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HomeMy WebLinkAbout1981-0008.Lawrie.82-07-26 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE! 416/598- 0688 8/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN 'EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU‘(John Lawrie) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: R.L. Verity - Vice-Chairman M. Gandall - Member B. Lanigan - Member For the Grievor: G.T. Surdykowski, Counsel Golden, Levinson For the Employer: D.W. Brady, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearing: June 25, 1982 AWARD The Grievor, John Lawrie filed 46 separate Grievances on December 5th, 1980, alleging improper denial of promotion to the position of Clerk 4 as a result of numerous job postings by the Liquor Control Board of Ontario. This Grievance relates solely to Mr. Lawrie's complaint regarding the promotion of Mr. D. F. Lue to the Clerk 4 classification on November 17th, 1980. Subsequent to the filing of the Grievance, the Grievor was promoted to the position of Clerk 4 on May 4th, 1981, pursuant to Article 16.6(a) of the Parties' Collective Agreement. At the Hearing, Mr. Lue was not in attendance as his position was not in jeopardy. Accordingly, the relief requested by the Grievor was restricted to a claim for compensation for wages at the Clerk 4 level for the period from November 17th, 1980 to and including May 4th, 1981. Mr. Lawrie became a full time employee with the Liquor Control Board of Ontario on May 8th, 1972. He was employed at head office in Toronto for approximately 6 years - 2 years in Records Management and approximately 4 years in the Supply Department. In the latter position, he was in charge of all head office supplies which position involved recording inventories, ordering and stock room functions, and the distribution of supplies to individual stores. At head office, he attained the classification of Warehouseman Grade 4. The Grievor applied for a Liquor Store appointment and was sub- sequently transferred to Store #13 on December 4th, 1978, classified as a liquor store Clerk 2. The Grievor's reason for the request for transfer was to the effect that he saw little opportunity for advancement with the L.C.B.O. at head office, and therefore he accepted a salary cut of approximately $1,100.00 in the new position. He believed that the opportunities for advancement were greater in a retail store than at head office. In June of 1979, the Grievor was promoted to the class- ification of Liquor Store Clerk 3 where he remained until he received the Clerk 4 appointment in May of 1981. He was transferred to Store #532 at 87 Front Street East at the time of his last promotion. While at Store #13, the Grievor received two separate Appraisals by two different Store Managers. The first Appraisal (Exhibit 5) reads in part as follows: "MANAGER'S REMARKS AND RECOMMENDATIONS Mr. J. Lawrie has been used as cashier, which he does very well. He is polite and courteous to the customers. He willingly carries out any job assigned to him. He gets on well with fellow employees. We will be having him in the office for training in office procedure. Recommend promotion to A07. I have read the above appraisal If space is insufficient use reverse side. "John Lawrie" April 11/79 Employee's Signature Date Manager's Signature SUPERVISOR'S REMARKS AND RECOMMENDATIONS: Mr. Lawrie was transferred from the Supply Department in A.O. I have found him to be co-operative and willing, he is pro- gressing favourable in the store job rotation can perform all routines and task he has been shown with no difficulty. He is contributing well to the operation of this conventional store, and I can see no reason he will not continue to improve with experience. Recommend promotion to Clerk 111 with a salary increase. I have read the Supervisor's appraisal If space is insufficient use reverse side. April 17th, 1979. " Supervisor's Signature Date The second Appraisal dated May, 1980, (Exhibit 6) prepared in part by the Store Manager, Mr. George O'Connor reads in part as follows: "MANAGER'S REMARKS AND RECOMMENDATIONS Mr. John Lawrie is an exceptionally fine worker. He performs all work assignments given him with speed, accuracy, and willingness. He shows a real desire to learn and to progress with this Board. He has had some office training, but will receive much more in the next year. Recommendation - Pay increase I have read the above appraisal If space is insufficient use reverse side. "John Lawrie" May, 1980 Employee's Signature Date Manager's Signature SUPERVISOR'S REMARKS AND RECOMMENDATIONS: Employee unknown Please refer to Managers remarks. I have read the Supervisor's appraisal If space is insufficient use reverse side. 12/5/80" Supervisor's Signature Date Mr. Lawrie's evidence was that he was qualified for promotion in May of 1980 (the date of his second Appraisal) as well as in November, 1980, the date of the relevant competition. Mr. O'Connor's written evaluation of the Grievor's performance is generally a good Appraisal with the caveat that the Grievor then had "some office training" and would receive "much more" in the ensuing year. At the Hearing, Mr. O'Connor testified that between the period May 1980 to November 1980, "the Grievor did not have too much exposure" to office procedures. It was Mr. O'Connor's opinion that the Grievor was not properly qualified for promotion in November of 1980 and accordingly did not recommend his promotion. The Store Manager testified that in his opinion, six months exposure to office procedure was necessary prior to promotion, and that from November of 1979 to November of 1980 the Grievor would have accummulated approximately one month's experience in office procedures in broken periods of time. The Employer's Classification Guide sets out the requirements of Liquor Store Clerk Grade 3 and Liquor Store Clerk Grade 4 (Exhibit 3). They read as follows: 6 "L.C.B.O. & L.L.B.O. CLASSIFICATION GUIDE February 1, 1978 EVALUATION CRITERIA 1 CLASSIFICATION LIQUOR STORE CLERK GRADE 4 SUMMARY OF RESPONSIBILITY LEVEL This covers positions at the advanced working level in conventional stores involved with all store operations and activities in assisting customers, in stock and store maintenance and security and in cash handling and all management reporting. Also, may act as Assistant Store Manager in a C level store. TYPICAL DUTIES Duties may include: assisting customers to interpret price lists and/or to complete purchase orders, fetching and wrapping merchandise, unload- ing, checking and storing stock, pricing bottles, restocking bins, dusting displayed stock, cleaning store, warehouse and surrounding premises. Other duties may include operating the cash register, preparing bank envelopes, undertaking daily sales reports, processing licensee and special occasion permit applications, taking inventories, posting ledgers and doing sales analysis. In absence of Manager or Assistant Manager may handle store management and staff oversight functions such as assigning work to junior staff, explaining pro- cedures, monitoring tasks and handling the entire range of customer complaints. DECISION MAKING/ COMPLEXITY Decision making is required on relatively complex store operational questions. May refuse sales to minors and those judged to be intoxicated. Judg- ment is sometimes required in situations which diverge from day-to-day practice. CONTACTS Majority of contacts are with the general public where the incumbent is expected to answer complex questions concerning stock, store procedures or application of policy to specific situations. Expected to handle complaints where knowledge of store procedures and sensitivity are required. SUPERVISION GIVEN In the absence of the Manager or Assistant Manager, oversees the work of all junior staff such as assigning tasks, explaining procedures and monitoring assignments. SUPERVISION RECEIVED Work is performed under general supervision. Day-to-day routine tasks are not usually checked. Any management reports, sales analysis, inventories and requisitions are checked carefully for accuracy and completeness. ENTRANCE QUALIFICATIONS Completion of two years of secondary schooling or equivalent. Ability to exercise considerable tact and judgment in handling customer complaints and inquiries. A minimum of 11/2 years experience as Liquor Store Clerk Grade 3 or equivalent related experience." "L.C.B.O. & L,L.B.O. CLASSIFICATION GUIDE February , 1978 EVALUATION CRITERIA CLASSIFICATION LIQUOR STORE CLERK GRADE 3 SUMMARY OF RESPONSIBILITY LEVEL This covers positions at the working level in conventional and self-serve stores involved with store operations and activities in assisting customers, in store and stock maintenance, security, and to a limited extent in cash handling and management reporting. TYPICAL DUTIES Duties may include: assisting customers to inter- pret price lists and/or to complete purchase orders, fetching and wrapping merchandise, unloading, checking and storing stock, cleaning store, ware- house and surrounding premises, pricing bottles, restocking bins, dusting displayed stock. Other duties may include operating the cash register, preparing bank envelopes, undertaking daily sales reports, processing licensee and special occasion permit applications, taking inventories, posting ledgers and doing sales analysis. DECISION MAKING/ COMPLEXITY Some decision making is required. May refuse sales to minors and those judged to be intoxicated. In smaller stores may participate with the Manager on the layout of storage area or requisitions for future stocks. CONTACTS Has frequent customer contacts while answering in- quiries and providing assistance on all questions regarding stock and store procedures. Expected to handle normal day-to-day customer complaints. SUPERVISION GIVEN May occasionally oversee work of junior staff parti- cularly in training new clerks or temporary employees. SUPERVISION RECEIVED Work is performed under supervision. Periodic spot checks may be undertaken for most routine tasks. Re- ports (sales analysis, inventories, etc.) are checked thoroughly by the Manager. ENTRANCE QUALIFICATIONS Completion of two years of secondary schooling or equivalent. Ability to exercise tact and judgment in handling customer inquiries and complaints. A minimum of one year's experience as a Liquor Store Clerk Grade 2 or equivalent related experience." , All Parties agreed that the Clerk 4 position was essentially that of a "bookkeeper" whose main function was in office procedures in a Liquor Store. The practical aspect of the job involves the preparation of numerous reports and the tabulation of data on a daily and monthly basis and the pre- paration of approximately seven or eight reports on a monthly closing basis. The Grievor's evidence was that he had completed the preparation of one month's statistical closing data by November of 1980. Mr. O'Connor acknowledged that the Grievor may have completed a monthly closing, but that the Grievor's office experience was of a limited nature which in turn was partially 9 attributable to the double shift operation of the store, and the limited exposure of employees to office procedures. On the other hand, the Grievor had no hesitation in saying that he had mastered the position of Clerk 4 within three months as a result of his past experience in the supply division of head office and his own personal initiative. There was no doubt in the Grievor's mind that he was eminently qualified for promotion as early as May of 1980. The successful Applicant, D. F. Lue's continuous service date is August 23rd, 1975, and therefore in relation to the Grievor Mr. Lue was the more junior employee. The Employer submitted four separate Appraisals relating to D. F. Lue, three of which were pre- pared by three separate Store Managers. No useful purpose would be served in setting out the contents of the Appraisals -- suffice it to say that each Appraisal is excellent. Mr. Lue's 1977 appraisal by the Store Manager stated that "his office work is excellent and well done". Recommendations for promotion for Mr. Lue date back to 1977 and are repeated in the 1978, 1979 and 1980 Appraisals. None of these appraisals contain any reservation in promotion recommendations for Mr. Lue. Evidence was presented by the Employer that Mr. Lue's tuition was paid by the L.C.B.O. for the purposes of completing two business administration courses at Ryerson Poly- technical Institute in 1979. - 10 - Albert Brady, the Area Manager of the Metro-Toronto L.C.B.O. testified that the promotions in question were a "special competition" pursuant to a Memorandum of Agreement signed by the Parties and dated the 26th day of June, 1980. As a result of the competition in question, 19 positions were filled and the evidence is clear that the Grievor's name was not considered in a short list of 21 applicants because of the fact that he had not been recommended for promotion by either the Store Manager or the Area Supervisor. Mr. Brady's evidence was that he issued a directive to his 7 Super- visors requesting that each prepare a list of 3 names per district of those applicants who were considered by each Supervisor as "the best qualified". Mr. Brady testified that it was his understanding that the Memorandum of Agreement permitted the Board to consider appointments for promotion from a selection of the most qualified persons during the six month time frame. On behalf of the Grievor, Mr. Surdycowski argued that the Grievor had discharged the burden of proving that he was as qualified as Mr. Lue and in order for Mr. Lue's appointment to stand, the Board must find that Lue was superior "by a clear and demonstrable margin". He argued that Mr. Lawrie was as qualified as any other applicant at the relevant time, and further that the Grievor was denied any meaningful consideration by the overly con- servative approach of the Liquor Store Manager, Mr. George O'Connor. Mr. Brady on behalf of the Employer, argued that Lue was clearly the superior candidate with regard to experience, evaluations, and educational background. He pointed out that the competition in question was a "special competition" established pursuant to the Memorandum of Agreement and that the Grievor was not qualified for promotion according to the evidence of the Store Manager at the relevant time in November of 1980. He further argued that the head office experience of the Grievor would be of little assistance to an application for the position in question. The evidence is clear that on June 26th, 1980, the Parties entered into a Memorandum of Agreement to "re-establish within its stores the classification of Liquor Store Clerk Grade 4". Section 23 of that Memorandum reads in part as follows: "In conjunction with the present classification of Liquor Store Clerk Grade 4, the Board shall re-establish within its stores the classification Liquor Store Clerk Grade 4, in the following manner: •• • (ii) It is understood that for this purpose only, appointments to "A" and "B" stores shall be made under the following clause: 'Where employees are being considered for promotion to Liquor Store Clerk Grade 4 in "A" and "B" stores, and their qualifications are identical, length of continuous service will be the determining factor.' ".... - 12 - Section 23(ii) creates an exception to the normal practice for promotion as set out in Article 16.6(a) of the Collective Agreement. That exception was to continue for a six month period commencing July 1st, 1980, during which appoint- ments were to be made pursuant to Section 23 of the Memorandum of Agreement. See OLBEU (A. Glysinskie) and Liquor Control Board of Ontario, 42/81 and 107/81 (Draper). By way of contrast, it is useful to site the "usual" provisions for promotion as contained in Article 16.6(a) of the Collective Agreement. "16.6(a) Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job." As can be seen, the special competition clause as contained in Section 23(ii) of the Memorandum of Agreement varies the normal procedure for promotions which are set out in Article 16.6(a). The special competition clause of the Memorandum of Agreement does not refer to relative qualifications, but rather to identical qualifications We are of the opinion that Section 23(ii) of the Memor- andum of Agreement allows the Employer to select the best qualified candidate or candidates before seniority becomes the determining factor, unless the qualifications are "identical". On the evidence, we cannot find that the qualifications of Mr. Lawrie were identical to those of Mr. Lue. Mr. Lue's appraisal reports are demonstrably - 13 - superior to those of the Grievor. According to the evaluations by three separate Liquor Store Managers, Mr. Lue was fully qualified for promotion to the Clerk 4 position as early as 1977, and this was subsequently reinforced by Appraisal reports in 1978, 1979 and 1980. Clearly, the evidence indicates that Mr. Lue was the superior can- didate in terms of qualifications experience and educational back- ground. In the result, this Grievance is dismissed. We would urge the Grievor to notify the Registrar of the Grievance Settlement Board forthwith as to his intentions in proceeding with the remaining 45 Grievances. DATED at Brantford, Ontario, this 26th day of July, A.D., 1932. R.L. Verity; Q.C. Vice Chairman 4-bt ;4.,k ‘044 M. Gandall Member B. Lanigan Member