AHS v HSAA, 2023 Canlii 21614 (Lehmond and Middleton) (Arb P.A. Smith) is a new Alberta labour grievance arbitration decision where Alberta Health Services (“AHS”) issued letters of warning to two paramedic employees, Lehmond and Middleton, following an incident where a response time was not met. The Health Sciences Association of Alberta (“HSAA”) union successfully grieved the letters of warning on behalf of the two employees, and arbitrator Phyllis Smith overturned the warnings.
This case is an example of what can happen when employment policies come into conflict with one another.
Facts
The following are the pertinent facts summarized by the Alberta arbitrator:
- The grievors Lehmond and Middleton are both paramedics based in Airdrie, Alberta and were working together on the relevant day
- At 17:08:44 – near the end of their shift – their unit was dispatched to a call. Under an AHS policy, they are expected to “mark themselves enroute within 90 seconds” by pushing the “enroute” button. One of the paramedics pushed the button at 17:09:41
- Because the call was near the end of their shift, a second unit was dispatched at 17:11:22, from the Olds station and they pressed the enroute button
- After one of the grievors pushed the button, they found another paramedic in the Airdrie station to take the call (because it was the end of their shift). Another paramedic named Hawkins agreed to take the call
- It was not uncommon for an incoming crew to take a call at the end of another crew’s shift, because overtime was discouraged
- By the time the crews swapped and the ambulance pulled away from the station, the time elapsed was 9 minutes instead of 90 seconds
- When the ambulance arrived on scene, there was no stretcher in the ambulance because it had been accidentally forgotten at a prior accident scene. Apparently this was not uncommon and was not normally disciplined. One of the grievors admitted it was his fault and took responsibility
- The grievors were investigated for causing a delayed response, harassing the incoming crew to take the call, and for the fact that the stretcher was missing from the ambulance
- Hawkins had originally said he was harassed to take the call, but he retracted the allegation during the investigation
- After the investigation concluded, the grievors were issued letters of discipline
Analysis / Conclusion
As in any labour discipline grievance, Arbitrator Phyllis Smith had to consider first consider whether there was conduct worthy of discipline, and if there was, then to determine whether the discipline imposed was too severe.
The Arbitrator concluded that there should not have been discipline imposed in this case at all. She accepted that the grievors did not meet the required response time and had forgotten the stretcher at a prior accident scene, but noted that the discipline was premised on the grievor’s engaging in intentional improper acts. She found that the grievors did not intentionally do anything they were disciplined for, and their actions in having the incoming paramedics take the call were understandable given AHS’ discouragement of overtime.
The employer AHS argued that the grievors had been reckless. The arbitrator disagreed, noting that neither the grievors nor the incoming crew were paying particular attention to the passage of time, and the actions of the paramedics were consistent with AHS’s strong message to avoid overtime.
Arbitrator Smith also found that the investigation had some flaws, including that there was no detailed inquiry into what the incoming crew did and the degree of responsibility there.
The arbitrator concluded that discipline was inappropriate in this case because the conduct was not intentional and there were some assumptions that influenced the investigation. She ordered that the warning letters be removed from the grievors’ files.
My Take
I am somewhat surprised HSAA grieved this discipline and took it all the way to arbitration, given that it was only a written warning and not more substantive discipline. That said, unions will sometimes take a stand even in a warning case, because warnings can have consequences: it is one step along the path of progressive discipline towards dismissal for cause.
This case involved AHS policies that seemed somewhat in conflict with one another, which is something that can lead to uncertainty for the parties. I think if the employer had given a warning letter to all four paramedics (the incoming crew and outgoing crew), it may have been an even more difficult case for the arbitrator to decide. The fact that only the grievors were disciplined, and the fact that they were not solely in control of the timing of the departure in the circumstances seem to have been major parts of the reasoning in rejecting the discipline.
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