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HomeMy WebLinkAbout1980-0334.Barry.82-08-12 DecisionGRIEVANCE SETTLEMENT BOARD ADVANCr: COPY TO THE PARTS MINOR TYPOL ,RP.i::-;CAL CHA',•;:.;ES MAY APPEAR IN COPY, TO BE a RIS IRAN 334/80 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Cecil Barry) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: K. Swinton - Vice-Chairman S.D. Kaufman - Member E. Orsini - Member For the Grievor: P. Cavalluzzo, Counsel Golden Levinson For the Employer: M.P. Moran, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearing: June 1, 1982 2 In this case, Mr. Cecil Barry grieves that he has been unjustly denied a promotion to the position of Assistant Store Manager in Store 202 in Sarnia. The job was posted, in compliance with the collective agreement requirements, on March 17, 1980. The successful applicant was Mr. P. Lehn, who was given notice of the proceedings before this Board but chose not to attend. The relevant collective agreement provisions (July 1, 1980 to June 30, 1982) are the following: 16.6(a) Where employees are being considered for pro- motion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job. 16.10 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 re- classified by the Boards to the employee's previous classi- fication. At the time of the posting, Mr. Barry held the position of Clerk 3. He had been employed by the Liquor Control Board since February 2, 1972, although at the time of the posting, he had recently returned from an absence on Workmen's Compensation caused by a back problem. This absence extended from June 10, 1978 until February 25, 1980. After the applications for the job were submitted, Mr. Jack Jennings, Director of Store Operations for the LCBO, sent the list of candidates to the District Supervisor, Mr. Fred Varey, and asked him to review three or four of the applicants, chosen because of their seniority or classification. The Manager of the Store at which each applicant worked was also asked for a recommendation. In Mr. Barry's case, both his Manager, Mr. Evans, and the District Supervisor, Mr. Varey, recommended that he be given consideration for the position (Ex. 10, 11). In a letter to Mr. Jennings, Mr. Evans mentioned that Mr. Barry had been back at work for a short time but "I find him capable to do all store work asked of him". Mr. Varey appears to have relied on a review of Mr. Barry's file which, he noted, contained nothing detrimental, and Mr. Evans' view that Mr. Barry was acting as a capable employee, for Mr. Varey had only met Mr. Barry once. Both Mr. Evans and Mr. Varey also recommended Mr. Lehn be given consideration for the position. Mr. Jennings decided that the grievor was not qualified for the job at that time because of his lengthy absence. Over the period of that absence some 184 Store Operations Circulars had been issued from Mr. Jennings' office, written by him. These circulars often changed procedures in the Store, although some contained several announcements such as recent promotions. Each LCBO Store has a Manual of Procedures which is updated by these circulars. The circulars are sent to the Stores and made available for the employees' information for a period before being filed chronologically. Each year these circulars are moved from active to inactive operation and then discarded. Mr. Jennings felt that the 4 grievor had been back at work for an insufficient period to learn of changed procedures during his absence. As well, he felt that it was important for an Assistant Manager to know such procedures because the Assistant Manager should act as a leader for the other employees in the Store. Mr. Barry admitted that he was not familiar with all the changes in procedure by March or April, 1980. Although he had come into the Store every two weeks during his absence to pick up his cheque, he had not kept up with procedural changes, nor had he checked the file of circulars on return to work. He felt that he would be adequately briefed on changes by the other employees with whom he worked in the usual monthly rotation of jobs at the Store, whereby employees worked at shelving, at the front, and in the office. During the period of the competition, he had not yet rotated through each stage and he was unsure whether he had worked in the office. Mr. Barry also testified that he would have no trouble learning of changes in procedure if given a three month trial period. He had acted as an Assistant Manager in the past when sickness or vacation required him to do so, both at Store 202 and at others. He also acted as Assistant Manager and Manager at Store 202 in June of 1980, without any criticism of his performance. At that time, he did not find many changes in procedure that were difficult, and he felt that he could learn any procedural changes in a short period. -5 This case turns on the meaning to be attributed to Articles 16:6(a) and 16.10, quoted earlier. Article 16.6(a) establishes a "sufficient ability" clause, rather than a competitive seniority clause. The focus is on the grievor's ability and qualifications to perform the job which he seeks, rather than his ability relative to other applicants. In a case such as this, an arbitration board's task is to ask whether management has acted arbitrarily, discriminatorily or unreasonably in establishing qualifications for the job and then acted correctly in applying those qualifications to the grievor. In this case, counsel for the union did not attack the qualifications set for the job. He appears to have accepted the reasonableness of management's requirement that an Assistant Manager be familiar with current Store Operations procedures. Indeed, it would be difficult to quarrel with such a proposition. Instead, counsel focused on two arguments. First, he argued that Mr. Jennings acted improperly in deciding that the grievor was not qualified for the position. He pointed to the facts that Mr. Jennings had no knowledge of the grievor's current familiarity with procedures at the time of the decision, while the grievor's Store Manager and District Supervisor, who were both familiar with the Store's operations, recommended the grievor for promotion. In addition, counsel argued that Article 16.10 provided for a three-month trial period and Mr. Jennings erred in failing to ask whether the grievor would be able to perform the job within three months. Counsel suggested that the grievor would be able to do so, referring to the minor nature of the changes as evidenced by two Store Operations Circulars entered as exhibits, and the 6 fact that the grievor successfully acted as Assistant Manager in June, 1980. Counsel for the employer disputed that the grievor was qualified at the time of appointment, as he had not rotated through all phases of the Store's operations and Mr. Jennings was satisfied that familiarization was needed after the grievor's lengthy absence.. Furthermore, counsel described Article 16.10 as a provision designed to protect the job security of an employee who has been promoted and then fails to meet the requirements of the job rather than provided a trial period. He emphasized the words "has been promoted" in Article 16.10 to demonstrate that the section comes into play after an employee has demonstrated his qualifications. Arbitrators have generally held that an employee seeking promotion must be qualified at the time of the job posting and he or she is not entitled to either a trial or training period absent collective agreement language specifying such entitlement (e.g. Re Reynolds Aluminum Co. Canada Ltd. and International Molders and Allied Workers Union, Local 28 (1974), 5 L.A.C. (2d) 251 (Schiff) at 256; Re Canadian Trailmobile Ltd. and United Automobile Workers, Local 397 (1975), 10 L.A.C. (2d) 92 (Adams)). Some arbitrators have, however, stated that while an employee is not entitled to a trial or training period, he or she should be given a period of "familiarization" in the new job, where the job is not highly technical and the employee needs only a limited amount of instruction to learn the 7 routine of the job (Re International Union of Electrical, Radio and Machine Workers, Local 542 and RCA Victor Ltd. (1971), 22 L.A.C. 329 (Simmons) at 331; Re St. Catherines General Hospital and Service Employees Union (1975), 10 L.A.C. (2d) 258 (Adams) at 266). Otherwise, it would be difficult for an employee to qualify who had not previously performed the job. After reviewing the evidence, we have concluded that the grievor was not immediately qualified for the job at the time of posting or decision-making. While Mr. Jennings acted only on an assumption that the grievor would not be familiar with procedures after a lengthy period of absence, as well as discussions with Mr. Varey and Mr. Evans, we heard evidence from the grievor admitting that he was not up-to-date on current procedures. He had not tried to keep current while away, nor to familiarize himself immediately on return and, therefore, in March and April of 1980 he was not technically "qualified". His counsel suggested that many of the Store Operations Circulars contained information of minimal importance, such as changes in Store telephone numbers or notices of promotions. However, there were 184 circulars issued during his absence, and we are satisfied that some of the information in these bulletins was of a more significant nature - for example, changes in check-off procedures for warehouse deliveries. The grievor would have to be familiar with such procedures to function effectively as an Assistant Manager. -8 Although some arbitrators have indicated that an individual need not be immediately qualified so long as a familiarization period would qualify the employee for the job, that line of jurisprudence does not assist the grievor in this case. We have here a need for more than a familiarization periocl or brief introduction to routines in order to take on the Assistant Manager's job. The grievor needed a period of rotation through the Store to refresh and update himself on procedures. In effect,' he needed some retraining with the assistance of the other employees in order to meet the job requirements of the Assistant Manager position. This seems to go beyond familiarization and involve some on-the-job training. As well, it seems inconsistent with the team leader functions of the Assistant Manager. While counsel for the union stressed the fact that the grievor met the job requirements of Assistant Manager in June, it is important to remember that he had then been back in the job for over three months, rather than about one and one half to two at the time of the posting and recommendations. It is clear that Mr. Barry is a good employee and that he would learn the changes in routine. Unfortunately, the timing of the job posting intervened before he could acquire that necessary knowledge. While we do not find the grievor to be qualified because of the evidence which we heard at the hearing, we do feel some disquiet about Mr. Jennings' method of proceeding in this job competition. At no time did he contact the grievor to determine the grievor's qualifications or current -9 knowledge of procedures. Instead, he relied on recommendations from the grievor's supervisors, in writing followed up by verbal communication (of which we had no evidence), as well as his own assumptions. This board has stressed over and over again in many cases, the importance of fair procedures in job competitions (e.g. Re Quinn, 9/78; Re Remark, 149/77). While an employer need not interview every applicant for a job, it should be fair in deciding who is eligible for consideration and should make efforts to obtain accurate, first-hand information about serious contenders. Mr. Jennings did not do that here. In this case, his procedure does not affect the outcome of the case, as Mr. Barry's evidence indicated that he was not qualified. In another case, the result might well be different because of the board's inability to decide whether the grievor might have been qualified. This brings us to the issue of the trial period, which the union argues is found in Article 16.10. Arbitrators require collective agreement language in order to find a trial period, for the employer is put to expense if it must wait for a period before determining whether the employee is qualified for the job. In this case, the language of that section does not seem to contemplate a trial period. Rather, it protects an employee who has qualified for the job at the time of the competition, if he subsequently fails to meet the job requirements. While the language is not synonymous with that in other cases, Article 16.10 is similar to the clause in Reynolds (above at 256). In that case, a collective agreement clause protecting an employee's right to revert to his old position was not held to be equivalent - 10 - to a trial period provision. The board held that an employee must qualify for the job before the provision took effect. In Re Domtar Fine Papers and United Paperworkers International Union, Local 212 (1974), 5 L.A.C. (2d) 191 (Simmons), the board again held, on the language of the agreement, that a trial period was not required. An employee by that agreement had a threshold requirement to prove "equal efficiency" with other employees in order to obtain a trial period. Here, the grievor is required to prove qualification at the time of posting. Therefore, as the grievor did not meet the requirements of the job at the time of posting, his grievance must fail. DATED at Toronto this 12th day of August, 1982. il<4‘11-AMA":" K. Swinton Vie Chairman "I dissent" (Dissent to follow) S. Kaufman Member E. Orsini Member /lb ONTARIO CROWN EMPLOYEES GRIEVANCE s ST A illEMENT 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598- 0688 334/80 DISSENT IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Cecil Barry) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: For the Grievor: For the Employer: Hearing: K. Swinton - Vice-Chairman S.D. Kaufman - Member E. Orsini - Member P. Cavalluzzo, Counsel Golden, Levinson Barristers & Solicitors M.P. Moran, Counsel Hicks, Morley, Hamilton, Stewart & Stone Barristers & Solicitors June 1, 1982 NOTE: The enclosed copy of Ms. S.D. Kaufman's dissent is to be attached to the majority decision issued August 1982. Registrar October 15, 1982 DISSENT I have read the Award in this matter and must respect- fully disagree with the decision. The evidence led at the hearing, in my opinion, established on the balance of probabilities that the Grievor had sufficient ability to perform the job, and/or, at the very least, that he met the threshold qualifications by which he was entitled to receive the promotion on the basis of seniority. The Grievor's evidence established that, although he had not kept up-to-date on all current procedures during his approximately twenty months' absence from work: (a)most of the changes in procedure were minor and would take him a day to learn; and (b)the major change which had taken place in procedure during his absence was one with respect to ordering, which followed his suggestion of seven years before. As the competition was for the position of Assistant Manager, the Manager could brief the Grievor where necessary. No evidence was.led by the Employer with regard to the contents of the circulars. The Employer's evidence cited the number of circulars but did not establish the weightiness or complexity of their content. Mr. Jennings stated that he had not gone through the circulars issued during the Grievor's absence in arriving at the conclusion that the Grievor did not have sufficient ability to perform the job. The Grievor's evidence established that he had pre- viously done the job of Assistant Store Manager in an acting capacity, and that in May of 1980 there were no functions of that job that he had not performed or could not perform. The Employer led no evidence to establish that, in holding this competition, threshold qualifications would not be sufficient to fill the position. The evidence established that Mr. Jennings, in making his decision: (a)did not determine what information or changes the Grievor was required to learn in order to qualify himself for the position; (b)had no direct knowledge as to whether the Grievor was qualified for the job, but was basing his decision on an assumption arising from the Grievor's previous twenty-month absence; (c)had no personal knowledge when he made his decision as to whether the Grievor had kept current as to the changes. Mr. Jennings acknowledged that Mr. Evans, the Grievor's Manager, knew what the changes had been and had nevertheless unqualifiedly recommended him for the job (Ex.10). Mr. Varey's memo of April 21, 1980, sent to Mr. Jennings, also indicated that the Grievor was carrying out all assignments at the time. S. D. Kau man -4- No tests were held in this competition. Mr. Jennings did not interview the applicants in coming to his decision. The manner in which this competition was held suggests that, at the minimum, the Grievor is entitled to have the competition re-held. However, in my opinion the evidence established that on the balance of probability the Grievor was qualified to per- form this job within the meaning of section 16.6(a) of the Collective Agreement. As the Grievor had 13.5 months' seniority over the successful applicant, the Grievor should have been selected for the job. I would have allowed the grievance and awarded Mr. Barry the position. Dated at Toronto this 12th day of October, 1982.