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HomeMy WebLinkAbout1981-0042.Glysinskie.82-03-30 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD TELEPHONE , 416/598 - 0688 180 DUNDAS STREET WEST. TORONTO. Qt/TARIO. M5G 1Z8 - SUITE 2100 • 42/S1 & 107/31 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (A. Glysinskie) and The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer Before: P. Draper - Vice-Chairman S. Schachter - Member B. Lanigan - Member For the Grievor: E. Baker, General Secretary Ontario Liquor Boards Employees' Union For the Employer: R. J. Drrnaj, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearings: December 3, 1981 January 13, 1982 2 In December 1980 the Grievor, Alex Glysinskie, filed with the Employer, 21 separate grievances in each of which he named an employee who, along with the Grievor and others, had been a candidate for promotion to Liquor Store Clerk Grade 4. The Grievor claimed that each such employee was selected for promotion notwithstanding that the Grievor was qualified to perform the work of the position and was Senior to the successful candidate. Counsel to the Employer raised the preliminary objection that the grievances should not be heard together since each contained a separate allegation and concerned a different selection decision of the Employer and affecting a different Employee. In reply, the representative of the Grievor argued that the grievances should be heard as a group since all of them concerned the same competititon, and all were based on the same ground of complaint. He acknowledged that grievances had been filed in respect of any and every successful candidate of whom the Grievor was aware and to whom the Grievor was Senior. The Board was of the opinion that the grievances must be heard separately since to treat them, in effect, as though only one grievance existed would not adequately disclose to the Employer the case to be met or properly recognize the interests of the successful candidates. It was therefore ruled that the Board would entertain one of the grievances. The representative of the Grievor elected to present the grievance naming Dexter Lue and the Board proceeded to hear it, Mr. Lue being present and Counsel to the Employer consenting. 3 In May 1980 the Employer published Job Posting #645 inviting applications for promotion to the position of Liquor Store Clerk Grade 4, with appointments to become effective as of July 1, 1980. In addition to the Job Posting, a Supplementary List of candidates was prepared from which promotions were to be made in the six-month period July 1, 1980, to December 31, 1980. This arrangement arose from a provision of the Memorandum of Agreement between the Employer and the Union containing the terms of settlement of the current Collective Agreement. Under the provision, later incorporated in the Collective Agreement by Letter of Agreement, the Employer agreed to "re-establish within its stores the classification Liquor Store Clerk Grade 4". The appointment of this classification to self-serve "A" and "B" stores - the two categories with the highest annual sales volume - was a new departure and promotions for that purpose were to be governed by 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. The clause created a temporary exception to Article 16.6(a) of the Collective Agreement and was to continue in force for the six-month period during which appointments were to be made. Mr. J. Forsyth, called to testify by the Grievor, was Manager of Store #6 when the Grievor was transferred there in 1979. He was not aware that the Grievor was an applicant under Job Posting /1645 and had recommended - 4 - him for promotion to Liquor Store Clerk Grade 4 while the competition was in progress. The District Supervisor to whom the recommendation was made noted that the Grievor's attendance must improve before he could be considered for promotion. The Grievor's attendance record has been poor because of a compensable injury, sustained in November 1979, which has caused a recurring physical disability. Mr. Forsyth understands attendance to be a factor in the determination of promotions. Mr. M. Cowal, called to testify by the Grievor, was Assistant Manager of Store #568 during 1977 when the Grievor worked there. He was satisfied with the Grievor's performance and would have been ready to recommend him for promotion to Liquor Store Clerk Grade 4. Mr. Cowal has not observed the Grievor at work since leaving Store #568 in December 1977. Mr. M. Piette, called to testify by the Grievor, is a Liquor Store Clerk Grade 4 who worked with the Grievor at Store #568 over a period of about two years. All employees performed office work in rotation, but he believes that most such assignments were given to the more proficient employees including the Grievor. He understands that attendance, disciplinary record, and physical capabilities are considerations in promotions to Liquor Store Clerk Grade 4. Some manual work must be performed at the Grade 4 level but it is less important at that level than at the Grade 3 level. Mr. J. Tiley, called to testify by the Grievor, is now an Assistant Manager who was formerly a Liquor Store Clerk Grade 4 at Store #6 and -5 worked there with the Grievor for about one and one-half years. The Grievor performed his duties well and helped him with office work at which he "was good". The Grievor testified that he became an Employee of the L.C.B.O. in 1973, starting as a Warehouse Clerk Grade 2. As a result of an accident in December, 1974 he developed a condition he describes as polyneuritis and was absent from work for 26 months. Following his filing of a grievance he returned to work in February 1977 as a Liquor Store Clerk Grade 2. He was required to maintain acceptable attendance and performance standards during a three- month trial period, after which he was "deemed satisfactory". He was absent from work for about one month because of an injury suffered on the job in November, 1979. The resulting condition is a recurring one and caused his absence from work for 15 weeks in 1980. He was put on light duty, working full-time as a Cashier, which he believes was harmful rather than helpful to his condition. He has been absent from work since April 1981, while undergoing a prescribed course of therapy, but believes he could return to work if he could obtain the necessary therapy outside working hours and if he were allowed to perform regular duties. He was suspended for one day in November, 1978, for "loud and intemperate language" to one of the Assistant Managers of Store /1568 and received a letter of warning in January, 1979, for a "tirade" against the two Assistant Managers of the store. He applied under Job Posting #645 and only learned of the arrangement for the appointment of Liquor Store Clerk Grade 4's to self-serve "A" and "B" stores when the terms of settlement of the new Collective Agreement were published. 6 Mr. A. Brady, called to testify by the Employer, has been employed by the L.C.B.O. for, some 27 years and is at present Area Manager, Metro Toronto, which consists of seven Districts, each in charge of a Supervisor and having between 20 and 22 stores. The purpose of the special arrangement negotiated between the Employer and the Union was to appoint ,Liquor Store Clerk Grade 4's to all sell-serve stores for the first time, the quid pro quo being that the Employer was entitled, in effect, to select the best qualified candidates without regard to seniority. A so-called Supplementary List of candidates was compiled by requesting each of the seven District Supervisors to recommend four Clerks from the stores in his District. The Grievor was not one of those recommended. Seventeen appointments were made from amongst the 28 candidates recommended by the District Supervisors, Mr. Lue being one of those appointed. Mr. Lue's personnel file shows him to have good performance appraisals, good attendance record, and no disciplinary record. A high attendance rate is a "must" for Liquor Store Clerk Grade 4's. It is argued for the Grievor that he is qualified to perform the work of a Liquor Store Clerk Grade 4; that his absences from work to date are not proof that he cannot perform that work; that the Employer has an obligation to verify his physical condition before refusing him promotion on that ground; and that his absences being almost entirely due to a compensable injury should not prejudice his chance for promotion. Counsel to the Employer submits that the Grievor's qualifications must be shown to be identical, in all respects, to those of Mr. Lue; that in evaluating qualifications the Employer is entitled to consider attendance; and that in that respect the Grievor's qualifications are 7 not identical to those of Mr. Lue. The Grievor's disciplinary record is also in issue, it being submitted on behalf of the Grievor that this factor is not material in the circumstances, and argued on behalf of the Employer that it is another respect in which the Grievor's qualifications are not identical to those of Mr. Lue. The 21 grievances filed by the Grievor named both applicants under Job Posting #645 who were selected for Liquor Store Clerk Grade 4 appointments in the normal manner, and candidates on the Supplementary List who were selected for such appointments under the special provision already mentioned. The gi:ievance now before the Board, that naming Mr. Lue, is one of the latter. Moreover, Mr. Lue was being considered for an appointment to a self-serve "A" or "B" Store and was, in fact, appointed to a self-serve "A" Store in November, 1980. The Grievor is, consequently, faced with the standard set by the clause quoted earlier rather than that set by Article 16.6(a) of the Collective Agreement. It is well established that in competitions for promotion it is for the Grievor to show that the conditions for selection over other applicants are satisfied. In the present case, therefore, the Grievor bears the onus of proving that his qualifications are identical to those of Mr. Lue. Only then would his seniority come into play. On the issue of attendance, two cases cited by Counsel to the Employer are in point: Re ITT Communications Division of ITT Canada Ltd. & IBEW Local 2038, 4 L.A.C. (2d) 420; and Re Manitoba Telephone System IBEW 8 Local 2363, 10 L.A.C. (2d) 26. In the first case the Grievor was otherwise qualified for a new position but was denied appointment to it because of a poor attendance record, the major reason for which was ill health. The Board of Arbitration found that the Employer was entitled to consider attendance in assessing the Grievor's qualifications and declined to disturb the Employer's decision. In the second case, the Grievor was passed over for promotion because of a record of blameworthy absences. The grievance was dismissed, the Board of Arbitration endorsing the view that an Employer has the right to consider attendance when determining an employee's qualifications, subject to its being exercised in a just and reasonable manner. We understand these cases to support the proposition that attendance is one of the qualifications that employers may properly take into account in selecting employees for vacant positions and that the reason for a poor attendance record, that is, whether absences from work are blameless or blameworthy, is not pertinent. This is presumably so because the overriding consideration is whether or not the responsibilities of the position to be filled are likely to be performed in a manner reasonably to be expected by the Employer. The Employer's contention that regular attendance is a qualification related to the requirements of the position of Liquor Store Clerk Grade 4 has not been refuted. Further, we are of the opinion that there were adequate grounds for the Employer's judgement that the Grievor would not be able to perform the responsibilities of the position at the level of attendance that could be reasonably expected of him. On one side of the question are the lack of direct medical opinion as to the probable duration or possible recurrence 9 of the Grievor's condition; the Grievor's record of absences from work; the Workmen's Compensation Board finding of partial permanent disability; and the course of treatment currently necessary for the Grievor's condition. .0n the other side are the recommendation of a L.C.B.O. physician that the Grievor be allowed to "work in" to regular duty; and the Grievor's own opinion that regular duty would be therapeutic for him. Weighing all these factors, it was not unreasonable for the Employer to conclude that it was improbable that the Grievor would be able, in the forseeable future, to achieve the standard of attendance called for at the Clerk Grade 4 level. In the result, we find that attendance was an appropriate criterion to apply in the competition for promotion to the position of Liquor Store Clerk Grade 4. We find further that in respect of that criterion, the Grievor has failed to establish that his qualifications are identical to those of Mr. Lue. In view of our finding on the issue of the Grievor's attendance, we deem it unnecessary to determine the issue of the Grievor's disciplinary record. The grievance is dismissed. Mr. Lue was present at the hearings and participated in the proceedings. It is to be noted that the Board is not seized of the remaining grievances filed by the Grievor. The Grievor's intentions with regard to them - 10 - • should be communicated to the Registrar. DATED at Toronto this 30th day of March, 1982. P. Draper Vice-Chairman "I dissent" (see attached) S. Schachter Member B. Lanigan Member /lb DISSENT I have read the decision of my colleagues and find that I must respectfully dissent. The Employer is under a contractual obligation to choose the oest qualified candidates, and where qualifications are identical, to appoint the candidate with the greater seniority. In order to satisfy that obligation the Employer must make reasonable inquiries into the qualifications of the candidates. Furthermore the criteria the Employer uses to assess qualifications must be fair and the Employer must not interfere with the candidate's efforts to achieve those qualifications. In this particular case the Employer decided that a requirement of the position was good attendance. The Grievor's past attendance record showed significant absenteeism. This was caused by an industrial accident through no fault of the Grievor. It was the Grievor's unchallenged evidence that he was ready to return to work early in 1980 and that the Employer refused to permit him to return until he completed a course of therapy. It was the Grievor's further unchallenged evidence that the course of therapy could have been taken outside of working hours and simultaneous with a return to work. Finally, it was the Grievor's unchallenged evidence that the cause of his subsequent absences was the refusal of the supervisor to assign the Grievor to the full range of duties normally associated with the Grievor's position, notwithstanding statements by the company doctor that the Grievor should be so assigned and the Grievor's further evidence that the alleged "light" duties not only prevented rehabilitation but aggravated the injury. In view of these facts the Employer snould not be able to rely on the results of its own improprieties and hold it against the Grievor. 2 Furthermore the Employer made no inquiries as to the likely future attendance of the, Grievor. While it is incumbent upon the Grievor to ensure that the Employer has all the evidence regarding his qualifications, in this case the Employer did have that evidence which was in the possession of the company doctor. Furthermore it was the Grievor's unchallenged evidence that other representatives of the Employer, namely first and second level supervisors, knew that the doctor had this evidence. Therefore the Employer has contravened the collective agreement by not making such inquiries. In the cases cited to the Board, there was no mention of any medical evidence of the Grievor's future condition as being within the possession of the Employer. Having found that the Employer did not comply with the collective agreement, I would remit the matter back to the Employer to make a proper appraisal and appointment and void the earlier appointment. This Board is not in a position to conclude that the Grievor has at least the identical qualifications to the selected candidate because unfortunately the company doctor was not present at the hearing to give evidence on the Grievor's likely future attendance. Should the Grievor decide to pursue grievances against any other of the 21 appointments, he can remedy this omission by subpoenaing the company doctor. I would have allowed the grievance as indicated. S. Schachter 'Member /lb