Loading...
HomeMy WebLinkAbout1989-1049.Huttner.91-05-17~"~' ~ ONTARIO EMPLOY~:S DE LA CO'URONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE, SETTLEMENT REGLEMENT BOARD DES GRIEFS O~NDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO. MSG ?Z8 TELEPHONE/T~'L.P:PHONE: (4 ?6J 326-;388 RUE DUNDAS OUEST, BUREAU 2;O0, TORONTO (ONTARIO). M5G IZ8 . FACS.;M/LE/T~LdCOP[E .' (4t6) 326-1396 1049/89 IN THE I~TTER OF ~N~RB[TI~TZON Under THE CRO~ EI~PLOYEES COLLECTIVE B~G~ZNZNG ~CT Before THE GRZE~CE 8ETT~~ BO~ BETWEEN " OLBEU (Huttner) Grlevor ' The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEi~ORE: ~. ~atters Vice-Chai~erson J. McManus Me~er " A. Merritt Me~er FOR THE L. Steinberg GRIEVOR Counsel Koskie & Minsky Barrsiters & Solictors FOR THE W. Zachar EMPLOYER Staff Relations Officer Liquor Control Board of Ontario HEARING May 31, 1990 April 12, 1991 This proceeding arises fr~m the 9rievor's lack of s~ccess in a job competition for the position of 'A' Store Assistan~ 14anager at Store ¢155 in Thunder Bay,. Ontario. The successful a~pli-cant, Mr. B. Otsen, attended at the hearing and was advised of his right to fully participate in same. Mr. Olsen elected against the exercise of this right. The posting for the contested position read, in par~' "POSITION TITLE' 'A' Store Assistant Manager CLASSIFICATION- Liquor Store Manager 3 SALARY RATE' $16.17 - $17.51, Per Hour (Under Rev ew) STORE' ¢ 155 LOCATION' Thunder Bay ~ ': Under the direct supervision of the Store Manager, the ASsistant Manager assists in planning, coordinating, staffing, performing and administering the key store functions such a's' customer service, store and stock mainte'nance, security and management reporting, cash handling and banking,-and planning displays and layouts;' assists in supervising;,staff by planning, and sdhedulin9 assignments, providing direction and advice in work situations, training and developing functions and completing annual ~ating reports; participates in a variety of store management responsibilities such as, general customer complaints, assisting in budget preparation and admin'istration, processing licffnsee and special-permit applications and; assuming responsibility ~or store operations in the absence of th~ Store Manager. Q~ALZFZCATZONS- Qualified candidates will have developed the knowledge, skills and ability te perform as an A Store AsSistant Manager through a combination of progressive experience iln store operations and relevant educational programs, where appliicable. The following are critical areas for candidate assessmen~l: - customer service I - human resource management; e.g. planning and scheduling assignments, coordinating staffiiing, .. providing direction ahd advice in work related situations, training and developing inventory management/stock control - inventory management/frock control '. - security - product knowledge ~ il - retail policies and the store operating manu~l i. " ii The griever has been. e~ployed by the LCBO, on- a full-time 5asis, since 1976. He worked as a Clerk 3 until January, 1984. In that position, the 9rievor enga9ed fna broad range of duties. More specifically,, it is apparent that he spent considerable time serving and advising customers. This demanded a comprehensive knowledge of the products sold within the store. Additionally., the griever performed duties relating to the shelving, monitoring and ordering of stock. While on the.floor, the griever was on the alert for prospective shoplift'ers. These tasks required that he become familiar with numerous retail policies and the store operating manual both of which addressed matters such as stock; service to customers; special, occasion permits; licence orders; banking; periodic reports; staff performance; and contacts with sales representatives. W~ were advised that the Employer did not have any complaints as to the manner in which the above-noted tasks were performed. tn January 1984, the grievor became a Clerk 4 following a successful applicati, on for a posting. While in this position, he performed many of the duties formerly undertaken as a Clerk 3 such as customer service and the development of product knowledge. In addition to this overlap, the griever assumed a' seri. es of new responsibilities. As a Clerk 4, he prepared a staff schedule for the approval of the Manager or Assistant Manager. In this regard, the griever had to ensure there were s'ufficient staff on hand to'satisfy the' needs of the store. He also assigned duties to staff and provided'direction and ladvice to them on matters relating to store poli.cy, product, and customer service. Further, he was called upon to complete monthly and weekly reports and bank dePosits. The grievo"r was also responsible for the opening and closing of the storY. Additionally, he was left in charge of the store when.thell three (3) more senior staff were absent. The grievor estimated'i, that this occurred approximately, once per month. His. responsi!.bilities also included training of new staff.. The Board was again~[ advised that all of these duties were performed free of any 8ritiilcism ;I from the Employer, ~ The grievor remained a Clerk 4 until July, 984. Heli then '1 became the Wine Consultant in S~ore ¢155. He was in such! position at the time of the ins{ant competition. The 3obli of Wine incumbent exercises a series of"responsibilities related :~lmost exclusively to vintage wines and special products. The p!?esent gr'ievor was required to provide advice and direction, on the 'i aforementioned items to a wi'de variety of customers inclu'ding restaurant and hotel facilities. Additionally, he would routinely assist both internal and external staff with questions they might have pertaining to vintage Products.;i The grievor was also responsible for selecting and securin, g the stock for the Vintages section of thelstore. These duties requ.lred him to devote considerable time to Customer service and the 3 · ;, development of product knowledge. From the facts presented, there ~s little doubt that the grievor occupied a busy position. This was evidenced by the dr&matic increase in sales since t984. While in the position of Wine Consultant, the grievor spent less time on the duties previously performed as a Clerk 4. For example, he no longer scheduled assignments or coordinated staff. Nor did he assume responsibility for the operation of the store. in the absence of more senior staff. His reports focused on the Vintages area rather than on the entire store, as had previously been the case. The grievor did, however, continue to perform some of the Clerk 3 functions referred to earlier. We are satisfied from all of the evidence that such functions did not constitute the bulk of the job. A detailed 'list Of 'wine consultant Duties' was filed.with us as Exhibit '23' It is appended hereto as Schedule 'A' Mr. J. Trigg was the Manager of Store ~55 at the time material to this proceeding. The grievor reported to this gentleman in the two (2) year period prior to the competition. Mr. Trigg prepared an 'Evaluation For The Position Of 'A' Store Assistant' in respect of the grievor (Exhibit 24). He ultimately concluded therein that Mr. Huttner did not have "the ability to competentl, y perform the duties of an assistant manager in a large volume store." In arriving at this conclusion, Mr. Trigg determined that the 9rievor did not have proven competence in the 4 following areas: (i) to train and supervise staff in the performance of office procedures; (ii) to apply policy to specific situations; (iii)to perform supervisory functions such .as assig~,ing work to staff; and, .'. (iv) to manage a store in the absence of a manager. ~1 He also offered the following observation in support of h'is position' " For the last number of years, Mr. Huttner has directed his major effort 5o his position of wine consultant. Mike has done. very well in this capacit'y'' as positive comments from the public, the amount of wine sales, development of. Vintage Corner sales, wou d all indicate much needed .effort in thi.s one area. As most efforts and hours,'have been alloc~'ted to th"s main task as Wine Consultant, less effort and hours could be directed towards general store operations ~nd concerns. This Z would suggest would limit Mr. Huttners ability to develop management skilqs, or others he would need at this time. Due to the above, I would suggest that Mr. Huttner, at this time, does not have the proven competence to perform the duties of an assistant Manager." Mr. Trigg was critical of certain aspects of the griievor's performance. Firstly, he described the griever as "a bi~ of a loner" It was his perception' that the grievor'.s communf~cation with he and other staff could be improved. As a conseque~nce, d. id not consider the griever to.be a team player. Se'cond!ly, Mr, I Trigg felt that the griever did not stay current with.new! and revised policies relating to the store's operation. In evidence, he relied on ten (lO)~circulars which were dist?ributed in the pehiod July, t98~ to March, 1989. None of these documents had been initialled by the grievor, it was Mr. Trigg's assessment that the grievor read only those circulars that related directly to his job as wine Consultant. His concerns on these two (2} items were documented in a counselling letter dated July 5, 1988 and in a Performance Appraisal dated November t4, 1988. Lastly, Hr. Trigg believed that the grievor had focused exclusively on the job of Wine Consultant in the period July, 1984 to May, 1989. From his perspective, the grievor had not kept up with other developments in the store. For all of these reasons, Mn. Trigg did not consider the grievor to be suitable for promotion. Mr. D. Bourne, the District Manager, made the final decision not to select the 9rievor for the posted position. He advised that the grievor, as the most senior applicant, was given first consideration. Mr. Bourne testified that he consulted with Mn. Tnigg in respect of the latter's evaluation of the grievor. Additionally, he reviewed the Performance Appraisal'referred to above and the grievor's personnel file. On the basis of.this review, he det6rmined that the treatment of the grievor's application was fair. Indeed, he concurred with Mr. Trigg's opinion that the grievor was not qualified to p~rform the duties of an 'A' Store Assistant Manager. Mr. Bourne placed the following comment on Exhibit 24' " Mr. Huttner has demonstrated his ability as a successful wine consultant. He is very effective in 6 this position. Mike does not have proven competence in ie.) employe'~ development, budgets, inventory management, security~', counselling, and bookkeeping." The relevant articles.of the collective agreement re~d: 2~.5 (a) Where employees are being considered Tot. premed,ion, seniority, will be the.determining factor provided the employee is qualified to perform the work. 21.9 (a) Zn the event an employee who has beeh promoted is unable to perform the requirements of the position in a satisfactory manner within a peri'od not exceeding three (~) months from date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to. Promotion. It was the position' of the,Union that the §rievor was '1 '1 qualified for the job of 'A' Store Assistant Manager. Counsel submitted that the Employer hadiunfairly, and improperly, evaluated the griever's qualifidations, Firsgly, it was argued that' the Employer had not fully:assessed the griever's ab;ilities as & Wine Consultant. It was noted that the Performance \ Ap'praisal relied on primarily reviewed his exercise of Cl~rk 3 responsibilities which were a minor part of the overall j~b. Secondly, we were urged to find;that Mr. Trigg and Mr. Bo~rre had virtually ignored the grievor's~past experience as a Clerk From the perspective of the Unidn, such omission constituSed serious flaw in the competition:process. Counsel emphasized that, while a Clerk 4, the griever had actually performed a number of functions relating to office procedures, human resources management, bookkeeping, and store management. It was therefore asserted that the Employer had e'rred in its assessment as contained within Exhibit 24. Z'n summary, the Union suggested that the Employer did not obtain "the whole picture of the man." The Board was asked to conclude that, had it don~ so, the. grievor's competence would have been established. Lastly, it was submitted thatkany need the grievor might have to refresh his Understanding of overall store procedures would not render him 'unqualified. To find otherwise, would require perfection in a candidate and would s6rve to eliminate those holding specialized jobs from this type of competition. For'these reasons, the Union claimed that the grievor should be awarded the position, together with compensation, as the most senior qualified candidate. In response, it was the position of the Employer that sufficient consideration was given to all aspects of the grievor~8 prior experience, 'including that gained as a Clerk 4. Zn this regard, its representative'noted that this latter ~xperience was both brief and outdated. He submitted further that the Store Manager was in the best position to evaluate the grievor's suitability for the job. As noted in the evidence, Trigg concluded the grievor lacked experience in a number of areas including human resources management and retail policies and procedures. Simply put, the Board was asked to let this conclusion stand. Reference was made to MacLean, 437/83' (Kennedy) and Barry, 334/80 (Swinton) in support of this position. 8 The Board has now had the opportunity to review alli! of the evidence relating to the griever's past experience with 'this Employer. in our judgment, this evidence supports the Union's submission that the griever was qualified for the position of Store Assistant Manager. We reach this conclusion for the following reasons- (i) The Board is satisfied that the Employer failed to +I adequately consider the griever's performance as a Clerk!! 4. I While both Mr. Trigg and Mr. Bourre were aware of this p.~st experience, they did not asses~ its relationship to the ~demands .of the posted position. Mr. Bourre asserted that such experience was factored into his decision, He was unable, however, to be precise when asked what influence it actually had on him..I. He Simply replied that it was "part of the decision making"'iand that it had been accorded sufficient consideration". That 'response cannot be treated as complete Or determinative. The grinder, in his evi¢gnce, stated that while a Clerk 4 he prepared st~ff schedules, assigned duties, provided direction and advic~ to staff, completed reports and banking'functions, opened a,d closed the store, and managed same in,the absence of more seni,or staff. ,! The witnesses for the EmPloyer Idid not contest this aspect of the griever's testimony. Zndeed, (hey confirmed that these types of responsibilities were performed by Clerk 4's on a routin6 basis. Further, the Employer did not assert that the griever's performance as a Clerk 4 was so'mehow deficient. To the contrary, Mr. Bourre testified that the griever had received a "gobd evaluation" for that period. The Empt'oyer, as noted earlier, discounted the value or weight of the grievor's experience as a Clerk 4 as it was limited to a period of six (6) months duration. It also asserted that numerous operational changes had occurred since 1984. Uitimately, we have not been persuaded that the grievor's experience should be discounted in this fashion. -The Board considers it more likely than not that the grievor could still competently perform the types of responsibilities expected of an Assistant Manager which had previously been undertaken as a Clerk 4. (ii) Similarly, the Board has not been persuaded that the Employer assessed the grievor's performance as a Wine Consultant for purposes of determining whether the skills used in that position were related to the qualification~ expected of an 'A' Store Assistant Manager. We are satisfied that' the Performance Appraisal relied on by Mr. Trigg was primarily in respect of the grievor's exercise of Clerk 3 type functions. The document on its' face s~ates that it "is based mainly on 'duties as a clerk". Mr. ~r'igg noted on the form that a Mr. H. Johnston would later complete an appraisal of the grievor's duties as a Wine Consultant. There was no e~idence before us as to whether such an appraisal was ever completed. Clearly, if it was, the document was not considered by the Employer in the cont'ext of this competition. The Board.considers this omission to be significant 9iveh the broad set of responsibilities assigned to the Wine Consultant position. As noted earlier, these are listed 10 on Exhibit 23 which has been appended to our award. In olur ,I judgment, many of these duties, and the skill required t~o' complete same are directly transferable to the position h'~ere in 'question. Zt was conceded by Mi. Trigg that the griever 'was more than able to prepare the reports required in the Vintages'I ~.'! section. Similarly, he acknowl6dged that the gr:ievor cou~ild apply policy to specific situations in his area. Nonetheless, f'he still i[ concluded that the griever lacked competence in .these mat!tars when he completed his evaluation for the instant competition. We have not been convinced that hi~ conclusion was premised '¢n thorough review of the griever'S performance as a Wi ne Consultant. I While the Performance Appr&isal was critica,l of the 'griever in certain respects, we note that generally favourable collmment. 'i was given vis a.vis his performance in the areas of product ;! knowledge_, security, customer service, merchandising, stock handling, reports and correspondence, problem so~ving ~ d:~cision nicking, and organization-initiative. We also note that h'e was thanked by Mr. Trigg for .trainio9 his fellow staff members in the · counselling letter of July 5 1988 Zt i.s ~ot clear to u~ that the Employer weighed these skills when it made the decision being contested in this proceeding. ,i (iii) The Board has not been persuaded that much turns on the i griever's failure to initial the ten (10) .policies and ci'~culars which were distributed to staff We note in this regard ~hat the 9rievor insisted he read these materials. He conceded, however, that he'might have reviewed them quickly if they did not impact directly on his area. It was clear from the evidence, that other employees had also not initialled the circulars. Indeed, Mr.. Trigg maintained he read these documents notwithstanding that his initials did not always appear on same. He was consequently prepared to concede that the lack of initials on a circular did not establish the fact that an employee had failed to review it. Mr. Trigg heferred to certain instances which he believed evidenced the grievor'$ failure to remain current with operational changes. These related to the setting of target dates for purposes of inventory management and the calculation of new levies on coolers. The grievor recalled receiving some assistance from the District Trainer in respect of the former function. He also conceded he may have made an error on the infrequfDt occasion where he was called upon to calculate a levy. The Board is unable to find that these two (2) situations in i'solation establish the inability, or failure, of the grievor to keep abreast of changes occurring within the LCBO. (iv) The witnesses called on behalf of the Employer asserted that the grievor was not interested in pursuing career development opportunities which were offered to hims. The grievor denied this and claimed he would have been interested in such opportunities had they been in fact offered. It is unnecessary for purposes of this dispute to resolve this conflict in the evidence. 12 Zn summary, the Board has been persuaded that the totality of the griever's expePience with the Employer rendered him qualified for the position claimed. More specificaliy, we find that the griever's experience satisfied the "critical areas ; for candidate assessment" as listed on the posting. As ;the senior applilcant, he was therefore entitled to the posit~ion of Assistant Manager in Store ~155. If the griever should be unable - to perform the requirements of,the position in a satisfa tory I' manner within three (3) months following his appointment! the Employer will be entitled to resort to article 21.9 (a)'i reproduced above. This right Was acknowledged by counsei~ for the Union at the hearing. ., Our decision in this instance is based on our assessment as LI to the sufficiency of the grievor'sl qualifications. Thei' result. in this case should not be taken as an adverse comment on Mr. Olsen's guatifications. The POSsibility exists that he was indeed the superior candidate for the position. That is!!of no ~onsequence, however, given the language of the job ~ ' compbt~tion clause contained in this collective agreement. Pursuant~[to, article 21.5(a), once the griever is found to be qualified, he is entitled to the job by virtue ~f his greater' seniority.':i I For all of the &bove reasons, the grievance is allo~ed. The Board wilt remain seized to deal with any problems arising out of the implementation of this award, including the quantum Of compensation which is owing to,the griever. Dated at Windsor, Ontario this 17th day o¢ May 1991. M.V. Watters, Vice Chairperson O. HcHanus, Hember A. Merrit. t., Member Sept 1986 WIN~ CONSULTANT DUTIES - is familiar with all: procedures related to the general ~operation of an.LCBO retail outlet - IS.' familiar with all Head Office .and warehouse services and procedures related t'o bbtalntnZ stock - Is completely familiar with warehouse and direct delivery order lead times so' [that customers may be accbrately informed as to delivery date of ordered stock:i - Provides the public .and llcencees with produc~ Information, 'and assists them.in the selection'of~puoducts!i -., - Advises customers on the appropria~e use of products - Assis'ts Store Manager to balance l'lsttngs to maximize customer service and' product sales · · ' Assists the Store Ma.nager with store layout - Participates in store inventories and p. rice c'~anges - May order regular mud Viutages stock or expedStes Private Stock ~rders - Perforas clerics! work as required - Helps maintain store security - Handles customer co=plaints and returns to S ck - Eeeps Catalozues and ~aster.~rand Lls~s curren~ - Rotates stock in customer area and warehouse - Estimates amounts required'for weddin~s, part~es,'etc. · - Deslzns wine/food combination for dinner p-armies - Provides personal service for reEular'and int~rested customers - Assists with SpecialiOccaslon Per~lts . - Is familiar with trends and developments, in tBe lndustry.a~d _. keeps the Store Manager cu=rent in these areas - Assists trade representatives .r. POSTS ledgers - ArranEes shelf space,for new brands - May rin off cashiers - Assists In case sales for customers. - Educates store staff concernin8 produc,ts carr[!ed - Maintains Price Boards in conventional Stores ~i· - Ensures ltem~ are correctly priced - Attends Wine Tasttn~ a'nd Seminars as required' - Participates In quality coa~rol process through in Tastings Panels i - Attends palate sensitivity and product knowled'Ige testing as required - Accepts product related· research assignments - Co~ducts product knowledge and custo=er service seminars - Assists wine Clubs and service organiz~tlons as directed Htne Services t - Represents the Board Iai t~ade and consumer sho~s -- Norks cZosely with ~'ine Services to compJe~e pi~oduc~ and consumer related pro,aris ,! ' - Per,eras other duties as may 'be assigned by Sti~ce ,