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HomeMy WebLinkAbout1984-0561.Leach.85-11-13 Decision11111 ONTARIO CROWN EMPLOYEES GRIEVANCE III SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 128 - SUITE 2100 TELEPHONE? 416/598- 0688 561/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Cr3 Between: .016EU (C. Leach) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Em ployer Before: P. M. Draper Vice-Chairman G. Nabi Member P. D. Camp Member For the Grievor: M. Levinson Counsel Koskie dc Minsky Barristers & Solicitors For the Employer: M. Hines Counsel Hicks Morley Hamit,ton Stewart Stone Barristers Z!C Solicitors Hearings: July 24, 1985 July 25, 1985 DECISION The Grievor, Charles Leach, a Liquor Store Clerk Grade 3 (Clerk 3), grieves that in June, 1984, he was wrongfully denied a promotion to the position of Liquor Store Clerk Grade 4 (Clerk 4). The promotion went to an employee junior to the Grievor who, we note, chose not to attend or to be represented at the hearing. The Classification Guides for the Clerk 3 and Clerk 4 classifications are appended hereto. The Grievor is fifty years old. He was first employed by the L.C.B.O. in December, 1972, as a Clerk 2 and became a Clerk 3 in early 1974. He has been employed throughout at Store No. 70 at Smiths Falls, a 'B' store with (at the relevant time) a staff consisting of a Manager, an Assistant Manager, a Clerk 4 and three Clerk 3's. A Clerk 4 at a 'B' Store is the equivalent of an Assistant Manager at a 'C' (smaller) store. The Grievor has never received a written reprimand for his work and has no disciplinary record. The Grievor testified that when an earlier opportunity for promotion to Clerk 4 arose he did not apply because he considered an employee junior to him (who, in fact, received the promotion) to be better qualified. With reference to the Clerk 4 Classification Guide, he does not understand what is meant by the requirement to make decisions "on relatively complex store operational questions" or to make judgements "in situations which diverge from day-to-day practice". Until spoken to, he did not call the L.C.B.O. head office for certain approvals of 3 Special Occasion Permits, and did not complete vouchers for customer refunds because he thought these functions were "for management". He did not know it was contrary to store procedure for him to leave the store during his shift with a temporary employee alone on the floor. On a Licencee Purchase Order made out by him in January, 1984, he made four separate errors, three of which he failed to correct when told to rewrite the order. He has been verbally reprimanded on two occasions that he can recall for his manner of dealing with customers. He leaves promptly at the end of his shift because he is entitled to do so. Ronald Van Meer has been the Manager of the Smiths Falls store for the past six years and was Assistant Manager there for the previous seven years. He rates the Grievor as a "borderline" Clerk 3. The Grievor must be told to carry out duties of his position that he should do on his own initiative. He works at a slower pace and makes more errors in his paper work than the other clerks do. He continues to have difficulty with cash register procedures and does not do his share of routine Clerk 3 duties such as cleaning the premises and handling stock. A Clerk 4 has greater decision-making authority and more administrative responsibility than a Clerk 3 does. He is required to advise and assist jurior clerks even when the Manager or the Assistant Manager is on duty. He is in charge of the store for a part of his shift when either the Manager or the Assistant Manager is on his day off and could also be in charge on a Friday second shift. David Grant, who was Assistant Manager at the Smiths Falls store for five years prior to his appointment as Manager of the Amherstview store in January, 1984, was called as a witness on behalf of the Grievor. He testified that the Grievor and the other Clerk 3's at the Smiths Falls store performed various duties of the Clerk 4 classification in rotation and under supervision. He believes that a store manager is competent to appraise the members of his staff. He considers the Grievor to be qualified to do the work of a Clerk 4. Performance appraisals are a vital part of an employee's employment record and are logically to be regarded as relevant to the matter of qualifications for Promotion. Appraisals of the Grievor covering the period 1977-1984 were filed in evidence. In the 1977 appraisal the Grievor was rated "Above Average" in five of thirteen categories and "Average" in the other eight. In the remaining appraisals he was rated "Average" or "Satisfactory" in all categories. In 1977 the Manager noted that the Grievor was a willing worker with a good attitude to the public and the Area Supervisor noted that he was capable of performing the duties of his classification. In 1978 the Manager noted that the Grievor required further experience in office procedures and recommended against advancement, and the Area Supervisor noted that he was generally satisfactory but required further training in accounting and operating procedures. In 1979 the Manager noted that the Grievor required constant supervision and correction and had problems completing reports accurately and in a reasonable time and the Area Supervisor concurred. In 1980 the Manager noted that the Grievor was fully capable of performing all the duties of a Clerk 3. In 1981, 1982 and 1983 no remarks were recorded. In 1984 the Manager noted that the Grievor was showing initiative "at the present time". 5 The relevant article of the collective agreement between the parties is the following: 16.6 (a) When employers 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. The article provides, in effect, that the senior qualified applicant is entitled to the promotion. His qualifications are not to be measured against those of other employees but against the requirements of the position sought. However, despite the emphasis on seniority, the words "provided the employee is qualified to perform the job" must be given meaning; they cannot be read out of existence. To conclude otherwise would be to find that employees are simply to be promoted in order of seniority. Further, the qualifications required are not lessened by the prominence of the seniority factor. They are either sufficient to warrant promotion or they are not. The word "qualified" has been defined as being possessed of accomplishments which fit one for a certain function or as having been trained into acquaintance with and expertness in performing the business to be done. See Re Northern Pigment, 1 L.A.C. 216 (Laskin, 1948). The standard of qualifications to . be applied is a matter of fact. See Governing Council of the University of Toronto, 30 L.A.C. (2d) 187 (Palmer, 1981). Accordingly, we are entitled to review the Employer's decision as to the Grievor's qualifications to perform the work of a Clerk 4 as a question of fact to be determined on the evidence. Article 16.6 (a) clearly implies that there are qualifications to be met. The qualifications reasonably to be required of applicants for promotion to the position of Clerk 4 are those contained in the Guide for that classification. We are satisfied that the Grievor's qualifications were measured against the criteria described therein. A comparison of the Guides for the Clerk 3 and Clerk 4 classifications reveals that there are many prescribed duties and responsibilities common to both. What distinguishes the two classifications is that the Clerk 4, as the senior clerk, is less closely supervised; has broader authority to make judgements and to take decisions; and must be sufficiently capable at a variety of accounting, recording and reporting tasks not only to perform such functions accurately and quickly but to guide and instruct junior clerics in performing them. Finally, although the position is not in any sense a managerial one, a Clerk 4 is required to assume responsibility for the store on occasion as a stand-in for the Manager or the Assistant Manager. In brief, as the Board found in Mac Lean, 437/83, "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 the Clerk 4 position.. The onus is on the Grievor to establish a prima facie case that he is qualified for promotion. If he does so, the Employer must then endeavour to show that, in fact, he is not qualified. In our opinion the evidence lending material support to the Grievor's claim to be qualified consists of the performance appraisals mentioned earlier. With the exception of the earliest one, these -7 describe him as an average Clerk 3. They contain, overall, a rough balance of positive and negative comment on the Grievor's capabilities as a Clerk 3. We view them as being inconclusive evidence of the Grievor's qualifications for promotion. Against the appraisals must be weighed the testimony of the Grievor and Van Meer regarding a series of incidents that reflect adversely on the Grievor, among them the mistakes on a Licencee Purchase Order, leaving the store inadequately staffed, and failing to perform some duties on the pretext that they were managerial functions. In addition, there is Van Meer's testimony as to the Grievor's shortcomings which, we find, was not satisfactorily answered. Van Meer is familiar with the duties of Clerk 4's and for several years has had the opportunity to observe the Grievor at work. He is well equipped to judge the Grievor's qualifications and we find his testimony pertinent and convincing. We are puzzled by the Grievor's apparent disinterest in doing his job to the satisfaction of his superiors when he aspires to be given the additional responsibilities of a Clerk 4. We can only surmise that he does not consider it necessary to demonstrate by his work performance as a Clerk 3 that he is qualified to advance to the higher classification. Re Douglas Aircraft, 22 L.A.C. (2d) 208 (H. D. Brown, 1979) is authority for the proposition that in promotion cases, if an employer has acted reasonably, without discrimination or bad faith and has properly applied the relevant provision of the collective agreement, its decision should stand. That standard is met in the present case. We find that the evidence before us amply supports the decision of the Employer and that it should therefore not be disturbed. The grievance is dismissed. 8 DATED at Toronto, Ontario this 13th day of November, 1985. GaA-4 )k( P. M. Draper, Vice-Chairman G. Nabi, Member, P. D. Camp, Member tj, r 21 L.0 B.O. & L.L.B4O. CLASSIFICATION GUIDE February r. 1978 EVALUATION CRITERIA 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 mer- chandise, unloading, checking and storing stock, pricing bottles, restocking bins, dusting displayed stock, cleaning store, ware- house and surrounding premises. Other duties may include operating the cash register, preparing bank envelopes, under- taking daily sales reports, processing licensee and special occaiion 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 procedures, monitoring casks 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 judgeuk to be intoxicated. Judgment is sometimes required in situations which diverge from day-today 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. 22 L.C.B.O. & L.L.B.O. CLASSIFICATION GUIDE February 1 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 interpret price lists and/or to complete purchase orders, fetching and wrapping merchandise, unloading, checking and storing stock, cleaning store, warehouse 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. , I . , CONTACTS-- 1-! i - Has frequent. customer contacts while answering inquiries and 1 providing assistance onLall questions regarding stock:and ...c. , store procedures., Expected,to handle normal day-to-day- '-:% cubtomer -complaints. - 1 . SUPERVISION GIVEN May occasionally oversee work of junior staff particularly in training new clerks or temporary employees. SUPERVISION RECEIVED Work is performed under supervision. Periodic spot checks may be undertaken for most routine tasks. Reports (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.