Windsor paramedic's criminal record prevented him from crossing the border on emergency transport calls
An Ontario employer shouldn’t have to bear the burden of an employee’s criminal record that prevented him from doing his job, the Ontario Arbitration Board has ruled.
Victor Dimitriu was a paramedic in Windsor, Ont., for Essex-Windsor Emergency Services run by Essex County. On Jan. 5, 2009, about nine months and 700 hours worked on the job, he was dispatched to a hospital in Detroit to transfer a patient to a Windsor hospital. The patient was in critical condition after surgery and transfer needed to be done quickly.
However, Dimitriu told the call centre he couldn’t take the call because he couldn’t cross the border into the United States. As a result, another ambulance team had to be dispatched, which caused a short delay.
The county’s emergency services conducted an investigation and discovered Dimitriu had a criminal record that included several convictions as a young offender for public mischief, drug possession and possession of property obtained by crime, as well as a fine for failure to comply in adult court. The record appeared in the U.S. customs database, which meant he would be refused admission into the U.S. Dimitriu refused the call because he knew he wouldn’t be able to cross the border.
Since he hadn’t completed his probationary period — outlined in the collective agreement as the later of 12 months or 1896 hours on the job — the county decided to terminate Dimitriu’s employment on Jan. 21, 2009. Under Ontario legislation, all paramedics serving in land ambulances could not have been convicted of any crime of “moral turpitude.”
Dimitriu challenged the border ban by writing to U.S. Customs and Border Protection. In August 2009, the agency responded, saying its legislation prevented those convicted of a crime involving moral turpitude or a controlled substance from entering the U.S. However, since his convictions were either not considered crimes of moral turpitude or happened when Dimitriu was a minor, the agency said he would be allowed to cross the border.
When the county learned of the letter, it reinstated Dimitriu in January 2010. However, Dimitriu filed a grievance for compensation from the date of his discharge to the date of his reinstatement.
The board found at the time, the county had just cause to dismiss Dimitriu because he couldn’t transfer patients across the border, which was an essential term of the employment contract. The county had to follow dispatch procedure, which was to call the closest available ambulance, and if Dimitriu was in that ambulance there would be a delay and a threat to patient safety. Since the problem was Dimitriu’s criminal record, the culpability was his. Once the problem was solved and the U.S. border agency said Dimitriu was allowed to cross the border, the county reinstated him.
Since the county had no choice but to dismiss Dimitriu when he was banned from crossing the border, the dismissal was reasonable and didn’t violate the collective agreement, said the board. As a result, the county wasn’t responsible for compensation for the time between his dismissal and reinstatement. The board ordered the county to change the discharge on Dimitriu’s record to an unpaid leave of absence.
