HomeMy WebLinkAbout1997-0900.Bechard.98-09-01 Decision
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ONTARIO EMPLOYfS DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEffELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEffELECOPIE (416) 326-1396
GSB # 0900/97
OLB030/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SEITLEMENT BOARD
BETWEEN
OLBEU (Steve Bechard)
Grievor
- and -
The Crown ill RIght of Ontano
(LIqUor Control Board of Ontano)
Employer
BEFORE M. V Watters Vice-ChaIr
FOR THE J Noble
UNION Counsel
Ontano LIquor Boards Employees' Umon
FOR THE M. Smyth
EMPLOYER Counsel
Genest Murray Desbnsay Lamek
Bamsters & SohcItors
HEARING October 15, December 17, 1997,
April 29, April 30, June 22,
July 3, 1998 ill London, Ontano
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In this proceeding, the grievor claims that he should have been
awarded the position of 'c' store Manager in respect of store #110 in
Wallaceburg, ontario pursuant to job posting #WR-43/96 The position
was, instead, awarded to Mr. Gerald Sullo, a more junior employee
At the outset of the hearing, the parties filed the following
Agreed Statement of Facts
"1. On December 20, 1996 the LCBO posted for the position of
"c" Store Manager at Store #110 in Wallaceburg A copy
of the posting is attached as Appendix 1 The posting
had a closing date of January 14, 1997
2 The posting stipulated that qualified candidates would be
selected in accordance with Article 21 of the collective
agreement
3 A copy of the position description for "C" Store Manager
is attached as Appendix 2 A copy of the position
description for the position of Customer Service
Representative is attached as Appendix 3. A copy of the
position description for Clerk Grade IV is attached as
Appendix 4 All Clerk IV positions were eliminated in
May, 1994
4 As a result of the posting, the LCBO received a number
of applications from interested individuals A copy of
the list of the six most senior candidates is attached
as Appendix 5
5. The six most senior candidates and their seniority
dates were as follows
Barry Barnard - 02/18/74
Steve Bechard - 05/09/77
Gerald Sullo - 03/08/82
M L Thibert - 10/15/84
Ron Walker - 08/28/88
Roger Lacey - 12/03/89
6. The LCBO confirmed that the three most senior candidates,
Mr Barnard, Mr Bechaud and Mr. Sullo met the basic
requirements and they were notified that they would be
interviewed for the position All three were classified
as CUstomer Service Representatives.
7 The three most senior candidates were interviewed on
February 5, 1997 The Interview Panel consisted of
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Mr. Jay Thanki, District Manager for Windsor,
Mr. Don Thibodeau, District Manager for London and
Ms Patty Davis, Manager of an "A" store in London
Mr Jay Thanki was the Chair of the Panel.
8 The Panel advised the Grievor before his interview began
that he had to score 60% or more to pass the interview.
9 The candidate rating forms for the Grievor and Mr Sullo
are attached as Appendix 6
10 Attached as Appendix 7 is a summary of the scores of the
candidates
11 Mr Barnard notified Mr Thanki following the interview
that he wished to have his name removed from the list of
candidates for the position Attached as Appendix 8 is
a copy of Mr Barnard's request
12 Mr Bechard was not offered the position
13 The position was offered to Mr Gerry Sullo Mr Sullo's
appointment became effective March 17, 1997
14 Mr. Bechard filed a grievance with respect to this matter,
and the grievance was duly filed in accordance with the
procedures set out in the collective agreement Attached
as Appendix 9 is a copy of the grievance "
(exhibit #4)
A substantial amount of viva voce evidence was presented by the
parties over the course of six (6) days of hearings The grievor and
Mr Bill Randle gave evidence on behalf of the Union Mr Bob Sussex,
Mr Sullo and Mr Jay Thanki presented evidence on behalf of the
Employer All of this evidence has been considered in the fashioning of
this award
The grievor commenced work at the LCBO in May, 1977 as a Clerk 2
He became a Clerk 3 in 1978 and worked in such position till 1985 In
the latter year, the grievor was promoted to a Clerk 4 job and remained
in same until May, 1994, at which time all Clerk 4 positions were
eliminated Thereafter, he worked as a Customer Service Representative
~-
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but was paid at a red-circled Clerk 4 rate. All of these positions were
in store #110.
Mr Randle was Manager of store #110 in the period 1984 to 1989
He retired from that position in 1989 after having worked for the LeBO
for some twenty (20) years. As a 'c' store Manager, Mr Randle was a
member of the bargaining unit
Mr. Sussex was Manager of Store #110 from 1989 to January, 1997
His decision to transfer to the Blenheim store led to the vacancy here
being contested Mr Sussex has worked for the LeBO on a full-time
basis since August, 1974 Like Mr Randle, he was a member of the
bargaining unit in the period he served as Manager of Store #110
Mr. Sullo started working full-time at the LeBO in 1982 He worked
at Store #110 as a Clerk 3 between 1984 and 1992. In 1992, Mr Sullo
was laid-off and subsequently bumped into a position in the Chatham
Store He was working there as a CUstomer Service Representative at the
time of the instant posting As stated above, Mr Sullo was awarded the
'C' Store Manager position being contested in this case. As the
incumbent, he was notified of his right to fully participate in the
proceedings Mr Sullo attended some, but not all, of the hearings
His involvement was limited to acting as a witness for the Employer
Mr. Thanki has been the District Manager for the Windsor District
since February, 1995 In this capacity, he supervises thirty-four (34)
Stores in Southwestern Ontario, including Store #110 The Manager of
Store #110 reports directly to Mr Thanki. Mr Thanki's position
includes responsibility for job postings In this instance, he served
as Chair of the selection panel
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The relevant provisions of the collective agreement read
21 5(a) Where employees are being considered for promotion,
seniority will be the determining factor provided
the employee is qualified to perform the work
(c) Where it is decided that it is necessary to make a
temporary appointment to fill a temporary vacancy,
including summer stores, which will last five (5)
, working days or more, or one day in the case of
stores, the Employer shall appoint the most senior
employee in the next lowest classification in the
department, section or store involved, who is
qualified and available to perform the work
21 9(a) In the event an employee who has been promoted is
unable to perform the requirements of the position
in a satisfactory manner within a period not
exceeding three (3 ) 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
In the period between 1984 and 1992, the full-time complement at
store #110 totalled three (3) employees Both the grievor and Mr Sullo
worked at the Store during these years. As noted, Mr Randle was the
Manager between 1984 and 1989. He was replaced by Mr. Sussex at the
time of his retirement In 1992, the full-time complement was reduced
to two (2) employees with the lay-off of Mr. Sullo .Thereafter, the
grievor and Mr Sussex were the only full-time staff in the Store This
staffing level continued until the Fall of 1996, at which time a third
full-time employee was added. Permanent part-time and casual employees
were also utilized in Store #110 in the time frame material to this
dispute
The job descriptions for the positions of Clerk Grade 4 and
Customer Service Representative are appended to this award As stated
earlier, the grievor worked in these two (2) positions between 1985 and
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1997 A considerable amount of evidence was presented, some of it
conflicting, with respect to the actual duties performed by the grievor
in the aforementioned period After reviewing all of this evidence, I
conclude as follows
(i) I am satisfied that, throughout much of this period, the grievor
was actively involved in the preparation of various daily and
monthly reports including the daily sales report; the petty
cash report; the banking report: incident reports: the telephone
recap report; the health and safety report; the consolidated
sales report: the permit report; the refusal report; and the
customer complaint report Many, if not most, of these reports
were completed by the grievor when he engaged in what was
referred to as "office work". It is likely that both he and
Mr Sullo performed this type of work on a monthly rotational
basis prior to the latter's layoff in 1992 Thereafter, the
grievor assumed greater responsibility for such work given the
reduction in the full-time complement I was left with the
distinct impression that Mr Sussex verified the content of
the reports for accuracy
Many of the above-mentioned reports, particularly the financial
ones, initially involved calculating amounts, tracking of data, and
logging of information onto ledger sheets through manual techniques In
1991, however, the computer was introduced into the store's operation
This made it much easier to complete some of the reports as the
calculations, tracking and logging could then be done electronically
\ Indeed, many of the financial reports were generated directly from data
.
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stored within the computer This advance served to significantly reduce
the time devoted to this function In this regard, I was told that the
Manager now spends only three (3) to four (4) hours per month in the
preparation of these reports;
( ii) I fin~ that the grievor was directly involved in the preparation
of all store #110 budgets in respect of fiscal years 1984-1985 to 1997-
1998. It was the thrust of the grievor's evidence that, with the
exception of fiscal year 1997-1998, he was responsible for completing
fifty percent (50%) of the budget package throughout the above-mentioned
period The grievor asserted that, generally, he would complete half of
the necessary work and that the remaining half would be done by the
Manager, be it Mr. Randle or Mr Sussex I am incl ined to slightly
discount his estimated involvement as it is clear that Mr Sullo was
also involved in the budget process prior to his departure from Store
#110 in 1992
Mr Randle testified that the grievor was "very much involved" in
budget related work while he served as Manager. Mr. Sussex stated that
the twenty-six (26 ) budget accounts were divided between himself, the
grievor and Mr Sullo between 1989 and 1992 Thereafter, these accounts
were divided between himself and the grievor. I accept Mr Sussex's
evidence that, as Manager, he was ultimately responsible for the budget
figures generated by the grievor for the accounts assigned. I further
accept that Mr Sussex may have reserved to himself that important
portion of the budget relating to salaries. I, nevertheless, consider
the grievor's experience with respect to budget preparation as
significant both in terms of the extent of the work and the long period
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over which it was performed.
There was a conflict in the evidence with respect to the
preparation of the 1997-1998 budget. The grievor maintained that he
completed the entire package, including the salary component, as Mr
Sussex was expecting to be transferred to another Store The grievor
recalled speaking to Mr Thanki on issues related to budgeted wages
Mr. Sussex testified that he completed the salary portion of the budget
in October or November, 1996 and that the other accounts were completed
by the grievor Mr Thanki had a similar recollection Ultimately, I
accept that Mr Sussex may have initially submitted a budget for
salaries. It is clear, however, that the grievor completed the budget
for all of the other accounts and that, in so doing, he may have been
required to address salary related issues such as full-time complement.
In the final analysis, I have not been persuaded that this conflict is
material because notwithstanding the existence of same it is apparent
the grievor was called upon to devote considerable effort towards
completion of the 1997-1998 budget I note, in this regard, that much
of his work would have occurred following Mr Sussex's departure and in
the period during which he served as Acting Manager of Store #110 of
which more is said below
As was the case with the preparation of reports, work on the budget
was simplified after the introduction of the computer at Store #110
Following such introduction in 1991, the computer would generate a
projected budget based on data from prior years As a consequence, the
process became more of a checking and verification exercise
Progressively less input was required by the employees in the Store
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Mr Sussex could not recall ever having to correct work performed by the
grievor on the various budgets;
(iii) The grievor attended Manager's meetings during the period that
Mr Randle was Manager of Store #110. These meetings, which were held
at least six (6) times per year, focused on issues such as procedures,
budgets and scheduling. The grievor also attended a Manager's seminar
at Kempenfelt Bay These attendances were all at Mr Randle's request
On the evidence before me, it seems likely that Mr Sullo also went to
certain budget and Manager's meetings in this period, although not as
frequently as did the grievor The grievor did not, generally, attend
these types of meetings during the period Mr Sussex was Manager I
was told that Mr. Sussex personally attended at such meetings;
(iv) I have been persuaded that the grievor developed considerable
experience in scheduling over the course of his employment at Store
#110. It was agreed, in substance, that he prepared the four (4) week
schedule for full-time, part-time and casual staff from 1992 till 1997
when the task was assumed by Mr Sullo as Manager. Mr. Sussex insisted
that he would check the schedule to ensure that it was done properly and
in accordance with the requirements of the collective agreement Copies
of schedules prepared by the grievor in respect of the period January,
1996 to March, 1997 were filed as exhibit #5
In a similar vein, the grievor was also responsible, in part, for
the electronic submission of time and attendance data to the Payroll
Department in the period 1992 to 1997 The grievor testified that he
and Mr. Sussex rotated this responsibility on a weekly basis Mr
Sussex stated that he would perform the task if in the Store and that,
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otherwise, the person in the office would do it I find that little
turns on this apparent discrepancy Ultimately, I am satisfied that the
grievor regularly performed this work on the computer while engaged in
what was referred to as "office work". The grievor testified that the
transmission function was taken over by Mr Sullo when he became Manager
in March, 1997;
(v) On the evidence, I am satisfied that the grievor developed
significant experience in assessing inventory and determining the extent
of stock to be ordered This process was done manually prior to the
introduction of the computer in 1991 This required a physical check of
the warehouse each week to compare inventory to projected needs This
projection was based, in part, on a formula involving an analysis of
sales over the prior three (3) month period and over the identical
monthly period in the proceeding year Mr. Sussex, generally, agreed
that the grievor was responsible for approximately one-third ( 1/3rd) of
the stock in the period prior to the introduction of the computer Mr
Sussex asserted that he and Mr. Sullo were also each responsible for
assessing about one-third ( 1/3rd) of the total stock. He stated that
the three (3) employees would check each other's work prior to any
transmission of an order
I accept that the task of ordering stock became much easier and
less time consuming after the introduction of the computer Simply put,
the computer would establish a target order premised on sales history
and cases on hand. Visits to the warehouse were no longer necessary
Instead, the employee involved would check the suggested computer order
for any discrepancies In such event, or for other purposes, the
\
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computer generated figure could be "overridden" After assessing all of
the evidence, I am satisfied that the grievor continued to monitor stock
and determine appropriate orders in this latter period I am inclined
to accept his evidence that he was responsible for up to one-half (1/2)
of the stock in the period following Mr Sullo's layoff Put another
way, I find that the grievor would determine through the computer the
extent of stock to be ordered for his share of the product lines
Additionally, I find that the grievor was authorized to override a
computer target, if merited, and to place an ultimate order. I have no
doubt, however, that this process was closely monitored by Mr Sussex
The evidence discloses that the grievor was also responsible for
certain other duties relating to stock More particularly, he would
ensure the receipt of display material from the London Warehouse and
would log in a record of any defective or broken stock;
(vi) On the facts before me, I conclude that the grievor also had a
shared responsibility with respect to the ordering of supplies for Store
#110 in the period 1992 to 1997 More specifically, I am satisfied that
both he and Mr. Sussex equally shared this task which involved the
taking of inventory and the completion and submission of purchase orders
to Head Office If the Supply Department at Head Office was unable to
supply the items needed, the grievor would proceed to purchase same in
the local community The grievor testified that this responsibility was
assumed by Mr Sullo in March, 1997;
(vii) The position description for Liquor Store Clerk Grade 4 provides
as follows
"
-
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"PURPOSE
. . . . ....... . . . . . . . . .
Acts as Assistant Manager in "C" Stores.
DUTIES AND RESPONSIBILITIES Approximate % of time
. . . . . . . . . . . . . . . . . . . .
Assuming responsibility for store 5%
operations in the absence of the Manager
or Assistant Manager which includes
- key store functions
- supervision of staff
- customer complaints
"
. .
(exhibit #4, Appendix #4)
It is abundantly clear that the grievor, while working as a Clerk 4,
acted as the Assistant Manager of store #110 in the absence of both Mr
Randle and Mr Sussex. He acted in this capacity in the following
circumstances while they were off on vacation or their regular day
off; while they were ill and away from work; and while working certain
extended hours, in their absence, on Fridays. In this regard, Mr
Randle testified that the grievor acted as Manager "the majority of
times" in the five (5) year period he was Manager of the Store. On this
point he stated:
"I never designated. I assumed it was always Steve. When I
wasn't at the Store, Steve had the keys Steve knew the
procedure, he was the Clerk 4 and the most senior person
next to myself "
Mr Randle added that when the grievor "ran the Store", he rated his
performance as "very satisfactory, no problem". Indeed, he asserted
that the grievor was "absolutely" qualified to be Manager of Store #110
as far back as 1989. Mr Sussex testified that in his absence, he "went
to the next senior person in the Store" He agreed that in the period
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1989 to 1992, the grievor acted as Manager more frequently than Mr
Sullo, and that in the five (5) year period thereafter, the grievor
acted in this role more often than the next senior person On the
evidence, it would appear that prior to 1992, Mr Sullo only acted as
Manager when both the Manager and the grievor were absent from the
,
Store It was not disputed that the grievor continued to serve as
Acting Manager in the three (3) year period during which he was
classified as a Customer Service Representativei
(viii) The evidence shows that the grievor acted as Manager of Store
#110 between January 15 and March 15, 1997 This was the period
subsequent to Mr Sussex's departure and prior to the arrival of Mr
Sullo as Manager The grievor testified that, in this period, he was
totally responsible, inter alia, for the ordering of stock and supplies,
the completion of all reports, and the compilation and transmission of
time and attendance data. The witnesses called by the Employer did not
express any concerns as to how the grievor performed in this two (2)
month period.
A series of performance appraisals of the grievor were filed as
exhibit #7 These may be summarized as follows
(i) the performance appraisal for the period June, 1995
to June 1996 gave the grievor an overall performance
rating of "2" This rating fell between "outstanding"
and "meets requirements". The grievor met or exceeded
requirements in all competency areas Mr Sussex
made the following comment in the appraisal "Steve
is a valuable employee He assists in all aspects of
the Store. I feel confident customers are well looked
after in my absence" The performance appraisal was
signed by both Mr Sussex and Mr. Thankii
(ii) the performance appraisal for the period June, 1994 to
June, 1995 also gave the grievor an overall performance
rating of "2" This rating similarly fell between
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"outstanding" and "meets requirements". The grievor
again met or exceeded requirements in all competency
areas Mr. Sussex made the following comment in the
appraisal: "Steve continues to be a valuable asset
to the Store He runs the Store effectively in my
absence". The performance appraisal was signed by
both Mr. Sussex and Mr. Thanki;
(iii) the performance appraisal for the period June, 1993 to
June, 1994 gave the grievor an overall performance
rating of "2" This equated to "above average
performance". Mr Sussex made the following comment
under the heading of "Strengths" on page two (2) of
the appraisal form "Steve is helpful with our
customers and can run the Store in my absence" The
performance appraisal was signed by Mr Sussex and
Ms Ursula Harfman, the prior District Manager;
(iv) the performance appraisal for the period March, 1992
to June, 1993 gave the grievor an overall
performance rating of "2" which equated to "above
average performance" Mr Sussex made the following
comment under the heading of "Strengths" on page
two (2) of the appraisal form: "Steve continues to
do a good jOb looking after the Store in my absence".
The performance appraisal was signed by both Mr Sussex
and Ms. Harfman.
Performance appraisals in respect of Mr. Sullo were filed as
Exhibits #9, #12 and #13 These referenced his work at the Wallaceburg
and Chatham Stores. They may be summarized as follows
( i) the performance appraisal for the period February, 1991
to February, 1992 gave Mr Sullo an overall performance
rating of "2" This rating fell between "exceptional
performance" and "consistently meets job requirements"
Mr Sussex made the following comment under the heading
of "Strengths" on page two (2) of the appraisal form:
"Jerry is a self-motivator. He never has to be told to
do a task. He just does it. Jerry would make an
excellent Mgr." The performance appraisal was signed by
Mr. Sussex and Ms Harfman;
( ii) the performance appraisal for the period February, 1993
to February, 1994 gave Mr. Sullo an overall performance
rating of "2" This rating also fell between "exceptional
performance" and "consistently meets job requirements"
The comments found throughout the appraisal, which were
made by the Manager of the Chatham store, are all
positive in nature;
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(iii) the performance appraisal for the period 1995 to 1996 gave
Mr Sullo an overall performance rating of "2". This
rating fell between "outstanding" and "Meets Requirements"
The appraisal, which was prepared by the Manager of the
Chatham Store, indicates that Mr. Sullo met or exceeded
requirements in all competency areas He received an
assessment of "outstanding" for his work in respect of
both customer service and stock handling.
The instant posting dated December 20, 1996 for a ICI Store Manager
at Store #110 in Wallaceburg reads, in part
"
.. . ... ... . . ....... ... .
Under the general supervision of the District Manager, the Store
Manager assumes complete responsibility and accountability for
the store by planning, co-ordinating, scheduling and
administering key store functions such as customer service,
stock layout, storage and maintenance, security, management
reporting, and cash handling and banking; hiring, training,
scheduling, evaluating and disciplining store staff; performing
administrative functions such as budget preparation; processing
licensee, agency and special permit applications, and ensuring
adherence to policies and procedures.
QUALIFICATIONS The successful candidate will have developed
the knowledge, skills and ability to perform at the "c" Store
Manager level, through a combination of progressive experience
in store operations and relevant educational programs in key
areas such as Customer Service, Social Responsibility and
Human Resources Management You must also demonstrate an
awareness of LCBO strategies including Customer Service
Standards of Excellence, Health & Safety/WCB environmental
issues, and Employment Equity You should possess good
leadership, interpersonal and communication skills, and have
completed Product Knowledge Level I and II and working towards
level III
The following are also critical areas for candidate assessment
- Merchandising
- Inventory Management
- Business Management, ego budget
- Facilities Management, eg repairs, maintenance
- Security
The LCBO is an Equal Opportunity Employer
PLEASE NOTE - Candidate qualifications will be determined
through an interview process and ~ meet
the following basic requirements in order
to be called for an interview a) past
.
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satisfactory work performance; b) review
of discipline and attendance records;
c) French Language Services requirements,
where applicable.
. . . . . . . . . ...... . . ..... . . . . . . . . . "
. .
(exhibit #4, Appendix #1)
The closing,date for the posting was January 14, 1997 The grievor
submitted his application to the Western Regional Office, Human
Resources Services, in London, Ontario on December 20, 1996. At the
time of this submission, he had completed the Product Knowledge Level I
and II courses referenced in the posting
The position description for ICI Store Manager is appended to this
award The document outlines a number of duties and responsibilities
for the position under the following headings. CUstomer Service; social
Responsibility; Human Resource Management; MerChandising; Inventory
Management; Business Management; Facilities Management; and Security
These duties and responsibilities were reviewed with the grievor during
the course of his evidence Simply stated, the grievor claimed that he
could perform effectively in the position sought given the breadth and
extent of his prior experience at store #110.
Prior to the summer of 1996, promotion to the position of ICI store
Manager was based strictly on seniority in the absence of any
significant performance, discipline or attendance issues Mr Thanki
indicated that under this process, the senior candidate would be
selected as long as their performance appraisals were satisfactory The
procedures employed to implement this process was filed as exhibit #18
The procedure required the Division/Department Head, or District
Manager, to "review the past performance of applicants and select the
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senior qualified candidate" The process did not contemplate, or
provide for, an interview with the applicant.
The above-described process was changed in mid-1996 The change
was documented in a memo dated July 22, 1996 which was circulated to all
employees J'he memo reads, in part
II
. . . . . . . . . . . . . . . . . . . . . .
Please be advised that the selection process for ICI & 'D' store
Managers and 'A' & 'B' Assistant store Managers has been revised
for future postings
The revisions are as follows.
1 staffing will continue to take place per the provisions of
Article 21. 5 (a) of the Collective Agreement A formal
interview will be added to the process to determine the
qualifications of the most senior candidate
2 In order to be eligible for an interview, the most senior
candidates must meet the basic requirements, namely,
demonstrated retail experience, fully satisfactory
work performance, satisfactory attendance, and no recent
discipline.
3 The revised process, inclusive of the interview, will
determine whether the candidate is qualified to meet the
requirements of the position.
"
. . . . . . . . . . . . . . .
(exhibit #11)
As stated in paragraph #1, a formal interview was added to the process
"to determine the qualifications of the most senior candidate" Mr
Thanki testified that after this change, "C and D positions were based
on interviews with a sixty percent (60%) qualification" When asked by
counsel for the Employer to clarify this statement, Mr Thanki replied
"If the most senior candidate receives sixty percent (60%) on the
interview they would be deemed to be qualified" I was advised that the
revised process was first used in respect of the posting now before me
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I note that the posting references the fact an interview would be held
More specifically, it states that "candidate qualifications will be
determined through an interview process "
Mr Thanki described the pre-screening process used in this
instance. Initially, the Human Resources Department sent a form out to
the District Managers listing the candidates The District Managers, or
their staff, were then required to document appraisal ratings on the
form and to note whether there existed any significant discipline or
attendance issues, in respect of the applicants from their District
This information was obtained in Mr Thanki's District by Ms. Carol
Hanson, the District Clerk I was led to believe that she secured the
required information through communications with the Manager's of
applicants from within the District. The form containing all of the
data was then returned to the Human Resources Department for compilation
and assessment The form containing data relating to the grievor was
not filed in this proceeding as the Employer was unable to locate same
Mr Thanki initially testified that his Clerk would only note the rating
on the most current performance appraisal He later stated that he was
unsure how many appraisals would be canvassed during the screening
process
On receipt of the forms from the Districts, the Human Resources
Department compiled a list of the six (6) most senior applicants without
any discipline, attendance or performance problems It then determined
that the three (3) most senior applicants meeting the basic requirements
for the position in question would be interviewed, namely Mr Barnard,
,. the grievor and Sullo. These three (3) individuals
Mr. were
\
.-
""
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subsequently interviewed on February 5, 1997 by a panel consisting of
Mr. Thanki: Mr. Don Thibodeau, District Manager for London: and Ms
Patty Davis, Manager of an 'A' store in London Mr Thanki acted as
Chair of the panel. He was the only panel member called on to testify
in this case Mr. Thanki was familiar with the grievor and Mr Sullo as
,
they worked in his District. He did not know Mr. Barnard who was from
another District
Each of the three (3) interviews lasted for approximately forty-
five ( 45) minutes At the outset, each candidate was told of the format
that the interview would take They were specifically informed that the
most senior candidate aChieving sixty percent (60%) would be awarded the
position During their respective interviews, the candidates were each
asked the same five (5) questions These questions, which were prepared
in advance by the Human Resources Department, were contained in a five
(5) page Candidate Rating Form. The questions addressed the following
areas Social Responsibility: CUstomer Service and MerChandising: Human
Resource Management: Store Security: and Business Management. I am
satisfied that the questions were all reasonably related to the duties
and responsibilities of the posted position. The Union did not
seriously challenge the appropriateness of the questions at the hearing
I elect not to reproduce the full text of each question so as not to
compromise any future selection process
The Candidate Rating Form had the required answers for each
question together with a spot for the panelist to tick off when one ( 1)
or more of these answers were given Mr Thanki stated that it was
possible for candidates to get credit for relevant answers not listed on
- 19 -
the form A scoring direction was provided for each question Each
panelist separately rated each of the three (3) candidates Their forms
for the grievor and Mr Sullo were filed as exhibit #4, Appendices
#6(a) (b) (c) (d) (e) and (f) . Mr Thanki testified that the panelists
scored each candidate immediately after an answer was given At the end
of each interview, the panel totalled their respective scores and
discussed any discrepancies Mr Thanki, when asked, defined a
discrepancy as "a substantial difference in the marks assigned for any
question". He initially advised that scoring would be changed "if one
( 1) panel member didn't hear what others did". In cross-examination, he
was unable to recall if any scores were in fact changed and then replied
that he did not think so Mr Thanki asserted that each person did
their own scoring He denied the suggestion that the panel had engaged
in consensus scoring and maintained that the closeness of their
individual totals was mere coincidence
The scores, tabulated after the interviews, were as follows:
P. Davis J. Thanki D. Thibodeau Total Total Points 1
B. Barnard 30 30 5 32 92.5 150 62%
S. Bechard 25 5 26 26 77 5 150 52%
G. Sullo 31 30 29 90 150 60%
It is clear on the face of the tabulation that the percentage scores of
Mr Barnard and the grievor were "rounded" up to the next highest whole
number A review of Ms Davis' rating form in respect of Mr. Sullo
discloses that he scored 30.5 rather than 31 His total mark,
accordingly, should have been recorded as 89 5 instead of 90 As a
\
.
.
- 20 -
percentage of the total possible mark this would have led to an overall
percentage score of 59 6% rather than the 60% shown above. Counsel for
the Employer suggested that this simply amounted to a "rounding up" as
occurred in the case of the other two (2) candidates Counsel for the
Union argue~ that it was somewhat suspicious as the rounding up would
not have been apparent from a mere review of the tabulation sheet She
emphasized that, without such rounding up, Mr Sullo would not have
attained the required percentage established by the LCBO
As noted in the Agreed Statement of Facts, Mr Barnard notified Mr
Thanki following the interview process that he wished to have his name
removed from the list of candidates for the position. The position was,
therefore, offered and awarded to Mr Sullo as the next most senior
person scoring sixty percent (60%). The grievor was not offered the
position as he scored only fifty-two percent (52%) in the interview
Mr. Thanki testified that the grievor's score, being less than sixty
percent (60%), led the panel to conclude he was not qualified for the
position He reiterated that a candidate failing to achieve sixty
percent (60%) in the interview was "deemed not to be qualified" Mr.
Thanki expressed the opinion that the interview was "a good indicator"
as to whether a candidate was qualified or not, as it presented them
with an opportunity to "talk about their experience"
The section panel did not review performance appraisals for any of
the applicants as part of its process While Mr. Thanki knew two (2) of
the three (3) persons interviewed, no evidence was presented with
respect to what Ms. Davis or Mr Thibodeau may have known about the
prior experience and level of performance of the applicants. The
_.
- 21 -
Employer's policy relating to Performance Appraisal was filed as exhibit
#15 It reads, in part
" SUMMARY continuing evaluation of performance is fundamental
in meeting LCBO objectives and in assisting
employees to achieve their career development goals.
Performance appraisal is a measure of the employee's
performance and potential against clearly defined
goals and objectives
Objectives The objectives of performance appraisal are to
- establish specific and realistic performance
standards based on the employee's job description
- measure and document actual work performance
against established goals as a basis for merit
increases/promotions
- enable employees to participate in setting
their performance goals and objectives
- obtain information on each employee's interests
and capabilities so that employees can be
matched against specific job requirements and
opportunities
- assist employees in their career development
by providing feedback and by identifying areas
for performance improvement
- encourage employees to bring to the supervisor's
attention any problems or conflicts so that
they may be resolved "
Mr Thanki testified that he was aware the grievor had acted as
Manager of Store #110 following Mr Sussex's relocation to Blenheim It
was his view that this experience did not qualify the grievor for the
job When asked for the basis for this opinion, Mr Thanki stated the
following "As an Acting, you are basically just doing maintenance
The Manager leaves things in place and the acting person carries out
directions already established" In cross-examination, Mr. Thanki
\ acknowledged that the grievor ran the Store in a satisfactory manner
- 22 -
between January and March, 1997
Mr Thanki similarly testified that acting as Manager in the
Manager's absence did not necessarily equip or qualify the grievor for
the posted position He stated that "usually the most senior employee
working in the store is appointed Acting Manager" In cross-
examination, Mr Thanki's attention was drawn to the Employer's policy
on Acting Assignments The pOlicy, filed as exhibit *17, includes the
following statement "An acting assignment is made when a qualified
employee is designated to perform the full duties of another position on
an interim basis" Mr. Thanki agreed that pursuant thereto an employee
appointed on an acting basis ought to be qualified He questioned,
however, whether that was always the case Mr Thanki stated, in this
regard, that "there is a feeling out there at the store Level that the
most senior candidate should get it" He further suggested that many
Managers simply appoint the most senior person so as to avoid
grievances Mr. Thanki conceded that he was not suggesting this had
occurred at store *110 in respect of the grievor acting as Manager
To repeat, article 21 Sea) provides as follows.
Where employees are being considered for promotion, seniority
will be the determining factor provided the employee is
qualified to perform the work
This article clearly contemplates that the promotion should be awarded
to the senior qualified candidate In this sense, it constitutes what
is commonly referred to as a sufficient, or threshold, ability clause
The following excerpt from Canadian Labour Arbitration (3rd. ed) , Brown
and Beatty at page 6-56 describes how such a clause is normally
interpreted and applied
- 23 -
"If the collective agreement contains what is known as a
'threshold' or 'sufficient ability' clause, which purports
to award a job to the senior employee having the requisite
ability to perform it, the senior employee claiming the
position will be entitled to it if he affirmatively proves
that he can perform the job, even though he might not be
able to perform it as well as a less senior employee. By
this type of clause, the evaluation that is made of the
grievor's qualifications is against the legitimate
requirements of the job The senior employee will not be
required to prove, nor will the employer be entitled to
insist, that he could perform the job to perfection
Rather, reasonable ability to perform the required task
is the bench mark for assessing the ability and
qualifications of such a person".
This approach was accepted in Re Scarborough General Hospital And
Canadian Union Of Public Employees, Local 1487 (1979) , 23 LAC (2d)
190 (Swan) The award in that case reads as follows with respect to
onus of proof under a sufficient ability clause
" .. .The onus of proof in these cases is on the grievor,
although once a grievor has made out a case that he does
possess the requisite skill and ability for the jOb, the
onus shifts to the employer to come forward and establish
the grounds for its opinion "
. . . . . . . . .
(page 196)
Article 21 5(a), as worded in the instant collective agreement, has
been interpreted in the following decisions of the Grievance Settlement
Board OLBEU (Durant/Evans) and LCBO, 1586, 1587/94 (Oissanayake);
OLBEU (Huttner) and LCBO, 1049/89 (Watters) ; OLBEU ( Cover) and LCBO,
0397/89 (Verity); OLBEU (Colalillo) and LCBO, 1738/89 (Barrett); OLBEU
(McWilliam) and LCBO, 251/84 (Brandt) These awards, in general,
confirm that article 21 5(a) is a sufficient ability clause pursuant to
which the most senior candidate is entitled to the position if
qualified. They also recognize that the article does not contemplate a
competition between candidates as would be the case under a relative
~
- 24 -
ability clause
The above authorities clearly establish that this grievor would be
entitled to the posted position if he can demonstrate he was qualified
at the time of the posting to perform the work of a 'C' store Manager
It does not matter that a more junior candidate, such as Mr Sullo,
might be superior in the sense she/he could perform the job more
effectively Simply put, if the grievor as the more senior of the two
(2) employees was qualified, he is entitled to the job This analysis
leads directly to two (2) threshold questions. Firstly, was the grievor
qualified to perform the duties of the posted position and, secondly,
did the Employer structure and apply an assessment process capable of
supporting a decision that he did not possess the requisite
qualifications Not surprisingly, the parties advanced conflicting
arguments on these issues.
It was the Union's position that the grievor was qualified, at the
time of the posting, to perform the duties of a 'c' Store Manager
Counsel focused on three (3) aspects of the evidence in advancing this
submission Firstly, she noted that the grievor worked as a Clerk 4 at
Store #110 for a nine (9) year period between 1985 and 1994 Counsel
emphasized that in this position the grievor was called upon to act as
Assistant Manager and to engage in duties involving a significant
measure of responsibility and independence Counsel asserted there was
no evidence before me that the grievor performed his duties as a Clerk
4 in other than a satisfactory manner Secondly, reference was made to
the grievor's experience with respect to scheduling, budget preparation,
report preparation, related office work, and ordering of stock and
-
- 25 -
supplies. Counsel stressed the fact that this work was performed right
up to the time of the posting and that it was not restricted to the time
period during which the grievor was a Clerk 4 She suggested that this
type of work would serve as a valuable foundation for someone intent on
promotion to a 'C' Store Manager position Counsel, again, repeated
that the Employer had not presented any evidence to suggest the grievor
had performed this work in a less than satisfactory fashion Lastly,
considerable emphasis was placed on the fact that the grievor acted as
Manager, in the absence of either Mr Randle or Mr Sussex, more than
any other employee in Store #110 Counsel referred to article 21 5(c)
of the collective agreement and to LCBO policy on acting assignments,
both of which speak to the need to be qualified for such work She
submitted, in substance, that the grievor's experience with respect to
filling-in as Manager demonstrated he was qualified for the posted
position. Counsel suggested that the Managers would not have appointed
the grievor to act in this role if he was not qualified to assume the
higher level of responsibility From the perspective of the Union, the
grievor's qualifications and suitability for the position was further
evidenced by his favourable performance appraisals over a lengthy period
of time and by his ability to effectively act as Manager in the two (2)
month period following the departure of Mr. Sussex.
The Union also challenged the process for selection used by the
Employer in respect of the instant posting Reference was made to the
change effected in mid-1996 which resulted in the addition of an
interview component to this process While the Union did not object to
the use of an interview per se, counsel submitted that the way it was
.- - 26 -
employed here turned the selection into a competitive process instead of
one focused on the qualifications of the senior applicant. Counsel
further argued, in this regard, that the Employer solely gauged the
grievor's ability and qualifications on the basis of the interview and,
in so doing, ignored his actual work experience at store #110 She
stressed that the selection panel did not review or consider his
performance appraisals and his prior work record, including the acting
assignments From the perspective of the Union, this information was
used exclusively for pre-screening purposes on the part of Human
Resources and was not, in any meaningful way, factored into the panel's
decision making process, as required by article 21.5(a) . It was the
Union's position that the Employer, in relying on the interview result
as the sole determinant of qualifications, ignored material and relevant
evidence which established the grievor was qualified for the position in
issue This was described as a "fatal flaw" in the process Counsel
submitted that the performance appraisals should not be discounted
simply because they were prepared by other members of the bargaining
unit She maintained that 'C' Store Managers are fully responsible for
making this assessment and that, in any event, the appraisals in this
case were reviewed and signed by the District Manager
Counsel for the Union also argued that the scoring of the interview
was questionable, arbitrary and unreliable. She noted the following
from a review of the rating forms ( i) it appeared to her that the
grievor was not given appropriate credit by Mr. Thanki for offering
relevant information in response to questions; ( ii) the panelists were
inconsistent in the number of ticks marked and the score assigned in
- 27 -
respect of certain questions; ( iii) the number of ticks did not, in all
cases, correspond to the mark given; and (iv) there were differences in
the written comments made by the various panelists Counsel referenced
the fact that the panel did not meet ahead of time, in a meaningful way,
for purpose~ of discussing the process. In this regard, she noted Mr
Thanki's evidence to the effect that he did not direct the panelists to
follow the scoring guidelines for each question. Specific mention was
also made as to Mr Thanki's statement that he would not necessarily
count the ticks but, rather, would assess the answer in a more global
sense On a related point, counsel referenced Mr. Thanki's further
statement that a candidate would not necessarily receive a mark for
providing one ( 1) of the required answers While the District Manager's
evidence was not entirely clear, it seems as if he would only give
credit for an answer if it was given in a way which showed the candidate
understood the specific area being explored in the question In his
words, he would not reward a "shot-gun" approach. Mr Thanki testified
that he wanted more in an answer than just a name or a concept When
asked to clarify his approach in this area, Mr Thanki replied that he
sought to glean whether the candidates were "just hitting names on
memory" or whether they were "living the experience and doing the things
the question is about" in their Store. Ultimately, it seemed that Mr
Thanki might not give a mark for a required answer if it was not
presented clearly and in context
By way of remedy, the Union asked that I place the grievor into the
position, together with compensation and interest, rather than ordering
a re-run with conditions attached Counsel for the Union argued that
.
- 28 -
the posted position was not excessively complex and that there was an
abundance of evidence to show the grievor was qualified for same She
stressed that none of the witnesses presented on behalf of the Employer
testified that the grievor could not perform the job or that they would
have concerns if he was placed in it. Counsel argued that the grievor,
as the senior and qualified candidate, should be awarded the position so
as to bring closure to the dispute In advancing this argument, she
referenced the following excerpt from Re Sudbury General Hospital of
Immaculate Heart of Mary and Canadian Union of Public Employees, Local
~ (1990), 16 LAC (4th) 172 (Craven)
"How this balance is struck will depend on the circumstances
of each particular case Where, as here, the collective
agreement provides for the appointment of the senior capable
applicant, and the incumbent's ability is not at issue,
several factors must be weighed The arbitrator will consider
the qualifications and responsibilities of the job itself
Where the job is particularly complex, the responsibilities
particularly onerous, or the skills required particularly
difficult to assess in the context of an arbitration hearing,
an arbitrator may be more inclined to defer to the specialized
knowledge of the employer. The arbitrator will also consider
the nature of the employer's breach Where the employer's
conduct of the original selection casts doubt on its ability
or willingness to conduct a remitted selection properly, an
arbitrator may be more inclined to order the selection of
a specific individual A third factor is whether the parties
have provided in their collective agreement for a trial
period during which the employer retains the discretion to
return the incumbent to her former position should she
prove incapable, in practice, of performing the job In
the proper circumstances, an arbitrator may conclude that
such a provision sufficiently ensures the employer's interest,
so that it is appropriate for the arbitrator to expedite the
selection and ensure finality in that phase of the process
by awarding the position to a specific individual Finally,
where there are several grievors with varying seniority, all
of them senior to the successful applicant, an arbitrator
may have to weigh the relative efficacy of the various
remedial options "
(pages 180-181)
-
- 29 -
In response, it was the position of the Employer that I should not
interfere with the selection as the decision to appoint Mr Sullo,
instead of the grievor, was made reasonably, in good faith, and without
any discrimination. In this respect, I was cautioned against usurping
an appropriate management function The award in Re Canadian Labour
,
Congress and Office And Professional Employees' International Union.
Local 225 (1990) , 11 L A.C. ( 4th) 376 (Roach) was cited in support of
this position
Counsel for the Employer submitted that the Union had failed to
establish the grievor was qualified for the posted position He
emphasized the importance of a 'c' Store Manager being skilled and able
to work independently, efficiently, and effectively Reference was made
to the fact that such a Manager performs a significant role in both the
Store and community without the benefit of daily supervision from the
District Manager Counsel emphasized that the position is one requiring
leadership, verbal, listening, and sound communication skills It was
noted that 1997 gross sales at Store #110 exceeded two million dollars
($2,000,000.00) . Simply stated, it was the Employer's assertion that
the Union had not met the onus of showing the grievor could
satisfactorily assume the enhanced responsibility expected of the
Manager
Counsel argued that, in the context of this case, the Employer
properly determined the grievor was not qualified given his failure to
score sixty percent (60%) or more in the interview. Counsel submitted
that the Employer was fully justified in utilizing an interview as part
of the process as the collective agreement did not preclude such use
- 30 -
Additionally, he maintained that the use of an interview did not serve
to transform the process into a competition. From the perspective of
the Employer, the interview on February 5, 1997 was conducted fairly and
reasonably. Counsel argued that the questions asked were all reasonably
related to the job and that the answers given were properly scored He
contested the Union's claim that the scoring was unreliable and that it
was the product of consensus scoring Counsel further submitted that
there was nothing improper about the rounding-up of the interview
scores, as it occurred in respect of all three (3) candidates In
summary , I was asked to find that the panel's assessment of the grievor,
premised on his interview, supported its conclusion he was not qualified
for the position The awards in Re Reli9ious Hospitallers of st. Joseph
of Hotel Dieu (Kin9ston) and ontario Public Service Employees Union,
Local 465 (1994) , 43 LAC ( 4th) 155 (Simmons) and Re Acadian Platers
Company Ltd. and United Steelworkers of America. Local 8059 (1997) , 68
LAC. ( 4 th) 344 (Knopf) were relied on in terms of this aspect of the
case
Counsel for the Employer noted that the performance appraisals,
disciplinary records, and attendance histories of the candidates were
accessed as part of the initial screening exercise He suggested it was
immaterial that the panel did not review the appraisals This
submission was premised on the fact that performance appraisals at store
#110 were completed by other bargaining unit personnel Counsel
asserted that, because of this, "sole reliance" could not be placed on
the appraisals In his words, the interview was "seen as an opportunity
for management to determine through its own eyes whether a candidate is
,
- 31 -
,
qualified for a position"
It was the ultimate position of the Employer that its judgment as
to the grievor's qualifications should be sustained for all of the above
reasons. Counsel submitted that, in the alternative, the matter should
be remitted back to the Employer for re-evaluation of the grievor's
,
qualifications instead of putting him directly into the position. The
Employer relied on the awards in Re Acadian Platers Company Ltd. and Re.
Corporation of City of ottawa and Canadian Union of Public Employees,
Local 503 (1988), 1 LAC (4th) 60 (Thorne) in support of this request
In reply, the Union noted, inter alia, that there was no evidence
to indicate that LCBO employees who are store Managers and who also
happen to be bargaining unit members, are not capable of exercising
their duty and responsibility to accurately appraise the performance of
employees under their supervision in a valid and appropriate manner
Counsel for the Union questioned why the Employer would call Mr Sussex
as a witness to comment on the grievor's abilities, if it had reason to
doubt his views by virtue of his inclusion in the bargaining unit She
further observed that the new procedure outlined in exhibit #11 is not
restricted to candidates who have been appraised by members of the
bargaining unit More specifically, it also applies to 'A' and 'B'
Store Assistant Managers
Both counsel were presented with an opportunity to respond in
writing to the following Grievance Settlement Board awards issued by
this Arbitrator under the collective agreement between OPSEU and
Management Board of Cabinet Clipperton, 2554/87; Woods, 2253/87;
- 32 -
Sahota, 2238/87; Coulter/Charleau, 1395, 1304/88; and Wasky/Wright,
1832, 1833/91 Each of these cases involved the application of the
relative ability clause found in article 4 3 of the aforementioned
agreement Generally, these awards stand for the proposition that a
competition panel should consider an applicant's performance appraisals
in order to assess whether she/he is qualified and able to perform the
required duties. Further, they suggest that a failure to engage in this
type of review, accompanied by excessive reliance on interview
performance, is likely to lead to a conclusion that the selection
process is fatally flawed to the point of requiring some arbitral
intervention The following reasoning excerpted from the Woods award is
reflective of the approach taken in the above-cited decisions
II There is no doubt in our minds that generally
competition panels should resort to personnel files and
candidate's supervisors in coming to a decision as to the
relative merits of those applicants interviewed Numerous
panels of this board have imposed this requirement in order
to assure that a full assessment is made as to the applicant's
qualifications and ability to perform the required job duties
Such a course of action will also ensure, to the extent
possible, that a candidate will not be prejudiced in terms
of their right to claim a benefit arising from greater
seniority An employer who fails to engage in this type
of process and who relies exclusively on the interview to
determine success within the competition is taking a
substantial risk that this board may ultimately set aside
- 33 -
the competition should its result be contested . "
(pages 10-11)
The question I directed to counsel was whether the above-described
approach is also applicable to decisions made on job postings under
article 21 5(a) The Union's written submissions on the point were
received on July 27, 1998 Counsel for the Union answered the question
in the affirmative. She argued that such approach should be applicable
to the present case, despite the difference in contractual language,
"because the issue of how an Employer should decide with respect to a
particular job candidate, whether that candidate is qualified, is no
different in a relative ability situation, and in a sufficient ability
situationll Put another way, counsel asserted that the IIfirst step"
under a sufficient ability clause, that is determining whether a
candidate is qualified, is the same IIfirst step" taken under a relative
ability provision She noted that the difference is that there is a
"second step" under the latter type of clause as the Employer is
required to compare the qualifications of qualified candidates. Counsel
stated that this comparison should not occur under a sufficient ability
clause as the senior candidate is entitled to the job if she/he can
demonstrate they are qualified From her perspective, there was
sufficient evidence led in this case to support placing the grievor
directly into the position
The Employer's written submissions were received on August 11,
1998. Counsel for the Employer submitted that the criteria set out in
the five (5) Grievance Settlement Board awards cited above are of
limited applicability in respect of a job posting conducted pursuant to
-
- - 3-4 -
article 21 5(a) of the instant collective agreement In this regard, he
focused on the approach a selection panel must use when administering a
sufficient ability article and contrasted same with the exercise
required under a relative ability clause Counsel argued that under the
former type of clause, there is no need for a panel to review personnel
,
files or seek supervisory comments as long as the method of assessment
used provides a conclusive or satisfactory answer to the question as to
whether the candidate is qualified for the position In his submission,
the interview utilized in this case met that test in the sense the panel
could properly determine therefrom that the grievor was not qualified
for the posting Counsel suggested, inter alia, that the panel's
failure to review the grievor's performance appraisals was immaterial as
they would not have shed any light on his ability to perform in the
position of 'C' store Manager He stressed that the appraisals related
to the grievor's work in the Customer Service Representative position
From his perspective, the panel's failure to consider the appraisals did
not constitute a fatal flaw in the selection process. Indeed, counsel
argued that even if the documents had been reviewed, they would not have
materially influenced the ultimate decision He noted further that the
Employer is "wary of relying" on the opinion's of 'C' store Managers in
respect of promotions given they also fall within the bargaining unit
In the final analysis, I was asked to sustain the result in this case
In the alternative, it was the position of the Employer that the matter
should be remitted back to it for resolution by way of re-evaluation of
the grievor's qualifications
As stated earlier, article 21 5(a) is a sufficient ability clause
- 35 -
pursuant to which a promotion must be awarded to the senior qualified
candidate. This type of provision, in my judgment, places certain
obligations on the Employer in terms of the nature of the process it
uses to fill job postings. Clearly, the process should be designed to
focus on the qualifications of the senior person in respect of her/his
ability to perform the duties and responsibilities of the posted
position I am satisfied that the process should, normally, include an
assessment by the selection panel of the senior applicant's work history
and experience, including a review of relevant performance appraisals,
supervisory comments, and disciplinary and attendance records These
sources of information are important because they will likely provide
the panel with some insight as to how the applicant might perform if
placed in the job. More specifically, it allows them to match the
employee against the actual job duties and to thereby reach an informed
assessment as to whether the person has the needed skill, ability and
experience Put a slightly different way, I think that a panel places
a selection in real jeopardy when it disregards information relevant to
the threshold question with which it is seized I have no doubt the
process may include an interview, or test, of the type used here,
subject to the caveat that there is a substantial risk such an
interview, without more, may be viewed as insufficient in terms of its
ability to yield an accurate assessment of the candidate's overall
qualifications. Generally, the interview should form part of the
exercise rather than being the entire process. In other words, it
should not serve as the sole or exclusive measure of an employee's
qualifications, especially in situations where other relevant data is
l
-
- 36 -
readily available In summary, I conclude that tne process should be
sufficiently comprehensive so as to permit the Employer to make a fair,
reasonable, and informed decision as to whether the senior candidate is
qualified to perform the work
I have been persuaded, after considering the parties submissions,
that the approach reflected in Woods, and the other Grievance Settlement
Board awards cited, is applicable to this dispute In my judgment, the
reasoning found therein is relevant in that it speaks directly as to
how, or by what method, an Employer should assess employee
qualifications Clearly, such issue applies to postings under both a
relative ability and a sufficient ability clause Equally important is
the fact that failure to engage in this form of comprehensive assessment
may deprive employees of the right to benefit from their seniority
Arguabl y , such right is greater, and the loss more prejudicial, under a
sufficient ability clause pursuant to which the senior person, if
qualified, is entitled to the job.
It is clear that, in this instance, the selection was premised
entirely on the results of the interview The panel, here, did not
review the grievor's performance appraisals While Mr. Thanki was
likely aware of their content generally, as a consequence of signing
same, there is no evidence that he discussed the appraisals with the
other two (2) panelists In this regard, there is similarly no evidence
that Ms Davis or Mr Thibodeau knew anything about the nature and
extent of the grievor's work history I am satisfied that the
performance appraisals were used solely as part of the screening
exercise. More specifically, they were accessed by the Human Resources
-
- 37 -
Department to determine which of the initial applicants met the basic
requirements so as to be eligible for an interview. The documents were
not utilized by the panel for purposes of assessing the issue of
qualifications I find this to be somewhat surprising given the
emphasis the Employer places on appraisals in its policy filed as
,
exhibit #15. The policy notes that one ( 1) of the objectives of
performance appraisal is to "measure and document actual work
performance against established goals as a basis for merit
increases/promotions" I have not been persuaded that the appraisals
should be discounted for the reasons suggested by the Employer The
duty to appraise is part of the job of the 'e' store Manager There is
no evidence that Mr Sussex performed the appraisals in a less than
satisfactory, or in an unreliable, manner In any event, I consider it
significant that the more recent appraisals were signed by Mr Thanki
I doubt that Mr Thanki would have taken this step if he believed them
to be inaccurate
Mr Thanki testified that the interview was treated as conclusive
or determinative in assessing the grievor's qualifications for the
posted position. To repeat, Mr Thanki on this point stated as follows
"If the most senior candidate receives sixty percent on the interview,
they would be deemed to be qualified" He added that the fact the
grievor got less than this percentage led the panel to conclude he was
not qualified In his words, the grievor, as a consequence, was "deemed
not to be qualified" As stated previously, the questions asked at the
interview were, in my estimation, reasonably related to the job
Ultimately, however, I have not been satisfied that the five (5)
"
- 38 -
questions and answers thereto, standing alone, constitute a sufficient
foundation for not awarding the job to the grievor
As a consequence of the process used in respect of this job
posting, the following information was not taken into account by the
panel in reaching its decision that the grievor was not qualified
(i) the grievor had worked at store #110 in the period 1977 to
1997 as a Clerk 2, Clerk 3, Clerk 4, and Customer Service
Representative, and that these positions involved the
assumption of progressively greater responsibility;
(ii) that the grievor had gained considerable experience in
the areas of report preparation and related office work;
budget preparation; attendance at Manager's meetings;
scheduling and time and attendance; inventory and stock;
and ordering of supplies;
(iii) that the grievor acted, or filled in, for the Manager over
a twelve (12) year period when either Mr Randle or
Mr Sussex was absent from Store #110 The grievor assumed
this responsibility more than any other employee in the
years 1985 to 1997 In the period 1985-1994, the Clerk 4
position description required the grievor to act as Assistant
Manager and to take responsibility for the Store in the
absence of the Manager This responsibility continued after
the grievor became a CUstomer Service Representative;
(iv) that the grievor was assigned to act as Manager following
the departure of Mr Sussex from the Store;
(v) that the grievor performed all of the above duties in a
satisfactory manner, as evidenced by his positive performance
appraisals The panel, similarly, did not consider
Mr. Sussex's comments noted in the appraisals to the
effect that the grievor met or exceeded all competency
areas and that he was more than capable of taking charge
of the Store in his absence. I note, at this juncture, that
the Employer did not lead any evidence to suggest the
grievor had performed in a less than satisfactory fashion
in any of his prior positions or on those occasions when
he acted as Manager
In my judgment, the failure of the panel to consider the above
information and its excessive reliance on the results of the interview,
rendered the process fatally flawed
,
,
- 39 -
After considering all of the evidence relating to the grievor's
experience and work history, and assessing same in the context of the
demands of the position sought, I conclude that the grievor was
qualified for purposes of article 21 5(a) of the collective agreement
I accept that the test for this assessment is not one premised on
perfection but on reasonable ability to perform the duties of the posted
position I am also satisfied that this is an appropriate case to order
the grievor into the position rather than to remit the matter back to
the Employer. As noted, a substantial amount of evidence was presented
over the course of six (6) days of hearings. Much of the evidence
related to the grievor's prior work history, experience and
qualifications Alot of this relevant information should have been
considered by the panel but was not, largely because of its overreliance
on the interview I am conf ident that there is sufficient evidence
before me to support an informed decision on the threshold issue of
qualifications This is not a case where the job is so complex as to
require me to defer to the judgment and expertise of management. I also
consider it material that this posting occurred in December, 1996 and
that Mr Sullo has been in the position since March of 1997 For labour
relations reasons, it is preferable that closure be brought to this
dispute
For all of the above reasons, I order that the grievor as the
senior and qualified candidate be put into the position of Manager of
Store #110 effective March 17, 1997, or on such other date as the
parties may agree The grievor is entitled to any lost compensation
I remain seized for purposes of implementation of this award I note
- 40 -
the effect of article 21 9(a) of the collective agreement Pursuant
thereto, if it becomes apparent that the grievor is unable to perform
the requirements of a 'c' store Manager in a satisfactory manner within
a period not exceeding three (3) months from the date of his
appointment, he can be returned by the Employer to his previous
classification
As indicated earlier in this award, the Union argued that for
various reasons the scoring of the interview was questionable, arbitrary
and unreliable Given the result in this case, it is unnecessary to
address those submissions Generally, however, I think it is
exceedingly difficult to go back in time and try to assess what might
have been in a panel member's mind when she/he assigned a particular
score or made a tick or comment In my experience, there are always
likely to be discrepancies in marking on the part of a selection panel
It is clear that individual panel members may differently assess a
candidate's response This reality is to be expected from a panel
comprised of several persons and is the reason why scores are totalled
and then averaged In the context of this proceeding, and in the
absence of clear evidence to support some adjustment, I would be
extremely reluctant to engage in what would be tantamount to a remarking
of the answers In order to avoid future difficulty, the Employer may
wish, if it has not already, to document and circulate its policy on
"rounding-up"
This decision has serious ramifications for Mr. Sullo who has
occupied the position since March, 1997 The resolution of this case is
based entirely on the requirements of the collective agreement and
,
- 41 -
should not be read as a critique of his experience and ability As
stated earlier, the possibility exists that Mr Sullo may well be the
superior candidate That possibility, however, is irrelevant under a
sufficient ability clause such as article 21 5(a). Once the grievor is
found to be qualified, he is entitled to the job by virtue of his
greater seniority
Subsequent to the receipt of written submissions, counsel for the
Union provided me with a copy of the recently released award in OLBEU
(Currans, Chaput) and LCBO, 0923, 0924/97 (Knopf) Counsel for the
Employer responded by letter of August 19, 1998 Generally, he took the
position that the award in Currans, .Chaput was distinguishable and
should not be followed Given the result in the instant case, it is
unnecessary to comment at length about this recent award I do note,
however, that the reasoning and approach applied therein is consistent
with my treatment of this case
Accordingly, the grievance is allowed
Dated at Windsor, ontario this 1st day of september, 1998
f'r{) V wci1iiJ-s
M V Watters, Vice-Chair
i
T ConlIo! BOilld POSITION DESCRIPTION BARGAINING UNIT AND EXCLUDED
{. of Ontario AfparA~ 2
-
Po..IUon nu..: PoalUon Code:
'c' Storll Manager 10-{)-{)O-OOX-D4
Sup",..edIng Po..IUon nu..: Super....dlng PoslUon Code DOli..:
'C' Store Manager 1 0-{)-{)O-86X-{)4
Immedl;ol.. Supervisor'. nu..: Poalllon Code:
District Manager 10-{)-{)0-86X 366
Olvlalon. DepilI1menl: s..cUon:
Retail Norl/lern. Western. Eastern. District
GenII aJ Regions
Number of Incumbenta: Provldea Group l....der..hlp to. Numb", 01 Hour.. Wor1<..t:
No. 01 Po..1Uons: No. 01 Places.
1 3 . 1 3 · 40.00
Purpose of Position: casuaJ/PPTa
To assume the responsibility and accountability by planning, coordinating, scheduling and administering all
store operations.
Level of store is determined by volume of units sold. Currently the 'C' Store level Is 78,001 and above.
Duties and Responsibilities.
Under the general supervision of the District Manager the position assumes responsibility and accountability
for In the control and operation of the assigned LCBO 'C' Store by performing the following activities:
CUSTOMER SERVICE
Enhances customer service levels by adhering to Retail's 'Standards of Excellence document by ensuring:
prompt and courteous attention, provision of information, as requested; adherence to dress code,
knowledgeable staff; ensures store has a visible and positive image and Is sensitive to the needs of the
community' and maintains a high standard of overall internal and eXlernal store cleanliness; providing
information to customers with inquiries and resolving complaints from customers, as required, etc.
SOCIAL RESPONSIBILITY
Manages store within social responsibility practices by ensuring training availability to all staff for programs
such as SMMRT and compliance with Liquor Control Act. including, refusal of service to underage and
Intoxicated persons.
HUMAN RESOURCE MANAGEMENT
Ensures full utilization of staff through selection process, timely training, assignment of work, guidance, two
way communication through regular staff meetings, formal staff performance appraisals, control of overtime,
attendance and vacation schedules. etc. and disciplinary action If necessary Administers the Collective
Agreement, investigates and attempts to resolve employee complaints. Monitors Workers Compensation
claims and return to work programs when applicable.
Ensures that sound safety and work practices are carried out within the Store and that all employees
observe and comply with rules and regulations within the Occupational Health and Safety Act. Ensures
timely completion of monthly Health and Safety reports.
Ensures that work is performed in an environmentally responsible manner with appropriate awareness of
environmental implications of decisions made and actions pertormed.
MERCHANDISING
Manages appropriate and timely execution of corporate merchandisinq directives and planograms. Monitors
and ensures shelves and displays are fully stocked in appropriate location to provide a "Ready for Business
environment and maximize profitability
INVENTORY MANAGEMENT
Ensures Inventory levels are consistent with customer demands, Integrity of shipment to Inllolces and
appropriate storage and handling of the product within warehouse and store areas.
\
D41g,iUOIny UOII MaQ CAC.UOoeQ t'O>>IUOn ue.a.cnpuon
BUSINESS MANAGEMENT
Forecasts sales by maintaining an awareness of sales history local events, marketing opportunities to
accurately forecast sales. Monitors and applies Information and trends from- Store Income Statements.
Ensures Inventory levels reflect business requirements. Monitors and approves store budget and store
business plan In accordance with corporate directives and standards and ensures tasks are completed In
a cost effective manner
Ensures compliance of all store operational and LCBO policies and procedures identified In applicable
manuals; all relevant regulations and legislation such as Freedom of Information and French Languages
Services Act.
FACIUTIES MANAGEMENT
Maintains store to high standards through a program of preventative maintenance for building systems by
the update and maintenance of the Building Maintenance Checklist.
SECURITY
Ensures security of Inventory cash and assets through application of LeBO Loss Prevention policies, and
procedures. Ensures staff awareness of potential shoplifting.
OTHER RESPONSIBIUTIES
Performs other duties as assigned.
Knowledge and Skill: (required to periorm the job at full workinlllevel)
Developed knowledge, skuls and ability to perform at the 'C' Store Manager level, through a comblnallon
of progressive experience In store operations and relevant educational programs, where applicable. You
must also demonstrate an awareness of LCBO strategies including Customer Service Standards of
Excellence and Health and Safety jWorkers Compensation Board environmenlallssues. Good leadership,
interpersonal and communication skills. Completion of Product Knowledge level as designated up to level
3.
AuthortuUon: I certlfy thilllhe foregoing la ;on .ccurale descrlpUon ollhe poslUon.
Supenilaor'a nUB .nd N.m. Slgn.lure: DOlle:
,
Dep&rtmenllOlvlalon TIU. ;ond HilIne Signature: Dale.
"w~' Conllol Boilld POSITION DESCRIPTION BARGAINING UNIT AND EXCLUDED
of Ontario .ArrJA ~ 3
,
PoalUon nUe: PolllUon Code:
Customer Service Representative 10-{)-{)0-86X-{)Q7
Superaodlng PoalUon nu..: Superlledlng PoslUon Code. DOlle:
Liquor Store Clerk 10-{)-{)O-OOX-{)07 October 1986
Immedl.le Supervlaor'a TlU.: POlllUon Code.
Store Manager 10-{)-{)0-86X-{)OX
Dlvllllon: Oep.;lrtment: SecUon:
Retail Northam, Western, Eastern District/Store
GenlIa! Regions
Number of lncumbenta: Provides Group l....darshlp 10: Number 01 Houra Wor1<..t:
Approximately No. 01 PoslUons. No. of Places.
1000 1300 PFT 0 0 40.00
325 330 PPT
Purpose of Position.
To provide prompt and courteous customer service, merchandising and Inventory management of product, store
security and also social responsibility regarding the sale of the product. To assist In the business and facilities
management of the slOre.
Duties and Responsibilities:
Under the supervision of the Store Manager the position performs retail support activities by'
CUSTOMER SERVICE
Ensuring customer service standards are maintained In all facets of store operations by'
greeting and acknowledging customers; serving the customer promptly courteously and with
tact; determining customer needs and preferences, and providing product knowledge and
Information, as requested;
performing cashier duties as assigned, processing Special Occasion Permits as requested;
using good judgement In handling customers queries and complaints;
maintaining a "Ready for Business environment by filling shelves, Information rack, displays,
ensuring cash register area is ready coin boxes are located at cash register turning on climate
control and background music (if available) Improving general appearance of the store;
supporting community sponsored programs;
providing additional services to meet customer needs such as locating product, carry outs,
special orders, etc.
advising management of customer needs/requests and Identify listing opportunities, etc.
MERCHANDISING
Participating in the maintenance of a well merchandised store that is 'Ready for Business by'
participating In appropriate and timely execution of corporate merchandising directives e.g.
signage as per corporate direction and standards;
exhibiting knowledge of application, of participation In: merchandising Initiatives; IMAGE
program; shelf-management program such as implementing plan-o-grams, category layout,
product display directives, and listing and de-listing program;
ensuring fully stocked shelves and displays, refrigeration units fully stocked with cold product;
stock replenishment is completed in the following order' stock outs, displays, best sellers,
others;
contributing an ongoing exchange of information with Category Management to providing
feedback on results of Merchandising initiatives; recommending products for listings.
INVENTORY MANAGEMENT
\
Ensuring that the correct quantity of inventory is at the store at the proper time by'
exhibiting ability to order quantities consistent with customer demand;
unloading, storing and rotating stock in orderly systematic and safe manner'
monitoring inventory levels versus requirements and taking/suggesting appropriate remedial
action.
maintaining knowledge and application of corporate social responsibility practices, SMAART
Liquor Control and License Acts,
participating in operating the store In an environmentally responsible manner with appropriate
awareness of environmental implications of decisions made and actions peliormed;
BilIgalnlng Unll .nd Excluded PoslUon DeacrlpUon
SOCIAL RESPONSIBILITY
exhibiting positive public image: adherence 10 dress code, visible to the public. and promoting
social responsibility reo use of alcohol
ensuring that Issues of product quality are addressed Immediately'
knowing and applying relevant LCBO policies and procedures and legislation (Occupatlonal
Health and Safety Act, Workers Compensation Act, WHMIS Human Rights Code. etc.)
guidelines.
BUSINESS MANAGEMENT
assisting in forecasting sales re: sales history local events, marketing opportunities;
properly Interpreting Store Income Statements to Include data sourcing, analysis, Interpretation
and application,
assisting in preparing/monitoring Store Budgets In accordance with corporate directives and
standards;
assisting-in purchasing inventory/supplies; minimizing expenses and proposing cost savings;
offering suggestions on how to Improve operational eHiciency
FACILITIES MANAGEMENT
contributing to the day-to-day store maintenance and cleanliness by performing the following
tasks: ensuring parking lot and landscaping are ciean and maintained, all lighted signs are In
good working order eXlerior 01 building Is in good condition, Interior of building has clean
floors, all lights are working, store hours are posted at entrance, walls and shelving are well
maintained, carts and baskets are maintained, the maintenance of the wine well, washrooms
are cleaned on a daily basis and the office Is neat and organized,
participating In preventative programs; participating in Store Maintenance Checklist program.
SECURITY
maintaining control of cash register tray safe and ail cash;
verifying all records for accuracy'
carrying out proper shipping and receiving procedures;
alerting of and minimizing potential shoplifting;
advising Store Manager of instances of theft by employees,
advising Store Manager of potentiaJ security risks,
operating security systems, following security procedures.
CONTINUOUS LEARNING
achieving training standards required (e.g. Product Knowledge levels as designated)
participating in corporate promotion and training programs and applying principles (e.g.
Customer Service Excellence, IMAGE, 'That's Ihe Spirit, Workplace Harassment, New SMMRT
etc.)
sharing knowledge, experience and expertise with co-workers and new employees (I.e. transfers,
new Casuals, Christmas Casuals, etc.)
OTHER
Performs other duties as requested.
Knowledge and Skill: (required \0 pertorm \he Job at full working level)
Previous related retail knowledge, experience and skU/so Tact, diplomacy good verbal and written
communication skills; the ability to maintain effective interpersonal relations with customers and fellow staff
members; mathemallcal and clerical skills; ability to operate a caStl register wllh speed and accuracy and
a good knowledge of cashiering procedures; initiative and reliability' ability to work with minimal
supervision in roullne duties; ability to meet the essenliaJ physical requirements of the position; a working
knoY"ledge of relevant retail policies/procedures/guidelines/manuais; general knowledge of products sold
by the LCBO' demonstrated awareness of the LCBO strategies e.g. Customer Service Standards of
Excellence, Ready for Business Standards; completion of Product Knowledge level as designated up to level
3.
A11l11orluUon: I cerUfy Ul<lllll.. foregoing Is .n .ccur.l.. deacripUon ollila po$lUon.
SupGIYlsor's nUe ilIId Nam.. Slgnalure: Oal..:
DepvlmenllDlvlslon nUB .nd N.me Slgn.tura: DOlle:
L~Ct't
. Ii I /,
i L C B 0 POSITION DESCRIPTION l~fPQjt X i{
.. 60SCLK4'
~ POSITION COVERED BY THE COLLECTIVE AGREEMENT
NAME OF EMPLOYEE AREA OF RESPONSIBILI.TY Operations
CLASSIFICATION Liquor Store DIVISION Retail
Clerk Grade 4 REGION Northern Eastern Central
POSITION TITLE Western Metro Toronto
SECTION
IMMEDIATE SUPERVISOR Store Manager
(NAME/CLASSIFICATION) ,
PURPOSE
To perform store clerk duties and responsibilities in conventional and
self serve stores
\cts as Assistant Manager in C Stores
DUTIES AND RESPONSIBILITIES Approximate
% of time
Regular
In an advanced working level position the incumbent performs
customer service stock and store maintenance security
functions cash handling and all management reporting by
Assisting customers to interpret price lists 20%
complete purchases fetch and wrap merchandise
Unloading checking and storing stock pricing 20%
bottles restocking bins dusting displayed stock
cleaning store warehouse and surrounding premises
, -l ~'7 and l1aintaining displays
'- , ."
Operating cash register preparing bank envelopes and 40%
depositing daily sales reports and sales analysis taking
inventories posting ledgers
Processing licensee applications and special occasion 10%
permits
Assuming responsibility for store operations in the -e>-
0'0
absence of the Manager or Assistant Manager which
includes
- key store functions
- supervision of staff
- customer complaints
( N B this is a designated responsibility of the position
in C Stores )
LJC (; it
scasional
Other related duties as required -0.-
.) .Q
DECISION ~AKI~G/COMPLEXITY
Problems encountered
\{inors or into'{icated customers demanding service
Errors on purchase order forms
When substituting for "Ianager position may encounter personnel problems 0,
customer complaints
Decision making
Judgement is required to identify problems and determine appropriate action
to situations as listed above according to g_u ide 1 i n e s established by store
manuals containing policy practice and procedures
ypes of decisions or problems referred to supervisor
Those which are of a sensitive complex unusual or special nature are
referred such as personnel problems
CO~TACTS
Position contacted Frequency Reason for contact
Interna.!. Work unit Daily E'{change of information
::\:ternal General public Daily Customer service
SGPERVISIO~ GIVE~ (number. classification. reporting relationships)
- scasionally to junior and or temporary staff as dir-ected by supervisor
iy
SGPERVISIO~ RECEIVED
Supervisor outlines methods and procedures by
Po::;~'::i.on WorKS under ~eneral super'>. _sior. accord!..ng to established standar-ds
and gu de .l."lPS
Frequency of guidance and direction received
As and wheT} ,equired
'~ork checked by
Generally only detailed paper work such as management reports sales
analyses in...-entories and requisitions are checked for accuracy and
! rnpleteness
- L-SCf't
.,.
JRKI'lG CONDITIONS/PHYSICAL DEMANDS (unusual aspects/physical effort)
Sustained per-iods of lifting and stacking cases
COMME'i'TS (additional information)
Bilingualism (french and english) in designated areas
SuPERVISOR'S COMME~TS
Any comments necessary to complete or improve accuracy of facts provided
Amount of specialized or technical knowledge, skills and education
required to perform the duties of this position
sition require~ a knowledge of and ability to perform key store
.Llnctions
Demonstrable ~iteracy clericai arithmetic and interpersonal ability
Amount and type of work experience to satisfactorily perforlll this job
including previous experience on other related jobs in the organization, or
in other organizations plus a reasonable training period on the job
Previous e'<per-ience in a Liquor Store Clerk Grade 3 position
October 1986
Incumbent Jate
Immediate Supeevisur pLL:'~ Date