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HomeMy WebLinkAboutLucier 89-06-13 IN THE MATTER OF AN ARBITRATION BETWEEN: ST. CLAIR COLLEGE (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") GRIEVANCE RE SHIRLEY LuCIER - BOARD OF ARBITRATION.- Pamela C. Picher - Chair Robert Gallivan - College Nominee :Ion McManus - Union Nominee APPEARING FOR THE COLLEGE: 3anice Baker - Counsel APPEARING FOR THE UNION: Laura Trachuk - Counsel A hearing in this matter was held in V/indsor, Ontario on April 20, 1989. AWARD Through this arbitration the Union argues on behalf of the grievor~ Ms. Shirley Lucier, that the College acted in breach of article 15.~.1 (Layoff Procedure]Bumping)of the collective agreement when it permitted Ms. 3ean Thomas to bump into the grievor's position of accounts payable clerk in the Financial Services Department. The bumping in dispute occurred during the summer of 1988 when approximately thirty employees were laid off. The relevant portion of article 15.#.I provides as follows: 1 If.~. 1 Layoff Procedure]Bumping l~.t~.l.l Sequence of Layoffs When a College decides that circumstances require a reduction of personnel in any position within a .classification as defined herein, the following provisions shall apply: No Vacant Position - where there is no such vacant position ... the employee may displace one ... determined according to the following sequence: - the most junior employee occupying a position within those classifications of equal maximum rate to that of the employee's own classification, that he/she is fully qualified to perform without training, and providing he/she has greater seniority ... 1~.~.1.2 Order of Layoff Where the term "fully qualified to perform the work without training" is used in this Article, -2- it is understood that the CoHere shall provide the employee selected with a reasonable period of familiarization, where necessary. [emphasis added ] The Union maintains that Ms. Thomas was not qualified to bump into the grievor's position because, 'in its submission, she required training, as opposed to a familiarization period, to become capable of performing the duties of the job. A. FACTS: The griever assumed the position of accounts payable clerk in the spring of 1987. The job includes the following tasks: a. Check invoices against purchase orders to: i. ensure that they matchl ii. ensure that appropriate sales tax exemptions have been made and, if not, rectify the error~ iii. ensure that appropriate vendor discounts have been taken and, if not, correct the error. b. Perform the cheque runs. This involves initialing cheques up to $1,000 to verify that the cheques are made out correctly, i.e. in accordance with the amount and party set out on the invoice. There are approximately 200-h00 cheques a week processed in this manner. c. On a daily basis, ensure that a balance exists between the invoices and the computer listing of the invoices. d. Issue airline tickets, verifying that necessary approval has been given and that it is properly recorded. e. Check grants or bursary cheques against a list to ensure the correctness of information and amounts; send copies of the list to specified locations for the performance of other tasks respecting the cheques. f. At month end, verify that sales taxes match computer reports. -3- g. Send form letters respecting leans and verify that payment has not actually been received when the letter issues. h. Reconcile petty cash. i. Keep attendance reports. The grievor remained in the accounts payable section for three weeks after Ms. Thomas formally assumed her job. Ms. Lucier had been asked by her supervisor, Ms. 3udy Harris, to remain in her position for a few weeks to train Ms. Thomas. At the end of that period, Ms. Harris requested that the amount of $1,100.00 for the training of Ms. Thomas be attributed to the funds available for the "downsizing" that had taken place with the lay-offs that prompted the bumping in issue. That memo provides as follows: TO: Anne Bennett FROM: 3udith Harris DATE: 1988 08 12 RE: DOWNSIZING COSTS I have been instructed by Personnel that Financial Services can access funds in the corporate account allocated for "downsizing" and that our request should be processed through your office. Our costs are directly attributed to the training of those persons displacing staff as a result of the collective agreement and are as follows: Two weeks salary for S. Lucier for training of Jean Thomas: Salary & Fringes $1,100.00 Credit t,003-030-131 Two weeks salary for L. Boyce for training of Shirley Lucier: Salary & Fringes $850.00 Credit 4003-020-131 TOTAL $1,950.00 "Judith K. Harris" Assistant Director Financial Services Ms. Thomas had not seen a job description for the position she was bumping into until she actually assumed the job of accounts payable clerk. She therefore did not know what responsibilities she would be given. During the first week of the overlap between Ms. I~ucier and Ms. Thomas, Ms. I. ucier was on vacation. Accordingly, she gave her no instruction upon her arrivall instead Ms. Silvia Crozier, a general accounting clerk, provided the necessary guidance. Ms. Crozier explained the day-to-day tasks for which Ms. Thomas would be responsible and then took her through them. She showed her how to balance the accounts payable by ensuring that the log balanced with the computer reports. Ms. Crozier commented that once she showed Ms. Thomas where to record specific items there wasn't much else. She stated that she knew Ms. Thomas could do the work when, on what she recalled as being the first day on the job, Ms. Thomas performed the accounts payable daily audit. On the Thursday, Ms. Thomas did this task on her own. Ms. Crozier also showed Ms. Thomas how to do the weekly balance. In addition, she showed her the location of relevant forms, books and documents) she advised her where she could obtain relevant figures and other source information~ she pointed out where to direct particular work for further processing by other clerks and identified various relevant contact people. She also explained the identi(ication students would need to obtain their grants. Ms. Lucier returned on the Tuesday of Ms. Thomas's second week on the job. Her actual overlap with Ms. Thomas was only approximately 7 days because she went off sick towards the end of the third week. Ms. Lucier testified that during that time Ms. Thomas sat and observed her do the job and did not perform any duties on her own. She commented that Ms. Thomas did not appear to know how to do the job and that she was required to explain it all step-by-step. More specifically, she stated that she explained the check runs, the duties respecting grants, how to issue airline tickets, and the process for verifying and reconciling sales taxes. ~l/hen Ms. Lucier was asked on cross-examination what fundamental principles of bookkeeping or account she taught Ms. Thomas, she replied that she instructed Ms. Thomas on the people she would deal with at the College and the types of vendors who did business with the College. Ms. Lucier maintained that by the time she left three weeks after Ms. Thomas bumped into the position, Ms. Thomas was not fully trained. She stated that she didn't know how to perform every job duty accurately, according to the job description, and needed repeated practice. Ms. Lucier conceded that she did not detect any errors in Ms. Thomas's work during their period of overlap. In summary, Ms. Lucier said that she just felt the job was unique and required training. Contradicting Ms. [.ucier's evidence, Ms. Thomas stated that during her first week of overlap with Ms. Lucier she did the work of the position alone approximately 50 percent of the time. Ms. Thomas stated that most of her interaction with ~ bucier involved asking her where things were kept (such as sales tax records and airline tickets), determining who supplied certain information she would require to perform her job (such as the sales tax information), and further familiarizing herself with the various duties set out in the job description. Ms. Thomas testified that by her third week on the job or second week of overlap with Ms. J~ucier, she was performing the job on her own and that there was minimal interaction between herself and Ms. J~ucier. -6- On the Wednesday of the last week, Ms. Lucier went home sick and remained off on the Thursday. On the Friday, she was back but Ms. Thomas testified, without contradiction, that she and Ms. Lucier spent no time together. Ms. Thomas stated that there was nothing in the job that she didn't understand and very little she hadn't in fact done before in her previous jobs. She stated that there was nothing unusual about the accounts payable system at the College. Ms. Thomas acknowledged that she was not very productive when she first arrived on the job. She explained, though, that she was still upset about the bumping and required a bit of time to calm down. Ms. Thomas testified that overlapping with Ms. Lucier and having Ms. Lucier outline the job for her was uncomfortable for both of them because each was upset by the experience of being bumped from jobs they each liked and had been performing with competence. Between 1953 and 1981, Ms. Thomas worked for a number of different companies and acquired substantial experience and training in business accounting, bookkeeping and office administration. She has had responsibility for keeping corporate books up to trial balance, i.e. the functions up to those requiring the certification of a chartered accountant; she has been responsible for accounts payable, i.e. making sure that what is paid matches what has been ordered and received and that only required taxes are paid; she has matched packing slips with invoices and completed the appropriate documentation; she has worked in accounts receivable, i.e. issuing invoices to customers for goods supplied, charging tax to customers and submitting collected taxes to the government at month end; she has done costing for products, and she has been responsible for completing and/or ensuring the completeness of documentation required for the export of goods to the United States. -7- [n 1981, Ms. Thomas began working for the industrial Resource Corporation 0RC), a trades training centre which, by [983, became part of the College. Ms. Thomas was the financia! clerk for the IRC. Her duties involved the handling of all financial records for the Centre including accounts payable, accounts receivable, student records and financial reports. She produced the trial balance for the auditors. All financial transactions and reports had to be in accordance with the College's accounting policies and procedures because the funding for the IRC was controlled by and flowed through St. 'Clair College. Ms. Thomas was the liaison between the IRC and the College's Accounting Department. In 1983, the IRC was taken over by the College and all of the financial functions theretofore performed by Ms. Thomas were transferred to the College's own Department of Financial Services. Ms. Thomas then became the secretary to the General Manager and her initial function was to set up the office systems in accordance with the College's policies and procedures. Her ongoing responsibilities included issuing requisitions for purchasing, checking deliveries against invoices, establishing and maintaining budget control records, monitoring accounts payable for budget allocation and distribution, verifying transactions on monthly budget status reports issued to all managers by the College's Financial Services Department, keeping the general ledger, issuing gas tax refunds, scheduling vacations, controlling petty cash, keeping employee attendance, collecting tuition funds and other student payments and recording and submitting them to the College. Finally, she functioned as the official liaison between the IRC and the Financial Services Department at the Main Campus for accounts payable, accounts receivable, student records, tuition, purchasing, personnel payroll records and the receiving department. -8- Ms. Thomas testified that she felt devastated when she was told that she was being bumped from her position at the IRC. She was then advised that she was qualified to bump into Ms. Lucier's job of accounts payable clerk. Ms. Thomas testified that before she moved over to her new position she had a conversation with the person who would become her supervisor and found her to be quite hostile. She told Ms. Thomas at that point that she didn't feel she was qualified. When Ms. Thomas arrived, on the job, she was advised for the first time that Ms. Lucier was going to stay for a while to train her. When Ms. Thomas stated that she would prefer not to have any period of overlap with Ms. Lucier because she thought it would be uncomfortable for both of them, her supervisor asserted that no one could go into a job like accounts payable clerk without being trained. There is no evidence to establish that when the supervisor made this statement she had any knowledge whatever of Ms. Thomas's work exper.ience and background. " ~ '. B. DECISION: In Re Kelsey Hayes Canada Ltd. and UA~/, I.o~e__i 2t~0 (I972), 1 L.A.C. (2d) 5# (P.C. Weiler), the arbitrator highlighted some elements of the distinction between training and a familiarization period. At p.58~ he said: ... If arbitrators held that immediate expertise in a new job was needed to satisfy the requirement of "ability" then seniority provisions in cases of promotions would be of little real value. Hence, recent cases have distinguished between- ability in the sense of existing skills and competence and a familiarization period ~hich any employee must have to learn the details and environment in his new job .... The record in this case leaves me in real doubt about whether Montroy simply needed a short familiarization period in the production clerk job or whether she needed time to develop significant new abilities which had not been required of her in the pay roll department. r. emphasis added ] -9- In Re United Electrical, Radio and Machine Workers and Pape-Hersey 'Tubes Ltd., 3 L.A.C. 1121 (Gross)~ the arbitrator at p.1127 referred to the line between familiarization and training: In conclusion, it may not be amiss to point out that, even where the Company is required to give an employee a trial under Section 38, such a trial is for the purpose of enabling the employee to demonstrate "that his ability is satisfactory". The Gompany is under no obligation to train the employee to. do the job .... A line has to be drawn somewhere between the case where an employee possesses the basic qualifications for the job and merely has to acquire within a relatively short space of time the knowledge and proficiency necessary to enable him to apply those qualifications to the particular job, perhaps through a few demonstrations by another employee or some similar rneans~ and the case oi an employee who has to be schooled in the periommar~e of his tasks over a rather lengthy period. [emphasis added] Similarly, in Re Gabriel oi Canada Ltd. and The International Association ot Maddnists, Local 129J~ (1978), 20 L.A.C. (2d) 168 (Kates), the board of arbitration comment~ on the distinction between training and familiarization. At p. 177, the board stated the following: The employer's obligation to provide a candidate for promotio~ (or transfer) with a training period ought to be distinguished from its obligation to provide him with the benefit of "a familiarization" period. In order to be entitled to a familiarization period the most senior candidate must still exhibit "the immediate and present" skill and ability to perform the work in question. The purpose of the familiarization period is simply to enable the candidate to adjust to the changes in his work environment that normally should be anticipated as a result of the dislocations occasioned by a new job. A familiarization period is not intended to be treated as 10- "a training period" enabling the employee to spend a period of time in order to be taught the intricacies of the job. The benefit of the familiarization period is an implicit condition .~i..~::..~ :~: :.,. derived from the language of the seniority provisions of the collective agreement and is directed towards the candidate who ...~ : .~..~.:::. ..... exhibits the ability and skill to perform the job at the time that the application for the position is made: see Re RCA Victor Co. Ltd. and Int'l Union of Electrical, Radio & Machine Workers, Local 5t;2 (1972), 22 L.A.C. 329 (Simmons). emphasis added In Reynolds Aluminum and Molder~ and Allied Workers Union, Local 28 (1980), 26 L.A.C. (2d) 266:(Shime), the arbitrator explained the rationale behind a requirement for familiarization only, as opposed to training, in circumstances of layoff. At pp.268-269, he said: It is apparent that the company is not required to provide employees with a training period in a lay-off situation. Not only may that be considered as a general proposition in the absence of a training requirement in the relevant clause but, also, it is specific to this collective agreement which expressly permits training in promotion situations while omitting any ,. i. ::~-~.?:~i mention of training in the event of a lay-off .... Thus, on its face the collective agreement imposes no obligation on the ......:...company to train the grievor. · ...... The one intriguing argument made by the union is that the language in art. I 1.06 [lay-off and recall] does not require the employee to know the job, but it only requires the employee to have the potential to do the necessary work .... While at first blush there appeared to be some merit in the union's argument, upon reflection it is my view that its argument cannot succeed. First, a lay-off situation must be considered as different from a promotion situation. I agree with that line of decisions which states that if an employee seeking a promotion had to be immediately qualified then it is likely that very few employees would succeed in getting a promotion. Promotion clauses must be read in a practical ,ray and it is generally sufficient, of course depending on the language, that the employee have a potential for doing the H However, a lay-off is not like a promotion. In cases of promotion there are, generally, only a few employees who seek -ll- a promotion. After the first promotion there may be a chain-..,~:,; .;,. ,.;, like effect in which one employee is promoted and then others are promoted to fill the vacancy left by the promoted employee .,i~ .~.:,,~. :~.. :. :~,,:.. .i, and so on; 'but the situation' is limited. · ,. ~... ,,, ,% ? J..)..: A lay-off ~s~y results in a checker board'situation in~ Wh'ich a number of employees are laid off where the others exert ~?,.,-:~. ~,.~., their 'seniority rights to move into different iobs resulting in a jumping around of various employees in the plant to a number.: ...... of. jobs. If all these employees had to be given instruction in how to perform, it is quite likely that the operation would be~,.. s~verely impaired~ and it is precisely in this type of situation, which is generally caused by downturn in ecgn~mic events,, t...hat~.,, -'the employer .does not wish to bear the expense of traininga number of employees. That is not to'say that there: are ~nol:: '~ lay-offs which involve very few employees and might not require such an expense, but bearing in mind the circumstanc~?.,,.¢~r~,~5,~.:. 5..~.:~5~.~' of a lay-off and economics involved, the language of a collective agreement should be quite dear in requlring.,,~;~5:~....~:~r;~.-~ instruction in cases of lay-off. [emphasis added]`. :'~:'~ (See also Re Canadian Trailmobile Ltd. and UA~, Local 397 (1975), 10 I~&.,G..(~d).-,9..~r~:' The evidence readily establishes that Ms. Thomas was "fully qualifi:.ed.:~t~.,p~. ~¢r~e.~-~ · without training" the iob of accounts payable clerk. The guidance and-inslm~tio~ ~.~. provided 'to Ms. Thomas was in the nature of familiarization; it was not tra.,ini_ng,,.. ,Using",,-: .'::- th~. language of Re Kelsey Hayes C, anad~: supra, she was given instru¢~tio~_~ ~i.a.~;t..h.e "details: and ~environment [of the] new job" and not provided with "signi!icanI-;:new abilities";.. tqo~,, picking up the words of Re Gabriel of Canada Ltd., was she !,taught: intricacies' of the job". Those she already knew. Ms. Thomas was fully, f. amil~r wi~h the basic accounting and business principles required to perform the iob. She had long been involved in accounts payable and required no teaching. .:. ..~, -, ~ .: -12- Prior 'co her'' fiYst day on the job, Ms. Thomas had not even seen a job description for t.he'~[~i~i'.ti6n of accoun'ts$?a)!able:c!.er.k.-' Accord.i~gl)~, Ms. Crozier explained the t~asks she would be expected to perform. She went through them step-by- step, not to teaCh ;-h~r':how to dO' the 'w°rk~ b(~%';t6 advise her what work she was expected to .per~0rfh. :"In addition, she told 'her hoTM and where she could obtain the necessary source ma~'~rial:s~ She was informed wh~it books and documents were in use, who the various ~on:t~iEt :people w'~,'' and t°. Whom material should be sent for further processing.' This FSC.~not;'trammg. She~'~iiCl .not' instruct Ms. Thomas on any' basic accounting pri. nciPl~--~aShe Showed ;h~"~the"~&echanics of the job and supplied her with a road map-so .that d~:h~ could more" quic~[y~learn her way around the accounts payable section of.the 'Financial Services Department. ~ht~..7~6cier 'og~rlapped with Ms. Thomas, she gave Ms. Thomas even less guidance and instruction than Ms. Crozier had because by that time Ms. Thomas had become more ta.miliar with the duties of the job. The Board is satisfied that ~ ~ier imparte~o~ig:h~BE.an~:knowledge to ~. Lucier and provided her wi~h no new skills. In her ~~S:e'tjo~s/ MS. Thomas had performed almost all of the duties of the accountS"'gg~a:~Ig~.~l~rk. Anything she hadn't done before, such as the. processing student ". grafft rt~ues, was only a minor variation in nature fr6m tasks she had'.': previously doM~e.:. ~earning such aspects ot the job did n'ot require training, rather only brier de'~6nS~ion: Ms. Thom~ brought to the tasks of the accounts ~ayable ci'~ position:ail' th~*~eSsary skills, knowledge and qualifications. ';:' For the reasons set out above, the Board readily rinds that the College did not breach the terms of the collective agreement when it placed Ms. Thomas in the ~iti~ of accounts payable clerk. ~ithin the meaning of article 15.4.1 of the collective agreement, Ms.,Thomas was i'fuH~qtiaHfied to.P~rform ' wit hou t;?.t r ~m~,n~..,,.,~ :~:pos~.[on. o~., accounts ~yable derk. "':~ Aecord~ly, 'f~:¢grie~an.ce~.:i~:;hereby d.ismi~S~d;. .... DA,TE.b at T0ronro':.~thiS ~13th day.of, 3une,' ,1989~ '. ..~ ?~m"et~a .c,.. ~ ieh~~:~'~:. .~- I CONCUR "Robert EmplOyer NomiBe:e'::.:~. I..GONCUR' "Jon McManus" Union Nominee.:'.'