The URL can be used to link to this page

Home My WebLink About2013-0660.Petrovicz.16-10-25.Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-0660, 2013-2554, 2015-0977, 2015-2669 UNION#2013-0378-0037, 2013-0378-0092, 2015-0378-0050, 2015-0378-0107 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Petrovicz) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Richard M. Brown Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING October 17, 2016 - 2 - Decision [1] The grievor works selecting orders in the Durham warehouse. The union has referred to arbitration four grievances related to his attempts to secure a training opportunity or a permanent job as a service person in the maintenance department at the warehouse: • a grievance date February 28, 2013 concerning the grievor’s attendance record • a grievance dated July 19, 2013 concerning the denial of a training opportunity as a service person; • a grievance dated March 4, 2015 concerning a job posting for the position of service worker; and • a grievance dated October 6, 2015 also concerning a job posting for the position of service worker. [2] This decision deals exclusively with the question of whether the grievor should have been treated as an applicant for the job posting in November of 2014 which is the subject of the grievance filed in March of 2015. [3] The parties agreed to address this matter based upon documentary evidence and “will-say” statements from the grievor and three employer witnesses: (1) Pauline Kingdom, human resources assistant; (2) John Carpenter, maintenance supervisor; and (3) Larry Winstone, maintenance manager. Each of these witnesses held the position indicated at the warehouse during the relevant period. The grievor was cross-examined on his will-say. The union elected not to cross-examine any of the employer witnesses. I [4] The job posting is dated November 12, 2014 and had a closing date of November 25. The following passage appears near the top of the posting: Resumes and Q-35 Forms (available at reception), with the above DRSC file number accurately recorded, may now be submitted, within the appropriate time frame* … The asterisk in this passage refers to a passage at the bottom of the posting: - 3 - * It is the responsibility of each applicant to ensure their resume & completed Q-35 Form is received no later than 4:00 p.m. on November 25, 2014. The job posting does not explicitly state to whom an application should be submitted but it does display the address of human resources at the warehouse. [5] The Q-35 is a two-part form used to track and confirm receipt of applications. An applicant fills out the top portion indicating his or her current status and the job posting to which the application pertains. After the form is submitted, someone in human resources signs the bottom portion, confirming receipt of the application, and returns it to the applicant. This form serves two purposes: (1) it ensures human resources has the information required to process an application; and (2) it allows an employee to be notified that his application has been received and will be considered. In cross- examination, the grievor acknowledged knowing the bottom portion served as a receipt. [6] The grievor’s will-say contains the following description of the relevant events: 1. I saw a posting for a Serviceperson position, and prepared a resume and handwritten cover letter, dated November 21st 2014. A copy of my cover letter and resume is attached at Appendix 1. 2. In the past I have applied for positions by providing only a cover letter and a resume. 3. On November 21st 2014 I brought my resume and cover letter with me to work in order to submit it by hand to Mr. Larry Winstone. 4. In the past I have applied for positions by submitting a cover letter and resume directly to Mr. Winstone. 5. While at work, I drove over to the maintenance office on my fork truck. The maintenance office is located inside the Warehouse. 6. Mr. Winstone was in his office with another person, so I had to wait before I could submit my documents to him. I do not believe he was meeting with an LCBO employee. 7. After waiting for approximately ten minutes, Mr. Winstone was still in his office and unavailable. 8. I needed to return to my work duties. - 4 - 9. I saw that Mr. John Carpenter was in the main office, which is next to Mr. Winstone’s office. 10. I proceeded into Mr. Carpenter’s office. I handed him the resume and cover letter and stated “make sure Larry Winstone get my paper work for the Servicemen position”. 11. Mr. Carpenter responded “don’t worry I will give it to Larry” or words to that effect. 12. I had to return to my work duties, and left the office. 13. I keep a journal, and make regular entries into the journal in order to document important matters at work. I made a notation about this matter in my journal right away. 14. An excerpt of my journal is attached at Appendix 2. On November 21st 2014 I made an entry into my journal in record the details of my application. As per the attached, I wrote “Handed in Resume shortly after starting work gave resume to John Carpenter to give to Larry Winstone”. 15. The Employer posted that Darnel James and Al Nicholson were the successful candidates for these two positions. 16. I was shocked to see that the positions had been filled as I had not been included in the competition for the position, even though I am more senior than the two successful candidates. 17. I was not considered for this position. 18. When I filed a grievance with respect to this job posting, I was advised that the Employer took the position I did not apply for this posting. This is not correct, as I provided the necessary documents to Mr. Carpenter. 19. At no time did anyone advise me that I needed to provide any additional documentation after I submitted my resume and cover letter to Mr. Carpenter. [7] John Carpenter does not recall receiving a job application or any other documents from the grievor in November of 2014. Likewise, Larry Winstone has no recall of receiving such an application. - 5 - [8] In cross-examination, the grievor conceded not submitting a Q-35 along with his application on this occasion. He was asked about using such a form on previous occasions when applying for other job postings and for training opportunities. He initially said he used a Q-35 about half the time. Upon further questioning, he conceded not being able to recall ever applying for a job posting without submitting a Q-35. He testified he had applied more than once for a training opportunity without using such a form. There is no requirement to use a Q-35 when seeking a training opportunity. [9] The contemporaneous note made by the grievor about handing his application to John Carpenter on Friday, November 21 makes no mention of what either of them said on that occasion. When testifying almost two years later, the grievor claimed to recall the words spoken, but he was unable to recall with certainty other details such as whether his resume and covering letter were in an envelope. [10] The grievor conceded he made a contemporaneous note, about handing his application to Mr. Carpenter, because he was concerned it might be “lost in the shuffle.” [11] Shortly after the names of the successful applicants were posted on January 22, 2015, the grievor protested that he should have been included in the competition. He conceded that he made no inquiry about his application or the job competition between November 21, 2014 and January 22, 2015. II [12] It is common ground between the parties that the union bears the burden of proving the grievor’s application was submitted in a timely fashion. [13] Based on the evidence presented, I conclude on the balance of opportunities that the grievor did hand his resume and covering letter to John Carpenter on Friday, November 21, 2014. Mr. Carpenter has no recall of this having happened but he did not assert that it had not happened. The grievor has a specific recollection of this event supported by a contemporaneous note. - 6 - [14] Nonetheless, there is no evidence that the grievor’s application was received by Larry Winstone before 4:00 p.m. on Tuesday, November 25. In the absence of such proof, I conclude the grievor was not entitled to be treated as an applicant for the job in question. [15] I digress to note the grievor is the author of his own misfortune, as suggested by counsel for the employer. He made little effort to deliver his application directly to Mr. Winstone. He realized leaving the documents with John Carpenter ran the risk of them being lost, but he made no inquiry about whether his application had been properly received until after the names of the successful applicants were announced. If he had used a Q-35 as required, he would have been alerted to a problem when the bottom portion of the form was not returned to him as a receipt. [16] The grievance dated March 4, 2015, relating to the job competition in November of 2014, is dismissed. Dated at Toronto, Ontario this 25th day of October 2016. Richard M. Brown, Vice Chair