Canadian Labour Reporter

APRIL 7, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 was left open. Though officers were required to "wear full uni- form at all times while on duty," footwear was not explicitly included in that list, instead the clause only mentioned that "staff shall wear only black shoes or boots with the uniform." Allen Ponak, the judge presiding over the case, agreed with the correctional facility and threw out the union's grievance. Enacting rules with respect to safety equipment are well with- in the purview of management, Ponak said in his decision. That the NSCC no longer required safety footwear to be worn was valid. As for the safety concerns, the collective agreement did not dictate any consultation with health and safety committees or other such bodies, and as such, the move was justified. Whether compensation for footwear was necessary was an- other matter. "Does the fact that the standing order requires black footwear make footwear implicitly part of the correctional officer's uni- form, and therefore freely provided?" Ponak said. While there is no dispute that employers have the absolute authority to implement dress codes for their employees, the is- sue becomes one of determining the point at which a dress code requirement to wear a certain type of clothing purchased at the employer's expense is really a requirement to wear a uniform that must be provided by the employer. "If the dress code requirement leaves no room for flexibility, then it is more likely to be viewed as a 'uniform.' On the other hand, if the dress requirement still allows flexibility over style and material, then it is less likely to meet the definition of a uni- form," Ponak explained. Because correctional officers at the NSCC had considerable cushion room — they could execute choices in terms of style, shade, material and could wear different shoes on different days — the footwear clause was a loose dress code, rather and an explicit uniform. Therefore, the grievance was dismissed. Reference: Government of the Northwest Territories and the Union of Northern Workers, Public Service Alliance of Canada. Allen Ponak — arbitrator. Tricia Ralph for the employer, Michael Penner for the union. Dec. 14, 2013. Paramedic fired after patient information found in locker ThE CAREER OF a Newfoundland and Labrador-based paramedic was resuscitated when an arbitrator substituted his termination for a lengthy suspension. Andrew Byrne was fired from his position as a paramedic with Eastern Regional Integrated Health Authority on Feb. 15, 2013, after he failed to submit 217 patient care reports (PCRs). The PCRs were stored in a backpack in Byrne's personal lock- er. Dating back to December 2011, as many as 167 of the docu- ments still had the patient/facility copy attached, meaning Byrne did not provide a copy of the PCR to the facility that received the patient. Additionally, 92 of the PCRs were not invoiced which meant the client/patients were not billed for transport. Byrne presented the backpack to his supervisor, Ian Winter, following a meeting to discuss the missing PCRs. He said he was dealing with issues in his personal life and did not feel like com- pleting the PCRs after a shift. Byrne said he put the documents in his locker with the intention of completing them at a later date, but the number of uncompleted PCRs began to build and the situation "continued to snow ball." Byrne was dismissed for risking patient care by failing to transfer medical information upon transport, for risking patient confidentiality by storing their personal and medical information in his locker, for impacting the organization's ability to recover funds relating to transport and for dishonesty. The Newfoundland and Labrador Association of Public Em- ployees (NAPE) filed a grievance on Byrne's behalf, requesting the discharge by reduced. Byrne admitted to his mistakes and indicated remorse, the union said. Byrne testified he did not want to be seen as the weak link on the team and did not want his coworkers to know what was going on with him personally. The union argued there were issues with the employer's process for auditing PCRs, suggesting there were not sufficient checks and balances in place. It was also suggested Byrne's su- pervisors should have detected he was having personal issues. Byrne testified he was afraid to take sick leave to deal with his personal problems because the company's human resources department often raised issues of abuse of sick leave. Byrne testified he is now seeking professional help for his problems and the union emphasized his rehabilitative potential. The employer argued a high level of trust and the highest standards of integrity and judgment are required to provide the best care possible to its patients. Documents prepared by para- medics can be used by coroners in reports or subpoenaed by police. Byrne's actions — which were both deliberate and sus- tained over a significant period of time — put patients' safety at risk, the employer said. The employer requested the grievance be denied in its entirety. Arbitrator Wayne Thistle ultimately found Byrne's failure to submit PCRs to the facilities receiving patients did not put those patients at risk to the point of supporting termination. He ruled the paramedics' verbal transfer of information to medical person- nel receiving the patients was sufficient, even without the PCR. "The most telling aspect of the value of the PCR in the instant case is that there is no evidence that any health care professional asked why they were missing PCRs and where they might be," Thistle said in his ruling. "Further, in the instant case the em- ployer conducted a review of patient's charts to evaluate whether the missing PCRs may have had any effect on the safety issue. The result was there was no case where such had occurred." While Byrne was negligent in his failure to complete the 217 PCRs, Thistle found his personal circumstances were a major contributing factor. Byrne had no record of prior discipline. The disciplinary sanction was substituted with a suspension of ten months without pay or benefits, with all other aspects of the grievance denied. Reference: Eastern Regional Integrated Health Authority and the Newfoundland and Labrador Association of Public Employees. Wayne Thistle — Sole arbitrator. Jay Neville for the employer, Jerry Earle for the union. Jan. 27, 2014.

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