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HomeMy WebLinkAbout2006-1322.Branton.08-07-14 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-1322 UNION# 2006-0377-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Branton) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFOREVice-Chair Daniel Harris FOR THE UNION Val Patrick Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Gordon Fitzgerald Counsel Liquor Control Board of Ontario HEARING June 10, 2008. 2 Decision The Proceedings This is a promotion grievance in which the union says that Barbara Branton, hereafter ?the grievor?, was passed over for promotion contrary to the collective agreement. The LCBO says that although the grievor was the senior applicant, she was properly screened out of the job competition because of her disciplinary record. The grievor worked as a ?casual? customer service representative (hereafter, ?CSR?). The competition was for a permanent CSR position. The Facts There is no material disagreement on the facts of matter. The grievor was employed as a casual customer service representative. In that capacity she has fulfilled all the duties of the position, including acting from time to time as manager of the store. There is no question that she is a valued and competent employee. Regrettably, in November 2004, she received a five-day suspension for consuming alcohol during her shift. That suspension was not grieved. I did hear the details of the facts that led to that suspension. Seemingly, a co-worker refused to serve a customer because they appeared to be intoxicated. The customer became abusive. The co-worker became upset. To sooth the situation, the grievor retrieved a mini-bottle of Baileys from her car and split it into two cups of coffee to share with the co-worker. That alcohol consumption was discovered and the grievor received the five day suspension. 3 Some eighteen months later, she applied for a permanent position as a CSR and received the following response from Mr. Rick Wood, the acting Director, Eastern Region: This letter is further to your application for consideration in the above noted competition. Unfortunately, a review of your file indicates that your discipline record excludes you from proceeding through the selection process for this position. We would like to thank you for the interest you have shown in this position and wish you success in future opportunities. It was, of course, the five day suspension that intervened to end her application for the permanent position. Submissions of the Parties The union submitted that to deny the grievor access to this job competition because of her previous discipline amounted to being penalized twice for the same infraction. The employer said that it was well within its management?s rights to consider the disciplinary record of an employee to determine whether the discipline impinged on the applicant?s qualifications to perform the job. It said that the nature of the discipline struck at the heart of its mandate to promote responsible consumption of beverage alcohol. Accordingly, the grievor was properly screened out. In reply, the union submitted that the grievor was trusted enough occasionally to be responsible for the operation of the store. It was disingenuous to rule her out of the competition on such grounds. 4 Reasons for Decision The union relied on a number of authorities that hold that an employee may not be punished twice for the same infraction. Those cases involve the imposition of discipline for an infraction and a subsequent, further disciplinary sanction, generally by a higher level of management, for the same behaviour. Those cases are not helpful. The relevance of previous discipline to an employee?s application for promotion was dealt with in OLBEU and Ontario (Liquor Control Board) (Sam Grievance) G.S.B.0936/98 et al. There, Vice-Chair Dissanayake cited with rd approvalBrown & Beatty, Canadian Labour Arbitration, (3 Ed.) at 6:3310: There is a consensus of opinion that where it is relevant to do so an employer may take into account the grievor?s past disciplinary record, including verbal warnings, in assessing his skill and ability to perform a job for which he has applied. For example, where an employee made an application for a job which required its occupant to be reliable and honest, and his prior disciplinary record raised a reasonable doubt as to his reliability, integrity, or responsibility, it has been held that the employer could properly consider and weigh such defects in character in reaching its decision to deny the grievor the job. By contrast, it has been regarded as improper and unreasonable for an employer to rely upon a disciplinary offence to deny an employee a particular job where the nature of that offence did not reflect on the employee?s ability to perform the particular job, or where a substantial period of time had elapsed since the incident, during which the grievor had demonstrated his reformation and rehabilitation. Accordingly, the issue for determination is whether a five day suspension for the offence of consuming alcohol on the job reflects on the grievor?s ability to be a full-time customer service representative, where the suspension occurred nineteen months prior to the job posting. Rick Wood, the Regional Director for Eastern Region, testified for the employer. It was his decision to screen the grievor out of the job competition. He said that a five day suspension was a serious penalty, falling just short of discharge. The grievor?s infraction was a serious breach of the LCBO?s social responsibility mandate. That mandate is part of the CSR job description which refers to knowledge of such mandatory corporate initiatives as the ?Strategies for Managing Alcohol and Age Related Troubles?. That training is provided to all CSR?s prior to 5 their being permitted to run the cash or serve customers. In Mr. Wood?s view, the grievor either did not fully understand the importance to the LCBO of its mandate or chose to disregard it. He considered the time that had elapsed since the discipline and concluded that insufficient time had elapsed to establish that the grievor had learned from the discipline imposed. There is no other specific evidence before me that the grievor has ?demonstrated her reformation and rehabilitation.? It is clear from the evidence that Mr. Wood made an unbiased assessment of the severity of the discipline and how proximate it was in time. He considered the behaviour in question as it related to the core responsibilities of the position and concluded that the grievor was not ready to compete for a full-time position. He recognized that each situation must be individually assessed, and he made such an assessment. In these circumstances, I am not able to conclude that his decision was unreasonable. The grievance is dismissed. th Dated at Toronto this 14 day of July 2008 Daniel Harris Vice-Chair