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HomeMy WebLinkAbout1982-0424.Heath.83-02-12IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (James L. Heath) Grievor --- _. ,-- _ An&.-, - L ~The--Crown-in Right-of-Ontario-- (Ministry of Health) Employer P. M. Draper Vice Chairman E. J. Bounsall Member N. J. Cazzola .Member ; ~.~~.-- _____ - - ,. ,___ __ For the Grievor: P. A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: M. H. Campbell Counsel Legal Branch Ministry of Health Hearing: Windsor, January 11 & 12, 1983 -2- DECISION The Grievor, James Heath, grieves that he has been unjustly disciplined by being suspended without pay for five days and requests that he be reimbursed for the losses thereby sustained and that all reference to the suspension be removed from the Employer's records; The Grievor wasemployed by the Windsor Provincial Am- bulance Service as an ambulance attendant, classified,Am- bulance Officer 2, from August, 1973, to August, 1982. . On April 7, 1981, the Grievor was counselled once verbally and three times in wr~iting for various incidents on that date related-to-failures to report.the location ~~~~~ or movements of his, ambulance and-on May -3, 1981, uas~coun---.... or selled again in writing for having gone off duty before the termination of his shift. In November, 1981, a written reprimand was issued to the Grievor for an~incident related to patient care. The ; . 'penalty was varied to-provide ~that the reprimand would-be --- -~ - removed from the Grievor!s file after one year provided his performance during that period was satisfactory, and he then withdrew the grievance he had filed. On Friday, June 25, 1982, the Grievor was on duty on the 1500 to 2300 shift as the driver of an ambulance (Unit 111) accompanied by Rene Rollo, another Ambulance. Officer 2. Units are required to be in constant radio contact with a dispatcher from whom their instructions are received and whom they are required to keep informed of their movements and location. Regulations made under the Ambulance Act require that the operators of ambulance services ensure r -3 - that every movement of an ambulance be reported to a dispatch centre. Radio communications between units and. the dispatcher are taped and the times of calls sent and received by him are entered on a dispatch record. A transcript of the tape and the dispatch record for the period in question reveal that at 16.52 the Grievor re- -. ported that Unit 111 was leaving Beacon Hill Lodge for its base at Grace Hospital and that the unit was ordered by the dispatcher to proceed to another base at Windsor Western Hospital. The order was acknowledged by the Grievor, who drove instead to the site of the Freedom Festival which had opened that-day. -..~~~.- ..___ ~_ . The Freedom Festival is an annual fair with both Canadian and American participation that takes place mainly along the Windsor waterfront and includes a fireworks display, boat races, carnival rides and concessions. Vehicle movement is restricted by-large-crowds;-heavy-pedestrians -.~~ traffic, street closings and dense parking. The Windsor Provincial Ambulance Service is the principal source of first aid and transportation in case of injury or illness on the Festival site. Preparations for provision of ambulance services to the 1992 Festival began on Wednesday, June 23rd. Dispatchers were briefed on such matters as temporary Street and traffic arrangements, and entry and exit routes, SO as to be able to direct units dispatched to the site. Two requests by the dispatcher for the location Of Unit 111 went unanswered by the Grievor. On the third request he reported the unit's location as "Ouellette and Riverside". The dispatcher responded that the unit was "supposed to be going to the Western". The Grievor acknowledged the call and added that the unit was en route to Windsor Western Hospital base. The dispatcher informed the unit that it had been dispatched "23 minute's ago". The call was not acknowledged. The dispatcher ac- knowledged the Griever's call that Unit 111 had arrived at the base and recorded the time of the call as 17.32. On June 28, 1982, the Grievor, acting as president of OPSEU Local 136, wrote to the Employer to urge that- ambulance services for the Festival be increased and that _ ambulance personnel be allowedLtoo:'orientate themselves" - to the Festival site. -- Diana Zerebecki is region manager of Region 1 of the Ambulance Services Branch of the Ministry of Health which includes the City of Windsor. Zerebecki testified ; (-,:y: that wheninformed of the incidents of-June 25th she arranged a meeting to be held on July 14th.of which the Grievor was notified but which, at the last minute, he refused to attend. After discussions with officials of the Windsor Provincial Ambulance Service and the Ministry, and having reviewed the Griever's file, she informed him in a letter dated July 23rd that for "not reporting to dispatch and being in an unassigned area" and "in consideration of your past record'! he was being suspended for five days without pay. The Griever's partner, Rollo, was given a suspension of three days without pay which, on the date of the hearing in this matter, had not been served. Different penalties -5- ,lar were imposed because the Grievor had a record of simi misconduct and Roll0 did not. The testimony given by six ambulance attendants, co- workers of the,Grievor, satisfies us that ambulance at- tendants are aware that it is essential that the dispatcher knows the whereabouts of all-units at all times; that ambulance attendants have been ordered not to go to the Festival site unless dispatched there; that it has been a common practice for ambulance attendants to do so without the dispatcher's knowledge; and that ambulance attendants believe~they-should be allowed to familiarize themselves- - with conditionsmonthe-Festival site.--~--~~ .:-:- ~::.:---~=~~. ~--= The Grievor testified that, being concerned because ! of serious accidents, one resulting in a death, that had occurred during the 1980 Festival, he decided to "take the matter public" prior to the 1981 Festival. In his i ~___~~~ i capacity as president of OPSEU Local 136 he approached the Employer, the Freedom Foundation Board, the Windsor City Administrator and two MLA's in an ultimately success- ful effort to obtain increased ambulance services 'for the Festival. When he inquired of the Employer about the arrangements being made for the 1982 Festival he was re- buffed. On June 25, 1982, he "took it on his own res- ponsibility" to ignore the order of the dispatcher, having decided that it was essential~to check out conditions at the ,Festival site in the interests of public safety. On leaving the~Festiva1 site he reported his location as "Riverside and Ouellette". For some 15 minutes he was at -6- a location where he should not have been and, because he did not tell him, the dispatcher did not know where he was. Decisions regarding the provision of ambulance services are ,not his to make. He is aware of the res- ponsibilities of ambulance attendants arising from the Ambulance Act and the Employer's Manual of Corporate Policy and Practice. Counsel to the Grievor submits that although the act in question was committed, it comes under one or J more o,f the recognized exceptions to the general principle that an 'employee may not fail or refuse to comply with.an em order given by a person acting-for an ~employer.~ Itis-.-. our understanding that such exceptions are recognized only where to obey an-order would lead to consequences for which no adequate redress is available and where the employee gives the reason for his objection to the person who issued the order. The Grievor did-not meet the second. of those conditions which alone could be considered a fatal defect. As to the first condition, he bears the onus of proving that the circumstances present bring him within one or-other of the exceptions. The exceptions advanced as being relevant are the following: (1) Fear for one's personal health and safety. Counsel invites us to extend this exemption to encompass fear for the health and safety of the public. Assuming, without deciding, the validity of that concept, we c,an- not conceive of such fear reasonably arising from the particular i’ !. .,.. (1 -l- order the Grievor failed to obey. (2) Union officials. Counsel argues that the con- cerns expressed by the Grievor in his capacity as a union official about the quality of ambulance services pro- vided for the Festival make this exception applicable. While, in itself, the pursuit of such concerns may be considered a legitimate union activity, in our opinion the exception applies only in the case of union activity undertaken in an employment context and on behalf of employees represented by the union. (3) Reasonable personal~excuse.. Counsel argues. ~_~_ that the Grievor's-personal interests-inthe provisionof, -_.-. ambulance services to the Festival entitles him to the behefit of this exemption. In considering the application --7~ ~~ -- of. the exception, the.competing interests of the Employer J .- and the Grievor --the-one managerial, the others personal--- ~. ; ; are to be~weighed. To begin with/the Grievor'sinterest was not "personal" in the sense of being self-serving, as is'the usual case where the exception is invoked.' Secondly, that interest would not have been less likely of fulfillment because of the Griever's compliance with the dispatcher's order. Finally, we are convinced that the Grievor's declared interest cannot reasonably be thought to outweigh the interests of the Employer in planning, organizing, directing and controlling the operation of its ambulance services. In the result, we do not find any basis for the exoneration of the Grievor in any of the exceptions examined. \ -8- The Grievor perhaps fails to separate or differ- entiate the respective responsibilities that attach to his various roles as employee, union official and citizen, each of which, in its own time and place, may properly take precedence. Certainly, in the'present instance, the, conscientious'performance of his duties became secondary to his preoccupation with the affairs of the Festival. In any case, there can be no doubt but that when the Grievor is on duty and under the orders of a dispatcher he must, first 2nd foremost, ac- cept and discharge his responsibilities as an employee. We find that the action of the Grievor_on June 25, 1982, in failing to obey a direct order of the dis- , patcher constituted blameworthy conduct which warranted disciplinary action by the Employer. _-. ~~- - There remains for consideration the question of the i . appropriateness of the-penalty imposed.; - The Employer purports to have applied progressive discipline in the present case, pointing to the several instances of counselling of the Grievor for 'related misconduct as justification for the penalty assessed. In fact, those instances carried no penalty and could not have been the subject of a grievance. The Board has ruled in a number of cases, for example, Couture, 20/76 and Naik, 108/77, that counselling is non-disciplinary in nature and, therefore, cannot be cited in support of subsequent discipline. The result is that at the time of the misconduct concerned the Grievor's disciplinary - 9- record consisted of one reprimand, that of November, 1981. We are also disposed to view the Grievor's mis- conduct in light of the fact that the Festival was in progress which was, in effect, the proximate cause of that misconduct. As imprudent and wrong as the Grievor's action was, it was not taken~,for a purpose en- tirely extraneous to his employment. That circumstance, in our opinion, serves, to some degree, to extenuate his misconduct. The penalty of suspension imposed by the Employer is hereby reduced from five days to one day. Fur~ther,.: it_- is~ ordered that the Employer forthwith make the approp---_-. I-‘-. riate amendment to its records land restore the-pay and benefits withheld from the Grievor in respect of four days of the suspension imposed by it. DATED AT-Consecon, Ontario, this 12th -day oft-February , 1983.- P. M. Draper, Vice Chairman "I dissent" (see attached) E. J. Bounsall, Member 7: 3610 /ch N. J. Cazzola, Member DISSENT I have reviewed the majority award and must respectfully dissent, most strongly on the severity of the penalty imposed. The history of the Griever's concern over the safety of the Free- dom Festival, and the ability of the Ambulance Service to deliver prompt and adequate patient care cannot be ignored and must be' considered a strong exonerating factor in this case. It was obvious from the testimony of the Griever and that given by six other ambulance attendents that the inadequate planning,evi- dent as a result of the 1812 Overture Incident of 1980 was of great concern ever since and continues. The Griever, acting both from personal convictions of safety and in his capacity as President of OPSEU Local 136 Union President, single-handedly in 1981 achieved,where the Local Ambulance Service couldn't, through contact,with elected officials or their represen- tative, the provision of two additional ambulances and an emergency support unit for the 1981 Freedom Festival fireworks display. Any enlightened management would have been delighted by the ini- tiative and particularly the results, but the Grievor was told.'upon enquiring if the same provisions would be repeated far.1982 that "it was no concern of his".. -~~ --~ Testimony of the other attendents revealed that they had all toured the area to note the position of barriers and best escape routes in Igal, and that virtually all did so again in 1982, in spite of come being warned not to go near the Festival. In addition, two witnesses indicafeddmanagement persbnnel~were in- volved in witnessing the site touring with no resulting penalties being imposed. .Thus, the touring of the area by the attendents without reporting the activity to dispatch in 1982 had become a J common practice tacitly sanctioned~ by supervision. In addition, Billfell, the Nanager of the Dispatch Centre testified that "it would not surprise him that the attendents or drivers familiarized themselves with the Freedom Festival site while On duty“. : ?loreover it 'was Zerebecki's understanding "that the duty cr%s closest to the Freedom Festival would familiarize ther.selves wit:? the Festival area". On June 23, Heath and Boll0 were the closest duty crew - being stationed at Grace hospital. :. .i’ .: .i ;:. i. while on duty, but of prime importance is the fact that the driver would have reached the Windsor Western site by the time Dispatch checked, if Mr. Rollo had not been asked by David Uunbar, Assistant Director of Ambulance Dispatch, stationed at the corner of Ouellette and Riverside, to fix his radio/loudspeaker problem. Prom exhibits 33 and 34 the Grievor, as well as having a personal interest, was clearly acting on behalf of the Executive and the Membership of OPSEU Local 136 when dealing with management over adequate provision of ambulance services for the Festival. ?IS. Zerebecki, by her,grimace and shrug, when indicating the thickness Of the Griever's file with the Ministry, indicated to me that she was unable to, or had not bothered to, distinguish between personal grievances and policy grievances filed by the Grievor on behalf of the Local. Add'to this, that no other employees were disciplined when management knew they were unreportedly touring the site in working hours,except Rollo who at the time of the Hearing had not been asked to serve his lighter suspension. I strongly feel that the Grievor was disciplined as a result of representing the feelings of his membership and the Union exception ( United Textile Workers of America and Long Sault Yarns Ltd. - Curtis, Weisbach and HiFks - LAC 19, 257, 19681 should apply, with the Griever found to be unjust- ly dsciplined and the grievance upheld. Even if one takes the narrow view that the Grievor.disobeyed the ~dispatch order, the penalty is still too onerous. ., Zerebecki, in levying a ~5-day suspension, thought she was applying progressive discipline and was unaware until the Hearing that the counselling instances are non-disciplinary -(Odly 1 reprimand exists, and that over an incident in which the Grievor willingly volunteered the information). Zerebecki.testified that she was influenced~ by the possible seriousness of a'delay in answering a call dueto the lo- cation of the G.rievor, recalling the death of four years ago, attri- buted to such a delay. However she did not been levied in that case, know what discipline ha;! if any, and admitted to not reviewing the file. In addition, she could give no examples of discipline in simi- lar circumstances from her own large area of jurisdiction or from across the Irovince. She admitted in this incident there was I'no impact on patient care”. She was also unaware that the Griever's crew were stationed closest to the site the day of the incident, but had exPected "the duty crews closest'ta the Pestiva.1 to~,fsnilia:ize themselves with the area". Her concern over delay in answering a call to !iest Windsor is totally misplaced when one retails the Trsti- val site commences only 24 bloc!cs east of Seacon Fiill Lodge, from where the ;rievor left to go to :Jestern, and the new location Of t:*.e dis?atcb centre to serve the west side ofxndsor, is, now further east still of the Festival site. X one day suspension, down from five is ~still a sus?ensioh. Ths ver:/ -0st ihat should be considered is a disciplinary letter to his Eils.