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HomeMy WebLinkAbout1989-1049.Huttner.91-05-17 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGL.EMENT BOARD DES GRIEFS • 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 128 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 128 FACsimiLE/TELECOPIE : (416) 326-1396 1049/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Huttner) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer BEFORE: M. Watters Vice-Chairperson J. McManus Member A. Merritt Member FOR THE L. Steinberg GRIEVOR Counsel Koskie & Minsky Barrsiters & Solictors FOR THE W. Zachar EMPLOYER Staff Relations Officer Liquor Control Board of Ontario HEARING May 31, 1990 April 12, 1991 This proceeding arises from the grievor's lack of success in a job competition for the position of 'A' Store Assistant Manager at Store #155 in Thunder Bay, Ontario. The successful appli-cant, Mr. B. Olsen, attended at the hearing and was advised of his right to fully participate in same. Mr. Olsen elected against the exercise of this right. The posting for the contested position read, in part: "POSITION TITLE: CLASSIFICATION: SALARY RATE: STORE: LOCATION: 'A' Store Assistant Manager Liquor Store Manager 3 $16.17 - $17.51, Per Hour (Under Review) # 155 Thunder Bay Under the direct supervision of the Store Manager, the Assistant Manager assists in planning, coordinating, staffing, performing and administering the key store functions such as: customer service, store and stock maintenance, security and management reporting, cash handling and banking, and planning displays and layouts; assists in supervising staff by planning, and scheduling assignments, providing direction and advice in work situations, training and developing functions and completing annual rating reports; participates in a variety of store management responsibilities such as, general customer complaints, assisting in budget preparation and administration, processing licensee and special permit applications and assuming responsibility for store operations in the absence of the Store Manager. QUALIFICATIONS: Qualified candidates will have developed the knowledge, skills and ability to perform as an A Store Assistant Manager through a combination of progressive experience in store operations and relevant educational programs, where applicable. The following are critical areas for candidate assessment: -customer service -human resource management; e.g. planning and scheduling assignments, coordinating staffing, providing direction and advice in work related situations, training and developing inventory management/stock control -inventory management/stock control -security -product knowledge -retail policies and the store operating manual 1 The grievor has been employed by the LCBO, on a full-time basis, since 1976. He worked as a Clerk 3 until January, 1984. In that position, the grievor engaged in a broad range of duties. More specifically, it is apparent that he spent considerable time serving and advising customers. This demanded a comprehensive knowledge of the products sold within the store. Additionally, the grievor performed duties relating to the shelving, monitoring and ordering of stock. While on the floor, the grievor was on the alert for prospective shoplifters. These tasks required that he become familiar with numerous retail policies and the store operating manual both of which addressed matters such as stock; service to customers; special occasion permits; licence orders; banking; periodic reports; staff performance; and contacts with sales representatives. We were advised that the Employer did not have any complaints as to the manner in which the above-noted tasks were performed. In January 1984, the grievor became a Clerk 4 following a successful application for a posting. While in this position, he performed many of the duties formerly undertaken as a Clerk 3 such as customer service and the development of product knowledge. In addition to this series of new responsibilities. staff schedule for the approval overlap, the grievor assumed a As a Clerk 4, he prepared a of the Manager or Assistant Manager In this regard, the grievor had to ensure there were sufficient staff on hand to satisfy the needs of the store. He 2 also assigned duties to staff and provided direction and advice to them on matters relating to store policy, product, and customer service. Further, he was called upon to complete monthly and weekly reports and bank deposits. The grievor was also responsible for the opening and closing of the store. Additionally, he was left in charge of the store when the three (3) more senior staff were absent. The grievor estimated that this occurred approximately once per month. His responsibilities also included training of new staff. The Board was again advised that all of these duties were performed free of any criticism from the Employer. The grievor remained a Clerk 4 until July, 1984. He then became the Wine Consultant in Store #155. He was in such position at the time of the instant competition. The job of Wine Consultant is specialized in nature in the sense that the incumbent exercises a series of responsibilities related almost exclusively to vintage wines and special products. The present grievor was required to provide advice and direction on the aforementioned items to a wide variety of customers including restaurant and hotel facilities. Additionally, he would routinely assist both internal and external staff with any questions they might have pertaining to vintage products. The grievor was also responsible for selecting and securing the stock for the Vintages section of the store. These duties required him to devote considerable time to customer service and the development of product knowledge. From the facts presented, there is little doubt that the grievor occupied a busy position. This was evidenced by the dramatic increase in sales since 1984. . While in the position of Wine Consultant, the grievor spent less time on the duties previously performed as a Clerk 4. For example, he no longer scheduled assignments or coordinated staff. Nor did he assume responsibility for the operation of the store in the absence of more senior staff. His reports focused on the Vintages area rather than on the entire store, as had previously been the case. The grievor did, however, continue to perform some of the Clerk 3 functions referred to earlier. We are satisfied from all of the evidence that such functions did not constitute the bulk of the job. A detailed list of 'Wine Consultant Duties' was filed with us as Exhibit '23'. It is appended hereto as Schedule 'A'. Mr. J. Trigg was the Manager of Store #155 at the time material to this proceeding. The grievor reported to this gentleman in the two (2) year period prior to the competition. Mr. Trigg prepared an 'Evaluation For The Position Of 'A' Store Assistant' in respect of the grievor (Exhibit 24). He ultimately concluded therein that Mr. Huttner did not have "the ability to competently perform the duties of an assistant manager in a large volume store." In arriving at this conclusion, Mr. Trigg determined that the grievor did not have proven competence in the following areas: (i)to train and supervise staff in the performance of office procedures; (ii)to apply policy to specific situations; (iii)to perform supervisory functions such as assigning work to staff; and, (iv) to manage a store in the absence of a manager. He also offered the following observation in support of his position: For the last number of years, Mr. Huttner has directed his major effort to his position of wine consultant. Mike has done very well in this capacity as positive comments from the public, the amount of wine sales, development of Vintage Corner sales, would all indicate much needed effort in this one area. As most efforts and hours, have been allocated to this main task as Wine Consultant, less effort and hours could be directed towards general store operations and concerns. This I would suggest would limit Mr. Huttners ability to develop management skilTs, or others he would need at this time. Due to the above, I would suggest that Mr. Huttner, at this time, does not have the proven competence to perform the duties of an assistant Manager." Mr. Trigg was critical of certain aspects of the grievor's performance. Firstly, he described the grievor as "a bit of a loner". It was his perception that the grievor's communication with he and other staff could be improved. As a consequence, he did not consider the grievor to be a team player. Secondly, Mr. Trigg felt that the grievor did not stay current with new and revised policies relating to the store's operation. In his evidence, he relied on ten (10) circulars which were distributed 5 in the period July, 1988 to March, 1989. None of these documents had been initialled by the grievor. It was Mr. Trigg's assessment that the grievor read only those circulars that related directly to his job as Wine Consultant. His concerns on these two (2) items were documented in a counselling letter dated July 5, 1988 and in a Performance Appraisal dated November 14, 1988. Lastly, Mr. Trigg believed that the grievor had focused exclusively on the job of Wine Consultant in the period July, 1984 to May, 1989. From his perspective, the grievor had not kept up with other developments in the store. For all of these reasons, Mr. Trigg did not consider the grievor to be suitable for promotion. Mr. D. Bourre, the District Manager, made the final decision not to select the grievor for the posted position. He advised that the grievor, as the most senior applicant, was given first consideration. Mr. Bourre testified that he consulted with Mr. Trigg in respect of the latter's evaluation of the grievor. Additionally, he reviewed the Performance Appraisal referred to above and the grievor's personnel file. On the basis of this review, he determined that the treatment of the grievor's application was fair. Indeed, he concurred with Mr. Trigg's opinion that the grievor was not qualified to perform the duties of an 'A' Store Assistant Manager. Mr. Bourre placed the following comment on Exhibit 24: Mr. Huttner has demonstrated his ability as a successful wine consultant. He is very effective in 6 this position. Mike does not have proven competence in ie.) employee development, budgets, inventory management, security, counselling, and bookkeeping." The relevant articles of the collective agreement read: 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. 21.9 (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 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. It was the position of the Union that the grievor was qualified for the job of 'A' Store Assistant Manager. Counsel submitted that the Employer had unfairly, and improperly, evaluated the grievor's qualifications. Firstly, it was argued that the Employer had not fully assessed the grievor's abilities as a Wine Consultant. It was noted that the Performance Appraisal relied on primarily reviewed his exercise of Clerk 3 responsibilities which were a minor part of the overall job. Secondly, we were urged to find that Mr. Trigg and Mr. Bourre had virtually ignored the grievor's past experience as a Clerk 4. From the perspective of the Union, such omission constituted a serious flaw in the competition process. Counsel emphasized that, while a Clerk 4, the grievor had actually performed a number of functions relating to office procedures, human 7 resources management, bookkeeping, and store management. It was therefore asserted that the Employer had erred in its assessment as contained within Exhibit 24. In summary, the Union suggested that the Employer did not obtain "the whole picture of the man." The Board was asked to conclude that, had it done so, the grievor's competence would have been established. Lastly, it was submitted that any need the grievor might have to refresh his understanding of overall store procedures would not render him unqualified. To find otherwise, would require perfection in a candidate and would serve to eliminate those holding specialized jobs from this type of competition. For these reasons, the Union claimed that the grievor should be awarded the position, together with compensation, as the most senior qualified candidate. In response, t was the position of the Employer that sufficient consideration was given to all aspects of the grievor's prior experience, including that gained as a Clerk 4. In this regard, its representative noted that this latter experience was both brief and outdated. He submitted further that the Store Manager was in the best position to evaluate the grievor's suitability for the job. As noted in the evidence, Mr. Trigg concluded the grievor lacked experience in a number of areas including human resources management and retail policies and procedures. Simply put, the Board was asked to let this conclusion stand. Reference was made to MacLean, 437/83 (Kennedy) and Barry, 334/80 (Swinton) in support of this position. 8 The Board has now had the opportunity to review all of the evidence relating to the grievor's past experience with this Employer. In our judgment, this evidence supports the Union's submission that the grievor was qualified for the position of 'A' Store Assistant Manager. We reach this conclusion for the following reasons: (i) The Board is satisfied that the Employer failed to adequately consider the grievor's performance as a Clerk 4. While both Mr. Trigg and Mr. Bourre were aware of this past experience, they did not assess its relationship to the demands of the posted position. Mr. Bourre asserted that such experience was factored into his decision. He was unable, however, to be precise when asked what influence it actually had on him. He simply replied that it was "part of the decision making" and that it had been accorded "sufficient consideration". That response cannot be treated as complete or determinative. The grievor, in his evidence, stated that while a Clerk 4 he prepared staff schedules, assigned duties, provided direction and advice to Staff, completed reports and banking functions, opened and closed the store, and managed same in the absence of more senior staff. The witnesses for the Employer did not contest this aspect of the grievor's testimony. Indeed, they confirmed that these types of responsibilities were performed by Clerk 4's on a routine basis. Further, the Employer did not assert that the grievor's performance as a Clerk 4 was somehow deficient. To the contrary, Mr. Bourre testified that the grievor had received a "good 9 evaluation" for that period. The Employer, as noted earlier, discounted the value or weight of the grievor's experience as a Clerk 4 as it was limited to a period of six (6) months duration. It also asserted that numerous operational changes had occurred since 1984. Ultimately, we have not been persuaded that the grievor's experience should be discounted in this fashion. The Board considers it more likely than not that the grievor could still competently perform the types of responsibilities expected of an Assistant Manager which had previously been undertaken as a Clerk 4. (ii) Similarly, the Board has not been persuaded that the Employer assessed the grievor's performance as a Wine Consultant for purposes of determining whether the skills used in that position were related to the qualifications expected of an 'A' Store Assistant Manager. We are satisfied that the Performance Appraisal relied on by Mr. Trigg was primarily in respect of the grievor's exercise of Clerk 3 type functions. The document on its face states that it "is based mainly on duties as a clerk". - Mr Trigg noted on the form that a Mr. H. Johnston would later complete an appraisal of the grievor's duties as a Wine Consultant. There was no evidence before us as to whether such an appraisal was ever completed. Clearly, if it was, the document was not considered by the Employer in the context of this competition. The Board considers this omission to be significant given the broad set of responsibilities assigned to the Wine Consultant position. As noted earlier, these are listed 10 on Exhibit 23 which has been appended to our award. In our judgment, many of these duties, and the skill required to complete same are directly transferable to the position here in question. It was conceded by Mr. Trigg that the grievor was more than able to prepare the reports required in the Vintages section. Similarly, he acknowledged that the grievor could apply policy to specific situations in his area. Nonetheless, he still concluded that the grievor lacked competence in these matters when he completed his evaluation for the instant competition. We have not been convinced that his conclusion was premised on a thorough review of the grievor's performance as a Wine Consultant. While the Performance Appraisal was critical of the grievor in certain respects, we note that generally favourable comment was given vis a vis his performance in the areas of product knowledge, security, customer service, merchandising, stock handling, reports and correspondence, problem solving - decision making, and organization-initiative. We also note that he was thanked by Mr. Trigg for training his fellow staff members in the counselling letter of July 5, 1988. It is not clear to us that the Employer weighed these skills when it made the decision being contested in this proceeding. (iii) The Board has not been persuaded that much turns on the grievor's failure to initial the ten (10) policies and circulars which were distributed to staff. We note in this regard that the 11 grievor insisted he read these materials. He conceded, however, that he might have reviewed them quickly if they did not impact directly on his area. It was clear from the evidence that other employees had also not initialled the circulars. Indeed, Mr. Trigg maintained he read these documents notwithstanding that his initials did not always appear on same. He was consequently prepared to concede that the lack of initials on a circular did not establish the fact that an employee had failed to review it. Mr. Trigg referred to certain instances which he believed evidenced the grievor's failure to remain current with operational changes. These related to the setting of target dates for purposes of inventory management and the calculation of new levies on coolers. The grievor recalled receiving some assistance from the District Trainer in respect of the former function. He also conceded he may have made an error on the infrequent occasion where he was called upon to calculate a levy. The Board is unable to find that these two (2) situations in isolation establish the inability, or failure, of the grievor to keep abreast of changes occurring within the LOBO. (iv) The witnesses called on behalf of the Employer asserted that the grievor was not interested in pursuing career development opportunities which were offered to him. The grievor denied this and claimed he would have been interested in such opportunities had they been in fact offered. It is unnecessary for purposes of this dispute to resolve this conflict in the evidence. 12 In summary, the Board has been persuaded that the totality of the grievor's experience with the Employer rendered him qualified for the position claimed. More specifically, we find that the grievor's experience satisfied the 'critical areas for candidate assessment" as listed on the posting. As the senior applicant, he was therefore entitled to the position of Assistant Manager in Store #155. If the grievor should be unable to perform the requirements of the position in a satisfactory manner within three (3) months following his appointment, the Employer will be entitled to resort to article 21.9 (a) reproduced above. This right was acknowledged by counsel for the Union at the hearing. Our decision in this instance is based on our assessment as to the sufficiency of the grievor's qualifications. The result in this case should not be taken as an adverse comment on Mr. Olsen's_quaTifications. The possibility exists that he was indeed the superior candidate for the position. That is of no consequence, however, given the language of the job competition clause contained in this collective agreement. Pursuant to article 21.5(a), once the grievor is found to be qualified, he is entitled to the job by virtue of his greater seniority. For all of the above reasons, the grievance is allowed. The Board will remain seized to deal with any problems arising out of the implementation of this award, including the quantum of compensation which is owing to the grievor. 13 Dated at Windsor, Ontario this 17th day of May 1991. 172(-)icAc.L.7.1 • WdZtizi M.V. Watters, Vice Chairperson a I /VAC pvloi,A.A0 J. McManus, Member A. Merritt, Member 14 Schedule Sept 1986 WINE CONSULTANT DUTIES Is familiar with all procedures related to the general operation of an LCBO retail outlet -Is familiar with all Head Office and warehouse services and procedures related to 'obtaining stock -Is completely familiar with warehouse and direct delivery order lead times so that customers may be accurately informed as to delivery date of ordered stock -Provides the public and licincees with product information, and assists them in the selection of products -Advises customers on the appropriate use of products -Assists Store Manager to balance listings to maximize customer service and product sales -Assists the Store Manager with store layout Participates in store inventories and price changes -May order regular and Vintages stock or expedites Private Stock orders -Performs clerical work as required -Helps maintain store security -Handles customer complaints and returns to stock -Keeps Catalogues and Master Brand Lists current •Rotates stock in customer area and warehouse -Estimates amounts required for weddings, parties, etc. -Designs wine/food combination for dinner parties -Provides personal service for regular and interested customers -Arranges home deliveries •Assists with Special Occasion Permits -Is familiar with trends and developments in the industry and keeps the Store Manager current in these areas -Assists trade representatives Posts ledgers Arranges shelf space for new brands -May ring off cashiers Assists in case sales for customers Educates store staff concerning products carried -Maintains Price Boards in conventional stores Ensures item's are correctly priced -Attends Wine Tastings and Seminars as required -Participates in quality control process through membership in Tastings Panels Attends palate sensitivity and product knowledge testing as required Accepts product related research assignments Conducts product knowledge and customer service seminars Assists wine clubs and service organizations as directed by Wine Services Represents the Board at trade and consumer shows Works closely with Wine Services to complete product and consumer related projects Performs other duties as may •be assigned by Store Manager