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HomeMy WebLinkAbout1982-0100.Chang.82-09-17 Decision• ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO, M5G 1Z8 - SUITE 2100 TELEPHONE , 416/598- 0688 100/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Margaret Chang) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: K. Swinton - Vice-Chairman I. Thomson - Member A.G. Stapleton - Member For the Grievor: G. Surdykowski, Counsel Golden, Levinson Barristers & Solicitors For the Employer: J. Murray, Counsel Hicks, Morley, Hamilton, Stewart & Stone Barristers & Solicitors Hearing: July 28, 1982 2 This is a promotion case, arising out of a grievance by Mrs. Margaret Chang that she should have been awarded the job of Clerk 3 Payroll, as she was qualified for the position and had greater seniority than the successful applicant, Ms. Lynda Davies. Ms. Davies was given notice of this hearing, but she chose not to appear. The collective agreement provides a "sufficient ability" clause in job postings. Article 16.6(a), the applicable provision, is as follows: 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. This clause gives significant weight to seniority, providing that the more senior employee in a job competition should get the position if he or she is qualified. The more senior employee need not be the best candidate, so long as he or she meets the threshold qualifications. In deciding whether the employer has properly applied such a clause, there has been some debate as to the role of an arbitration board. The debate has focussed on the significance of the decision of the Ontario Divisional Court in Canadian Food and Allied Workers Union, Local 175 V. Great Atlantic and Pacific Co. of Canada Ltd. (1976), 76 CLLC para. 14, 056, where an arbitration award was quashed because the board had asked itself whether the employer acted reasonably, honestly and without discrimination or bad faith in a job posting. Cory J. stressed the need for the board to proceed beyond this inquiry and to ensure that the collective 3 agreement had been complied with. Subsequent boards of arbitration have interpreted this to mean that their task is to ensure that the employer acted correctly, unless the parties have included a clause to the effect that "in the employer's opinion", an applicant is qualified. With such a restriction, boards should then employ a reasonableness test (Re Phillips Cables Ltd. and International Union of Electrical, Radio and Machine Workers, Loc. 525 (1977), 16 L.A.C. (2d) 345 (Adams) at p. 365; Re Governing Council of University of Toronto and Canadian Union of Public Employees, Local 1230 (1979), 24 L.A.C. (2d) 97 (Burkett) at p. 105). Counsel for the employer argued that the board should follow the cases which interpret the A & P case as leaving the scope of arbitral review unchanged (e.g. Re Borough of Scarborough and CUPE, Local 545 (1977), 14 L.A.C. (2d) 210 (Schiff); Re McGraw Edison of Canada Ltd. and Int'l. Union of Electrical, Radio & Machine Workers of America, Local 595 (1977), 16 L.A.C. (2d) 337 (Brown)). However, the interpretation of A Zr P as imparting a correctness standard, rather than a reasonableness standard, in reviewing the employer's decision has been the practice of this board (Re Remark and Ministry of Revenue, 14 9 /77; Re Quinn and Ministry of Transportation and Communications, 9/78). This is true despite the award in Gavel and Ministry of Health 145/80 (Barton), which was cited to us and which appears to employ a reasonableness standard (p. 5). Our task, then, is to ask first, whether the employer acted reasonably, honestly, and without discrimination or bad faith in establishing the qualifications for the position and, second, whether the 4 employer applied those criteria correctly to the grievor. The position sought by the grievor is that of Clerk 3 Payroll. There are six Payroll Clerks, who each handle approximately 100 Stores with 800 employees. The Clerk receives X9 and X9A scanner forms filled out by the Store Manager or Bookkeeper. The X9 records attendance and overtime for permanent employees, while the X9A records hours for temporary employees. The Clerk enters the totals in a control ledger and then sends the scanner sheets to Data Processing. Subsequently, she must balance her control ledger with the hours accepted by Data Processing. The Clerk also makes handwritten changes in four ledgers which she maintains: one each for payroll and deductions for permanent and temporary employees. She makes manual changes in these ledgers. using information from Personnel, for example if a person is absent without pay, and then fills out a coded change sheet to send to Data Processing. Cheques are run only if the data accepted by Data Processing balance with these ledgers. Other aspects of the Payroll Clerk's job include filling out the Record of Employment form for Unemployment Insurance, entering Garnishees, and making calculations for Service and Earnings Reports. These reports result when an employee is appointed to permanent from temporary staff. Because such an employee can pay back pension for the period of temporary employment, it is necessary to search through past payroll records to see how much was earned and the pension contribution for those earnings. Payroll Clerks are also in frequent contact with other 5 employees, explaining deductions made or why an amount was paid. At times he or she is in contact with Personnel or Store Managers. Mrs. Norma Lien, Payroll Supervisor, testified that the job requires an ability to work fast. It is necessary for Clerks to try to balance to dummy registers with changes made up to Wednesday afternoon by Thursday morning, in order to get further change sheets to Data Processing so that cheques can be issued. The Data Centre has only certain times at which it accepts input. She stated that the job qualifications included knowledge of bookkeeping, skill in the use of a calculator, ability to type, Grade 12 or a commercial course, an ability to communicate, and an ability to work fairly quickly. Mrs. Lien subsequently admitted that typing was not really necessary today, and many Clerks handwrite reports and correspondence. The grievor emigrated to Canada from India 15 years ago. She had Grade 13 education in India and completed a Canada Manpower course for Clerk Typists at George Brown College about 14 or 15 years ago. The course lasted eight to 10 months and included bookkeeping, typing, English, Math and business machines. Subsequently, she took a three-month keypunch course. Her work experience since has largely been in the keypunching area, although she did record cheques and balance the bank statement for one employer. In March, 1976, the grievor joined the LCBO as a Keypunch Operator. She is now a Keypunch Operator 3 and has been at the maximum of her position for two years. 6 The grievor was interviewed by Mrs. Lien for the opening. The interview was only five to 10 minutes in her memory, while Mrs. Lien said that it took 10 to 15 minutes. Mrs. Lien showed her one of the ledgers and described the job briefly. The grievor, who has a pronounced Chinese accent, was asked if she would have difficulty on the telephone, and she said that she did not think so, if she talked slowly. The grievor admitted that she had not typed in a long time, but felt she could pick it up. She testified that she told Mrs. Lien of her bookkeeping experience (the Manpower course and the cheque balancing), although not in a great deal of detail, because Mrs. Lien did not ask. Mrs. Lien, however, testified that the grievor mentioned only that she had had bookkeeping experience in India. Mrs. Lien gave several reasons for not choosing the grievor. She felt that the grievor's bookkeeping experience was inadequate and that she would have difficulty in communication. As well, the grievor's supervisor, Mrs. Ivy, had discussed the grievor's job performance with Mrs. Lien. Mrs. Ivy also testified before this board. Mrs. Ivy, who supervised the grievor for six years, felt she had productivity problems. Of six Keypunch Operators, the grievor is in the two lowest positions in terms of productivity. Mrs. Ivy also felt that the grievor was slow in training for new tasks, and she had observed this in training her for the job in the Data Centre and for the control station there. Mrs. Ivy attributed this to a combination of learning and language problems. Mrs. Ivy also expressed doubts about the grievor's ability to communicate, although Mrs. Ivy speaks with an accent herself and the presence of two accents may have compounded communication problems. Finally, Mrs. Ivy expressed doubts 7 about the grievor's ability to respond to deadlines, as she testified that the grievor became nervous and made errors when she is on the control station and under pressure. This case is somewhat unusual in the kind of qualifications sought by the employer. Normally, an employee must be qualified for the job at the time of the posting, absent a provision in the collective • agreement providing for a training period (Re Barry and Liquor Control Board of Ontario, 334/80). Here, the employer did not expect the applicant to be fully qualified at the time of the posting. Two witnesses for the union, Mrs. Rowena Tieche and Mrs. Diane Mignault, testified that it takes several months to learn the Payroll Clerk job and Mrs. Lien confirmed this, saying that after about three months' training with the Assistant Supervisor, the employer would know if the employee could do the job. Therefore, the object of the job competition was not to find a fully qualified employee, but one capable of picking up the rudiments of the job within three months. This does not, however, convert the provisions of the collective agreement into providing a trial period for the job. A training period creates expense for the employer and an employee who could not do the job at the end of the training period is not be entitled to training. Despite Mrs. Chang's seniority, we do not feel that she was qualified, even for the training period. Mrs. Lien felt that some current bookkeeping experience was necessary, and it is clear from the evidence that some experience with balancing was needed to facilitate training and 8 performance. The grievor had no real bookkeeping experience in the last 15 years and ,had taken only the Canada Manpower Course. The other Clerks who testified had had some related bookkeeping experience before embarking on training and even then at least three months training was needed for them to do the job. Without some demonstration of related bookkeping or accounting experience, it would be more difficult to learn the job. The grievor failed to show either Mrs. Lien or this Board that her Manpower course would assist, and it is doubtful that a course 15 years in the past would be of much assistance today. In addition, the Clerk's job requires the employee to work under pressure, and Mrs. Ivy testified that the grievor has difficulty in working under pressure and preserving accuracy. As well, the fact that the grievor works below the median productivity rate in her department is relevant in considering whether she would be able to meet deadlines in a new type of job. It also appears, from Mrs. Ivy's evidence, that the grievor does not learn new procedures quickly. This is relevant to the question whether she would be able to pick up the new procedures within three months. In concluding that she would have some difficulty in doing so, we do not wish to overstate the complexities of the job. Much of it is routine clerical work. However, an ability to balance ledgers and some knowledge of bookkeeping is important. Finally, we come to the language issue. It appears, from the hearing, that the grievor would have some difficulty in responding to /lb A.G. Stapleton employee inquiries over the telephone and explaining problems to them, particularly if they spoke quickly or became hostile. Admittedly, she was nervous at the hearing and some of her difficulties in responding to questions in cross-examination may have been due to this setting. However, Mrs. Ivy and Mrs. Lien have seen her in other settings and both felt that she would have some difficulty in understanding and making herself understood on the telephone. This communication function is an important part of the job. While the grievor has worked successfully in English for 15 years, she has never had to deal with inquiries as a regular part of her job. Therefore, we do not find that the grievor was qualified, and for these reasons, the grievance is dismissed. Dated at Toronto this 17th day of September, 1982. K. Swinton Vice Chairman "I dissent" (see attached) I. Thomson Member DISSENT With great respect for my colleagues on this Board I find I cannot agree with their decision. While I believe Mrs. Lien is sincere in her desire to have the best people in her Department I feel, she is judging Mrs. Chang too harshly. While the grievor does not have any current experience as a Bookkeeper she has had some experience and a general course taken at George Brawn College, albeit it was a number of years ago. While each bookkeeping job may have some different routines the basics are always the same and it should not take anyone very long to pick it up. . Mrs. Diane Mignault who is a Payroll Clerk 3 testified she thought the grievor would be able to do the job. Mrs. Chang obviously wants the job and in my opinion is entitled to the chance. However, if one of Mrs. Lien's require- ments is that the person must have current experience to be considered it would appear Mrs. Chang is effectively stopped from ever reaching her goal unless she quits her job. I feel the grievor should have been given the job or at least the opportunity to qualify, since in my opinion a training period is provided for in the Agreement. I would have allowed the grievance. I. Thomson :ember