HomeMy WebLinkAbout2001-0683.Bell.02-07-30 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396
GSB#683/01
UNION#092/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employee’s Union
(Bell)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE N. Dissanayake Vice-Chair
FOR THE UNION Graham Williamson
Counsel
Koskie Minsky
Barristers & Solicitors
FOR THE EMPLOYER Myfanwy Marshall
Counsel
Liquor Control Board of Ontario
HEARING December 17, 2001; March 7, 8; June 17, 18 of 2002.
2
DECISION
This is a grievance dated March 20, 2001 filed by Ms. Marg
Bell (Agrievor@). The statement of grievance reads AArticle 26.4
and any other applicable articles in the collective agreement@.
Article 26.4 states AThe employer shall not discipline or dismiss
an employee without just cause@.
The grievor commenced employment with the employer as a
casual Customer Service Representative (ACSR@) on September 30, 2002
at its store #369 in Harriston, Ontario. Store # 369 is a C rated
store. Its workforce consisted of two permanent full-time CSRs and
three casual CSRs, all of whom were in the bargaining unit. One of
the permanent full-time CSRs, Mr. Gerry Lariviere, served as
manager of the store.
As a new employee, the grievor was subject to a probation
period. Article 31.5(a) of the collective agreement provides:
A casual employee=s seniority will accumulate upon
completion of a probationary period of not less than
six (6) calendar months and will be calculated from
his/her first day of work of his/her most recent
appointment to the casual staff of the Employer.
Where an employee has worked less than four hundred
`(400) hours in the six (6) calendar months, it will
be necessary to extend the probationary period.
3
The grievor=s letter of appointment dated October 4, 2002
signed by her District Manager, Mr. Ron Holmes stated, inter
alia,AYou will serve a probationary period of employment of at
least six months and 400 hours of work. Where you have worked less
than 400 hours in the six calendar months, it will be necessary to
extend the probationary period. During the probationary period,
your work performance and availability will be assessed and
continued employment determined@.
Prior to commencing employment, the grievor also received and
signed a document called ATerms and Conditions of Casual
Employment@. It restated the description of the probation period
set out in the letter of appointment and went on to state:
The work performance of a casual employee is
carefully monitored both through day to day
observation and a formal performance appraisal. Any
work deficiencies will be discussed with the employee
and steps taken to upgrade performance. In the
absence of improvement the employee would be
dismissed.
Approximately 5 months after she started, the grievor was
terminated by the following letter dated March 2, 2001, signed by
Mr. Holmes:
As we had discussed in our March 2nd telephone
conversation, I have reviewed the appraisal of your
job performance over your probationary period and the
February 14th letter containing your comments.
4
While you have achieved satisfactory results in stock
handling, customer interaction and merchandising,
there have been major shortcomings in your
performance in the areas of cashiering and retail
point of sale systems. These are key areas of
responsibility for the position.
Unfortunately, your performance has not met the
standard necessary for successful completion of your
probationary period. Your employment with LCBO is
therefore terminated, effective March 2, 2001. I
thank you for your interest in working for the LCBO
and wish you well in your future endeavours.
It is common ground that at the time the grievor had less
than six calendar months of probationary employment. Nor had she
performed 400 hours of work.
The employer=s position is that despite all attempts to train
and assist the grievor, she was unable to perform to an adequate
standard in some key areas of CSR duties. The employer was
convinced that she was not going to improve to the required
standards to be able to function as a competent CSR. The employer
accepts, for purposes of this case, that it has the onus of
establishing just cause for the termination. It takes the
position, particularly since a lower standard of just cause is
required in the case of a probationary employee, that in the
circumstances it had just cause to terminate the grievor.
5
In his opening statement, on March 7, 2002, union counsel
stated that on a number of grounds, the union would be taking the
position that there was no just cause for the grievor=s termination.
However, during the cross-examination of the employer=s second
witness on March 8, 2002, for the first time counsel took the
position that the termination should be declared void ab initio
because the employer had contravened article 26.3. That provision
reads:
An employee who is required to attend a meeting for
the purpose of discussing a matter which may result
in disciplinary action being taken against the
employee shall be made aware of the purpose of the
meeting and his/her right to Union Representation in
advance of the meeting. The employee shall be
entitled to have a Union representative at such
meeting provided this does not result in undue delay.
A meeting was held on January 10, 2000 between the store
manager Mr. Lariviere and the grievor. The evidence is that at
this meeting the grievor was informed that her work performance was
deficient in certain key areas, and that if no significant
improvement were shown by February 14, she would be terminated.
She was also given the following confirming letter at the meeting.
As per our conversation today, January 10, 2001, I am
concerned with your comprehension of the Cash
Register and Computer Technique. At this time I wish
to advise you that if I do not have a marked
improvement in your performance by February 14, 2001
I will have to have a further discussion with the
District Manager, Mr. Ron Holmes, to discuss if you
6
have shown the necessary skills to pass your
probationary period.
If there is anyway in which we can assist you with
these skills, please do not hesitate to ask.
A number of issues were raised between the parties with
regard to the union=s position based on article 26.3. Employer
Counsel argued that the union ought not be allowed to raise article
26.3 for the first time on the second day of hearing. However, the
main issue between the parties was whether the meeting on January
10, 2001 was Aa meeting for the purpose of discussing a matter
which may result in disciplinary action being taken against the
employee@.
After the employer closed its evidence in chief, union
counsel advised that it would not be calling any witnesses, and
that it would be relying on the evidence adduced by the employer to
establish a violation of article 26.3. It was the union=s position
on the just cause issue, that the employer=s evidence did not
establish just cause and therefore the employer had not discharged
the onus it had.
Article 26.3
The Board does not agree with the employer that the union
should not be allowed to raise article 26.3 for the first time at
7
arbitration. It is now established in GSB jurisprudence that the
rights in article 26.3 are substantive, and not procedural. For
example see Re Lahay, 809/94 (Gorsky); Re Pednault, 1568/98
(Briggs). Therefore any delay in asserting those rights does not
result in deemed waiver, but may affect the grievor=s remedial
entitlement if successful.
This provision confers upon an employee required to attend a
meeting falling within its ambit, three distinct rights. First,
the employee must be made aware, in advance, of the purpose of the
meeting. Second, the employee must be made aware, in advance, of
his/her right to union representation at the meeting. Third, the
employee is entitled to have a union representative at such meeting
provided that does not result in undue delay. On the evidence I
find that the employer did not afford to the grievor any of the
three rights specified in article 26.3. Therefore, if article 26.3
applied to the meeting in question, it was not complied with.
Thus the issue is, was the meeting on January 10, 2001, Aa
meeting for the purpose of discussing a matter, which may result in
disciplinary action being taken@? Union counsel accepted that for
his article 26.3 argument to succeed, the answer to that question
must be in the affirmative.
8
In Brown and Beatty, Canadian Labour Arbitrations (3rd Ed) at
p. 7-143, it is stated:
Boards of arbitration have consistently affirmed
management=s right, in the proper circumstances,
to discipline employees who fail to meet
reasonable production standards, who are careless
or negligent in the performance of their work,
who disregard announced safety procedures, or who
generally exhibit poor work habits. However, in
other contexts, if such behaviour can be
attributed to factors beyond the employee=s
control (involuntary misfeasance), for example
his physical or mental capabilities, rather than
to some factor within his control (voluntary
misfeasance), for example inattentiveness,
carelessness, disregard for safety procedures,
etc., then discipline of any form will not
usually be regarded as a valid response. Thus,
where it is established that an employee is
simply incapable of meeting a particular
production standard, or of attaining the quality
of work which the employer expected of him,
arbitrators have generally taken the view that
the imposition of disciplinary penalties is not
appropriate.
In Re J.M. Schneider Inc. (Hamilton) Unreported July 29.
1997, the collective agreement contained the following:
Article 8.08
AIf an employee is dismissed for any reason
whatsoever, the Company shall inform the employee,
the Shop Committee, and the Union, in writing, of the
reasons for dismissal@
Article 10.01
ANo employee shall be disciplined by management
without a Shop Steward being present.@
9
After concluding that probationary employees were entitled to
grieve dismissals, at pp. 10-20 the arbitrator wrote:
While the evidence in this case must be assessed
against the standard of Ajust cause@ this will be
done in the context that the two Grievors were on
probation and, therefore, the standard of review
is broader than what would be the case in the
termination of a non-probation/regular employee.
The decision of the Company must be a reasonable
one, meaning that the assessment must be made
against standards that were reasonably related to
the work in question or the Company=s legitimate
operational requirements. Essential to this
determination is the fact that probationary
employees ought to be apprised not only of the
standards expected but also of deficiencies noted
in their performance. The Company is not
required to meet the precise tests of a
progressive disciplinary regime when assessing a
probationer=s overall performance and particularly
when the probationer=s termination is not based on
a specific culpable disciplinary offence. If a
specific Aculpable@ offence is the reason for a
probationer=s dismissal then the Company will bear
the onus of proof in the normal course. In such
a situation, the prerequisites of Articles 8.08
and 10.01 of the Agreement ought to be followed.
However, on the evidence, Cvitan and Glowala
were terminated on broader grounds (i.e. general
suitability). This is not prohibited by the
Agreement and is consistent with the arbitral
tests I have summarized.
In a case between the present parties, Re Senia 248/85
(Samuels) the Board at p. 7 wrote:
10
While generally non-disciplinary discharge
applies to cases of mental or physical
incapacity, in our view it can also apply to
circumstances such as we have here where, though
there is no such incapacity, the employee simply
insists and has demonstrated that he is doing his
best and his best is not good enough.
In the present case, the evidence is very clear that the
employer was not alleging any blameworthy or culpable conduct on
the part of the grievor. There is no alleged offence or incident.
The testimony of Mr. Lariviere and Ms. Hepburn was to the effect
that the grievor had an inability to retain information repeatedly
provided to her. There was no suggestion that the grievor
intentionally, or even carelessly failed to perform her duties.
The thrust of their testimony was that she was trying but without
success. This is evident even in the letter of termination where
Mr. Holmes states: AUnfortunately your performance has not met the
standard necessary for successful completion of your probationary
period@. The letter handed to the grievor at the meeting in
question describes the employer=s concern as AYour comprehension of
the cash register and computer technique@. Based on all of the
evidence, I am convinced that when Mr. Lariviere met the grievor on
January 10, 2001, there was no contemplation on the part of the
employer that discipline may follow. The purpose of the meeting
was to put the grievor on notice about the employer=s concerns about
the grievor=s incompetence in certain areas and about the
11
possibility that she will not pass her probation if no improvement
is shown. No culpability or blame was alleged. That cannot fairly
be described as Aa meeting for the purpose of discussing a matter
which may result in disciplinary action@. No discipline was
contemplated and none was imposed.
Therefore, I find that article 26.3 did not apply to the
meeting in question, and the union=s argument in that regard fails.
Just Cause
As noted, the only evidence before the Board is that adduced
by the employer. The employer called Mr. Gerry Lariviere (Store
Manager), Ms. Ann Hepburn (the senior casual in the store), and Mr.
Ron Holmes, the District Manager. As store manager, Mr. Lariviere
was responsible for instructing and supervising probationary
employees at the store. Ms. Hepburn was from time to time
assigned to train new employees and did so in the grievor=s case.
Mr. Lariviere made the effective recommendation that led to the
issuance of the letter of termination to the grievor by the
District Manager, Mr. Holmes. Mr. Holmes did not work at the store
and did not personally assess the grievor=s work performance.
Rather, he relied on information provided by Mr. Lariviere and Ms.
Hepburn about the grievor=s deficiencies and their unsuccessful
attempts to coach her. Mr. Holmes testified that sometime in
12
December 2000, Mr. Lariviere expressed to him concern about the
grievor=s competence in cashiering and the POS computer techniques.
Mr. Holmes instructed Mr. Lariviere to bring these concerns to the
grievor=s attention and to take steps to assist her. This led to
the January 10, 2001 meeting, and the setting of the February 14,
2001 date for assessment. Mr. Lariviere subsequently kept Mr.
Holmes informed of the steps taken to assist the grievor and of the
lack of success. He informed that the grievor had shown no
improvement in the functions of cashiering and computer techniques
despite all of the attempts by himself and Ms. Hepburn to assist.
Based on all of the information before him, Mr. Holmes concluded
that the grievor had not achieved the required standard in key CSR
functions and that she was unlikely to improve in those functions
to pass probation. Therefore, rather than wait for the end of the
probation period, Mr. Holmes decided to terminate the grievor on
March 2, 2002.
There is no dispute that cashiering and the ability to
properly operate the POS computer system are key functions of a
CSR, and that one cannot be a competent CSR without those skills.
Mr. Lariviere estimated that those two functions accounted for
about 80 percent of the grievor=s job. He testified that the
grievor was instructed and coached on those functions when she
commenced, by himself, and in his absence by Ms. Hepburn and Mr.
13
Doug King, a full-time employee. However, after 3 to 6 weeks it
was evident to him that the grievor=s performance was deficient.
For example, she got advancing the till and selling back the till
mixed up and was confused about the proper void procedures. She
also could not distinguish between debit and credit transactions.
According to him those were very basic skills. While it was
understandable that mistakes were made the first few times, once
shown a few times, one should be able to learn and remember the
various transactions. However, despite repeated coaching by him,
the grievor kept making the same mistakes. Mr. Lariviere decided
to assign Ms. Hepburn to train the grievor. Ms. Hepburn was
experienced in CSR functions as the senior casual in the store, and
also was trained in training techniques in her capacity as the
District Trainer for the LCBO. Mr. Lariviere testified that before
Ms. Hepburn took over, he sat down with her and the grievor and
explained to the grievor that there were concerns about the
grievor=s performance in cashiering and computer techniques despite
much coaching on his part, and that Ms. Hepburn would be taking
over her training.
As District Trainer, Ms. Hepburn trained new LCBO employees
on specific customer service programs. In order to do that she
received a week long course on techniques for training adults.
Quite apart from the role of District Trainer, Ms. Hepburn had
14
trained new employees at store 369 prior to taking over the gievor=s
training.
Ms. Hepburn testified that she stood by the grievor as she
worked and showed her the steps she had to follow to do the various
transactions. In her view, a new employee should be able to master
the procedures within a week, assuming she worked at least a couple
of hours a day. However, despite repeated coaching by her, the
grievor had problems retaining information on a day to day basis.
She kept repeating the coaching hoping that with a little more time
the grievor would learn the procedures. However, that did not
happen. Therefore, Ms. Hepburn resorted to a teaching technique
she had learned in her course. She had the grievor write down each
step of the transaction as she did it under Ms. Hepburn=s
supervision. The expectation was that the writing down would
better help the grievor remember the steps for each transaction.
However, that did not help either. The grievor could not perform
the steps in the procedure without referring to her notes each
time.
In another effort to assist the grievor, Ms. Hepburn created
for the grievor a document called ABasic Cash Techniques@. She
wrote down for the grievor each type of transaction step by step.
She also drew on paper a layout of the key board, and colour coded
15
it to match the colours of the cash register keys. These were
given to the grievor, so that she could follow it and practise Adry
runs@ on the cash register. Ms. Hepburn watched her do that to
ensure she was following the steps correctly. At first, Ms.
Hepburn felt it was helping. However, the grievor continued to
have problems, particularly with the cash back and debit
transactions. The grievor got frustrated with her inability to get
it right.
By late November/early December 2000, Ms. Hepburn concluded
that despite her efforts to train the grievor, she had not shown
improvement. She felt that a detailed document setting out more
information may be helpful. In early January 2001 she created a
document titled ALCBO 101", which described in detail the proper
steps for all CSR functions. After reviewing it with Mr.
Lariviere, she asked another casual employee (who had been hired
around the same time as the grievor) and some non-LCBO persons to
use the ALCBO 101", in order to see if they could follow it. They
had no difficulty following it. The document was provided to the
grievor as an aid to learning the various transactions. However,
no improvement was achieved. From her experience, if someone
performed the transactions at least once a week, within a month
he/she should be competent with all of the tasks dealt with in
ALCBO 101". As an example, Ms. Hepburn stated that she also
16
trained the other casual employee who started at the same time as
the grievor, and that employee learned the basic transactions
within a week.
Brown and Beatty, Canadian Labour Arbitration, (3rd Ed), at
p. 7-268.1 summarizes the status of probationary employees with
regard to job security as follows:
However, with respect to matters of employment
security generally, and discharge and dismissal
in particular, the status of the probationary
employee has been uniformly regarded by
arbitrators as being more vulnerable than, and to
be distinguished from, that enjoyed by seniority
rated employees. Although arbitrators have
differed as to precisely what rights, if any
probationers enjoy with respect to their security
of employment, there is a firm consensus that,
from the very nature of a probationary period,
such persons cannot expect the full and
unqualified protection provided by the just cause
provision which is enjoyed by those employees who
have completed their probationary period. That
is, and apart from any specific clauses in the
agreement, virtually all arbitrators now accept
the rationale for, and the legitimacy of, the
probationary status as being like an
apprenticeship, a learning experience and a
period of time during which the employer is free
to assess the full potential and capability
(viz., the suitability of such persons in the
broadest sense) of both new employees and
employees who have not worked for a period of
time in the particular position.
17
In Re Porcupine Area Ambulance Service, (1974), 7 L.A.C.
(2nd) 182 (Beatty) at pp. 186-87, the arbitrator wrote:
We would go further and state that in any case
involving the discharge of a probationary
employee the employer must not only prove the
acts complained of which precipitated the
discharge, but in addition he must demonstrate
that this reasonably supports his conclusion that
the discharge was appropriate. Were it otherwise
an employer might well be justified in asserting
that a probationary employee who was late on one
occasion (with or without justifiable excuse) had
fallen below the standards of punctuality thereby
demonstrating his unsuitability as a future
employee. In short, the employer must not only
prove the facts upon which he based his action,
but in addition that the employee=s conduct
demonstrates that it is reasonable to conclude
such an employee will likely prove unsuitable as
a seniority-rated employee. This will
necessarily entail a board of arbitration
assessing both the reasonableness of the
standards imposed by the company against which
the employee=s conduct is to be measured, as well
as the conclusion that the conduct complained of
reasonably supports the conclusion that the
probationary employee is likely to prove
unsuitable.
One should add that in our view this review by a
board of arbitration should not take on the
nature of an appeal as to the correctness of the
company=s prognostication as to the future
prospects of the probationary employee. We have
already stated that some of the legitimate
concerns of an employer in assessing the future
employment relationship of a new employee, viz.
his character, compatibility, potentiality for
advancement and general suitability are
18
necessarily vague. Further the judgement of the
company is necessarily in the nature of a
prognostication. Arbitrators should therefore be
reluctant to interfere with that prognosis unless
it is plain that the employer=s assessment or
standards are palpably unreasonable. However,
should the employer fail to establish any basis
for the termination of the probationary employee,
or should it be demonstrated that his assessment
or the standards against which the assessment is
made are unreasonable, boards of arbitration must
not sanction such disciplinary action simply on
the basis that it was invoked against a
probationary employee. In sum we would assert
that although the proper basis for discharge of a
probationary employee may be somewhat broader
than that justifying the termination of a
seniority-rated employee, and although the
standards of review by boards of arbitration will
be less rigorous, nevertheless the employer must
affirmatively establish that his termination of a
probationary employee was reasonable in the
circumstances.
Some authorities state that a lesser standard of just cause
applies to probationary employees. This in my view, is an
incorrect use of terminology. A lesser standard of just cause
applies to probationary employees only if the collective agreement
says so. Article 26.4 of the collective agreement makes no
distinction between types of employees with regard to just cause
for discipline and dismissal. Therefore, the employer has the onus
of proving just cause for the termination of a probationary
employee to the usual standard of Aa balance of probabilities@.
19
However, in assessing whether just cause has been proven in any
given case, a number of factors may be taken into account. The
employee=s probationary status is such a factor. In Re Cotter,
971/88 (Fraser), the GSB concluded that probationary employees were
entitled to the usual just cause protection, but also held that Aa
probationary employee is a special case@. At pp. 17-18 it went on:
These two matters may be reconciled in view of
the broad scope of a just cause provision.
Although the onus remains on the employer, a
probationary status is clearly a relevant factor
in assessing in any case whether just cause
existed. Arbitral awards are replete with the
adoption of various forms of status as relevant
factors in assessing just cause for discipline or
discharge. If for example, one is a teller or
cashier, the resulting fiduciary relationship has
long been an important factor in assessing just
cause in many past cases involving the current
employer. If, for another example, a
probationary employee is essentially off the
street, and has never worked for the employer or
otherwise before, then a review for just cause
would take account of that probationary
relationship, including the lack of any
employment record of the employee, and the risk
the employer has accepted in embarking on that
relationship. For a further example, if the
probationary employee has had some eight years
service with the employer in another capacity,
prior to entering a formal probationary period
(as we understand the situation to be in the case
before us), then the factor of probation may be
given a different weight in reviewing for just
cause, than in the first case.
20
Taking a similar approach in Re Grace Hospital (1993) 35
L.A.C. (4th) 410 (Bluman) at pp. 20-21, the arbitrator wrote:
In my view, that some authorities say that an
employer must meet a lesser or less rigorous standard
to prove cause for discharge of a probationary
employee is, with respect, unfortunate terminology.
None of these authorities suggest that the employer
need not prove its case on a Abalance of
probabilities@, the usual standard of proof. Cause
itself cannot be measured against any definable
standard. What constitutes Acause@ for discipline
will depend upon all the circumstances, most
importantly, the employment context. For example,
sleeping while on shift may be considered acceptable
in some work environments or a fairly minor
infraction. In another employment context it may be
considered Acause@ for a severe disciplinary penalty.
Even theft which is broadly accepted to be a Afiring
offence@ has been held to fall short of Acause@ for
discharge by a distinguished arbitrator because of
the vagaries of the particular employment context
under his consideration: see Alcan Smelters &
Chemicals Ltd. (Ivanakis grievance), unreported, 1983
(Hope)
The master collective agreement specifically provides
that new employees are on probation for the first
three months of their employment. The fact an
employee is on probation must properly be taken into
account in assessing whether the employer has proven
Ajust cause@ for her discharge. A probationary
employee is by definition Aon trial@. The trial
period gives the employer an opportunity to assess
whether the employee has demonstrated what arbitrator
Dorsey has described as Athe ability to meet a
reasonable work standard@. Stated perhaps
simplistically, if the employer is able to prove on a
preponderance of evidence that the employee had a
fair opportunity to demonstrate such ability but
21
failed to do so, it has met its burden of proving
Acause@. It is not a matter of the employer having
faced a lesser burden, rather, the fact of probation
added a category of Amalconduct@ which justified
termination.
The union accepted, after some hesitation, that as a general
matter, poor work performance and unsuitability may constitute just
cause for the non-disciplinary discharge of a probationary
employee. However, it took the position that no just cause existed
for the grievor=s discharge for a number of reasons. I shall deal
with each separately.
Termination was premature
Counsel for the union argued that in article 31.5(a) the
parties had agreed to a probationary period of 6 months or 400
hours. The grievor was terminated after just over 5 months of
probationary employment. She had not completed 400 hours of work
at the time either. Counsel argued that a probationary employee
was entitled to a fair and full opportunity to show ability, and
that requires that the employee be allowed at least 6 months or 400
hours.
Article 31.5(a) is about when seniority will commence to
accumulate, i.e. upon completion of probation. It provides that
probation will be completed after 6 months of probationary
22
employment provided the employee has worked 400 hours. Otherwise,
probation is completed only when the employee has worked 400 hours.
From that language, the union derives the proposition that the
employer must always allow probationary employment of 6 months/400
hours before assessing and deciding on the employee=s suitability or
unsuitability for permanent employment. That, in my view, is not a
reasonable interpretation of the provision. Article 31.5(a) does
not address the issue of when the employer may make its
determination about suitability. If the parties intended to
guarantee probationary employment for 6 months/400 hours before a
decision is made, they would have provided for that. Article
31.5(a) does not do so. Therefore, whether an employee received
full and fair opportunity to show ability must be assessed on a
case-by-case basis based on the particular facts. Where the
employer decides to terminate an employee prior to the completion
of the probationary period specified in the collective agreement,
as was the case here, the onus is on the employer to establish that
it came to a reasonable conclusion that allowing the employee to
continue would not have resulted in the employee attaining the
required level of competence.
In the present case there is no dispute that cashiering and
the P.O.S. computer tasks are key elements of a CSR job. Two
employer witnesses who directly observed the grievor testified
23
about the deficiencies the grievor had in those areas. These
deficiencies were confirmed by a formal performance appraisal. The
grievor made a written complaint, suggesting inter alia that a
hostile work environment, particularly intimidation by a co-worker,
was responsible for her poor performance. Those suggestions are
unsubstantiated because the employer witnesses denied every
suggestion put to them in cross-examination. And no contrary
evidence was led on behalf of the grievor.
The employer also led detailed testimony about the numerous
attempts made to instruct and assist the grievor over a period of
over 5 months. The grievor did not testify about any inadequacy in
the training she received or about a lack of opportunity to learn.
In the circumstances, the employer has met its onus to show that
its determination after 5 months, that the grievor was unlikely to
be a competent CSR, was reasonable.
The manner in which the termination was effected
In this regard the union made two arguments. First, it was
submitted that in terminating the grievor the employer failed to
follow its own policy. Secondly, it was argued that the employer
failed to properly bring its concerns to the attention of the
grievor and therefore deprived her of the opportunity to prove her
ability.
24
The union=s allegation of breach of policy relates to a LCBO
document titled AGuidelines for administering the probationary
period@. Counsel relied on the following passage:
A request to terminate a probationary employee should
be supported by DOCUMENTATION. This documentation
should represent your effort from when the employee
was hired to your final efforts; you must document as
you go. This includes copies of written information
given to the employee, notes regarding verbal
counselling and discussions, letters/memos given to
the employee informing him/her that his/her
performance was not acceptable and that change was
required or else termination may be the result. The
termination of a probationary employee should be the
result of the failure of every reasonable effort to
help the employee reach her/his potential. And the
onus of proof that every reasonable effort has been
taken is on YOU.
During cross-examination, Mr. Lariviere and Ms. Hepburn
admitted that they kept no notes about the various discussions they
claimed they had with the grievor, wherein the grievor was advised
of her shortcomings and counselled on ways to improve. It was
submitted by union counsel that termination of the grievor was
therefore preceded by a breach of the employer=s own policy and that
such a termination could not be for just cause.
I agree with counsel to the extent that Mr. Lariverie and Ms.
Hepburn did not do what the document states they should do.
25
However, I do not agree that this has any bearing on the just cause
issue. The document in question is an internal LCBO document which
forms part of a larger document titled AManager=s Guide - Casual
employee orientation@. The document sets out certain things which
manager=s administering probation periods are expected to do.
Namely (1) Ensure that the new employee understands the tasks that
are to be performed as part of his/her new job; (2) Ensure that the
standards to which these tasks are to be performed are understood;
(3) Ensure that the employee is properly trained in performing
tasks to an acceptable level; and (4) Ensure that constructive
feedback is provided in a timely manner. The foregoing are for the
benefit of the probationary employee. Where a manager fails to
comply with them, the employee may be able to argue that she/he did
not have a fair opportunity to demonstrate her ability.
The passage relied on by the union instructs managers to
document the steps taken to comply with the four above factors.
For example, if a manager has a verbal discussion during which
feedback is provided to the employee, the manager is expected to
document it. However, that documentation is not for the employee=s
benefit. It is clear from the passage that managers are expected
to document what they do to assist and train probationary employees
because that will enable the employer to prove what it did in the
event the termination is challenged. Recognizing that the onus is
26
on the employer to prove the employee=s unsuitability, it is to the
employer=s advantage to have documented proof of what it did. The
passage in question is merely a recognition of that. The failure
of Mr. Lariviere and Ms. Hepburn to document what they did may be a
failure to follow good management practice expected by the
employer. However, as long as they in fact took the necessary
action to assist the employee, their failure to document what they
did does not have any bearing on the just cause issue. It simply
means that if the instructions in the passage were followed, it
would make proof of just cause easier for the employer. The
documentation does not assist the employee to attain competency.
The union=s other argument is that until January 10, 2001,
the employer did not advise the grievor of any problems with her
work performance, and then a month later she was terminated. It is
submitted that the grievor did not get sufficient time and
opportunity to improve her work performance.
The employer witnesses testified without reservation that on
numerous occasions they discussed with the grievor about her short-
comings and suggested ways to correct them. They tried to assist
her in different ways. The grievor did not testify. Therefore,
there is no evidence that the grievor did not understand what was
expected of her or what the employer=s concerns were about her work
27
performance. Through cross-examination, union counsel did
establish that January 10, 2001 was the first time an Aofficial@
meeting was held and the first time the grievor was put on notice
in writing about the employer=s concerns about the grievor=s work
performance and the need for improvement as a condition of passing
her probation.
However, the collective agreement, the employer=s own policy
nor arbitral jurisprudence requires Aofficial meetings@ or Anotice
in writing@. The employer=s evidence is uncontradicted that Mr.
Lariviere at first, and subsequently Ms. Hepburn, had discussions
with the grievor on an on-going basis. Indeed, Mr. Lariviere,
under cross-examination, stated that he did not believe that giving
the grievor A60 notes@ would have helped. Instead he felt that it
was more useful to informally talk to her and coach her about the
concerns. In my view, what is required is that the grievor be made
aware of the deficiencies and of the fact that the failure to
improve will result in her not passing probation. Absent a
requirement in the collective agreement, it is not mandatory that
this be done in writing or at an official meeting. Given the
testimony of the employer witnesses and the absence of any contrary
testimony from the grievor, I cannot accept that until she received
the letter at the formal meeting on January 10, 2001, she would not
have known about the employer=s concerns or of the fact that she
28
needed to correct her deficiencies if she was to pass her
probation.
The assessment of the grievor=s work performance
The union=s final grounds in support of its argument that
there was no just cause for discharge is based on the fact that the
assessment of the grievor=s work performance, which effectively led
to her discharge, was done by Ms. Hepburn. The District Manager
testified that as store manager, it was Mr. Lariviere=s
responsibility to train and evaluate probationary employees and
make recommendations. In the grievor=s case, Mr. Lariviere
delegated the training as well as the evaluation to Ms. Hepburn.
He did not give her a training plan but left it up to her how to
train the grievor. The union=s concern was that Ms. Hepburn, a
casual CSR, was training and evaluating another casual CSR. The
union also questioned Ms. Hepburn=s qualifications to train a new
CSR.
There is no question that the ultimate responsibility to
coach and assist a probationary employee and to evaluate her is on
the employer. In this case that responsibility fell on the store
manager, Mr. Lariviere. However, the union did not point to any
requirement that Mr. Lariviere must carry out these functions
personally. The uncontradicted evidence is that at store 369 it
29
was not uncommon for experienced bargaining unit employees to train
new employees. Indeed, Ms. Hepburn had trained many new employees,
including one who started around the same time as the grievor.
Once gain, the union=s argument is a technical one with no
consequence on the substantial issue, which is whether the grievor
was provided appropriate training and properly assessed. It does
not matter whether that training and assessment are provided by the
Store Manager personally, or by someone else assigned by the
Manager. (If the union objects on principle to a bargaining unit
employee training and/or assessing another bargaining unit
employee, that issue has to be raised elsewhere). The evidence is
that Ms. Hepburn has been employed at the LCBO as a casual CSR
since July 1997. As the senior casual at store 369 she worked
approximately 25 to 30 hours a week. As such she was very
experienced in all aspects of her CSR job. She was also the
District Trainer. The District Trainer position involves training
new employees on specific customer service programs. It is not
part of a district trainer=s role to train new employees on CSR
duties. Nevertheless, the uncontradicted evidence is that Ms.
Hepburn had received training on general training techniques.
Given that knowledge of training techniques, combined with her
experience as a CSR and her experience in training other
probationary employees, it is not reasonable to infer that she was
30
unqualified to train and assess the grievor. This is more so
because the appropriateness of her training and assessment of the
grievor was not challenged. The grievor did not testify to the
effect that the training and assessment by Ms. Hepburn was
inappropriate or inadequate. If the grievor=s position was that the
training provided was inappropriate or that her assessment was
unfair, there is no evidence to support that. Although the
evidence indicates that Ms. Hepburn had some absences due to
illness during the time she was the grievor=s trainer, there is no
indication that it contributed to the grievor=s inability to attain
the required standard of performance.
In Re Porcupine Area Ambulance Service, (supra) at p. 185 the
Board described the purpose of a probation period as follows:
... one must also recognize the legitimate interests
of the employer in attempting to secure the most
competent, compatible and suitable work force it can
acquire. One cannot reasonably expect an employer to
be able to assess the full capabilities and
potentiality of a job applicant from a brief
interview ... Rather (the employer) must be entitled
to an opportunity to view the new hire in the
particular context of (the) work environment. That
is the sole purpose of the probationary period. It
is, as we have said, a legitimate purpose.
In pursuing that legitimate purpose, particularly in the face
of a just cause requirement, the employer must take steps to ensure
that it administers the probationary period in a fair and
31
reasonable manner. The onus is on the employer to establish that
this was done. In order to discharge that onus the employer must
be able to satisfy the Board of the following:
(1) The employee must be made aware of his/her duties and
responsibilities and of the standards of performance expected
during the probationary period.
(2) The employer must provide the employee reasonable
assistance, through coaching and instruction, to achieve the
required standard of competence.
(3) Any deficiencies must be brought to the employee=s
attention and the employee given reasonable time to correct them.
(4) The employer must not act in bad faith or act in
discriminatory fashion.
(5) The employer must satisfy the Board that it came to a
reasonable conclusion that the employee failed to meet the expected
standard and that as a result she was not suitable to be placed
permanently in the position.
32
Based on the evidence before me, I am satisfied that the
employer has met the foregoing criteria. In the circumstances,
just cause has been established.
Accordingly, the instant grievance is dismissed.
Dated at Toronto this 30th day of July, 2002.
Nimal V. Dissanayake
Vice-Chairperson