The failures that resulted in the employees being terminated were overlooked in others and the policy governing privacy given only lax enforcement. He was unjustly singled out.
A paramedic was fired for leaving confidential paperwork in an unsecured location. The union grieved, arguing that termination was excessive.
B.B. qualified as a paramedic in 1999 and was hired by a municipal employer the next year.
B.B. was fired in January 2009. The termination letter alleged that he had contravened the City’s Code of Conduct and the Personal Health Information Protection Act (PHIPA). He also had a 10-day suspension on his record for misleading his employer about driving a city vehicle with an invalid driver’s license. Altogether, B.B.’s actions constituted a fundamental breach of trust that warranted termination.
Visiting a satellite base used by paramedics in October 2008, a supervisor noticed that a number of “shift packages” containing Ambulance Call Records (ACRs) were sticking out of B.B.’s mailbox. Further inspection revealed that B.B.’s locker was left open. More shift packages containing ACRs were left in plain sight on the top shelf of the locker.
Each ambulance is provided with a shift package. Completed ACRs contain personal, confidential information about the medical services that are provided to patients during a call. The expectation is that ACRs will be completed during the shift and then submitted to management in the supplied shift packages.
B.B. was asked to submit an incident report to explain why the incomplete ACRs had not been submitted and why they had been left in an unsecured location.
No explanation
B.B. had no particular explanation. In his incident report he said that he had not used the satellite location in a while and that it was his practice to turn in the shift packages at the end of shift.
It was determined that B.B. needed follow-up training and on November 26, he received coaching on the proper method for filling out ACRs. His participation in the session was rated favourably.
Nevertheless, a meeting was convened with B.B. on December 2 to discuss the ACRs and the shift packages. Supervisory staff, including a labour relations consultant, attended the meeting.
B.B. was reportedly “nonchalant” during the interview and again was unable to provide an explanation as to why and how the ACRs came to be left unattended in an unsecured locker.
B.B. was fired. His partner received a suspension.
B.B. had clearly left incomplete and unsubmitted ACRs at the satellite location, the Employer said. These confidential documents were left in an area that was accessible to volunteer firefighters and sometimes to the general public.
This was a clear violation of policy and the PHIPA and discipline was warranted, the employer said. B.B. was in a position of trust and accountable to a high standard. His failure in these circumstances should be considered in light of his earlier disciplinary offence. B.B. had not accepted responsibility or offered a credible explanation. The employment relationship had been irreparably harmed and without insufficient mitigating factors, termination was the appropriate penalty, the employer said.
The union said that termination was an extreme penalty in the circumstances. Incomplete and unfiled ACRs were not uncommon and no one had yet been disciplined for such a breach. The employer had no clear policy on storing incomplete ACRs. Moreover, the satellite base was not a public space and, despite the employer’s stated security concerns, it had failed to replace the lock on the mailbox at the base for years.
The Arbitrator sided with the union.
Some lapses inevitable
Noting that thousands of dispatches were generated every year, it was inevitable that there would be instances where ACRs had not been completed during the course of a shift and either submitted late or not at all, the Arbitrator said.
The employer addressed the problem with spot audits and dealt with the paramedics directly. “I have no evidence as to how many ACRs were not completed or submitted in a particular time frame, but the evidence was clear that no one had previously been disciplined for incomplete or not submitted ACRs,” the Arbitrator said.
As well, it was established that the completion and filing of ACRs was a responsibility shared by shift partners. For his share of the filing lapse, B.B.’s partner received only a three-day suspension. Even taking into account B.B.’s disciplinary record, this disparity was not justified, the Arbitrator said.
The Arbitrator agreed that B.B. had a responsibility to ensure that the ACRs were left in a secure place. However, if that was true, it was also true that other paramedics and management who attended at the base should also have taken action to secure the documents. Apparently they did not.
“[I] am not satisfied that the requisite trust relationship has been irrevocably broken and that the grievor cannot be rehabilitated,” the Arbitrator said.
B.B. was ordered reinstated without compensation and without loss of seniority.
Reference: City of Ottawa and Canadian Union of Public Employees, Local 503. David K. L. Starkman — Sole Arbitrator. L. Christine Enta for the Employer and David Jewitt for the Union. February 11, 2011. 22 pp.
