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HomeMy WebLinkAbout1983-0437.MacLean.83-11-15 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598- 0688 437/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (G. MacLean) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: R. L. Kennedy Vice Chairman I. J. Thomson Member K. Preston Member For the Grievor: A. M. Heisey Counsel Blake, Cassels & Graydon Barristers & Solicitors For the Employer: B. H. Stewart, Q.C. Hicks Morley Hamilton Stewart Stone Barristers & Solicitors Hearing: October 21, 1983 - 2 - DECISION The Grievor is sixty years of age and is employed as a Clerk Grade 3 in store number 416. He commenced with the Employer in the year 1977. On November 12th, 1982 the Employer issued Job Posting Number 1171 for a Liquor Store Clerk, Grade 4 in the area comprising Mississauga, Brampton and Oakville. A posting of this nature takes place every six months and all employees interested in applying for the promotion to Clerk Grade 4 respond to the job posting. During the next six month period candidates will be selected for promotion from that list. The list that resulted from job posting 1171 was to be effective for 6 months commencing January 1st, 1983. The Grievor was one of the employees who responded to job posting number 1171. On June 22nd, 1983 the Employer announced the promotion of two employees, J. S. Saldanha and D. J. Connell, to positions as Liquor Store Clerk Grade 4. In response to that announcement the Grievor filed a grievance alleging that he had been denied promotion to Clerk Grade 4 contrary to Article 16.6 of the Collective Agreement. Each of Saldanha and Connell are junior in seniority to the Grievor and it is the Grievor's position on this Arbitration that under the Collective Agreement he was entitled to be appointed to one of those positions. Each of Saldanha and Connell were advised as to the time and date of the Hearing and were present and participated. The portions of the Collective Agreement material to this Arbitration provide as follows: 3 Article XVI 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. 16.10(a) 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 the date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to promotion. With respect to the position itself, the Union filed a written statement of the nature of the job and it was agreed by counsel for the Employer that, while the statement was somewhat out-of-date, it was adequate for the purposes of this hearing. That job description provides as follows: LIQUOR STORE CLERK GRADE 4 Level of Work The duties and responsibilities identified with the following positions relate to this classification. Bookkeeper in a Class "A" or "B" store provided he is also qualified and has progressed through the level of cashier. Assistant to the Liquor Store Manager 2. Personnel qualified and assigned in a temporary capacity, responsibility for managing a store. Act as manager of a liquor store in a small community. TYPICAL DUTIES Assists in the management of a Grade "C" liquor store, and participates in all phases of the work, including the maintenance of sales and stock records. Relieves staff when necessary due to illness or vacations, and supervises the work of liquor store clerks in progress. - 4 - Prepares a variety of reports and maintains sales and stock records, and operates cash register as required. May be required to assume responsibility of managing store in the absence of the manager and assistant manager. Participates in all other store duties as assigned. ABILITIES, KNOWLEDGES, AND SKILLS Ability to serve customers promptly and courteously, and to use tact and good judgement in handling customers queries and complaints. Ability to assign and supervise the work of store clerks. Ability to keep moderately complex records, prepare a variety of reports, and perform arithmetic calculations. Considerable knowledge of the stock carried, brand numbers, sizes, retail prices, etc. Knowledge of Store Operation, Board circulars, the Liquor Control Act and the regulations governing sale and use of liquior in the province. EXPERIENCE AND EDUCATION Experience as Liquor Store Clerk 1, 2, and 3. Completion of the 11th school grade; or an equivalent combination of education and experience. Extensive evidence was provided on the Hearing as to the nature of the two positions Liquor Store Clerk Grade 3 and Liquor Store Clerk Grade 4 with particular reference to the difference in the two jobs. The position 'asserted by Union witnesses was that the job was little more than a simple bookkeeping job with only minimal managerial or supervisory responsibilities. That evidence was provided through the Grievor who is presently employed as a Clerk Grade 3 in a fairly large store and by one other witness who is the zone representative for the Union and who is employed as a Clerk Grade 4. For the Employer the Manager and the Assistant Manager of the Store in which the Grievor is employed gave their version - 5 - of the requirements of the Clerk Grade 4 position. Their evidence stressed the aspects of the job description relating to performing supervisory functions, and requiring sufficient leadership and responsibility to perform the supervisory functions related to acting in the absence of senior management and in directing and assisting the Liquor Store Clerks in the lower grades. We were greatly assisted by the evidence of the two successful applicant's who appeared at the hearing,, and outlined to us in their evidence their views as to the nature of each of the positions. Based on the totality of the evidence which we have received we are satisified that there is indeed a significant difference in the two positions and that a threshold requirement to be appointed to the position of Liquor Store Clerk Grade 4 is the ability to assume a supervisory and directory function with respect to other employees. While the job is not in function a managerial job we believe it was correctly described by the successful applicant, Connell, as being a buffer position between Management and Employees. It is quite true that some of the basic employment responsibilities of both positions are the same insofar as the stocking of shelves, the serving of customers and the general maintenance and operation of a store. However, with respect to the bookkeeping aspects it is clear on the evidence that when Clerks Grade 3 are, on a rotational basis, doing bookkeeping work and filling out forms in the office, they do so under the supervision of the Clerk Grade 4. It is further clear that in the absence of the Manager and the Assistant Manager the senior employee in the - 6 - store becomes responsible for management and that those opportunities occur for the Clerk Grade 4 on a much more frequent and consistant basis than they do for Clerk Grade 3. The evidence would indicate that the actual nature of the job of the Clerk Grade 4 in any particular store may well vary depending on the size of the store, the nature of management in the store and the extent to which responsibility is placed on the Clerk Grade 4, and on the nature of the particular incumbent in the Clerk Grade 4 position in that store combined with the degree to which he is prepared to assume responsibility. There is always a problem in translating a written job description into what is actually performed on the job but it is clear from the written language of the description and from the evidence that leadership, the ability to take responsibility, and a complete understanding of store procedures and why things are done the way they are done are all threshold requirements for a proper candidate for the position of Liquor Store Clerk Grade 4. Under the provisions of Article 16.6, the Grievor is entitled to the promotion as against the successful applicants, by reason of his seniority, if he is qualified to perform the job. It was the opinion of Management that he was not so qualified, which opinion was based on the report of the Grievor's store manager K. D. Heuer. In response to an inquiry from Management, Heuer wrote to the Director of Store Operations on February 23rd, 1983 in the following terms: In answer to your inquiry regarding the above named employee, I do not feel at this time that Mr. - 7 - McLean has the capability to qualify for the position of Clerk Grade 4. He lacks the knowledge of procedures and requires continued supervision. More experience, effort and interest in his work is required before considering recommending him for this position. In his oral evidence Heuer expressed the view that while the Grievor was quite capable of performing the duties of a Clerk Grade 3 he was substantially slower than other employees in performing his work. With respect to the bookkeeping aspects of the Job, the Grievor had been given the same opportunity as other employees to do those functions on a rotational basis and it was Heuer's opinion that the Grievor could do those functions only under supervision. It was Heuer's view that while the Grievor's performance was satisfactory at the level of a Clerk Grade 3 he would not be capable of doing the bookkeeping work of a Clerk Grade 4 which required a considerable amount of supervision of other employees in the bookkeepina function. It was Heuer's opinion that the Grievor was unable to make decisions on his own and was unable to observe and respond to conditions in the store that required attention. The Manager has in the past counselled the Grievor with respect to these matters and in particular at the time of writing the letter of February 23rd, 1983, Heuer met with the Grievor and explained to him why he was unable to recommend the Grievor for promotion. The Manager's opinions with respect to the Grievor's abilities were confirmed by the Assistant Manager in his testimony on the Hearing. The Grievor in his evidence expressed the view that the Clerk Grade 4 position was not significantly different or more difficult than the Clerk Grade 3. He expressed confidence in his own ability to do the bookkeeping functions and made reference to his annual appraisals which for several years had indicated his performance to be satisfactory in all areas including that of bookkeeping. Prior to becoming employed as a Liquor Store Clerk he had served in the Canadian Army and had twenty-nine years' experience as a manager, and later, owner of a Creamery. In that capacity he had managed up to fourteen employees and had been responsible for the books of the business. In his evidence with respect to the bookkeeping function he conveyed the impression of one who was aware of what should be done in a mechanical sense but he did not appear to understand the significance of particular steps and forms or why things were being done the way they were being done. In argument counsel for the Union stressed that the job was a very basic bookkeeping job and qualification had to be evaluated in that light. As previously set out in this award we are of the view that the evidence does not support that position. Mr. Heisey also made reference to the Grievor's previous managerial experience in his former business. It would be our view, however, that current experience as to the Grievor's actual performance in the context of a liquor store is more relevant to the issues that are before us. With reference to the annual ratings, which were also heavily relied upon by the Union, they are rating the Grievor in relation to - 9 - the requirements of the Clerk Grade 3 job and are not directed to a consideration of whether the Grievor is capable of assuming duties requiring a greater degree of ability and responsibility. Reference was also made to Article 16.10 and it was argued that if there was uncertainty as to qualification the Grievor should be given the opportunity to prove that he can do the job. That aspect of the argument is placed correctly in perspective in the decision of this Board in Prolack 44/78 where it was stated, commencing at page 19: Clearly what the provision means is that if, after the promotion, an employee seems unable to meet the requirements of the position, then he has three months to prove otherwise. Unless the employee has the basic threshold of qualification requirements under Article 16.6, Article 16.10 has no application. This Board in Barry, 334/80 defined the arbitral function in circumstances as are before us in the following terms: Article 16.6(a) establishes a "sufficient ability" clause rather than a competetive 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. Based on that test, we are satisfied on the evidence that there has been nothing arbitrary, discriminatory or unreasonable in the qualifications for the Liquor Store Clerk Grade 4 job which J. Thomson - Member - 10 - have been established by the Employer. The Grievor's evaluation against those qualifications was in substance carried out by his store manager who was in our view the single individual with the best opportunity of evaluating the Grievor and reporting to Management. There are further no suggestions on the evidence that in reaching his opinions the store manager has in any sense been arbitrary, discriminatory or unreasonable in his treatment of the Grievor. The evidence establishes that the Grievor still requires supervision when doing the bookkeeping work in the store and it would therefore be impossible to place him in the position where he was in fact required to give that very same supervision to other Clerks Grade 3 performing the work. He has not exhibited in the performance of his work over recent years the supervisory capabilities that would be required in the more senior position. In the result it is our conclusion that this grievance must be dismissed. Dated this 15thday of November, 1983. Ross t. Kennedy - Vice Cha1 rman