HomeMy WebLinkAbout1980-0481.Abbott.81-05-29 DecisionONTARIO
CROWN EMPLOYEES
GRIEVANCE
III SETTLEMENT
BOARD
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598- 0688
481/80
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ms. Dianne Abbott
Grievor
-And -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
Before: Mr. S. B. Linden, Q.C. Vice Chairman
Mr. E. A. McLean Member
Ms. M. M. Perrin Member
For the Grievor: Mr. A. M. Heisey, Counsel
Blake, Cassels & Graydon
For the Employer: Mr. R. J. Drmaj, Counsel
Hicks, Morley, Hamilton, Stewart & Storey
Hearing: January 26, 1981
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GRIEVANCE OF MRS. D.Y. ABBOTT
TERMINATION OF EMPLOYMENT OF PROBATIONARY EMPLOYEE:
The status of probationary employees has been the subject
matter of a great volume of arbital jurisprudence. A number of
cases were cited to us by Counsel at this hearing and we have
reviewed those cases. In addition, we have reviewed a number of
recent decisions of The Grievance Settlement Board (80/78, 80/79
and 292/79) which, although not dealing with issues identical to
those in the case before us, served as useful background information.
We have also reviewed the recent Supreme Court of Canada decision
in the case of Mary Leeming et al. We have examined the relevant
Provisions of The Public Service Act, Section 22(5) and The Crown
Employees Collective Bargaining Act, Section 17(2). Finally, we
have examined the provisions of the Collective Agreement between the
parties and in particular, Article 22.1, which reads as follows:
22.1 A claim by an employee who has completed his/her
probationary period that he/she has been unjustly
discharged shall be treated as a grievance if a
written statement of such grievance is filed by
the employee commencing at the second step of the
Grievance Procedure (Article 21.5(a)) with the
Chairman of the L.C.B.O. or the Chairman of the
L.L.B.O. within ten (10) days after the employee
ceases to work.
The Grievor, in this case, Mrs. Abbott, was a probationary
employee- employed by the L.C.B.O. As a probationary employee at the
L.C.B.O., her job performance was reviewed on an interim basis after
three months and a final review was made after six months. At +-ha4-
time, probationary employees are made permanent if their performance
has been satisfactory, or they are released from employment if their
performance has not been satisfactory.
Mrs. Abbott began working in March, 1980 and she was civen an
interim report on her performance in June. She was advised in
writing that all areas of her work were satisfactory with the
exception of her duties in warehousing. These duties involved
lifting heavy cases filled with bottles of liquor from a conveyor
belt and placing them on top of appropriate piles of cases in the
Warehouse. Depending on the time of year, some of these Piles may
be six or seven cases high. Therefore, the emnlovee must
to lift the cases overhead to reach the top of the pile. The three
month interim report states as follows:
" Mrs. Abbott has a very pleasant personality and
relates well to the public in general.
Mrs. Abbott does cash and all duties assigned to
her satisfactory with the exeption of warehouse
duties and taking off loads with a degree of
difficulty. Hoping to see an improvement in this
area.
Following this interim report, Mrs. Abbott continued to erform
all her duties satisfactorily, with the exception of warehousing.
There was evidence adduced at the hearing regarding the amount of
time that an employee spends on warehousing as compared to other
parts of the job. That evidence demonstrated that while warehousing
is a small ;Dart of the total job, it is nevertheless a requirement
of the job.
Following the interim report, the Grievor's Manager, Assistant
Manager and Supervisor had occasion to observe Mrs. Abbott perform
her warehousing responsibilities and all three testifed at the hearing
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that she had difficulty with this aspect of her job. In the
final report of August 1, 1980 signed by the Manager and concurred
with by the Supervisor, the following recommendation was made:
Mrs. Abbott has progressed well in all store
duties. In my opinion warehouse assignments and
taking off of loads are much too difficult for
her to .manage.
For this reason I am not recommending permanent
status."
As a result of this report, Mrs. Abbott was not given permanent
status and was subsecTuently released from employment. Mrs. Abbott
grieves that termination of employment.
Although Mrs. Abbott was a probationary employee, the L.C.3.0.
did not raise the arbitrability of her grievance as a preliminary
matter. There is nothing in this award which precludes the
arbitrability of a probationary employee's grievance being raised
as a preliminary matter in subsequent cases, should circumstances
warrant.
Counsel for the Union made a number of allegations which, in
his view, challenged the validity of the recommendations to deny
Mrs. Abbott permanent status, which includes the following:
Mrs. Abbott could do the work assigned to her, although with some
difficulty, and her co-workers so testified; she was not advised
that her status was threatened; she was not shown how to lift
he cases in a way that might have been easier for her; she was
not given a chance to develop her muscular strength; her Manager
did not have sufficient opportunity to observe her before making
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his decision to deny her permanent status and his real reason for
denying same was that she was advanced in years (Mrs. Abbott is 42)
and a woman. There was no concrete evidence adduced at the hearing,
apart from Mrs. Abbott's own impressions, to justify any of those
allegations. On the contrary, all of the evidence before us is
and consistent in that Mrs. Abbott had difficulty with the
warehousing aspect of the job. Even those co-workers who test4 =,
on her behalf left this
could perform the work,
has not maintained that
difficulty with it.
If this were a
Board with the impression that, although she
she had some difficulty with it. The L.C.3.0.
she could not do the work only that she had
seniority-rated emolovee, case involving a
would be be incumbent upon the Employer to establish "just cause" and
we would have no difficulty in finding that the case has not been
established. However, notwithstanding that the law is confusing and
fluctuates from one extreme to the other, it is clear that the same
standards for discharge or discipline do not apply for a probationary
employee as for a seniority-rated employee. The wording of the
contract is not very helpful in this case and so one must look to
the jurisprudence. Throughout the cases there appears to be a
fluctuation between two extremes: -- on the one hand, management
has the right to discharge a probationary employee for any reason
providing only that it is not contrary to some law or principle of
natural justice or public policy .and on the other hand, management
has to go so far as to prove "just cause".
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These extreme positions have been modified by Arbitrators
searching for middle ground. A useful statement on this question
is contained in E•E• Palmer's Collective Agreement Arbitration
in Canada at page 243 as follows:
"As can be seen there is a thrust towards a determination
of the validity of the reason for dicharge by
arbitration. Although there is some reluctance to
examine the validity of the employer's determination
of the suitability of a probationary employee for
continued employment, all arbitrators appear to
accept that such a determination must be •reached in
a fair way.
Again, arbitrators stress that before a probationary
employee can be fired, that employee must be given a
fair opportunity to prove his worth, what is often
referred to as a bona fide test. This concept seems
to have two facets, the first of which is whether
unreasonable factors influenced the decision. Thus,
where the employer's decision was based on considerations
of race, religion, union affiliation, or matters of a
like nature, it will be struck down. Indeed, in one
case the relative ability of the probationary
employee to the available labour pool has been
considered an invalid consideration. It should be
noted, however, that it has been held that an employer
is under no obligation in these cases to give reasons.
Where they do, however, it has been held that these
reasons can be challenged.
A second issue relates to the test itself. As
previously mentioned, the employer is clearly entitled
to set the standards which the probationary employee
must meet. It is less certain whether such an employee
is entitled to notice of the standards and an apparent
failure to meet them. Cases which support the right
of the probationary employee to notice of the nature
of the standards do so on the basis that the employee
may be lulled into believing that his work is
satisfactory. However, it would appear that such
notice may not be necessary where the standards should
be patent to any employee by a simple comparison with
the standard set by other employees. While failure to
meet apparent requirements may be obvious it is
doubtful if an employee can be expected to know that he
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is failing to meet those production requirements
without being notified of them. Although, there
is some doubt on the point, it would seem clear
that an employee need not be warned of failure to
live up to the standards set. The very fact of
'probation' puts an employee on the alert that he
is being evaluated. Needless to say, a situation
where members of management, by their actions,
preclude the probationary employee from doing his
best is one where there has been no bona fide test. It
In the case of R. v. Mary Leeming et al pronounced on January
27, 1981, the majority judgment of Mr. Justice Martland, states
as follows:
"With respect to the meaning and effect of the
relevant provisions of the collective agreement,
it is my opinion the the employer was entitled
to terminate the respondent's employment without
cause. At the time of the termination of her
employment, the respondent was a probationary
employee. The requirement contained in Article
10.01 for the employer.to show just cause for
the suspension or discharge of an employee applied
only to an employee who had completed his
probationary period. Article 22.01(e) goes on to
provide that: 'During the probationary period,
employees shall be entitled to all rights and
Privileges of the Agreement, except with respect
to discharge. The employment of such employees
may be terminated at any time during the
probationary period without recourse to the
Grievance Procedure'.".
Clearly, the Articles in the Collective Agreement before Mr.
Justice Martland can be distinguished from Article 22.1 of the
Collective Agreement before this Board. Furthermore,. the issue
before the Supreme Court of Canada in the Leeming case is not
identical to that before us. Nevertheless, the general discussion
of principles applicable to probationary employees is helpful and
assists us in resolving this case.
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Therefore, with respect to Mrs. Abbott, the L.C.B.O. was
not satisfied that she was capable of discharging all of her
responsibilities in a satisfactory manner. They did not reach
that decision in an arbitrary or unreasonable fashion. On the
contrary, they cautioned Mrs. Abbott at the time.of her interim
appraisal. In the final appraisal six months after she commenced
employment that interim report was confirmed. In our view,
the Grievor has been appraised in accordance with governing
principles and standards and management has the right to release
or terminate a probationary employee in these circumstances.
Accordingly, the grievance is dismissed.
DATED at Toronto this 29th day of May, 1981.
S. B. Linden, Q.C. Vice Chairman
"I concur"
E. A. McLean Member
"I dissent" - See attached
M. M. Perrin Member
DISSENT.
Dianne Abbott
and
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
In the grievance brought before this panel of the
Grievance Settlement Board, Dianne Abbott, the grievor,
alleges unjust dismissal and seeks reinstatement with
full benefits at the LCBO's Markham (#353) store.
In his opening remarks, Mr. R. S. Drmaj, counsel
for the LCBO, stated the case before us was the "termina-
tion of a probationary employee for cause". This dismissal
then is one which falls under s. 22(3) of The Public
Service Act. Mr. Drmaj further stated the LCBO did not
object to the arbitrability of Ms. Abbott's grievance,
provided such does not have precedential value in future
grievance/arbitrations. The LCBO was therefore not rely-
ing on two preliminary issues often argued before this
Board, namely:
(1)the grievor was released pursuant to
s. 22(5) of The Public Service Act
(and this panel therefore did not
have jurisdiction to look behind a
bona fide release);
(2)the collective agreement disallows a
dismissed 'probationary' employee from
utilizing the arbitration process b&-
fore this Board. (In any event, in a
number of cases this Board has stated
that "all employees have an independ-
ent right to come before this Board
in certain cases. That right is set
-2
out in the Crown Employees Collective
Bargaining Act, s. 17(2)" Haladay,
94/78, at p. 3.)
The Haladay statement is still applicable, notwith-
standing the Chairman's reliance on the Supreme Court of
Canada decision in Mary Deeming et al, January 27, 1981,
for several reasons. The primary reason is that Ontario's
applicable legislation is paramount to a collective agree-
ment. The collective agreement cannot abrogate rights
given in such legislation, whereas the New Brunswick
Public Service Labour Relations Act (the legislation
under consideration in Mary Deeming), section 65, specific-
ally binds the parties to the terms of a collective agree-
ment. (Ontario's legislation does not contain a compar-
able provision.) The Supreme Court of Canada recognizes
this at page 6, when Mr. Justice Martland states:
Section 65 of the Act provides
that a collective agreement is
"subject to and for the purposes of
this Act" binding upon employees in
the bargaining unit. The respondent
was therefore bound by the provisions
of Articles 10.01 and 22.01(e) unless
there can be found in the Act some
provision which diminished their im-
pact upon her.
Article 10.01 in the Mary Deeming collective agree-
ment required the employer to show just cause for suspen-
sions or discharge of employees who had completed the
probationary period. Article 22.01(e) provided:
During the probationary period, em-
ployees shall be entitled to all
rights and privileges of the Agree-
ment, except with respect to dis-
3
charge. The employment of such
employees may be terminated at
any time during the probationary
period without recourse to the
grievance procedure.
The Crown Employees Collective Bargaining Act,
s. 17(2), provides the present grievor, Dianne Abbott,
with the provision that diminishes the impact of Article
22.1 (i.e. probationer has no right to grieve dismissal)
in the collective agreement between the LCBO and the
Ontario Liquor Boards Employees' Union. The section
reads as follows:
17(2) In addition to any other rights of
grievance under a collective agree-
ment, an employee claiming, ...
(b)that he has been appraised con-
trary to the governing principles
and standards; or
(c)that he has been disciplined or
dismissed or suspended from his
employment without just cause,
may process such matter in accordance
with the grievance procedure provided
in the collective agreement, and fail-
ing final determination under such
procedure, the matter may be processed
in accordance with the procedure for
final determination applicable under
section 18.
The New Brunswick legislation does not contain
a provision reading: "In addition to any other right
... under a collective agreement ..." The Ontario Public
servant (as opposed to the New Brunswick public servant)
has an independent mechanism and a substantive right (out-
side the collective agreement) to come before this Board
when disciplined, whether they be pennanent or probationary em-
ployees. This grievance then is not to be strictly determined in
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accordance with the collective agreement which denies
the probationary employee the right to the grievance/
arbitration process, as appears to have been done by
the Chairman. Rather, this grievance is to be determined
on its merits.
The LOBO did not invoke their rights under s. 22(5)
of The Public Service Act whereby a probationer may be
released without cause. Rather, as noted previously, the
employer alleged 'cause' and dismissed Dianne Abbott
under s. 22(3). The sections read as follows:
22(3) A deputy minister may for cause
dismiss from employment ... any
public servant in his ministry.
22(5) A deputy minister may release
from employment any public
servant during the first year
of his employment for failure
to meet the requirements of his
position.
Where the employer terminates for cause under
s. 22(3), it is incumbent upon the Board to determine
whether there was just cause for dismissal. It is sub-
mitted that the Chairman in this case has not determined
the issue before this Board -- the issue being whether
there was just cause for the dismissal of a probationary
employee.
HISTORY
Ms. Abbott's work history with the LCBO included
6i years as a part-time cashier at Oshawa, cashier at
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Agincourt for the Christmas period in 1979, and she
began work at the Markham store in March, 1980. Her
duties as a Clerk 2 included: cash register duties;
posting ledgers re incoming stock; filling shelves in
store from warehouse; taking loads off delivery trucks;
putting same in warehouse and stacking in the appropriate
location; some office duties and general cleanup duties
in the store.
On May 28, 1980, Ms. Abbott's appraisal stated
she did cash and all duties assigned satisfactorily
"with the exception of warehouse duties and taking off
loads with a degree of difficulty." She was then recom-
mended for continuation in the probationary period. The
second evaluation, dated July 28, 1980, did not recommend
permanent status for Ms. Abbott (probation would have
been complete in September). The reasons stated were:
Mrs. Abbott has progressed well
in all store duties. In my opinion
warehouse assignments and taking off
of loads are much too difficult for
her to manage.
For this reason I am not re-
commending permanent status.
The evaluation was signed by the manager, Mr. Robert
Thacker, and the supervisor, Mr. R. J. Ford.
As a result, Dianne Abbott's employment with the
Markham LCB0 store was terminated on August 22, 1980,
and Dianne Abbott filed a grievance as to her dismissal.
Arbitration awards range from those that state it
is solely within the discretion of management to discharge
probationary employees (as argued by Mr. Drmaj) to those
that conclude a probationary employee has the same rights
as a permanent status employee. As noted in Brown and
Beatty, Canadian Labour Arbitration, at pp. 390-391, a
"middle ground" between the above polarities has been
developed:
... common to alL of them is the
principle that although the em-
ployer is obliged to prove some
cause for the discharge of a
probationary employee, it need
not be of the same form or
weight as that required to just-
ify the discharge of a seniority
rated employee ... Some of the
awards also recognize that where
a probationer was discharged for
a specific cause, the employer
bears the onus of affirmatively
establishing such a cause.
(See also: Eriksen, 12/75; Re Porcupine Area Ambulance
Service and C.U.P.E., Local 1484 (1974) 7 L.A.C. (2d) 182;
Re Belkin Paperboard and Canadian Paperworkers' Union,
Local 1129 (1980) 25 L.A.C. (2d) 303.)
This Board member endorses the "middle ground"
approach, while also acknowledging the validity of the
probationary period. As stated in Re Porcupine Area
Ambulance Service at 185:
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... one must also recognize the
legitimate interests of the em-
ployer in attempting to secure
the most competent, compatible
and suitable work force it can
acquire. One cannot reasonably
expect an employer to be able
to assess the full capabilities
and potentiality of a job applic-
ant from_a brief interview ...
Rather /the employer/ must be
entitled to an opportunity to
view the new hire in the context
of /The7 work environment. That
is the sole purpose of the proba-
tionary period. It is, as we
have said, a legitimate purpose.
The employer then, in pursuit of this legitimate
interest, must fairly, properly and reasonably assess
the probationary employee, or in the words of s. 17(2)
of the Crown Employees Collective Bargaining Act, must
not appraise "contrary to ... governing principles and
standards." The employer's burden with respect to such
an assessment includes ((Eriki-en 12/75 at 23):
probationer to be given sufficient period
of time to demonstrate his/her proficiency
and capability;
(2)duties and responsibilities clearly articu-
lated to the probationer;
(3)reasonable standards of behaviour and per-
formance expected of probationer;
(4)probationer's progress reviewed systematic-
ally;
(5)and, most significantly, the employer has
made reasonable efforts to coach, instruct
and inform the employee through the proba-
tionary period.
Such principles, fundamental to a
probationary period in any sector of
employment, are even more fundamental
in the public service, where the proba-
tionary period is usuall of a 'longer
and more prolonged duratt.on.
A review of the evidence in Ms. Abbott's case in
relation to the above-stated assessment principles of a
probationary employee follows.
(1)
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evidence was adduced wn ,,,n
existed with respect to (I) and (2). C b can be said
be present re item (4) however, in that the only indication of
an underlying system in the evaluation process was te=
ment that the probationary emPloyee be assesse'l at the two
month and at the four month Period.
The body of the assessment for7 is as 4'017 cw:
TWO MONTH PERIOD:
Do you recommend this employee for a
continued probationary period?
Yes No
Please give a full report on the
employee's work, or if you recommend
release, please state your reasons.
FOUR MONTH PERIOD:
Do you recommend this employee for
permanent status?
Yes No
Please give a full report on the
employee's work, or if you recommend
release, please state your reasons.
This type of form has been called a special-purpose apPraisal
form, in that it is very general in nature, there are no
weighted categories in relation to the amount of time each
duty is purported to consume and there are no standards noted
(e.g., excellent, satisfactory, unsatisfactory) .7.ni ns:
an employee's performance is to be measured.
Evidence indicated the majority of a Clerk 2's time
involved cash register duties. Both the manager and assistant
manager (Robert Thacker and on Snedden) stated that in an
average week an employee would send - 322- hours unloading
warehouse deliveries -- the area of concern in this matter.
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In light of a Clerk 2's dlities outlined on oae t7io an the
evLience noted above, category evaluation, with standars
against which to measure performance, would better serve the
interests of the embloyer and the embloyee in this ty7e of
situation. Such an evaluation format would eliminate the
danger inherent in special-purpose a.t-traisals.
... They are designed to suotort a decision,
whether favourable as in promotion or unfavour-
able as in discipline s and are likely to be
influenced, and exaggerated, by that motiva-
tion. -- Scott, 23/76 at 11.
The third criterion (reasonable standar -is
behaviour and performance expected) involves two facets:
(i)the standards used to measure an
employee's performance must be
reasonable in the absence of
promulgated standards (as in the
case at hand) -- Scott at 6;
(ii)the "conduct complained of reason-
ably supports the conclusion that
the probationary employee is likely
to prove unsuitable" -- Re Porcuoine
Area Ambulance Service at 186.
As previously noted, the sole reason for Dianne
Abbott's termination was due to the alleged "difficulty" she
had in unloading warehouse deliveries. Robert Thacker,
manager, stated: everything she ifianne Abbotwas asked —
do she did satisfactorily" but she had "difficui,e 7;
cases." When questioned as to how he judged she was having
difficulty, Mr. Thacker answered: " it„ appeared to 7e that s 7:e
strained." The assistant manager, 730n Snedden. said -iann.
Abbott "was doing a very good jrob but t;:e prol?7,7 :2,zs :Jith
-10-
lifting ... she would lift off the roller fine hut had
lifting them higher." On cross-e7:smination,
meant lifting above t = shoulders -::hen he stated
higher."
arsa 3hs -.-1en
'liftin g '7!
At this point, the procedure at the Markham store should
be noted. c a sh and unloading duties were on a rotational
basis among the employees on duty, although there was evidence
to the effect that an emcloyee nearing retirement was fair.
consistently assigned to cash rather than unloadinz duties.
As cases were brought into the warehouse, they were stacked in
pre-arranged areas. The stacks were usually 5 - 7 cases high,
but could reach 9 cases high during peak times. Then it would
be necessary to climb up the piles (using cases as steps) in
order to stack a particular brand.
Mr. Drmaj argued that management rights were supreme
with respect to the standard of performance a probationer
is to meet, he also stated that management could choose a
standard of 100% satisfactory performance if they so desired.
14r. Heisey argued the occosite Polarity; however, as noted
previously, I accept the "middle ground" approach (as argued
in the alternative by Mr. Heisey).
'iefore commenting as to whether the third criterion
has been net by the LC301 it is to be noted that while Mr. Drmaj
argued that the LC30 had the right to terminate an "unsatis-
factory" employee, neither management= union witnesses (nor
the evaluation) ever stated 7Dianne Abbott was an 'unsatisfactory'
- 11-
employee. Evidence (in addition 70 that noted 2. "..7. • -
revealed the grievor was punctual, attendance record
a pleasant oersonality and relates well to the ouhlic" n7;ver
complained about any aspect of her job, did nct dodge overn=='4.,
lifting, she received no complaints about the quality of her
work, and, as the zrievor stated: "1 had never :peen as7<ed to
do anything I could not do."
The stand ard of an appearance of "difficulty" in
warehouse unloading and stacking is simnly not an accePtao's
standard of measuring a probationary employee's Perorm.nce.
Based on the evidence heard in this ca--4e, it does not add up
to an "unsatisfactory" probationary employee. Nor does tniz
"conduct" reasonably support the TrvpeNt.. conclusion that
Dianna Abbott is likely to prove unsuitable as a permanent
employee.
The last item to be discussed is the '''1 "1 °4'.'"-
that the employer make "reasonable efforts to coach, instruct
and inform the employee throughout the probationary period-''
Evidence on this aspect showed that while the first eve'.1-.ti-n
was summarily discussed with Dianne Abbott, there was no dis-
cussion with the - 7rievor to the lifting "difficul ty" at any 0--
other time. The assistant manager never raised the "::.!"
issue with her; the manager never mentioned to the gr'evor
she may have been straining herself; no one in management ever
suggested ways or means to improve herself in this area. The
conclusion to be drawn from this evidence is that the LC-30
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failed to fulfill this requirement in that it did not
coach or instruct its probationary employee throughout
the probationary period.
Before concluding, the discrimination issue
raised by the union should be mentioned. Ms. Abbot
alleged that Robert Thacker (at the time of the July
evaluation) stated "a woman of your age" should not have
been hired. Ms. Abbot noted her objection to this comment
in a letter to Mr. R. J. Ford, area supervisor. As noted
by Mr. Heisey, discrimination is extremely difficult to
prove, and on the evidence presented it has not been
proven in law.
This member of the Grievance Settlement Board,
for all the reasons noted above, finds that the grievor
should be reinstated at the LCBO Markham store, with full
benefits accruing from the date of her termination.
M. M. Perrin Member
/lb