In City of Cornwall v. Canadian Union of Public Employees and its Local 5734, 2022 CanLII 29360, J.D. Sharp, a partner at Emond Harnden LLP, successfully defended the City in a grievance by a paramedic who had been terminated for his lack of truthfulness in relation to various aspects of the transport of a traumatically injured patient.
The Basic Life Support Patient Care Standards, set out by the Ministry of Health and Long-Term Care, govern the patient care that is provided by paramedics. These include the Field Trauma Triage Standard (the “Standard”), which directs when a patient is taken to a local hospital and when the local hospital should be bypassed in favour of a trauma hospital. The Standard contains two elements: the patient’s medical condition, and the estimated transport time to hospital. If the patient meets the medical criteria, and the estimated travel time to the trauma hospital is under 60 minutes (as the Standard applies for the City of Cornwall), then the Standard dictates that the patient be transported to the trauma hospital.
In this case, the grievor and his partner were called to assist a pedestrian who had been hit by a vehicle and sustained traumatic injuries. The ambulance proceeded to the Ottawa Civic Hospital (the trauma hospital) instead of the Cornwall Community Hospital (the local hospital). On the way to Ottawa, the grievor contacted the base hospital, the medical facility that provides direction and authorization to paramedics with respect to medical treatment in the course of their duties. He sought permission from the doctor to take the patient to Ottawa, even though he initially estimated that the trip would take 70-80 minutes because of poor weather conditions. The doctor indicated that according to the Standard, the patient should be brought to Cornwall because the estimated travel time to Ottawa was over 60 minutes.
During the call, it became clear to the doctor that the grievor was seeking permission to go to Ottawa, and that the ambulance was already headed in that direction. During the discussion, the grievor changed his estimated travel times, increasing the time it would take to return to Cornwall, and decreasing the time it would take to arrive in Ottawa. Near the end of the call, when the grievor again asked for permission to bypass to Ottawa, the doctor stated, “Well, I think you’ve already made that decision, so that wouldn’t be my decision but if you are already doing that, then go ahead.”
The doctor made a complaint to the City as a result of the call. The City investigated, and in doing so, discovered various issues with the grievor’s care and documentation in respect of the transport of the patient. The City terminated the grievor’s employment on the basis of the grievor’s dishonesty.
Arbitrator Parmar found that the Standard did not permit the paramedic to exercise his own professional judgment about where to transport a patient. By calling the hospital to seek permission to not follow the Standard, the grievor was not acting in compliance with the Standard. By continuing to try to get the doctor to authorize him to bypass the local hospital, the grievor also breached his professional obligation to follow the base hospital physician’s direction.
The Arbitrator also found that after the grievor found out that the doctor had complained and the City was looking into the matter, he gave a very different report about what had occurred than what he had initially reported. He reported that he simply could not hear the doctor due to the reception issues, but this was contradicted by the recording of the call. For the Arbitrator, it was the grievor’s dishonesty in this regard that was the most concerning. She noted that “the Grievor has a professional obligation to be honest and accurate in reporting his actions in respect of patient care.”
The Arbitrator also found that the grievor had intentionally recorded readings of certain vital signs when he did not actually have those readings. She noted that “regardless of whether there would be a significant impact on clinical care, in the context of healthcare where documentation is the key method of communicating about a patient’s condition and the importance of accurate documentation is underscored by specific practice standards that spell out that obligation, when a person intentionally records information that they know is not accurate, they have engaged in serious misconduct.” Recording a specific reading when he did not have one was not inadvertent, but was “an intentional act, communicating that a specific reading was done with a specific finding, knowing there was never any such specific finding.”
The Arbitrator further found that “the Grievor’s responses reflect a troubling lack of appreciation for his professional obligation to ensure accurate communication and documentation of patient-related information. The Grievor is comfortable conducting himself based on his own opinions about what matters and who needs to know what. The professional standards by which he is bound do not permit him to conduct himself in that way.”
The City argued that the misconduct during the hospital call constituted grounds for termination or, alternatively, that all of the misconduct in relation to this ambulance call justified termination. The Arbitrator agreed with both arguments. She found that “there is no requirement to apply progressive discipline where the misconduct strikes at the heart of the employment relationship rendering it irreparable.” Had the grievor been honest about his failure to follow the Standard, perhaps there could have been room for the employment relationship to continue, particularly since he had been acting in the best interest of the patient in trying to transport him to Ottawa. However, trying to conceal his misconduct about not following the Standard constituted more serious misconduct.
Arbitrator Parmar noted that “honesty is a fundamental element of the employment relationship, the breach of which may, in itself, establish a basis for discharge. Furthermore, healthcare professionals are held to a higher standard, in so far as it relates to professional obligations of integrity and competence. This of course applies to paramedics….” She further noted that honesty “is of particular concern in the case of a health professional, who must be trusted to exercise his discretion in a manner that meets professional standards while working independently. Employers of health professionals can rightfully demand this level of trust in their employees because it is essential to ensuring the public’s trust in the employer.”
The Arbitrator found a lack of mitigating factors. The grievor was of short service (two years). While he acted in the best interest of the patient, that could not justify his later dishonesty, which “can only have been driven by personal interest.” His conduct was not a momentary error in judgment, considering the grievor did not acknowledge his misconduct at the hearing. As a result of his lack of appreciation that he did something wrong, the Arbitrator noted, “I am simply unable to conclude that there is no reason to expect similar behaviour in the future.”
The grievance was dismissed.
What Does This Decision Mean for Municipal Employers?
This decision emphasizes the importance of honesty in the employment relationship. Where dishonesty strikes at the heart of the employment relationship, termination may be justified. The decision also recognizes that health care professionals are held to a higher standard when it comes to their “professional obligations of integrity and competence.”
Whether termination for dishonesty is justified will depend on the particular circumstances of each case. As such, employers who are considering termination for dishonest conduct are encouraged to seek legal advice before taking action so that they understand any associated risks.