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HomeMy WebLinkAbout1980-0506.Dyer.83-03-08 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 128 - SUITE 2100 TELEPHONE! 416/598- 0688 506/80 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (H. J. Dyer) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: For the Grievor: For the Employer: M. K. Saltman Vice Chairman M. Perrin Member E. R. O'Kelly Member M. Levinson Counsel G. Surdykowski Counsel Golden, Levinson Barristers & Solicitors J. Baker Counsel Hicks, Morley, Hamilton, Stewart & Stone Barristers & Solicitors Hearings: July 22, 1982 July 30, 1982 (Written submissions in this matter were completed on September 10, 1982). 2 The Grievor in this case, H.J. ("Jim") Dyer, claims that he was improperly denied a promotion to the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department of the Toronto Warehouse. The job was awarded to another member of the bargaining unit, Bill McGrath, who was given notice and participated in the hearing. The facts in this matter are as follows. The Grievor was hired by the L.C.B.O. on July 29, 1974. From that time until the date of the grievance, he has been employed as a Warehouseman in the Kipling Warehouse. On August 14, 1980, the Employer posted notice of a vacancy in the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department of the Toronto Warehouse. The job became vacant when the previous incumbent, Gordon Wiggins, retired. The Warehouse Foreman is responsible for receiving purchase orders for private stock (i.e. those brands which are ordered by private customers through a wine agent and are not part of the regular stock of the L.C.B.0.1 and for accepting delivery of private stock. With the assistance of three Warehousemen under his supervision, the Foreman examines each delivery of private stock for breakage. The Foreman then records the quantity of the delivery and the amount of breakage on forms which are sent on to the Stock Purchasing and Cost Accounting Departments. Having completed these forms, the Foreman sorts out the delivery according to brand name (as opposed to regular stock which is sorted according to number) and assembles the order which is then distributed to each agent or licensee. 3 The Warehouse Foreman performs a similar function with respect to rare wines (which, as the name suggests, are very scarce and very costly). Unlike private stock, rare wines form part of the regular stock of the L.C.B.O. As part of the regular stock, they are identified according to number. The Foreman is respon- sible for sorting the shipment of rare wines, checking for breakage and recording the relevant information (i.e. quantity of the ship- ment and amount of breakage) in the L.C.B.O. records. When the record is completed, the Foreman transfers the rare wine shipment to the Cold Storage Room located within the Warehouse and, if a shipment consists of five cases or more of the same brand, he sends one bottle to the laboratory for testing. The Foreman is also responsible for distribution of wines to wine clubs and societies. In 1980, there were three such wine clubs served by the Toronto Warehouse. Wine clubs act as importers of wine for their membership, which consists of private citizens. When the wine shipment is received, the Warehouse Foreman checks for breakage and then assembles the order for each individual member across Ontario according to a computerized order form which is supplied by the wine club. Once the orders are assembled, they are dispatched Cunder the supervision of the Foreman) to various L.C.B.O. outlets throughout Ontario to be picked up by individual members and the wine club Is notified by the Foreman that the order is ready. Orders destined for members in the Toronto area are picked up at the Toronto Warehouse. The Warehouse Foreman is also responsible for resolving problems with respect to wine club orders at any location in Ontario. The Warehouse Foreman also is 4 responsible for double-checking embassy orders and agents' trade sample brands (which are not for public sale) which are assembled elsewhere but sent to the Toronto Warehouse for delivery. The incumbent, Mr. McGrath, has worked as a Warehouseman in the Toronto Warehouse since his appointment to the L.C.B.O. in April, 1974. Mr. McGrath assisted the Warehouse Foreman in the per- formance of his duties and acted in the job of Warehouse Foreman 2 in the latter's absence. In the course of these acting assignments, Mr. McGrath said that he performed all of the duties of Warehouse Foreman 2. Evidently, Mr. McGrath assumed some of the duties of Warehouse Foreman (e.g. completion of the documentation for the Stock Purchasing and Cost Accounting Departments) even when the Warehouse Foreman was in attendance. In fact, Mr. Wiggins came to rely on Mr. McGrath in the performance of his duties. In effect, by performing the duties of Warehouse Foreman, Mr. McGrath gained experience in the job which was not available to anyone else. The Grievor has never performed the duties of Warehouse Foreman. However, he has performed the various functions of Ware- houseman, including (1) the duties of Assembler, i.e. assembling orders from the aisles of stock according to a computerized order form for delivery to other locations; (2) the duties of Forklift Operator, i.e. loading and unloading stock which arrives in the Warehouse on trucks, transferring excess stock to and from the holding area, and replenishing stock in the aisles for use in assembling orders; and (3) the duties of Checker, i.e. verifying the work of the Assemblers by matching the number on the order sheet with the brand 5 numbers of the order assembled, as well as verifying the quantity only of incoming goods. At the time of the posting, the Grievor was doing the job of Checker. In the course of his duties, the Grievor came upon damaged goods or breakage. His only responsibi- lity in this regard was to remove the goods from the order (or the delivery) and send them elsewhere for inspection; he had no responsibility for reporting or recording the damage. In his job of Warehouseman, the Grievor had no contact with wine clubs and little, if any, experience with embassy orders and rare wines. Prior to the posting, the Grievor relieved in the job of Foreman in various Outside Storage locations, which are facilities used to store excess wine and liquor imported by the L.C.B.O. As Acting Foreman, the Grievor received notification of shipments from Europe and was responsible for making arrangements with a trucking company for delivery of the shipment to the Outside Storage facility. Once the shipment was received, the Grievor checked the condition and quantity of the shipment. He reported breakage on a breakage report form and verified the quantity of the goods received (including damaged goods) which was recorded on a "receiving and examination report" form. Other documentation which the Grievor dealt with in Outside Storage included bills of lading, documents for transmitting samples to the laboratory for testing, and order forms for the shipment of goods to other L.C.B.O. locations. The Grievor had no real experience with rare wines in Outside Storage; in particular, he had no responsibility for verifying either the quantity or quality of the rare wine shipment. The Grievor relieved in the job of Foreman in Outside Storage six times 6 from 1977 to 1980 for a total of more than 10 months. During these relief assignments, the Grievor had no supervisory responsi- bilities and could not give instructions to other Warehouse employees. The Grievor was interviewed for the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department by Mr. Dewsbury, Superintendent of the Toronto Warehouse. During the interview in which the job was discussed, •the Grievor was advised that the other applicants would "back off" (presumably, withdraw their applications) if Mr. McGrath was awarded the job. The Grievor was not asked about his qualifications in the course of the interview, although Mr. Dewsbury conducted the interview with the Grievor's file in front of him. The Union claimed that the Grievor ought to have been awarded the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department of the Toronto Warehouse since he was the most senior qualified applicant. The Employer, on the other hand, sub- mitted that the Grievor was not qualified to perform the job in question since he had no prior experience in the Department. In order to determine this matter, it is necessary to con- sider Article 16.6(a) of the collective agreement, which reads as follows: " Where employees are being considered for promotion, length of service from appointment date will be the determi- ning factor provided the employee is qualified to perform the job." - 7 - Article 16.6(a) does not establish a competition between job appli- cants but provides that the job shall be awarded to the senior applicant who is qualified to perform the job. Under this clause, the applicant must be immediately qualified to perform the job since the collective agreement makes no provision for a training period (although the successful applicant is entitled to familiarize himself with the details of the job) (e.g. Re United Automobile Workers, Local 195, and Champion Spark Plug Co. of Canada Ltd. (1965), 16 L.A.C. 313 (Reville); Re United Automobile Workers, Local 35, and Canadian Filters Ltd. (1971), 21 L.A.C. 219 (Weatherill); Re St. Catharines General Hospital and Service Employees' Union, Local 204 (1976), 10 L.A.C.(2d)258 (Adams)). Accordingly, it is necessary to determine whether, at the time of the posting, the Grievor was qualified to perform the job of Warehouse Foreman in the Private Stock and Rare Wines Department of the Toronto Warehouse. It is not sufficient under this collective agreement for the Board to determine whether or not the Employer acted reasonably and in good faith in making its selection on the job posting. This collective agreement requires the Board to deter- mine the merits of the Grievor's claim. This conclusion is based on the decision of the Ontario Divisional Court in Re Great Atlantic & Pacific Co. of Canada Ltd. and Canadian Food & Allied Workers, Local 175 (1976), 13 L.A.C.(2d)211n, 76 C.L.L.C. para. 14,076, p. 332, which requires a board of arbitration to determine whether the employer correctly applied the terms of the collective agreement. In this case, this means that the Board must determine whether the Grievor was qualified to do the job in question. The Employer claimed that the Grievor was not qualified to , perform the job since he did not have previous experience within 8 the Department. There are, of course, cases in which previous experience in the job (or department) in question has been held to be a proper requirement on a job posting (e.g. Re Ottawa General Hospital and Ontario Nurses' Association (1982), 2 L.A.C.(3d)1 (P.C. Picher); 'Re Elisabeth Bruyere Health Centre and Ontario Nurses' Association (1983), 6 L.A.C.(3d)119 (Saltman); Re Boychuk and Appeal Board Established by the Public Service Commission et al. (1982), 135 D.L.R.(3d)385 (Fed. Ct. of Appeal)). However, in this case, the Employer claimed due to the complexity of the job in question that it was not possible to be qualified in the job without prior experience in the Department. This may be so in the particular case; however, the Board is reluctant to find that prior experience in the Department is a mandatory qualification for the job for two reasons. Firstly, it would appear that the qualification of prior experience in the job could be satisfied by only one person, the incumbent. CIndeed, it was intimated by the Employer that the Grievor withdraw his application in favour of the incumbent. Nevertheless, this evidence is not sufficient to conclude that the Employer manipulated the qualifications in order to defeat the seniority rights of employees under the collective agreement.) Secondly, although the Employer claimed that prior experience in the Department was a minimum qualification for the job, there was no reference to prior experience in the job posting. In fact, the job posting does not specify any qualifications for the job.* Therefore, it is not * There may be circumstances in which an employer can go beyond the qualifications listed in a job posting in assessing an employee's application for promotion Ce.g. Re Ottawa General Hospital and Ontario Nurses' Association, supra; Re Elisabeth Bruyre Health Centre and Ontario Nurses' Association, supra). However, this is a matter of degree. Where no qualifications are listed in the job posting, the employee is clearly prejudiced in establishing the employee's qualification for the job. The degree of prejudice is reduced where only one of several qualifications is omitted. 9 possible for an employee to determine the qualifications of the job for which application is made. Clearly, this is improper since, as a matter of procedural fairness,* an employee wishing to challenge the Employer's decision must know the case to be met, i.e. the job qualifications (Re OBLEU (Bob Mepham) and Liquor Control Board of Ontario, G.S.B. File # 570/81, August 12, 1982 (Linden (unreported))). For these reasons, the Board cannot find that prior experience in the Department is a mandatory requirement for the job in question. Nevertheless, the Grievor still has the burden of proving that he was qualified to do the job of Warehouse Foreman. As previously stated, this means that he must show that he was immediately qualified to do the job without any period of training. The collective agreement is very specific in its wording; the applicant must be "qualified" to do the job. It is generally accepted that some form of training or experience is required in order to be qualified for a job; the employee must show more than ability or inherent capacity to do the job in question in order to be qualified (e.g. Re United Automobile Workers, Local 199, and Anthes-Imperial Co. Ltd. (1962,1 12 L.A.C. 143 (Reville); Re Int'l Ass'n of Machinists and Gabriel of Canada Ltd. (1969), 19 L.A.C. 22 (Christie); Re Great Atlantic and Pacific Company of Canada and Canadian Food & Commercial Workers, Local 175 (.1976), * The Employer claimed that the Board had no power to inquire into the reasonableness or fairness of the job qualifications. In view of the Board's disposition of this case, it is neither necessary nor desirable to decide this submission. However, it should be noted that in referring to "fairness", the Board is dealing only with procedural fairness, i.e. the right to know the case which has to be met and not to the fairness (or reasonableness) of the qualifications of the job. M. Perrin, Member a E. R. O'Kelly, Member - 10 - para. 14,076 (Ont. Div. Ct.)). As a practical matter, it may be difficult to qualify in the job without prior experience in the Department. However, if the Grievor can show through prior experience (however acquired) or training that he was qualified for the job, his grievance will succeed. It seems, however, that the Grievor's "other experience" was not sufficient to qualify him for the job in question without some period of training, which the collective agreement does not provide. (Although the Board is skeptical of the Employer's estimate that six to eight months of training is necessary to per- form the job, it seems clear that the Grievor would require more than a short familiarization period to become qualified in the job.) Accordingly, although the Grievor had general experience as a Foreman and although the Board is satisfied that he would be capable of performing the job in question with some amount of training, the Board finds that he did not have the immediate qualifications for the job of Warehouse Foreman 2 in the location in question and, therefore, that the grievance must be dismissed. DATED AT TORONTO this 8th day of March, 1983. M. K. Saltman, Vice Chairman "I dissent" (to follow) 6: 2100 6: 2310