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HomeMy WebLinkAbout1980-0271.Whittle.81-05-25IN THE 4IATTER OF AN ARBITRATION Under The CROWN E.WLOYEES COLLECTIVE BARGAINIX ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. James Whittle Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer Before: E. B. Jolliffe, Q.C. Vice Chairman A. G. Stapleton Member I. J. Thomson Member For the Grievor: G. Richards, Grievance O<fficer Ontario Public Service Employees Union For the Employer: R. Love Ministry of Health Hear%: March 19, 1981 -2- DECISION On Sunday, October 21, 1979, at about 9:47 a.m., Mr. James Whittle, while~driving an ambulance in the City of Ottawa, was involved in a collision with another vehicle. The results of the accident were somewhat costly. The ambu- lance was considered a "write-off", being a loss to the Ministry of Health of approximately $12,000. The other vehicle sustained damage estimated to cost between $2,500 and $3,000. There were also personal injuries. Mr. J. Montgomery, the Attendant accompanying the vehicle, suffered minor bruises and sprains, and was off work for two days.' Mrs. L.'Pierrard, a Student Attendant also on duty in the ambulance, had other minor injuries. The driver of the second vehicle, Mr. E. Albrecht, was said to have “sustained possible cervical injury (whiplash)" and the accident report also noted "this person previously treated for same injury". On the same day the grievor, Mr. Nhittle, was "grounded", i.e. relieved of duty as a Driver pending investigation of the accident. "Grounding" is normal procedure in such cases and simply means that the employee continues to function as an Attendant but is not allowed to take the wheel. Ordinarily, the ban remains in force for only a few days; in Mr. Whittle's case'it was prolonged for a month or more. His Union now takes the position that I -3- this was a disciplinary penalty, but Mr. Whittle did not grieve against it. The grievance before this Board relates to a suspension, reduced from three days to one in the course of the grievance procedure. The original penalty was im- posed in a memorandum to the grievor, dated November 29, 1979, from Mr. N. L. O'Brecht, Co-ordinator in the Ambu- lance Services Branch of the Ministry of Health. Since this document, Exhibit 2, sets out the Employer's grounds for taking disciplinary action, it is reproduced in full below: With reference to the Bearing conducted in Ottawa, Friday, November 23, 1979 ooncern- ing your inuoZvement in two incidents on October 2~1, 1979. I find that you, as the driver of Vehicle #548 on 2I October 1979, stopped for coffee white enroute to Code 1 call #256867, pick- up Zocation was Orleans which was in the opposite direction to the route you were taking on Riverside Drive. After receiving the call you continued to proceed in this opposite direction to a coffee shop at Bill-ings Bridge. It was established that you made this coffee stop without the knowledge of or permission from C.A.D.S. Ottawa. This was contrary to instructions to all employees issued in a memo, dated 27 June 1979 from F. Payette, Manager, Ottawa Ambulance Service, as we22 as contrary to Section 63(a) of Ontario Regulations under The Ambulance Act. In respect to the second incident; on re- turning to your vehicle you were advised by John Montgomery, attendant of Vehicle #548 of re-assignment to a Code 4 call, #256872, pick- up location Alta Vista Drive. While proceed- ing east on Riverside~.Drive you were involved in a M.V.A. collision at the Riverside Drive, -4- PZeasant Park intersection, as a direct result of which: a) You, Louise Perrand, John Montgomery, Emile AZbrecht, driver of 2nd vehicle were injured, treated and released from Riverside Hospital. bl Response to Priority Code 4 ca 21 #2568?2 to Alta Vista was delayed. cl Vehicle #548 was damaged beyond repair. On your own admission, I find that you faiZed to follow instructions contained in the letter from G.J. Ventura, Director, Ambulance Services Branch dated August 27,~ 1979 concerning responsibilities of the driver of an ambulance while responding to an emergency, in that you did not come to’ a complete stop and proceeded through the intersection with lights only. There was some discussion to the effect that you couZd not readily recall this letter in detail, however, it tias subsequently,determined that you were given a’ copy of this letter to read by your Shift Supervisor and that you did sign the reverse of such copy. While I have taken &to consideration your past good performance, in view of the very serious nature of these matters in respect to your duties and responsibilities as an ambulance officer, you are hereby removed from empzoyment, without pay for three days fotlowing which you are to be returned to ful2 duties as a driver attendance. You are counsetled that repetition of offences of this nature could Zead to imposition of a fine, or removal from employment without pay for up to one month, or dismissal. I sincerely trust that this will not occur as I believe you have excellent potential and prospects in ambu- lance service. There is no need to reproduce a second communica- tion, the letter addressed to Mr. Whittle in April, 1990, by Mr. Fred C. Rusk, Regional Manager of the Service for Eastern Ontario. It reiterated the reasons for discipline set out above, adding one other, but reduced the suspension i - 5 - from three days to one. The testimony of the grievor before this Board does not contradict the allegations made by the Employer but refers to what might be termed "extenuating circum- stances". In effect the principal defence advanced on behalf of Mr. Whittle is that the rules cited by the Em- ployer's witnesses are not consistently enforced. The grievor admits that before leaving the Riverside Hospital, he did not report his availability by telephone. This was contrary to rule number 5, stated by Manager F.C. Payette in a memorandum to all employees on June 27, 1979, as follows: On completion of calls from hospitals, crews are to check by Zandline with dispatch and when departing base or hospital, crew must book on the air immediately . The grievor points out that although he did not report by "landline", i.e. by telephone from the hospital, he reported to dispatch by radio immediately after leaving; Such an availability report by radio is known as a "lO.g", and it is frequently used. On leaving the hospital grounds, Mr. Whittle turned left on Riverside Drive and proceeded west. There was some talk about whose turn it would be to buy coffee. About this time a radio message was received to take an assignment in Orleans, a suburb east of Ottawa. This was allow-priority call, known as a "10.1". Mr. Whittle . . -6- considered doing a U-turn, but his partner, Mr. Montgomery, pointed out that a Billings Bridge coffee-bar was not far away, and it would be a better place to make the turn. At Billings Bridge, Mr. Whittle volunteered to buy three coffees, which took, he says, not more than a minute or two. When he returned, Mr. Montgomery told him of a call just received: it was "10-4", or high priority call to an emergency a mile or more away in the Alta Vista area. Mr. Whittle at once headed east on Riverside Drive, retracing the route he had . taken on leaving the hospital. The Employer's witnesses say that it was wrong to stop for coffee at Billings Bridge, failing to advise dispatch, but the grievor claims that rule 4 is "not strictly enforced", at least in respect of coffee pick-ups. It is as follows: When employees are picking up lunch, crews wJill advise dispatch of pickup area.. . It is obvious' from a map of the district, Exhibit 9, that Mr. Whittle travelled only a few hundred metres before reaching the corner of Pleasant Park Road. There was a red light against him and a car approaching from the south on Pleasant Park Road‘. The grievor's version of what happened was put on record the same day in a report signed by him, Exhibit 4, as follows: On call #256872 I was proceeding east on Riverside Drive with emergency warning system on (excluding siren). As I approached the intersection of .?iver&ide . ,I. , -7- Drive and Pleasant Park Drive I slowed and perceived a green car appmching from P,leasant Park Drive proceeding north. I thought he was braking and proceeded thru and realized he wasn’t ‘and I braked myself which locked the wheels and with the pave- ment wet from the morning rain I skidded and colZided with the other vehicle. It did not appear to me that after he initially e Zowed, that he attempted to brake at all until he was on top of me. The light for myself was red. In his testimony before this Board, the grievor did not give further details except to explain that his siren was not on (contrary to rule) because he had tried it earlier in the day and knew it to be defective. His supervisor, Mr. Lyle Messender, testified that he had no knowledge of such a defect having been reported, but he also said the sirens were not satisfactory and are being replaced by a different model, and he added that he had not been on duty Saturday or Sunday, October 20 or 21, so that he would not know of a report on either day. At this point it is necessary to explain that earlier in 1979 there had,been a change in the law of great importance to ambulance drivers. This was in Bill 90, enacted at the 1979 session of the Legislature, amending Section 96 of the Highway Traffic Act. The change was clearly explained in a memorandum of August 27, 1979, Exhibit 5, circulated by Mr. G.J. Ventura, Director of the Ambulance Services Branch, to "All Ambulance Operators" and .l Dispatch Centres". I- t was as follows: I -a- Section 96 of The Highway Traffic Act has recently been amended to include ambulances as emergency vehicles. Under this amend- ment, the driver of an ambulance, when responding to an emergency call or tran- sporting a patient or injured person, in an emergency situation, may, with the vehicle’s warning system (lights and siren) in use, proceed through a red traffic signal after coming to a complete stop and ensuring that he/she may proceed through the’ intersection in safety. Notwithstanding the above amendment, Section 82191 of The Bighway Traffic Act which permits police and fire department vehicZes in emer- gencies to exceed the posted speed limit, has not been changed at this time to include ambu- lances. Therefore, ambulances are still re- quired, under The Highway Traffic Act, to operate within posted speed Zimi tations. I have attached, for your convenience, a copy of the amendment to Section 96. Please bring this amendment to the attention of your ambu- tance personnel and ensure that they are fully aware of their responsibilities under this and other pertinent sections of The Righway Traffic Act. Should you have any questions regarding this matter, kindly contact your Regional Co-ordinator. The Ventura circular was apparently received in the Ottawa office on September 4,,1979, and the grievor does not deny having seen it prior to the accident of October 21. It seems perfectly clear that (apart from several other infractions during a period of less than 30~minute.s) the grievor not only failed to observe operating rules but also broke the law in failing to come to a complete stop before proceeding through the red light at Riverside and Pleasant Park. It seems equally clear to the Board that if he had stopped there would have been no collision. More- over, when his siren was not working he had no right to assume that the other driver would notice the special status of an emergency vehicle. It has been suggested that the'grievor's mis- takes should be excused because the rules are not enforced consistently. For example, his supervisor, Mr. Messender, admitted that other drivers, including himself, had merely been "counselled" for going through red lights, and such offences did not seem to stand in the way of promotion. The Board cannot accept the argument. The accident of October 21, 1979; had serious consequences, and it is more by luck than good management that they were not far more serious. ~Many lives have been lost at red lights and stop signs. The other argument in defence of the grievor is that he was unfairly treated -- or visited with a double penalty. -- by being deprived of the right to drive an ambulance for 30 working days. That measure seemed unfair to the grievor in view of the evidence that management's n investigation of the accident took only 10 days, after which Mr. O'Brecht said (in his memorandum of November 20) that he had taken into consideration the grievor's "past good performance" and that he believed the grievor had "excellent potential and prospects in ambulance service". It would have been more consistent with standard practice if the ban on driving had been lifted as soon as management's inquiries were complete. However, Mr. Whittle-did not pre- 1 ,*. - 10 - sent a grievance in relation to that issue, and thus the Board can do no more than express an opinion. In conclusion, it must be said that the penalty complained of, -- a one-day,suspension -- was lenient rather than severe. The grievance therefore fails and must be dismissed. DATED at Toronto this 25th day of May, 1981. A. G. Staple _ _- .-~ Member