh. He spoke to the patIent and belIeved she could understand rum. Ms Shauber told rum that the patIent had sIgned herself out of the hospItal tWIce that week. Mr Kelley asked the patIent If she wanted to go to the hospItal and she refused. The crew adVIsed Ms, Shauber that they could not force her to go and she rephed that she could not stay home by herself B"y now they had attracted a crowd m the hallway and they asked some of the other reSIdents who spoke PolIsh to try to talk the patIent mto gomg to the hospItaL She was adamant and refused to go After about half an hour they finally talked her mto gomg and completed the call Mr Kelley was asked whether Ms Shauber was crymg when he amved at the apartment. He Said that she was upset but not unduly so Mr Kelley agreed that If the patIent had contmued to refuse to be transported, he would not have left the apartment Without a release voucher If she had refused to SIgn It, he would have completed the form and noted her refusal on It. In fact, they dIscussed havmg her SIgn a waIver dunng the call but were ultImately able to talk her mto bemg transported. He had wntten on the ACR that there was a language bamer but stated that, although she was speakIng m broken Enghsh, she could understand rum and he could understand her The other mCldent referred to m the letter of termmatIOn occurred on February 21, 1997 A few days before the gnevor had responded to a call at Co Co Pavmg. He and rus partner were met at the entrance by an employee who dIrected them to the back corner of the yard, approXimately 200 yards from the front gate The patlent was on hIS back at the base of a machme and lymg on pIeces of broken concrete and frozen graveL Someone's Jacket had been placed over rum. The patIent was conscIOus but shghtly dlsonented. He remembered bemg on top of the structure but could not .. ~, 11 remember anytrung else Because of a language bamer wIth the other co-workers and because the patIent was confused, the gnevor was unable to detefffilne whether he had been knocked off or whether he fell off the macrune In any event he did an assessment and found a haematoma on the back ofrus head, slightly smaller than a golf ball, The patIent kept hfung and wlpmg the back ofrus head With rus left hand even though the gnevor told hIm he was not bleedmg and advIsed rum to he still. The patIent also kept hftmg rus head to look at hIS legs and was complalmng of severe pam m hIS lower back, pelVIS and nght trugh area. He kept mOVing hlS extremItIes trymg to get comfortable A co-worker assIsted the gnevor m stabilIzmg and comfortmg hIm, The gnevor's partner that day, Don Thenault, readied the necessary eqUIpment The patIent was weanng outdoor clotrung and the gnevor did not put a neck collar on rum. He testIfied that It would not fit around the numerous layers of clotrung and that he would have had to cut them off to wrap the cervIcal collar around hIS neck. The gnevor asked a co-worker to help stabilIze hIS legs but he contmued to sqUIrm and trv to get up off the concrete They lifted hIm onto the backboard, whIch afforded hIm some rehef. They loaded the patIent mto the ambulance and stabihzed rum by strappmg hIm securely to the stretcher The patlent wanted a pillow under rus head and the gnevor ImprovIsed by placmg a toque under rus skull ll- to act as a pad. Although the patIent was more comfortable, he contmued to move rus legs They transported rum to the Hotel Dleu HospItal WIth suspected head and spmal mJunes At the hospItal the patIent was more alert and stable but still In consIderable pam. In the emergency department, the gnevor assIsted the emergency staff to take off the layers of clothmg. He was asked why the patlent was not weanng a collar and he explamed that he could not fit It on because of the clotrung the patlent was wearmg. They put a collar on after they had removed rus clothes The patIent was later " found to have suffered a spmal mJury { \_-- 12 That mCldent occurred on February 17, 1997 On February 21, 1997 a telephone conversatIon occurred between the gnevor and rus supervIsor, Mr Andrew Robert. The conversatIOn was transcribed and because It played a matenal part m what happened next I have deCIded to set out the verbatlm transcnptIOn of that telephone conversatlon. It started at 15 36 and went as follows Mr Robert- Hello Mr Lltster- Hi Mr Robert- Hey Doug, how you domg? Mr Lltster- Good, good, what's up? Mr Robert- Hmm We got a problem wIth the call you gave on Monday Mr Lltster- Uh oh, wruch one? Mr Robert- The ah Co Co Pavmg Mr Lltster- Co Co Pavmg, yes Mr Robert- Ya the fall Mr Lltster- Yes Mr Robert- Dawn Tur, IS Dawn there? (it should be noted here that transcnptIOn should have Said Don Thenault) Mr Lltster- Dawn's here yes Mr Robert- She's got all the mformatIOn. Ah, I'm gonna need an mCldent report on It. Mr Lltster- Sure What's wrong? Mr Robert- Well the guy's got a C Three fracture Mr Lltster- OKAY He wasn't complaInmg of a neck mJury DId you read my paper work. Mr Robert- Oh ya, I got It nght m front of me Doug. Mr Lltster- OKAY Mr Robert- So ah we Just gotta follow up on It because I heard that Dr North was a lIttle upset. Mr Lltster- Oh you know who It fuckmg IS, Its that jackIe that's fuckIng us around. Mr Robert- Ohya. Mr Lltster- She's the one that starts all tills crap Mr Robert- Hmm. Mr Lltster- You know ItS easy for them m the EDR to say let's put a collar on rum after rus clothes are all cut off on the bed, Mr Robert- Ya. Mr Lltster- Try puttmg a collar on somebody wIth two hooded sweat srurts and a lumber Jack srurt and a paIr of cover alls and long Johns He wasn't, that wasn't the problem at the tIme, I'll tell you he never even Said anythmg about rus neck. They found out after that apparently a bucket bumped rum m the head before he was pushed off, /' Mr Robert- Ohya. i \. -" Mr Lltster- So, anyways, I'll wnte It up, an mCldent. 13 Mr Robert- Ya, Ok thanks Mr Lltster- OK Andy Mr Robert- Do you trunk, are you gomg to be able to get It done today, or ah, Mr Lltster- Ahh, well I'll wash the car first, ahh, and we're already m problems here, we only got an hour and a half over tlme for the month of January when I've got SIX and a half that they should have pald me Mr Robert- What! Mr Lltster- Makes me look, I put m for over SIX and a half hours over tlme m the month of January, I Just got my pay today and It'S only got an hour and a half over tIme on It. Now I gotta go through the books to try to find out how come we dIdn't get paid for all our over tlme Mr Robert- Hmm. Maybe It dIdn't get processed here Got a month to process It, Mr Lltster- Well, she saId she processed It on February thIrd, I mean from the thIrd of February to the twentIeth of February before you get pald for the month of January's over tIme, I mean It'll all work out somewhere Its Just that money's a long tIme commg when you put m for It. Mr Robert- Ya. Mr Lltster- OK. Mr Robert- But ah, well, get your partner washmg the car and you can aVOId some over tIme out oftrus, (both laughmg and makmg comIcal comments about gettmg rus partner to wash the car End tlme The gnevor testIfied that, because of that conversatIOn, he thought he had done sometrung wrong. When he heard that the patIent had suffered a cervIcal mJury, he was scared He knew how senous that could be He was not upset at havmg to fill out an mCldent report but wanted to have the ACR before rum when he completed It. As soon as he fimshed washmg rus car at the Jefferson SIte, he reported to head office to ask the operatIOnal manager for a copy of the ACR. While he was lookIng for the documents, Mr Robert came by and told rum that he had the ACR and made a copy for the gnevor The gnevor asked rum If he could have a copy of Dr North's complamt. Mr Robert adVIsed hIm that there had been no actual complamt but that he had spoken to her on the phone The gnevor asked rum to gIve rum a / verbatIm report of what Dr North had Said because he wanted to speak With her about her complamt. -' 14 Accordmg to the gnevor, Mr Robert backtracked and said that she had not called yet but that she would be callmg. At that pomt the gnevor accused Mr Robert of lymg to rum, to wruch Mr Robert responded "don't I have a nght to ask for an mCldent report when someone's been neglIgent." The gnevor said that later Mr Robert derued havmg used those words but that he would never forget . them. The gnevor asked rum what he had agatnst rum and then said "fuck you." Mr Robert laughed and turned away and the gnevor saId one more tIme "fuck you" Mr Robert shook rus head and said "you'll never learn. " The gnevor dId complete the mCldent report as requested, dated February 27, 1997 In fact, that mCIdent report states m the first paragraph. Tlus mCldent report was demanded by actmg Manager A. Robert after fabncatmg a he about a complamt about Dr North, When Mr Robert was asked for a copy of the complamt, he recanted and saId It was reqUIred because of a couple of "rumours" he had heard. The gnevor testIfied that he had been on stress leave WIth pay from July to November of 1996 and at the tIme of the mCldent was workmg a permanent 8-hour day sruft on the adVIce ofrus doctor The gnevor testIfied that the mght sruft was not busy enough for hIm and he "needed" to work on the day sh1ft. Although neIther he nor the Employer were ever provIded WIth a diagnOSIs for rus SIck leave, he nonetheless was granted It WIthout questIon. Whenever he would ask rus doctor about retufnlng to work, he would be told he was not ready It would appear from hIS eVIdence that the stress was the result of many factors, mcludmg the OPSEU strike, down sIzmg m the health care system and rus mabihty to deal WIth those trungs m a healthy manner { \ 15 He was remInded of a prevIous dIscIplmary warmng. Apparently he had parked on the apron of the ambulance dnveway and was told by a fellow employee that the manager had asked rum to move rus car He saId that others had been allowed to park there He had a pefffilt to park there rums elf as well but had lost It and was annoyed at bemg told to move the car He told hIS co-worker to tell the . manager to "fuck off" In rus VIew rus comment was not mappropnate because he dId not make It to management but to someone he had known for a long penod of tIme who he dId not expect would relay the message m that form. He dId not gneve the the dlsclplme The gnevor adffiltted that management has a nght to ask for an mCldent report whenever It felt It was warranted, whether there had been a complamt or not He also conceded that he knew that the patIent had suffered a cervIcal fracture before he was asked for the mCldent report. Nevertheless, It was rus eVIdence that when he was asked by management for an mCldent report based on a complamt by a doctor, he was concerned and became defenSIve He also agreed that Mr Robert never saId that he had receIved a wntten complaInt from Dr North but, when he heard her name raised m connectIOn WIth that complamt, he took It to mean that Mr Robert had formally receIved a complamt from Dr North. He mamtamed, however, that Mr Robert had told hIm he had spoken to Dr North and that, when pressed, he changed rus story The gnevor allowed that, lfhe had It to do over, he would have handled rumself dIfferently on January 24, 1997 He mamtamed he would not have forced the patIent to go to the hospItal but he would have handled hImself more profeSSIonally WIth her and WIth the nurse He would not, however, f concede that he was wrong for not havmg transported her to the hospItal. It was rus VIew that If ~ 16 management had relieved hIm as he had requested, there would have been no mCldent. He said they had done It before and that he "needed to be at home" In rus eVldence-m-chlef the gnevor had Said that he had never before been mvolved m a complamt about patIent car~ He was reffilnded of two prevIous complamts, one mvolvmg a patIent who refused to go to the hospItal and sIgned a Waiver to that effect. Later the patIent's son complamed about the fact that the ambulance attendants had not taken hIS mother to the hospItal. He could not recall the details of the second mCldent. In any event, both complamts were resolved and no blame was attributed to hIm for eIther one Mr Don Thenault has been a paramedIc With the Windsor Ambulance SefVlce for four years He was the gnevor's partner on the Co Co Pavmg mCldent and filled out an mCldent report as well. He actually filled out two mCldent reports, one concernmg a conversatIon WIth Mr Robert m whIch he wrote that Mr Robert had called to Inform hIm that he reqUIred an mCIdent report on the Co Co Pavmg mCldent. His report went on to say' "From what I understood from Andy, the mCldent report was needed because Dr North was very angry With the treatment the P T receIved. Doug told me Andy told lum the same thmg. Apparently Doug asked to see the complamt from Dr North when he was told there was no complamt. I asked And" why he felt he had to he to me to get the mCldent report smce I felt we have alwavs been straIght With each other Andy told me I rmsunderstood (SIC) hIm and he heard Dr North was upset WIth how the call went. That was dated April 18, 1997 " When he was told that Mr Robert thought It was only a mlsunderstandmg, he sald that Mr Robert , had clearly used Dr North's name m the dIScussIon and had defimtely saId Dr North was angry \c ~ 17 In addItIOn he filled out another mCldent report about bemg asked to speak to an mvestlgator, Mr Dave Margetts, from the Emergency Health Sernces Branch of the Mimstry about the Co Co Pavmg mCldent. Mr Thenault adVIsed rum that he wanted Uruon representatIOn because he had never been mvolved an mvestlgatlon before and wanted some assIstance Mr Margetts Ignored rus request. Mr Thenault repeatea It and Mr Margetts agam Ignored It. After the thIrd request for Umon representatIOn, Mr Margerts told hIm that he was not m any trouble and that he Just wanted to have a frIendly conversatIOn wIth rum. After the fourth request Mr Thenault told Mr Margetts that Mr Andre Gmgras was workIng and that he would come up If requested Accordmg to the mCldent report, Mr Margetts stated "that figures" When Mr Thenault asked hIm what he meant, Mr Margetts allegedly srud, "notrung goes on down here WIthout Andre stlckmg rus nose mto It." When Mr Thenault got up to ask Mr Gingras to come to the office, Mr Margetts saId he was busy and he did not want to tIe up two ambulances When Mr Thenault agam expressed concern about not haVIng Umon representatIon, Mr Margerts got angry, ralsed rus VOIce and saId "thIS IS bullsrut, I don't have to allow thIS you know" While they were waltmg for Mr Gmgras to show up, Mr Thenault was dIspatched on a Code 4 and, while on that call, was adVIsed that Mr Margetts was no longer wrutmg for rum. Mr Andrew Robert IS the actmg manager of the Windsor Ambulance ServIce and has been smce February of 1996 Before that he was the OperatIons Manager and was responsible for apprOXimately 90 employees, 24,000-25,000 calls per year, four ambulance bases and the adffilmstratlve offices The CACC IS a separate operatlon that dIspatches ambulance calls m Essex County He was mvolved m both mstances concernIng the gnevor \. - 18 He became aware of the first mCldent when he receIved a memo dated January 24, 1997, from Mr John Parent, the actmg OperatIOns Manager, statmg that he had receIved a telephone call from the supervIsor of Home Care regardmg an mCldent wIth one of her nurses and Mr Lltster and Mr Thomas and theIr response to a Code 4 call for a patlent suffenng from shortness of breath and possible CV A. Hi-s report of the altercatIOn between the gnevor and Ms Shauber concluded wIth the followmg Upon concludmg my conversatiOn WIth home care, I went over to dIspatcher B Parent and mquIred what was gomg on there Bob told me that thIS response, by us to thIS apartment, IS the thud or fourth tlus week. Apparently, thIS woman gets transported to hospItal, gets admItted and then SIgnS herself out. He also told me that when our crew amved there, thIS patIent was not ready to be transported and demanded to be allowed to dress Tlus blatant abuse of our crew's tune mav have been the catalyst whIch prompted the redress by Mr LItster, as well, tlus was the eleventh response of theIr sluft, the weather had turned snowy and calls were pounng mto the CACC for ambulance responses If I can recall, everyone was out but two umts covenng the CIty As well Mr LItster and Mr Thomas were scheduled to go off ShIft at 1600 hours Includmg thIS response, they had done eleven calls Dunng tlus tune Mr LItster and Mr Thomas had requested the attendance of Management at tlus address Mr Massender and Mr Amlm were out on the road m both management velucles They were requested to attend the call and refused, With no velucles here, I was also unable to attend. I asked B Parent the condItiOn of the patIent. He stated the patIent appeared stable I mqrnred wether (SIC) It would be feasible for Mr Lltster and Mr Thomas to clear the scene It was qUIte apparent that Mr Lltster was m a lughly agItated state and I felt anv further exposure to tlus scene would lead to further detenoratiOn of a very volatile mCldent. B Parent agreed and Mr LItster and Mr Thomas were allowed to clear The call was downgraded to a lesser pnonty, dIspatcher L Rutgers called the apartment and notIfied the someone there that another ambulance would respond to the scene as soon as one became available and to notIfy CACC munedIately upon any change m the patIent's condItIon. I then called L. AmIm and gave hIm a report on the mCldent. I felt a stress counsellor should be appnsed of the SItuatiOn and possiblv could mtervene Mr Amlm felt that Mr LItster would refuse the effort, As Mr Lltster IS of!, for the weekend, the SItuatIon IS stable for now But I feel Mr Lltster needs further mterventiOn regardmg hIS aggressIve hostilItIes As youhare qrnte familIar WIth details oflus emplovrnent lustorv, could you adVIse me on any further actiOns Mr Robert asked Mr Parent to obtam mCldent reports from the crew and then Said Regardless of the tune of day and the CIrcumstances surroundmg tlus call, the language , apparently used has no place here! "-~ - 19 Please determme If the exchange took place as reported and recommend your actIOn to me Please contact me as soon as you have compiled the mformatIOn. When Mr Robert dId not hear anythmg further from Mr Parent, he followed up by requestmg an InvestIgatIOn Officer from the Mimstry to make further mqumes Mr Robert Said that complamts are fairly common, even a weekly occurrence, but that not all complamts reqUIre outsIde mvestlgatIOn. The standard practIce IS to obtam reports from the vanous crews, reVIew the documentatIOn and determme whether any further mvestlgatIOn IS needed Mr Robert consIdered thIS mCldent to be senous because patIent care was mvolved It appeared to hIm to be a refusal of servIce and therefore deservmg of dlsclplme The gnevor's conduct towards the VON nurse was also unacceptable Mr Robert referred to the Code of Conduct for Employees of the Emergency Health ServIces Branch. The preface states clearly that a VIOlatIOn of the standards of the Code mIght result m dIscIplInary actIOn, The overall expectatIon, as set out m the Code, IS that employees will hve up to the hIghest standards of conduct m theIr relatIOns WIth theIr co-workers, the Mimstry, persons WIth whom they conduct busmess and/or provIde care and the pubhc m general. They are reqUIred to act courteously and ImpartIally m the dIscharge of theIr dutIes and cannot refuse or neglect to proVIde servIces that are part of the normal performance of theIr dutIes or bnng the employer mto dIsrepute by engagmg m actIvItIes prohibIted by the Code As well, the BASIC LIFE SUPPORT PATIENT CARE STANDARDS manual contams a sectIon \ <- on the general standard of care expected of an ambulance attendant. Under the headmg ofPatlent 20 CommurucatIOn, attendants are requIred to treat the patlents and others at the scene wIth respect and courtesy, to exerCIse tact and dIplomacy and to aVOId Judgmental comments m front of a patIent or bystander such as "he's fakIng", "she's lymg", or "he's drunk." Under the headmg of PatIent Assessment, ambulance attendants are to, regardless of the pnonty code, assume the eXistence of senous potentIally 1lle-, limb- or functIOn-threaterung condItIOn until assessment mdlcates otherwIse Finally, for each call, an ambulance attendant IS to fill out an ACR m accordance wIth the procedures m the Ambulance Call Report manual wruch reqUIres that an ACR be completed on all cancelled calls where the crew amves at the scene and patIent contact occurs and where a patIent refuses care and transport or If there IS an unusual or noteworthy occurrence on route to the scene or at the scene The second mCldent, of course, IS the one at Co Co Pavmg. Mr Robert had heard from fellow employees that there ffilght have been somethmg wrong wIth the gnevor's treatment of the patIent. At that stage It was SImply a rumour and Mr Robert asked Mr Thenault for an mCldent report He was unable to contact the gnevor at that tIme but ultlmately had the conversatIon WIth hIm referred to earher After the gnevor completed hIS ShIft that day, he reported to the office to obtam a copy of the ACR. At the tlme Mr Robert was speakIng wIth Mr AmlIn and the ACR was on rus desk. He offered to make a copy and while he was domg that the gnevor asked to see Dr North's wntten complamt. Mr Robert told rum there had been no wntten complamt and he that he had SImply heard that there was a problem. The gnevor Said he should not have to wnte an mCldent report based on rumours and should only have to complete one based on a wntten complamt. Mr Robert repeated rus need for a report and the gnevor became very agItated. He accused Mr Robert of "haVIng It out for rum", told rum to "fuck off" a couple oftlmes and left by saymg that he would contact Dr North \ - - 21 rumself UltlInately the gnevor dId complete an mCldent report wruch, as was stated earher, began by aCCUSIng Mr Robert of havmg hed to rum. In Mr Robert's VIew the IncIdent report Itself amounted to msubordmatIOn. The tone of the report was less than professIonal and was, m fact, Inflammatory Mr Robert turned the matter over to the mvestIgatIve branch of the Mimstry although he could not remember the dates he made the referrals On February 24, 1997 Mr AmlIn wrote a memo to Mr Robert confirmIng the fact that the gnevor had sworn at rum tWIce and stormed out of the office On February 25, 1997, Mr Robert filled out a Culmmatmg Incldent/RecommendatIOn Report whIch he forwarded to Mr McEwen, the RegIOnal Manager That memo began by settmg out the background of the complamts m Issue and stated, m part, as follows At approx. 16 15 - 16.30 hours Mr Lltster came to the office at 1427 Oulette Ave and requested a copy of the ACR for the call ill questlon. At thIS pomt Mr LItster asked me about the ongmator of the complamt and asked to see the complamt. I explamed to hnn that there was no wntten complamt and I heard there was a potential problem WIth the call, I further explamed to hun that I was mvestlgatmg thiS as a result of mv knowledge of tlus possible problem. Mr Lltster became very upset at tlus pomt and made an accusatIOn that the nurse at Hotel D1eu/Grace Hospltal (HDH) E.R. had precIpltated the complamt and that she IS always tryIng to cause problems. He also accused me of purSUIng a personal vendetta agamst hun. TIns was all done ill a very loud abUSIve threaterung tone WIth sweanng throughout. Mr LItster then stated that he was gOIng to speak to Dr North (the HDH neurosurgeon) and see If she had a problem WIth the care of the patIent. Mr Lltster eXited Wlth the final threatemng gesture of an eA1:ended ann pomtIng at me savmg "FUCK YOU ROBERT" ThIS exchange was WItnessed by Mr L Amhn who was present at the tune and was completIng lus own report on the matter Mr Lltster was recently fonnally repnmanded for the same type of behavIOur In fact, It seems to be well known throughout the ranks that Mr Lltster IS known to mtnrudate fellow \ emplovees to get lus way I find that Mr Lltster's behaVIOur lS becomIng very erratIC and 22 unmanageable ThIs IS becommg dIsruptIve to the servIce and I have concerns for the safety for fellow employees and allIed agencIes My recommendatIon IS that Mr LItster be unmedlately removed from the work place so that he may be assessed WIth regard to lus erratIC behavIOur Should the assessment reveal no prognOSIS of SIgmficant lffiprovement, Mr LItster should not be allowed to return to the work place due t~ lus unsUItabihty to the Job The preVIous mCldent referred to m Mr Robert's memo was the July mCldent concernmg the Improper parkmg of the gnevor's car m the ambulance dnveway Although the mCldent happened m July the gnevor was off sIck and they were unable to gIve rum the formal dIscIplIne until he returned to work m November Mr Robert agreed that he and the gnevor have an uneasy truce between them and, although they have played baseball and hockey together, they have never been fnends He also agreed that the gnevor was an mtense man and a hard worker He was less prepared to concede that he had had no reason to questIOn rus dealings With patIents because he could not recall the gnevor's personnel file Mr Robert dId agree that the recommendatIOns m rus Culffilnatmg IncIdent memo dealt entIrely wIth the mCldent on February 21, 1997 He was aware that Mr Margetts had conducted an mvestlgatIOn mto both mCldents and that Mr Margetts had not mtervlewed the gnevor personally He concurred that he would have wanted to tell rus SIde of the story If It were rum. Mr Robert described the gnevor as rude and msubordmate on February 21, 1997 When asked If he thought the gnevor meant to challenge hIS authonty, Mr Robert replIed "not m my ffilnd" 23 Mr Robert sald that he doubted Mr Thenault's statement that he was told that Dr North was angry at the gnevor because Mr Robert had not spoken wIth her He suggested that he ffilght have sald that he thought the doctor was angry wIth the gnevor On March 5, 1997, Mr Larry Amlm, under the dIrectIOn ofMr Robert, sent a memo to the gnevor statmg that, effectIve that date, he was suspended wIth pay from rus dutIes as a paramedIc pendmg the results of an ongomg mvestlgatIOn. On March 7, 1997, Mr Doug Arbour, AssIstant RegIOnal Manager of the Southwest RegIOn, wrote to the gnevor advlsmg hIm that he was bemg suspended wIth pay effectIve March 6, 1997 The letter adVIsed hIm that the mvestlgatIOn mvolved but was not Ilffilted to the mCldent ofJanuary 24, 1997 and, as soon as the mvestlgatIOn was completed, he would be adVIsed of the results On March 25, he was adVIsed by Mr Brand, DIrector of the Emergency Health SefVlces Branch, that the mvestlgatlon mto the CIrcumstances leadmg to the suspensIOn would not be concluded wlthm the 20-day penod of suspenSIOn and, accordmgly, the suspenSIOn was extended for an addltlonal 20-day penod. By memo dated April 10, 1997, the gnevor was adVIsed that he was to attend a pre-dlsclplmary meetmg on Monday, Apnl14, 1997, to dISCUSS the January 24, 1997 mCldent and any other mCldents that ffilght be raised. The memo sald that he could be represented by an Uruon representatIve If he deSIred and that the eVIdence presented at the meetmg mIght be the baSIS for dlsclplmary actIOn up to and mcludmg dIsmIssal. On April 13, 1997 that suspensIon WIth pay was extended for an addItIOnal ten days From 1995 to 1997 Mr McEwen was the RegIOnal DIrector of Southwestern Ontano, wruch mcluded Windsor He had dIrect responsiblhty to the government for ambulance servIces As \--.., 24 RegIOnal DIrector he was mvolved m deCISIOns to dlsclplme and suspend employees, although dIscharge was dealt With exclusIvely by the Branch DIrector He had attended the July 1996 pre- dlsclphnary gnevance meetmg wIth the gnevor concermng the Improper parkIng of rus car The conclusIOn at that tIme was that hIS behavIOur was unsatIsfactory and mappropnate and a letter of warnIng was placed on rus file Mr McEwen also felt at the tIme that If the gnevor requIred counsellIng, they would provIde whatever aSSIstance was necessary He became aware of the two 1997 mCldents through a phone call from the Drrector Although he was contacted separately about them, they were both presented to hIm very closely together m tlme He contacted the InspectIOn and InvestIgatIon Branch to mstltute an mqUIry mto the first mCldent When he was adVIsed of the second mCldent he asked them to expand theIr mvestlgatIOn to mclude It. An April 16, 1997 report was prepared by Mr McEwen on the pre-dlsclplmary meetmg of April 14, 1997 In consldenng the January 24, 1997 mCldent, the sectIOn of the memo entItled "Assessment of InformatIOn" stated the followmg. Consldenng the content of the mvestlgator's report and the mformatIOn proVIded by Mr Lltster I conclude the folloWIng' - Mr Lltster dId act m an unprofessIOnal and mtlmHiatmg manner toward the RPN and the chspatcher mvolved m the call, - Mr Lltster failed to proVIde the requested servIce to the patIent, contrary to the Ambulance Act. - Mr Lltster's assertIOn that management's failure to respond to the scene caused the problem IS not supportable as the eVIdence mdlcates that the problem was created by hIS actIOns alone - Mr Lltster had worked a bus\- shift and was probably tIred, however, he was on duty and \.....), there was no responsible reason for not talong the patient to the hOSpItal. Havmg determmed 25 that the patlent was not suffenng chest pam or other carillac- related symptoms, Mr LItster could have SlInply asSISted the patIent to the ambulance and transported her to the hOSpItal. He chose to challenge the proVIsIon of thIS requested servIce - The RPN told Mr Lltster to leave when It was apparent to her that servIce was not bemg proVIded to the patIent and that Mr LItster's attItude and demeanour were not helpful to the patIent. . In assessmg the mCldent of February 21, 1997 the report stated - ConsIdenng the content of the mvestIgator's report, management statement and the mformatIOn proVIded by Mr LItster, I conclude that: - Management had a concern over the servIce provIded on the call. - Management was not unreasonable m requestmg an mCldent report be completed. - Mr Lltster challenged the management's rIght to request an mCIdent report. - Mr LItster dIsplayed aggressIve and msubordmate behavIOur m respondmg to management request. The memo concluded that Mr Lltster had behaved m an msubordmate manner toward management on February 21, 1997 and that he dId not prOVIde servIce, was aggressIve and unprofeSSIOnal m response to the call of January 24, 1997 The memo also concluded that dIsclplmary actIon was warranted and that a file reVIew would be reqUIred to determme the appropnate dlsclplme Based on the mvestlgator's report, Mr Robert's memo and hIS own expenence, the conclusIOn was reached that there were ongomg problems With the gnevor and that, despIte the efforts that had been made by management to amehorate the SItuatIOn, there had been no Improvement. It was theIr behef that dlsclplme would not be useful as a correctlve tool and that there was httle prospect of Improvement m the future On the baSIS of those conclUSIOns, Mr McEwen detefffilned that dIscharge was the appropnate penalty He forwarded a copy of hIS pre-dlsclphnary report to the \J DIrector, mcludmg rus recommendatIOn that the gnevor be dIscharged. He then had a short 26 dIScUSSIon With Mr Brand to dIscuss alternatIves to dIsmIssal UltImately, the DIrector Issued the letter of tefffilnatIOn referred to earher The InVestIgatIOn referred to throughout these proceedmgs IS the one conducted by Mr Dave Margetts who, It has been explamed, IS an mvestlgator With the Mimstry of Health, Emergency Health SefVlces InvestIgatIOn and LICenSIng ServIce His responsiblhtles mclude mvestlgatmg operatIOnal problems and complamts mvolvmg ambulance servIces lIcensed under The Ambulance Act. According to rus report the mvestlgatIOn mto the January 24, 1997 mCldent was assIgned to hIm on March 3, 1997 and completed on April 4, 1997 The mCldent that occurred on February 21, 1997 was assIgned to rum on March 5, 1997 and completed on Apnl2, 1997 Both of those mvestlgatIOns resulted m a lengthy wntten mvestlgatIve report. The reports begm wIth an executIve summary conslstmg of an mtroductIOn to the reasons for the mvestlgatlon, the Issues, the background, the summary, the findings and the conclusIOns. The report IS based, for the most part, on mtervlews WIth Ms. Shauber, Mr Thomas, Mr Thenault, Ms Shauber's case manager, Mr Parent, Mr Amlm and Mr Robert as well as the master loggmg tapes, the medIcal mformatIOn, and legIslatIve and polIcy mformatIOn. From those flowed a lengthy hst of findmgs and conclusIOns The report was gIven to Mr Jim VanPelt, Manager of the InvestIgatIOn and Llcensmg SefVlce, who adVIsed Mr Margetts that he dId not need to mclude the gnevor's verSIon of eIther mCldent. I do not mtend to refer the contents of eIther report smce they would be, m essence, a repetItIOn of the eVIdence before me There are some aspects of the mvestlgatlve report, however, that are sIgmficant. The first IS that the I gnevor was never mtervlewed for eIther of these reports Findmgs were made about the gnevor's \.J 27 culpability Without any mput from hIm. The gnevor has never derued hIS mappropnate conduct and so, to some extent, rus eVIdence would only have confirmed what Mr Margetts learned from other sources. Nevertheless, the failure to mtefVlew rum suggests that the decIsIOn to dlsclplme the gnevor was based on an mcomplete and arguably biased descnptIOn of the events Whether that was done on hIS supervIsor's mstructIOns or on rus own lrutlatlve, Mr Margetts failure to do so renders rus report ofhmlted value to thIS Board. In addItIOn, mtervlews were held wIth other employees not mvolved m the two mCldents under mvestlgatIOn. According to the report, those WItnesses described SItuatIOns mvolvmg the gnevor m wruch It IS alleged he was rude, abUSIve, unco-operatlve etc None of those wItnesses gave eVIdence at the heanng about the gnevor No doubt one of the reasons they were not called was because, notWIthstanding the long hst of examples set out m the report, the gnevor was never formally adVIsed that hIS conduct was unacceptable and no complamts were formally filed by rus co-workers or supefVlsors about rus behaVIOur towards them or others I cannot accept the results of the report as subffiltted. The other sIgmficant aspect of the report IS ItS tlmmg, Mr Margetts' notatIon on both the mvestlgatlve report and summary mdlcate that these matters were referred to hIm m March of 1997 It would appear that between January 24, 1997 and February 21, 1997 there was no actIve mvestlgatlon concernmg the gnevor's actIons The reason that thIS takes on sIgmficance will be dIscussed later m the decIsIon. t \.... 28 ARGUMENT Mr Strang, counsel for the Employer, reffilnded the Board that the letter oftermmatIOn referred to the gnevor's refusal to transport a patIent, mappropnate conduct towards the RPN and msubordmatIOn. The failure to transport a patIent IS a vIOlatIOn of the Ambulance Act and Its regulatIOns, a vIOlatIOn of the pohcles and procedures of the ambulance servIce and deservmg m and of Itself of dlsclplme, The gnevor did not fill out an ACR as reqUIred, the patIent was not transported to the hospItal, the gnevor's conduct was mappropnate throughout that call Add to those mfractIOns the fact that he was msubordmate to hIS supervIsor Although he dId ultImately complete the mCldent report, that report was, m and of Itself, mappropnate and msubordmate The Mimstry took the pOSItIOn that one of the features of thIS case IS that the gnevor uses rus own ffilsconduct to Justlly further ffilsconduct. Even though he agreed that the Employer was entItled to ask for an mCldent report whether there had been a complamt or not, he showed a complete lack of contntIOn for havmg made an Issue of that request The Co Co Pavmg mCldent was senous The gnevor made a Judgment call about whether to put a cervIcal collar on an mJured worker The Employer was entItled to reVIew whether the gnevor's Judgment was correct m the CIrcumstances To do that It was entltled to ask for a wntten mCldent report, The dIfficulty arose not over whether the gnevor had exercIsed good Judgment dunng the call but over the mCldent report ItSelf. With respect to the January 24, 1997, mCldent Mr Strang noted that several trungs were not m dIspute For example, the gnevor's actIons towards the RPN were mappropnate He dId not ( \.,~ 29 transport the patIent and he made It clear to the dIspatcher that he had no mtentIOn of domg so When he was pressed, he liffilted rus call to a "first response" He made a unprofessIonal assessment about the patIent's medIcal state Without examlmng her He decIded not to transport her and made no attempt to per>suade her to go to the hospItal or, m the alternatIve, to fill out the appropnate Walver form. Finally, he left Without transportmg the patIent. His suggestlon that the fact the patIent refused to go to the hospItal JustIfied rus actIOns IS an mdlcatIOn of rus lack of candour and remorse It was the Employer's posltlon that It would be absolutely Impossible to return hIm to the servIce Trus case concerns patIent abuse The patIent was elderly and confused and the gnevor entered her apartment speakIng m a loud VOIce and refusmg to take her m hIS ambulance His Job as a paramedIc was to persuade her to get treatment The RPN was the only professIOnal person m the room who was m a pOSItIOn to decIde whether she needed treatment. It was not up to the gnevor to do make that deCISIon, He was asked to carry out a routme functIon, that IS fill out an mCldent report His reactIOns mdlcate hIS failure to accept management's legItImate authonty The Issue IS whether trus conduct warrants dIscharge Mr McEwen Said that refusal to transport a patIent was grounds for disffilssal. The heart and sole of the ambulance servIce IS to respond to calls and transport patIents. The gnevor breached that responsibihty The underlymg feature of trus case IS the notIon of msubordmatIOn and that tIes the two mCldents together The ambulance servIce has a restnctlve functIon. It IS not mvolved m dlagnosmg whether people need to be transported to a ( \- hospItal. The essentIal element of ItS operatIon IS to provIde that transportatIon. The gnevor 30 breached those rules He sImply Ignored rus responsibihty and blatantly told rus Employer that he would not fulfil rus obhgatIOns Mr Strang suggested that where there are Issues of credibility, the gnevor has shown rumselfto be less than candId "Although he acknowledged that rus conduct was mappropnate, he convemently forgot or dId not recall some aspects of the mCldent. For example, rus recollectIOn of what he sald to the RPN IS at odds WIth her verSIon of the event. At vanous tlmes throughout hIS eVIdence hIS story differed ill matenal ways from those of other wItnesses Mr Strang submItted that where there was a dIfference, the gnevor's eVIdence should be weIghed agamst those mconslstencles In support of ItS pOSItIon It referred the Board to Re Kennedy Lodge Nursing Home and ServIce Employees International UOlon, Local 204 (1991), 18 L A.C (4th) 38 (E N DaVIS), Re Mercury Builder's Supplies and Teamsters Union, Local 879 (1990), 18 L A.C (4th) 168 (McKechrue), Re MiOlstry of Health and OPSEU (Lamb) (January 26, 1984), GSB # 503/83 (DelIsle) and Re Ministry of Health ( Thames Valley Ambulance Services) and OPSEU (MacMillan) (January 13, 1995), GSB # 967/93 (Dlssanayake) Ms. Kuntz, for the Uruon, took the pOSItIOn that there were two elements to the first mCldent, the first concerrung the gnevor' s mappropnate conduct, the second bemg hIS alleged failure to transport the patIent With respect to the first element, there has never been a derual from the gnevor that rus conduct was mappropnate and unprofessIOnal. If he had It to do over, he would not act m a smlilar fasruon. With respect to the second element, that IS the failure to transport the patIent, the facts are \- 31 less clear The patIent was transported to the hospItal, as reqUIred The gnevor made It clear from the onset of the call that he could not complete the transfer No Issue was made of that at the tIme In fact, It was not until March that the gnevor became aware of the Employer's concerns about that call. Mr Thomas only receIved a three day suspenSIon and that was for not completmg a refusal of care Waiver, not for failmg to transport the patIent. No ACR was ever filed by the gnevor, nor was one asked for More sIgmficantly, no mCIdent report was requested from any of the ambulance attendants mvolved m the call. It must be concluded that the mCIdent Itself was not deservmg of dIscIplme smce none of the usual steps were taken to mvestIgate the mCIdent at the tIme The Employer has suggested that the gnevor has been less than truthful about the details of the ~:. mCIdent. That IS easily explamed when one reahzes that he had no reason to remember the event. Ms. Shauber was asked to wnte down the details and had reason to concentrate on them so as to gIve a full recountmg of the gnevor's conduct. The gnevor has no such warnmg that lus memory of the event would be tested several months later Then came the February mCIdent The gnevor was asked to fill out an mCIdent report for the February 17 call to CoCo Pavmg. It was hIS understandmg, from Mr Robert's dIScussIon, that Dr North had formally complamed about hIS handlmg of that call. The transcnpt of the telephone conversatIOn mdIcates clearly that the gnevor dId not questIon the Employer's nght to ask for an mCIdent report and mtended to comply WIth that request promptly It was only after he made further mqumes about the actual complamt that he became angry Even though he was angry, he never f \. refused to complete the mCIdent report. NotwIthstandmg the Employer's ObjectIOn to the content - 32 of the report, It was nevertheless completed as requested. It cannot be said he was msubordmate because he refused to follow a dIrect order Both he and Mr Thenault handed m the completed mCIdent reports on the same day and there has been no Issue about the tImmg of them. What happened was sImply a heated exchange between an employee and hIS supervIsor after hours while the gnevor was complymg wIth a request from lus supervIsor A heated request m whIch the gnevor swore at hIs supervIsor then left to do what he was asked to do It was subnutted by the Umon that tlus mCIdent cannot JUStIfy the dIsmIssal of the gnevor The gnevor reacted angnly to what he thought was a he about hIS competence as a paramedIc It was not a challenge to Mr Robert's authonty but rather to hIS methods It asked that the gnevor be remstated wIth full compensatIon for all lost wages, semorty and benefits In support of ItS pOSItIOn, It referred the Board to Re Southern Railway of British Columbia and Independent Canadian Transit UnIon, Local 7 (1996), 60 LAC (4th) 10 (W Moore), Re Newmount Mines Ltd. And Canadian Association of Industrial, Mechanical and Allied Workers, Local 22 (1982),3 L.AC (3d) 396 (R. Brown), Re Standard Tube Canada and United Steelworkers of America, Local 9047 (1996),56 L AC (4th)128 (Chapman), Re Phillips Cables Ltd and C.W c., Local 510 (1987), 31 LAC (3d) 240 (LIttle) and Re Cambridge Memorial Hospital and Service Employees InternatIOnal Union, Local 204 (1996), 59 LAC (4th) 194 (B rent) t 33 DECISION The Employer m thIS case has charactenzed the gnevor's conduct on February 21, 1998 as a culmmatmg mCIdent, the theory of whIch holds that, where an employee has engaged m an act of nusconduct deservmg of dIscIplme, an employer may conSIder the employee's employment record m deterrrumng the appropnate penalty In consIdenng dIscIphne and dIscharge gnevances the first questIOn to be answered IS whether the gnevor has given the employer just cause to dIscIplme rfthe answer IS m the affirmatIve, the next questIon IS whether the penalty meted out by the employer IS reasonable m the CIrcumstances. If not, the final questIon of a Board of ArbItratIOn IS what alternatIve measure should be substItuted as an appropnate penalty The first Issue then to be deterrruned IS whether the gnevor's conduct on February 21, 1997 was deservmg of dIscIphne The grounds for the gnevor's dIscharge as set out m the letter of May 2, 1997 are profeSSIOnal mIsconduct, Improper workplace behavIOur, refusal to transport a patIent, mappropnate and dIscourteous conduct, refusal to complete an mCIdent report and msubordmatIOn. The elements of the claSSIC defimtIOn of msubordmatIOn mclude a clear order whIch IS understood by the employee, gIven by a person m authonty and whIch IS dIsobeyed. That form of msubordmatIOn has been described as "one of the most senous mdustnal offences" because It "strikes at the heart of an employer's perogatIves the nght to manage" (Re Southern Railway (supra) In the mstant case, there IS no eVIdence before me that the gnevor refused to follow the order of lus f ~ When asked, he responded promptly to Mr Robert's request. The telephone supervIsor - 34 conversatIOn between them mdIcates the gnevor's mtentIOn to comply Dunng lus altercatIOn wIth Mr Robert, he never SaId he would not complete the mCIdent report. Indeed, by the tIme the mCIdent was referred to Mr Margetts for mvestIgatIOn, the report had been completed and dehvered to Mr Robert. Therefore the allegatIOn that he refused to complete the mCIdent report has not been borne out by the eVIdence It therefore cannot be said that the gnevor acted m an msubordmate manner by refusmg to comply wIth an order The concept of msubordinatIOn has evolved, however, to mclude more than Just a refusal to obey an order, such as mappropnate conduct by employees m theIr deahngs wIth theIr employer In those cases the defimtIon of msubordmatIOn has been expanded to mclude msolent, unco-operatIve behaVIour, obscene language and sImilar unacceptable behavIOur It was stated m the Re Southern Railway case, at page 18, as follows There appears to be a general agreement that conduct such as teanng up a wnrten warmng presented by a supervIsor, plcketmg or composmg and dlstributmg leaflets whIch are defamatory or cntIcal of the employer, or dIrectmg language that It (SIC), or msolent towards and contemptuous of members of management will amount to msubordmatIOn where such behaVIOur mvolves a resistance to or defiance ofthe employer's authonty From tlus It has been suggested that If the obscene and abUSive outbursts are the result of a momentary flare- up of temper and, therefore do not challenge the employer's authonty, the ImpOSitIOn of diSCiplInarY sanctJ.ons would not be Justified. In the words of one arbitrator, profaruty m the workplace IS not, m Itself, grounds for dIsclplme Furthermore, m determmmg whether the quality of the gnevor's remarks can be charactenzed as msolent and defiant behaVIOur, regard may be had to the nature of the busmess and the common language and mode of expreSSIOn utilized and tolerated (condoned) m the plant. Assummg that the language can be charactenzed as disruptIve, or can be Viewed as msultmg and/or msolent and contemptous of management, It appears from the awards that, some mmor dlsclplmary sanctIOn, whereas If the language was accomplarued by a refusal to work, threats, an assault on a supervIsor, or constItuted sexual harrassment, more severe diSCiplinary sanctIOns, mcludmg dIscharge, may be JustIfied. While the gnevor complied WIth the order to complete an mCIdent report, It IS clear that he took great exceptIOn to the manner m WhICh the request was made The questIon IS whether the gnevor's 35 conduct and method of expressmg hIS dIsagreement wIth the order amounts to msubordmatIOn and IS deservmg of dIscIplme Before consIdenng the details of the mCIdent, I must comment on the ObVIOUS tensIOn between the gnevor and Mr Robert. TheIr relatIOnshIp IS clearly troubled. Mr Robert's Culmmatmg IncIdent Report IS proof of that. In It he stated Mr Lltster' was recently formally repnmanded for the same type of behavIOur In fact, It seems to be well known throughout the ranks that Mr LItster IS known to mtmudate fellow employees to get hiS way I find that Mr Lltster's behaVIour IS beconung very erratIc and unmanageable Thts IS becomIng dIsruptIve to the serylce and I have concerns for the safety for fellow employees and allied agencIes My recommendatIOn IS that Mr Lltster be ImmedIately removed from the work place so that he may be assessed WIth regard to hIS erratIc behaViOur Should the assessment reveal no prognOSIS of slgruficant Improvement, Mr Lltster should not be allowed to return to the work place due to hIS unSUitability to the job Those are very strong words wluch recommend senous consequences and whIch appear to be out of proportIOn to the events gIvmg nse to them. At the tIme Mr Robert wrote that memo, the only dISCIpline on the gnevor's file was the repnmand for mappropnate behavIOur when he was asked to move hIS car off the ambulance dnveway And yet Mr Robert accused the gnevor of mtlmIdatmg hIS co-workers, bemg erratIc, unmanageable and dIsruptIve to the servIce and such a danger to lus co-workers that he should be Immediately removed from the workplace There IS no eVIdence before me as to why Mr Robert came to those conclUSIOns about the gnevor His report does not refer to the mCIdent of January 24, 1997 and hIS comments seem to be based only on the two mCIdents referred to m the report. The only explanatIOn for Mr Robert's extreme pOSItIOn must be the result of longstandmg problems m theIr relatIonshIp whIch dId not make theIr way mto lus work record. The gnevor's reactIOn to Mr Robert's comments about Dr North were more than one would have expected m the CIrcumstances as well, except for theIr troubled hIStOry Based on my readmg of the I. 36 telephone conversatIon between the gnevor and Mr Robert, It was not unreasonable for the gnevor to conclude that Mr Robert had been told by someone that Dr North was unhappy about the care gIven to her patIent on February 17, 1997 While I appreCIate that Mr Robert never actually said that she herself had complamed, nevertheless he dId mtImate that there had been a complamt about the gnevor's handling of that call from Dr North. I do not thmk It was unreasonable for the gnevor to ask about that complaint before he filled out lus mCIdent report. The gnevor's eVIdence was that, when challenged about the lack of a formal complamt, Mr Robert stated he was entItled to ask for an mCIdent report when one of hIS employees had been neghgent Mr Robert demes havmg made that statement but I accept the gnevor's verSIon of that conversatIOn. In the first place, the gnevor was much more adamant Mr Robert had used the word "neghgent" than Mr Robert was that he had not. In additIOn, the gnevor's eVIdence was that he would never forget Mr Robert's words and, m the cIrcumstances, has a much clearer recollectIOn of the words actually used dunng tlus exchange GIven that scenano, and theIr relatIonshIp, It IS not surpnsmg that the gnevor lost hIS temper, threw some profamtIes at Mr Robert, and left. Was that msubordmate conduct? In the cIrcumstances, I would say not. The gnevor dId lose hIS temper and swore at hIS supervIsor but, he dId not do It m front of other employees, he dId not mtend to challenge lus supervIsor's authonty m front of other employees and, m fact, he never suggested he mtended to defy lus supervIsor's authonty personally He lost hIs temper dunng an argument WIth hIS supervIsor about the methods he had used to request an mCIdent report. While not msubordmate, hIS actIons were, however, clearly mappropnate No matter what the CIrcumstances, employees cannot tell theIr supervIsors to "fuck off" whenever they object to the form or substance of an order As stated m the Re Southern case (supra), that type \., 37 of language can be dIsruptIve, msolent, msultmg and even contemptuous of management and IS therefore deservmg of some mInor dIscIplinary sanctIOn. However, lus actIOns were no more exceSSIve than Mr Robert's recommendatIOns m the Culmmatmg IncIdent Report of February 25, 1997 It should be remembered that, at the trrne that report was prepared by Mr Robert, he had not yet receIved the grievor's mCIdent report callmg hIm a har The only mCIdents Mr Robert referred to m that report were the February 21, 1997 argument and the prevIOUS wntten warnIng about the parkIng IncIdent. There can be no questIOn, however, that the mCIdent report completed by the gnevor was msubordmatIOn. In It he expressly called lus supervIsor a har That wntten accusatIOn was msultIng, msolent and contemptuous of management and deservmg of dIscIplme The reasons for the dIsmIssal are not hnuted to those two mCIdents They mclude conduct of the gnevor dunng the mCIdent of January 24, 1997 whIch are, m my vIew, more senous breaches of hIS dutIes as an ambulance attendant. There can be no questIOn that the gnevor's conduct that evemng fell far short of what one would expect from someone wIth hIS expenence Settmg aSIde any conSIderatIOns of hIs employment responsibihtes, he was rude and InsultIng to a patIent who was m need of comfort and understanding. Even lithe gnevor was nght and she was not an emergency, and, even more, did not want to go to the hospItal, It was not up to hIm to determme whether she needed to be transported and on what baSIS Whatever lus personal or professIonal VIews, he was emphatIcally and uncondItIOnally wrong m the way he treated the patIent and the RPN dunng that call. At the heanng, while he acknowleged that he acted Improperly dunng that call, I dId not hear \~ . 38 hIm express any real remorse for the patIent or the nurse. His acknowledgement was more m the way of a begrudgmg acceptance of the cntIcIsm of others than a heartfelt reahzatIOn that he was rude and even abusIve to others He must be made to understand that conduct will not be tolerated and, for that reason, IS deservmg of dIscIphne Havmg deterrnIned that ills conduct was mappropnate and deservmg of dIscIplme, the Issue becomes what dIscIphne would be appropnate m the CIrcumstances The Employer's decIsIon to termmate lus employment was based, m part, on ItS conclusions that the gnevor refused to transport a patIent and acted m an mappropnate and dIscourteous manner towards the RPN It charactenzed that behaVIour as professIOnal mIsconduct. I thmk there can be no questIon that a refusal to transport a patIent, m most CIrcumstances, would be professIonal mIsconduct. As Employer counsel stated, that IS the pnmary purpose of the servIce However, m tills case, there are, m my VIew, nutIgatmg factors m the gnevor's favour In the first mstance, he clearly stated at the onset that he dId not mtend to complete the call. He was only gomg as a "first response" Once he arrIved at the scene he repeated hIs clear mtentIOn not to transport the patIent to the hospItal At no pomt m hIS conversatIons WIth the dispatch was he told he had no alternatIve but to do hIS Job He was even encouraged to belIeve that the only reason that dIspatch dId not relIeve hIm was because no other cars were available Indeed, It was not until the letter of suspenSIon that the gnevor reahzed that there was a problem wIth that call to RIverSIde Dnve. There IS sImply no eVIdence before me that the Employer had concerns about the January 24, 1997 call until March of 1997 when It was referred to Mr Margetts In fact, the mescapable conclUSIOn IS that, only after the February 21, 1997, mCIdent between the gnevor and Mr Robert, dId the earlIer mCIdent warrant mvestIgatIOn. NotwIthstandmg the ObVIously \..... . . . 39 Inappropnate and even msubordmate behaVIour of the gnevor no member of management Said anythIng to lum about lus conduct or suggested to hIm that hIS actIons were obJectIonable until after Mr Robert wrote hIs Culnunatmg IncIdent Report. Mr McEwen could not remember when he actually asked for the mvestIgatIOn but conceded that the two requests were very close together m tIme. Mr Margetts notes mdicate that these matters were referred to hIm early m March, wItlun days of each other The mescapable conclusIOn IS that the InVestIgatIOn of the earlIer mCIdent was precIpItated by the latter mCIdent and not necessarily because It was ongmally deemed worthy of dIscIplIne on ItS own ments by Mr Robert. The gnevor did not abandon the patIent. He waited until he was assured that another ambulance was respondmg to the call. If he had sImply left the patIent WIthout alternatIve transportatIOn, more severe consequences would be appropnate Nevertheless, hIS actIOns cannot be condoned. His conduct towards the patIent and Ms Shauber were unacceptable What then IS the appropnate penalty m tlus case? The gnevor has been employed as an ambulance attendant for more than twenty years, eleven years WIth thIS Employer and nme years WIth Sun Parlour ambulance servIce Although there was eVIdence before me of two prevIOus questIons of patIent care mvolvmg the gnevor, I am satIsfied that neIther of them were consIdered blameworthy smce no dIscIplme resulted. The only dIscIplme on the gnevor's file IS the wntten wanung of June 25, 1996 concenung a SImilar mCIdent of mappropnate language towards a supervIsor That IS not exactly the record one would expect to see after readmg Mr Robert's Culmmatmg IncIdent Report. r ~. If there have been other mCIdents of mappropnate, rude or abusIve language to a patIent or a . r 40 supervIsor, they were never made part of the gnevor's record or these proceedmgs What I have before me IS the case of a twenty year employee wIth a relatIvely clean record who, on two occaSIOns m early 1997 acted m an mappropnate, abusIve and unprofessIOnal manner towards hIS patIent, a nurse and hIs supervIsor The gnevor was off work for an extended penod m 1996 because of stress. Although the reasons for lus absence were never actually gIven a name, he testIfied that he was haVIng dIfficulty copmg WIth several aspects of the Job, mcludmg the present state of the health care system m Ontano There was agreement from Mr Robert that he was "tIghtly wound" and that was eVIdent from lus demeanour as he gave hIs eVIdence F or example, when he was explaInmg why he could not take the call on Jnuary 24, 1997, he stated emphatIcally that he "had to get home" He never elaborated on why he had to get home but stated It as a fact that reqUIred no explanatIOn. I belIeve he IS not an easy person to work WIth or supervIse because he IS ngId m hIS VIews and, m my VIew, unwIlhng or unable to bend I also belIeve, based on the transcnpts of telephone conversatIOns between dIspatch and the gnevor and dIspatch and other employees, that there has developed a fearful and/or begrudgmg acceptance of the gnevor's behavIOur that has allowed lum to beheve that hIS conduct IS, at the least, acceptable and at the most, tolerated. Based on the above, dIscharge was not the appropnate penalty m the CIrcumstances. The gnevor has had twenty years of serVIce WIth only a wntten warrung on hIs record. There IS SImply no JustIficatIon for the Employer's deCISIOn to Ignore the theones of progressIve dISCIplIne and leap to dIscharge m the mstant case. Mr Robert stated In lus Culmmatmg InCIdent Record that the gnevor was beconung more erratIC and unmanageable and that he had concerns for the safety of other employees and \.. ~ t 41 agencIes. There was no eVIdence before me that would suggest those concerns were reasonable Mr Thomas, Mr Kelly and Mr Thenault testIfied and none of them were asked for or offered any mformatIOn about Mr Robert's allegatIon that the gnevor mtImIdated hIS co-workers to get lus own way There IS sImply no eVIdence before me to suggest that the gnevor WIll not respond to progressIve dIsCIpime For those reasons the gnevances succeed, m part. The gnevor IS to be remstated and hIs record amended to reflect a one month suspenSIOn. While I appreciate that IS a lengthy penalty to follow a wntten warnmg, I am of the VIew that It IS waranted for several reasons In the first mstance, the gnevor Illistreated a patIent. Although he dId not technIcally abandon her, he refused to treat her WIth the respect and digmty she deserved. As well, he was rude and abusIve towards the RPN and demed her the respect she was due as a human bemg and a health care professIOnal. Finally, wlule acknowledgmg that he acted mappropnately, the gnevor dId not leave me WIth the sense that he understood lus own responsibility for lus actIOns. He mamtamed at the heanng that, If the Employer had relieved rum as he requested, none of"tlus" would have happened I have deCIded that a month's suspenSIon IS necessary to emphaSIze to hIm the error of hIS ways He must understand that he cannot lose lus temper and heap abuse and profamty on hIS co-workers, supervIsors or patIents WIth Impumty He must learn to deal WIth lus anger or the next tIme a SImIlar mCIdent occurs, the penalty will be hIgher and mIght mclude dIscharge In summary, the suspenSIons and dIscharge are to be replaced by a one month suspenSIon WIthout pay, benefits and semonty The gnevor IS to be remstated forthWIth WIth full compensatIOn for all . .t t f 42 lost wages, benefits and semonty except for that suspensIOn. His gnevance allegmg harassment IS dIsnussed. I will remam seIzed m the event the partIes have dIfficulty In ImplementIng thIS award. SIgned tlus 26th day of August, 1998 " ~ )k;4L'l Loretta Mikus, Vice-ChaIr \