HomeMy WebLinkAbout2015-2669.Petrovicz.16-12-07 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#2015-2669
UNION#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
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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 November 30, 2016
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Decision
[1] The grievor works selecting orders in the Durham warehouse. The union has
referred to arbitration a number of grievances related to his attempts to secure a
training opportunity or a permanent job as a service person in the maintenance
department.
[2] This decision addresses a grievance dated October 6, 2015 protesting the
rejection of the grievor’s application for a job posting dated June 15, 2015. The union
contends the rejection of the grievor’s application was based on nepotism and part of
a pattern of nepotism in filling the position of service person.
[3] Employer counsel brought a preliminary motion asking to have the grievance
dismissed. The employer contends the particulars provided by the union, together with
the relevant documents, could not support a ruling that the employer contravened
article 22.5(a) of the collective agreement. That article states: “Where employees are
being considered for promotion, seniority will be the determining factor provided the
employee is qualified to perform the work.” The employer contends the grievor’s
application was rejected because he lacks the required qualifications and not due to
nepotism.
I
[4] The first incident of alleged nepotism cited by the union occurred in 2013 in
relation to a training opportunity for the position of service person. The original memo
offering this opportunity is dated January 21, 2013 and signed by the then manager of
maintenance, Larry Winston. It invited “full-time employees” to apply. The grievor
applied in response to this memo but apparently no-one was appointed at that stage.
A revised memo, dated May 22, 2013, expanded the scope of the competition to “all
employees”, thereby including those employed seasonally. The grievor applied once
again. Jason Nicholson, then a seasonal employee, also applied. He is the nephew of
Bruce Pizzaloto who was then director of the warehouse. The training opportunity was
awarded to Mr. Nicholson. When a vacancy for the same position was posted later in
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November of 2013, Jason Nicholson was the successful applicant. The grievor did not
apply for this posting.
[5] The second incident of alleged nepotism relates to another posting, dated
November, 12 2014, for a permanent appointment. The successful candidates were
Allan Nicholson, the brother-in-law of Mr. Pizzaloto and Darnell James who is said to
be a friend of Jason Nicholson. Allan Nicholson and Darnell James were awarded the
position of service person without being tested or interviewed. There was a dispute
about whether the grievor was an applicant for the posting in November of 2014. In a
decision dated October 25, 2016, I ruled he was not.
[6] The instant grievance concerns a posting in June of 2015. The two successful
applicants were Tyler Acton and Donald Collins. Both of them have less seniority than
the grievor. Mr. Acton’s mother and step-father were both managers in the operations
side of the warehouse until they retired in 2011 and 2012 respectively. The union
contends the appointment of Mr. Acton was part of a pattern of nepotism.
[7] All applicants for the posting in June of 2015 took an aptitude test. The grievor’s
score on the test was 31%, whereas Mr. Acton achieved a score of 86% and Mr.
Collins a score of 78%. All applicants were also interviewed. The interview panel was
comprised of three members: Gary LeClair who had replaced Mr. Winston as manager
of maintenance and had not previously been employed by the LCBO; maintenance
supervisor Tyson Sonnenburg; and human resources assistant Pauline Kingdom. The
grievor’s interview score was 97/210 (46%), whereas Mr. Acton received a score of
175/210 (83%) and Mr. Collins a score of 118/210 (52%)
[8] The interview panel recommended the appointment of Messrs. Acton and
Collins. This recommendation was accepted by Gerard Herrington who was then
acting warehouse director, having replaced Mr. Pizzaloto.
II
[9] Employer counsel contends the facts alleged by the union, if proven, would not
constitute a violation of article 22.5(a), because the union has provided no particulars
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suggesting the grievor is qualified for the job. The union does not contend any of the
qualifications listed in the job posting are not reasonably related to the job. The union
does not contend the questions posed in the test, or the interview, are not relevant to
those qualifications. Nor does the union contend the grievor’s answers when tested, or
responses when interviewed, were improperly scored.
[10] As to the allegation of nepotism in relation to this job competition, employer
counsel notes Tyler Acton’s parents never worked in the maintenance department and
retired a few years before the job posting in question. Counsel also notes the two prior
incidents cited by the union, involving relatives of Mr. Pizzaloto, occurred when he was
warehouse director and Mr. Winston was maintenance manager. Neither of them was
involved in the 2015 job competition.
[11] Union counsel submits the facts alleged reveal a pattern of nepotism. Noting
others have been appointed as service person without being tested, counsel submits
the employer should not be allowed to rely upon the grievor’s test score in relation to
the 2015 job competition.
III
[12] In my view, the facts alleged by the union would not, if proven, amount to prima
facie proof that the job competition in 2015 was tainted by nepotism. The mere fact the
parents of one of the successful applicants were previously employed as managers at
the warehouse does not alone constitute such proof. Even if Mr. Winston or Mr.
Pizzaloto did engage in nepotism in 2013 or 2014, as the union alleges, neither of
them was involved in the later job competition.
[13] The collective agreement allows the employer to set qualifications for a job and
to utilize a test and interview to determine whether applicants meet those
qualifications. Even if nepotism resulted in some applicants not being tested or
interviewed in the past, as the union alleges, that would not preclude the employer
from testing and interviewing applicants in a later competition not tainted by nepotism.
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[14] The grievance is dismissed.
Dated at Toronto, Ontario this 7th day of December 2016.
Richard M. Brown, Vice Chair