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HomeMy WebLinkAbout1989-0397.Cover.90-11-05 DecisionMI ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE I SETTLEMENT REGLEMENT BOARD DES GRIEFS I P NV I 5 7990 7:3 r--) , 180 OUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TEL-EPt-IONE/TELERHOLIE.1 (416) 326-1388 180, RUE OUNDAS QUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELECOPIE : (416) 326-1396 0397/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Cover) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: R. L. Verity Vice-Chairperson M. Lyons Member F. Collict Member FOR THE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. J. Drmaj EMPLOYER Counsel Hicks Morley Hamilton Stewart Stone Barristers & Solicitors HEARING April 6, 1990 August 13, 1990 2 DECISION In this matter, Tim Cover grieves that he was wrongfully denied a position of "B" Store Assistant Manager in Metro Toronto under Competition #MT-05/89. The settlement requested was promotion to one of the positions filled as a result of the competition. The relevant provision of the Collective Agreement is as follows: 21.5 (a) Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. The competition was posted on January 24, 1989 with .a closing date of February 7, 1989. The competition notice specified the qualifications for the positions and noted that "candidates will be selected upon seniority and previous satisfactory work performance". On December 1, 1988 the grievor was given a positive written evaluation for the position of "B" Store Assistant Manager by his Store Manager Jim Boland. At the time of the grievance, the grievor worked as a Clerk 4 in Store #534. He has been employed with the L.C.B.O. since January 13, 1976. The grievor has greater seniority than any of the six successful applicants whose appointments were formally announced on March 15, 1989 with duties to commence effective April 3, 1989. The incumbants were given notice of the hearing but chose not to attend. 3 Garfield Sherwood is currently Vice-President, Retail Division. In his former capacity as Regional Director for Metropolitan Toronto he made the promotion decisions in this competition, in consultation with five district managers. The grievor was denied the position because a written reprimand had been placed on his personnel file on February 15, 1989. The reprimand was written by R. J. Flett, Vice-President Retail Division and was allegedly "delivered by hand". The reprimand read as follows: This is in response to the "Notice of Intended Discipline" issued to you on October 11, 1988 by your District Manager, W. G. Walters, for alleged misrepresentation at Pearson International Airport in order to gain access to a restricted area. Upon review of all the information available, including your response to the above mentioned notice, I have come to the conclusion that you did gain access to a restricted area by misrepresenting yourself as an employee of the LCB0 Duty Free Store in Terminal 2. An incident such as this has the potential to bring discredit on the organization that you work for, and this type of behaviour cannot be tolerated. As a result, this letter will serve as a written reprimand for your actions. I must also advise you that should any incident of a similar nature occur in the future it will result in a more severe disciplinary action up to and including dismissal. You are instructed to sign one copy of this letter showing that you have read and understood the letter's contents and return the copy to this office immediately. According to Mr. Sherwood's evidence the decision to deny the grievor the promotion was made on or about March 1, 1989 with full knowledge of the written reprimand. 4 The grievor testified that the reprimand was not brought to his attention until the Step 3 grievance meeting in this matter on May 29, 1989. He maintains that on that date a copy was given to his Union Representative. However, the Employer was under the understanding that the letter had been hand delivered to the grievor by District Manager W. G. Walters in mid-February 1989 but offered no proof in that regard. The Employer admitted that it had no signed copy from the grievor acknowleding proof of service. The Employer contended that the written reprimand was valid because no grievance was filed after the matter was brought to the Union's attention in May 1989. The background to the "airport incident" can be briefly summarized. On October 11, 1988 the grievor was given a written "notice of intended discipline" by District Manager Walters. The letter stated that the Employer had been advised by the R.C.M.P. at Pearson International Airport that the grievor had misrepresented himself as an employee of the L.C.B.O. Duty Free Store at Terminal 2, and "had presented an expired security pass... .as identification to gain access to a restricted area". The grievor was required to submit a written statement explaining his conduct. On October 12, 1988, Mr. Cover gave the following written explanation: On Sunday October 2, 1988, I took my wife to the airport for Flight 982 to Montego Bay. When we were checking in, I asked the Air Canada agent, if she could assist my wife to the gate, as she was not well. She told me that there was no one available at that time and as there was no where to sit, I asked her if I could accompany her to the boarding gate as I had an LCB0 pass. -5- She took the pass, looked at it, and instructed me to show it to the security and that it was alright for me to go in with her to the boarding gate. I showed security the pass, and went in and on my return the RCMP special constable stopped me and the following questions were asked of me. Q. For whom do you work? A. LC60. Q. Who is your immediate boss? A. Jim Boland. I showed them the pass which had my employer's name, my name and my picture on it. It also had my signature on it. At no time did I misrepresent myself as an employee of the LC60 Duty Free Store in Terminal 2. When I was given the pass by the DOT, I was never told that it had an expiry date, nor was I told that I should surrender it should I leave the store at the airport. It was my understanding that as long as I work for the LC60 I should keep it with me at all times as a form of identification. Hoping this will clear this matter, and I hope that my explanation is accepted. I meant no harm, nor was I misrepresenting myself or anyone else. On November 7, 1988, L. D. Flynn, Director Customer Service and Awinistraton prepared a memorandum to the grievor that the incident was currently under investigation by regional management and that he would be advised of the outcome. The grievor denies receipt of this document. At the hearing, the grievor testified that in July, 1989 he was charged with unauthorized entry into a restricted area at Pearson International Airport contrary to s.41 of the Airport Traffic Regulations. Further, he testified that on January 2, 1990 the charges were dismissed at Provincial Court (Judicial District of Peel). 6 The Union contended the process was unfair and that management acted arbitrarily and unreasonably on an irrelevant consideration in denying the promotion based on a written reprimand had not been brought to the grievor's attention at any relevant time. Mr. Flood argued that the grievor as the senior qualified candidated should have received the promotion. In support, the Board was referred to the following authorities: Frolack and Liquor Control Board of Ontario, 44/78 (Jolliffe); Re Zuibrycki and The Crown in Right of Ontario (Ministry of Industry and Tourism) (1979), 22 L.A.C. (2d) 157 (Adams); Canadian Food and Allied Workers Union, Local 175 v Great Atlantic and Pacific Company of Canada Limited et al. 76 CLLC para 14,056; OLBEU (H. J. Dyer) and Liquor Control Board of Ontario, 506/80 (Saltman); OLBEU (Cecil Barry) and Liquor Control Board of Ontario, 334/80 (Swinton); Re Kimberly-Clark of Canada Ltd. and International Chemical Workers, Local 813 (1972), 1 L.A.C. (2d) 44 (Lysyk); Re International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local 873 and Baton Broadcasting Ltd. (1971), 22 L.A.C. 323 (Brown); Re Corporation of the District of Burnaby and Canadian Union of Public Employees, Local 23 (1983), 11 L.A.C. (3d) 418 (Hope); Re Prince George Senior Citizens Housing Society and Canadian Union of Public Employees, Local 2516 (1987), 27 L.A.C. (3d) 410 (Kelleher); and Re Board of School Trustees School District No. 39 (Vancouver) and Canadian Union of Public Employees, Local 407 (1987), 30 L.A.C. (3d) 257 (Thompson). The Employer maintained that the promotion was properly denied because of the grievor's recent disciplinary record. Mr. Drmaj argued that the discipline was valid in the absence of the filing of a grievance at a later stage and that the grievor was well aware of the Employer's intent to discipline. The Employer 7 referred the Board to OLBEU (Ron Miller) and Liquor Control Board of Ontario, 348/82 (Samuels). Article 21.5(a) is a "sufficient ability" clause which does not establish a competition provided that the senior applicant is qualified to perform the work. In sum, seniority governs provided the applicant is "qualified". The issue is whether or not the grievor was qualified to perform the work at the time of the competition. In that regard, the Board's task is to determine whether, as the Union suggests, management acted arbitrarily or unreasonably in denying the grievor the promotion. The Union did not attack the specified qualifications in the competition notice. In addition, the Union agreed that in matters of promotion the Employer can consider a recent disciplinary record which has been brought to the Employer's attention. This panel adopts the rationale of Vice-Chairperson Swinton in OLBEU (Cecil Barry) and Liquor Control Board of Ontario, supra, where the arbitrator states at p. 9: This Board has stressed over and over again, in many cases, the importance of fair procedures in job competitions (e.g. Re Quinn, 9/78; Re Remark, 149/77). Similarly, we adopt the rationale as expressed in Frolack and Liquor Control Board of Ontario, supra, where Vice-Chairperson Jolliffe made it clear at p. 22 that an employee is entitled to a promotion on the basis of seniority -8 "unless there is clear proof on other grounds that he must be disqualified". In the instant grievance, we have serious concerns about the apparent lack of procedural fairness. As indicated previously, the grievor was denied the promotion because of the written reprimand of February 15, 1989. We are not called upon to determine the merits of the disciplinary action. However, in the absence of proof to the contrary, the Board is satisfied that the grievor had no notice of the reprimand in February, 1989. Accordingly, we find that when the promotion decision was made on or about March 1, 1989 the written warning was an improper consideration. If the Employer seeks to rely upon a recent disciplinary record, it must ensure that the employee has received notice of discipline in a timely fashion and has been given a reasonable opportunity to challenge the discipline imposed. It is unreasonable, we think, to deny the grievor a promotion for the sole reason of a written reprimand in his personnel file which has not been brought to his attention and which he has had no opportunity to challenge. Notice of intended discipline is not discipline. The fact that the reprimand came to the grievor's attention several months later and no action was taken does not cure that defect. At the time of the promotion decision, the written reprimand cannot be said to constitute a valid disciplinary record. We must, however, express our uneasiness about the fact that the grievor has retained in his possession an airport restricted area pass. In both his written statement and in oral testimony, the grievor maintains that he was not told to surrender the pass when he left employment at the Duty Free Store in August, 1980. However, Bruce Cudney's evidence is to the contrary. Mr. Cudney was at all relevant times Manager of the Duty Free Liquor Stores at Pearson International Airport. He testified that he telephoned the grievor in 1980 to 4/ )4: LYONS - MEMBER / • (Addendum attached) 9 enquire why the pass had not been returned when the grievor left his position at the Duty Free Store. According to Mr. Cudney's evidence, the grievor told him that he had lost the security pass in his washing machine. That explanation is simply not credible in light of subsequent events. Given the grievor's seniority and his positive evaluation for the position in question coupled with the Board's finding as to the invalidity of the written reprimand at the date the promotion decision was made, the Board must conclude that the grievor was "qualified" within the meaning of Article 21.5(a) of the Collective Agreement. As a result this grievance shall succeed. Accordingly the grievor shall be promoted to the position of "B" Store Assistant Manager in Metro Toronto effective April 3, 1989 and he shall be compensated for all lost wages and benefits in the interim. The Board shall retain jurisdiction in the event of any difficulty encountered.in the interpretation or administration of this award. DATED at Brantford, Ontario, this 5thday of November 1990. ? A.\ R. L. VERITY, Q.C. - VICE-CHAIRPERSON / (c F. COLLICT - MEMBER ADDENDUM TO G.S.B. 10397/89 (COVER) This member is in agreement with the award in this case. The issue in the case is a very narrow one. It is the question as to whether or not the grievor was "qualified" within the meaning of Article 21.5(a) of the Collective Agreement at the time of the competition. The Union did state that the Employer can consider a disciplinary record when considering an employee for promotion; and it is true that Mr. Sherwood, who made the promotional decisions, had in his knowledge that discipline was to be assigned to RiIn Cover at the time the selection decisions were made in early March of 1989. However, as stated at page 8 of the award, It is unreasonable, we think, to deny the grievor a promotion for the sole reason of a written reprimand In his personnel file which has not been brought to his attention and which he has had no opportunity to challenge. Notice of intended discipline is not discipline. The fact that the reprimand came to the grievor's attention several months later and no action was taken does not cure that defect. At the time of the promotion decision, the written reprimand cannot be said to constitute a valid disciplinary record. (underscoring added) It is significant also, as noted in the award that, ... In the absence of proof to the contrary, the Board is satisfied that the grievor had no ,notice of reprimand In February, 1989. (p.8) It was common ground between the parties that Mr. Cover was "qualified" to perform the position advertised in the competition. Inasmuch as the alleged discipline was not found to be valid, it is clear that he met the requirements of Article 21.5(a) of the Collective Agreement. 2 Although this Board was not required to evaluate the merits of the alleged disciplinary action assigned to the grievor, it is curious that the incident which was the subject of the alleged discipline occurred on October 2, 1988; followed by a written "notice of intended discipline" from management on October 11, 1988; followed by a written response from the grievor dated October 12, 1988; and a further notice to the grievor on November 7, 1988 from L.D. Flynn, Director of Customer Service and Administration to the effect that the matter was still under investigation and that he would be advised of the outcome. However, no decision was made on the matter until late February of 1989, almost four months later; (and even then the grievor denies having received any disciplinary communication at that time and the Employer did not, or was unable to advance evidence to the effect that the grievor had been given the disciplinary reprimand in person.) Certainly the delay in assigning discipline did not in any way assist management in this case. Notwithstanding the above, this Member shares the unease expressed in the award at page 8. The grievor's explanation of the incident and related matters associated with the L.C.B.O. restricted area pass, was not credible. Management had a valid concern in early March of 1989 about the possible appointment of an employee who, by his own admission, had misrepresented himself as an airport L.C.B.O. employee through retention of a pass (with bulky clip on it) which he had improperly retained for approximately eight years and which he conveniently had on his person on the date of the incident when he took his wife to the airport. As stated above, that was not the issue in this case. Zracj F.T. COLLICT