HomeMy WebLinkAbout1994-1056.Larmand-Shotlander-Thompson.96-11-29oNlmK3 EhfPLOY&z DE LA CaJRmNE
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GRIEVANCE COMMISSION DE
SETTLEMENT RkGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G lZ8 TELEPHONE/T&&PHONE : (416) 326-1388
l&l, RUE DUNDAS OUES’I; BUREAU 2100, TORONTO (ON) A&G 1Z8 FACSIMLE/T~LkOPIE : (416) 326-1396
GSB # 1056194, 1057194, 1058194
OLBEU # OLB155-7/94
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN OLBEU (Larmand/Shotlander/Thompson)
Grievor
- and -
BEFORE:
FOR THE
GRIEVOR
FOR THE R. Drmaj
EMPLOYER Counsel
HEARING
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
S. Stewart Vice-Chairperson
J. Noble
Legal Counsel
Ontario Liquor Boards Emplqyees' Union
-Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors
April 30, 1996
October 21, 1996
DECISION
The grievors, Ms. H. Thompson, Ms. M.C. Larmand and Mr. G.
Shotlander are employed as clerks in the Employer's Durham
warehouse. Mr. Shotlander works in the receiving department.
Ms. Larmand and Ms. Thompson work in the order processing
department. The Union claims that the grievors were improperly
denied opportunities to work overtime in the shipping department.
There was no objection to my jurisdiction to hear and determine
the grievances.
The Collective Agreement provides as follows with respect to
overtime:
6.6(b) Where there is a requirement for overtime to
be worked, it shall first be offered to
full-time employees on a rotational basis.
Where sufficient personnel do not volunteer,
such overtime shall then be offered to
permanent part-time employees then to casual
employees. Failing sufficient volunteers,
overtime would be assigned to full-time
employees on a rotational basis.
It was common ground between the parties that the manner in
which overtime was to be distributed.among employees of the
shipping, order processing and receiving departments had been
established in accordance with a memorandum dated September 16,
1991, which reads as follows:
As committed, this is a recap of the points covered during
our meeting of July 17th that surround the issue of your
concerns with respect to the current method of overtime
and job rotation.
As a point of clarification, it was you, as a group of
operations clerks who approached us about 6-8 months ago
2
with a request that we look at alternatives to what you
saw were the problems with the practice of frequent and
broad rotation.
We met, we listened to your concerns and we considered
your proposals. As a result, we felt that the basis of
your concern i.e. the low level of accountability and
responsibility caused by this frequent rotation and the
feelings of disjointedness that resulted, did indeed
warrant serious consideration.
It was decided that it would in fact be operationally
beneficial to narrow the window of rotation and lengthen
the time that each individual would stay in a job function.
The resulting plan still had clerk rotation, but this time,
the rotation would be restricted to/within a department
and each created a structure that had three clerks within
each department and each of those clerks would rotate
through the three jobs, ideally on an annual basis.
In structuring the plan, we decided to leave the three
non-rotational clerks in the function/department that
they were in and that we would post the six (6) remaining
functions on a board and allow each of you to select the
position/department that you wanted to work in, on a
seniority basis.
We would rotate the three departmental clerks amongst
themselves, as mentioned earlier, ideally on an annual
basis i.e. four months per function and as far as overtime
went, when available, it would be offered to the
departmental clerks first within the department with the
need to incur the overtime. If the incumbent clerks
refused the overtime, we would assign the junior clerk
within that department to the overtime hours.
Your concerns, that arose from this structure, was that of
fairly sharing the overtime amongst the clerks outside of
the department as there were some departments that worked
a significant amount of overtime and others that virtually
worked none.
You felt that there was no point in forcing a clerk to work
overtime if there were clerks outside of the department
that would like to have to have an opportunity to work.
As a compromise, we agreed that we could offer overtime to
the clerks outside of a department, if, after canvassing,
we were unsuccessful in filling our manpower needs from
within the department working the overtime, provided that
we had at least one clerk from within the department also
working. This was deemed to be necessary to ensure that
3
we had at least one clerk present who was up-to-date
with the functioning of the department and its needs.
The grievances arise from an enhancement to the computer
system, known as the "Net K52 Project". The purpose of the
enhancement was to increase the accuracy of shipping documents,
known as "K52~~~ including providing for an adjustment for
breakage. As well, the new system was designed to allow for the
.
more efficient generation of documentation associated with
shipping orders. Training for.employees in the shipping
department and back-up employees in the warehouse was commenced
in June 1994, however the grievors were not provided with
training on the system until the latter part of November, in the
case of Ms. Larmand and Mr. Shotlander and the early part of
December in the case of Ms. Thompson.
It is the position,of. the Employer that because the grievors
had not been trained on the enhancement procedures they were not
able to perform the work and thus were not entitled to be
considered for overtime opportunities. The Union advanced a
number of positions. It was argued that the Employer should have
trained the grievors on the new system and that the grievors
ought not be disadvantaged by the Employer's failure to do so.
It was further argued, in the alternative, that training was not
in fact required for the grievors to have been offered the
overtime opportunities. There were two aspects to this argument.
It was suggested that training was not in fact required for the
4
grievors to have performed work involving the K52 system. In the
alternative, it was argued that there was overtime work available
that the grievors could have performed without the necessity of
utilizing the enhanced computer system and that in those
instances, at least, overtime should have been granted in
accordance with the Septmber 16, 1991 memorandum.
All three of the grievors testified, as did Mr. G. DeLuca,
who was shipping manager at the time of the events giving rise to
the grievance.
The grievors all testified that that they would have
accepted overtime work in the shipping department had it been
offered to them. As well, they testified that after reading the
manual relating to the program, and a brief period of training,
they were able to utilize the system without difficulty. The
manual is 35 pages in length, excluding samples. The time
allocated for the training of the grievors on the enhanced system
was three half days. Mr. Shotlander testified that he was able
to utilize the program after only 5 or 10 minutes of instruction
and that he proceeded to perform work on the system during the
remainder of his allocated training time. Ms. Larmand testified
that it took her 30 to 45 minutes of direct instruction to learn
the new system. Ms. Thompson's evidence was that she was able to
utilize the system after about 90 minutes of instruction. Ms.
Thompson also testified that an employee from the warehouse was
5
assigned to work on the K52 system
of the grievors agreed that during
prior to being trained. All
the course of their training
there was a person available to provide them with any assistance
they might require.
Mr. DeLuca testified that the new system was brought into
the department around June, 1994. He testified that he required
training on the system for '*a few days". However, Mr. DeLuca
acknowledged that he does not perform this kind of work on a
regular basis and thus that it may have taken him longer to learn
the new system than someone who does perform this kind of work on
a regular basis. Mr. DeLuca testified that training for the
three permanent shipping clerks and two persons from the
warehouse who performed backup duties in shipping commenced in
June. One of the shipping clerks became ill in June and was off
work until mid August. Another clerk .from the warehouse was
brought in to receive training in her place. Mr. DeLuca denied
that any employee was assigned overtime duties on the K52 system
prior to being trained. He testified that the training for
employees in the receiving and order processing departments was
delayed because of the absence of the shipping clerk and the fact
that a number of employees were on vacation during the summer.
When training takes place it is necessary to replace the person
being trained. There was no dispute that the Employer's
consistent practice is to train employees on straight time rather
than on overtime.
6
It was common ground between the Union and the Employer that
the use of a computer terminal was necessary to work on the K52
system. There was some discrepancy in the evidence of the
grievors as to how many terminals were available in the shipping
However, there was no real contradiction of Mr. department.
Deluca's assertion that there were three terminals in use at the
time. Similarly, there was no real contradiction of Mr. DeLuca's
evidence that they could all be utilized at the same time.
The testimony of the grievors, with which Mr. DeLuca
concurred, was that working on the computer terminal was not the
only function of employees in the shipping department. In
particular, Ms. Larmand's evidence was that the usual work
pattern with three employees would involve one employee working
on the terminal with the other two working on related tasks.
There was some difference between the grievors and Mr. DeLuca as
to the amount of time that would be spent on the integrated tasks
within the department, although there was agreement that tasks
other than the operation of the K52 system were necessary.
During the period between the implementation of the new system
and her training, Ms. Larmand was offered and accepted overtime
work in the shipping department. At that time she was assigned
to the task of splitting bills and was not required to perform
any work.on the K52 system. Employees outside the shipping
department who had not received training on the K52 enhancements
were assigned to tasks within that department during regular
7
working hours and were assigned to duties other than working on
the K52 system.
Mr. DeLuca testified that approximately 90% of the overtime
work assigned during the period between the introduction of new
system and the training of the grievors was on work relating to
the implementation of the K52 system. According to his evidence,
there were a number of difficulties with the system that had to .
be worked out. He testified that all three of the computer
terminals in the shipping area were used the majority of the
time. However, Mr. DeLuca acknowledged that he was not in the
shipping area all of the time and thus could not confirm
precisely how much time they would be in use.
I will first deal with the issue of whether the grievors
ought to have been entitled to overtime opportunities
notwithstanding their lack of training. As previously noted, one
of the arguments advanced by the Union was that because the
grievors were not responsible for the delay in training they
should not be deprived of overtime opportunities lost due to the
delay. I am unable to accept this submission. Both counsel
referred me to a number of decisions dealing with the provisions
of Article 6.6(b). The essence of those decisions is that this
.provision is to be given reasonable and practical interpretation.
While the delay in training-was unfortunate, it is apparent that
it was due to operational circumstances. I am unable to accept
a
that a reasonable and practical interpretation of this provision
would require the Employer to pay damages .for loss of overtime
opportunities by virtue of the grievors not receiving training at
an earlier date.
I turn now to the issue of whether training was in fact
necessary to perform the work on the enhanced K52 system. There
was contradictory evidence on the issue of whether an employee
performed overtime work on the K52 system prior to training. It
seems most unlikely that the Employer would have imposed a
requirement for training on all but one employee. The employee
directly involved was not called to testify. I am unable to
conclude, on a balance of probabilities, that this allegation has
been established. While it appears that the time allocated for
training was somewhat generous, it is also apparent from the
evidence that some training was required. Accordingly, I am
unable to conclude that the grievors ought to have been assigned
to work involving the K52 system prior to training.
Mr. Drmaj argued that because the grievors did not have
training on the K52 system at the relevant time they were not
eligible for overtime and the grievances should be dismissed.
In support of that posjtion I was referred to LCBO t OLBEU
JLawrence) 1216/85 (Forbes-Roberts). In that case, the grievor's
claim to overtime was dismissed on the basis that he was not
capable of performing the full range of functions that he might
9
be called upon to perform. I accept the principle that an
employee is properly expected to 'be able to perform the full
range of the functions of a postion in order to be eligible to
perform overtime work. However, on the facts of this case there
is an issue of whether all persons performing overtime work in
the shipping department during the period in issue were in fact
required to have knowledge of the new K52 system.
The evidence called by the Union suggested that in the
normal course of events there would be one, or at most two,
employees utilizing the monitors to work on the K52 system while
other employees would be in the department would be performing
other functions. However, the uncontradicted evidence of Mr.
DeLuca was that 90% of the time spent on overtime during the
period in issue was in relation to the K52 system. But, it is
also apparent from the evidence that the maximum number of
employees who could work on the K52 system at any time was three.
The record of overtime hours worked which was provided by the
Employer, (Exhibit 9), indicates that there were occasions where
more than three persons were assigned to overtime in shipping.
In my view, it is clear that in those situations overtime
I opportunities ought to have been made available to persons in the
;. position of the grievors and I so declare.
Ms. Noble submitted that entitlement to work overtime in the
shipping department where three other employees with the K52
10
training were working should not be limited to situations where
the other employees were working overtime hours. In this regard
I was referred to the caveat contained in the last paragraph of
the September 16, 1991 memorandum. Ms. Noble indicated that
there would be some instances where a shipping employee with the
K52 training would have been on afternoon shift when a need for
overtime and the necessity of bringing in employees from other
departments arose. In Ms. Noble's submission, it was not
necessary for that person to be on overtime in order for
employees in other departments to be entitled to work overtime.
Mr. Drmaj argued that the memorandum should be interpreted as
contemplating that the employee in the department would also be
working overtime. While the memorandum is not entirely clear on
this point, it is my view that the interpretation urged upon me
by the Union is the preferable one. The Employer has an obvious
interest in ensuring that an employee in the department is
present'when overtime is worked, however that concern does not
necessitate the employee being present by virtue of working
overtime. The Union's interest, in providing for opportunities
for overtime to be available more widely, will not be met if the
Employer's position were to prevail. Moreover, the position put
forward by the Union in this regard appears to me to be the
preferable interpretation of the language of Article 6.6 (b) of
the Collective Agreement.
The grievances are allowed in accordance with and to the
11
extent of the foregoing conclusions. The grievors are entitled
to compensation accordingly. The parties are to review the
relevant records and confer as to the extent of compensation. I
retain jurisdiction to deal with any matter necessary to finalize
this matter.
Dated at Toronto, this 29th day of November, 1996
S.L. Stewart - Vice-Chair