HomeMy WebLinkAbout1977-0125.Alp.78-01-11Ontario
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125/77
CROWN EMPLOYEES 416/964 6426 suite 405
GRIEVANCE SETTLEMENT 77’Bloor. Street West
TORONTO, Ontario~ BOARD MSS lM2
Between:
Before:
IN THE MATTER. OF ARBITRATION
Under The
CROWN EMPLOYEES COL~;"fL.;;E BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
Mr. G. Alp (The. Grievor)
And - -_
The Liquor Control Board of Ontario
(The Employer)
Prof. K.P. Swan Vice-Chairman
Mr. A. Fortier - Member
Mr. W. Walsh - Member
For the Grievor
Mr.'James Hayes - Golden, Levinson
For the Employer
Hearing:
Miss J.anice Baker, .Hicks, Morley, Hami.l.ton
Suite 405, 77 Bloor St. West, Toronto
November 30, 1977
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ALP AND L.C.B.O. -?- 125/77
The grievor was discharged on August 8th. 1977;shortly
after the end~of his probationary period, because of his alleged
unsuitability for employment with the L.C.B.O. and his failure to
meet the 'Employer's reasonable demands .in respect of work performance.
The parties were agreed that this was ,clearly a case of discharge,
and not of rejection on probation, although much of the evidence
presented was of the sort that is usually expected in a case of
.rejection.
The grievor is aged 55, and was hired by the L.C.B.O. for
the first time to begin work on October 12, 1976; he was then classi-
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fied as a Clerk 2, and assigned general duties at Store No. 7 in
Metropolitan Toronto. He has a complete and apparently impressive work record
in a number of places lover the years, including some jobs involving
responsibility.
On his arrival, he was assigned to clean up duties, and
gradually moved into duties involving unloading stock, filling bins
and waiting on customers. Sometime early in 1977, he also undertook
cashier's duties on a training basis.
Apart from one incident involving an apparent refusal to
shovel snow because of his age, an incident-which appears to US to
have been a misunderstanding, there is no direct evidence of any real
criticism of the grievor's work until March 2, 1977, when the store
manager, Mr. S. Wojciechowski, presented him with a "Probationary
Service Report" filled out on the form normally used to appraise
.permanent'employees. That document rated the grievor as "Average"
on all criteria except Initiative.and Knowledge of Work, where a
~Below Average Rating appears. In the'form marked "Manager's Remarks
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and Recommendations," the following comments appear: '
Mr. G. R. Alp, during the first 48 months of
his probation period has not fully shown his cagabi-
lities in performing his work duties. This is primarily
due to his lack of initiative.~
I recommend that Mr. Alp's probation period be
extended for another 3 months in a different store.
'Because this report had beencompleted on the wrong form,
it was decided to complete the proper form instead. Unfortunately,
.Mr. Wojciechowski was away ill at the time, and the new form was
completed by Mr. B..Kucharski, the Assistant Manager, and Mr.
E.T. Gibson, the District Supervisor. This.form showed the answer
"No" beside the question "Do you recommend this employee for
permanent status?", and provided the following observations in
addition: ---~
No improvement in his ability to~operate, the cash
register. Still has difficulty with counter,procedures
namely, lack of product knowledge, numbers or locations
of brands. Needs constant supervision.
Although the grievor's release was recornnended at this
time', he wrote to the Director of Store Operations on March 18, 1977
to.request a transfer to another store for a further period of
assessment.. In his, letter, 'he also responded.to some of the observa-
tions made about his work. The Employer responded on March 30, 1977
that it was "willing.to accede to, your request for a transfer."
The full text of the.letter is set out below:
We have your letter of March 18, 1977 and have given
consideration to its- contents.
In order that you may be afforded the opportunity to
prove yourself, Management is willing to accede to
your request for a transfer.
You will, therefore, be transfered to Store #528 in the
Menufife Centre. Your probation period will be extended
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to August 1, 1977 and your pt?rfOrmnce will be
reported on each mnth following your transfer.
Your retention es a regular eqloyee will be
dependent upon your performance during this
period.
This arrangement h&s been~agreed to by the
Representative of the Employees' Association.
Effective date - April 4th, 1977 as per telephone
conversation .
We pause at this point to note that, although we have set
out the bare bones of the evidence relating to the grievor's spell
at Store No. 7, we regret that we do not consider it safe to rely
upon any of that evidence. The written evidence is seriously dimin-
ished in force by the way in which it was produced. The second
appraisal was really almost a total fabrication, put together by two
individuals who had not been involved in the original appraisal and'
who had no apparent responsibility to make recormnendations concerning )
the grievor's future employment. Mr. Gibson jndicated that his' sources
for the comments, which he apparently wrote, were the original
comments of Mr. Wojciechowski and the verbal additions of.Mr. Kucharski.
Yr. Kucharski, who had signed the document as his own, did not
corroborate this version, and was extremely reluctant to admit to
any part in producing the comments; indeed, he did not even entirely
agree that he himself had ever held such opinions of the griever.,
Although we do not question the accuracy of his evidence Mr. Wojciechowski,
for his part, was vague about the precise reasons for the coannents he had
made. We thus have written comments unsupported by clear evidence
translated and magnified by two persons not responsible for their
content who do not entirely, agree.on the methodology of the translation.
Finally, our view of the letter of March 30, 1977 is that
it appears to provide for an assessment de novo and that the grievor --*
would-be entitled to assume from it that .he was getting a chance
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to start afresh. In all of these.circumstances, therefore, we are
unwilling to give any weight to the evidence of the events~at Store
No. 7:
Returni.ng to the evidence, we find that the grievor began'
his employment at Store No. 528 on April 4, 1976. The Store Manager,
'Mr. R. R. McKean, had been informed of the status~ of the grievor in
advance, and received a copy of the.letter of March 30, 1977. On
April 18, 1977 Mr. McKean wrote to the Area Manager in the following
terms:
Concerning our conversation about employee Mr.
G.R. Alp who was transfered to thisstore from store #7
on April ~4./77. After observing Mr. Alp for a two week
period, I found him.slow, needing direction most of the
time, a poor cashier losing $21.00 in two weeks.
I do not recommend for future employment with the
board.
On May 6, 1977, he sent the following memorandum:
There has been no change in the work habits of
Mr. G.R. Alp. He~is slow in his actions and I don't
believe his physical makeup is meant for this type of
work.
Unsuitable for employment with the board.
On June 13, 1977, the following letter was sent:
While observing Mr. Alp this is what I found:
Cletiing gin & brandy shelves, 10 a.m. to 5:30 a.m. for
a 2.hr. job. He usually signs in~about B:40 or B:45 but
sits until 9:O0. When he is on second cash he does not
watch that the cashier doesn? set a lineup. 27 min. to
count a $75. cash box and $260. float finishing at 9:45
which is break time. Should take 10 min., 17 min. to ,
make list of rye, scotch, rum, vodka, gin and brandy.
30 min. to get.5 cases from warehouse, price and put on
she1.f. He was looking for one of the.cases end his list
was sitting on it. I~made a list of rye,.scotch, rum and
vodka only' just after'he had-finished end got 27 cases.
Mr. Alp has trouble moving out of the way when
the fork truck is being backed into the store with a skid
of stock. He was in the way once and his toe was cracked,
end two weeks later it almost happened again. Saturday
June 4th. lunch from 1:30 to 2:30, I saw him eating at
12:40 in the store ared.
To open a case of unwrapped bottles, price and put on
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the shelf it should take about I+ min.. It took him 3 min. to'.
open.10638 look where it goes, price and put away. 2 min. c,to
see where 1373B goes which is.2 bins to the right and,down onet~
2* min. to,price and put away. 7* min. for 2 cases. 24 mln.::to-
price one case of 1BB end put on shelf. 56A 3 min. 1043B 3% min.
137A 3k r&n/shelf is et eye level. 914B wrapped bottles,
2 min. to find bin 5 min. to unwrap; price and put away. 905B
part case open, 6 bottles 2 min to price and put away.
Finally, on July 23, 1977, Mr. McKean filled out a Proba-
tionary Service Report recommending against a permanent appointment,
and containing the following comments:
Mr. Alp has not changed since he came to this
store, his work habits are still poor. I agree with store
#7 manager S. Wojciechowski's probationary remarks that Mr.
Alp is not suitable Liquor Board material.
I recommend for his dismissal as shown in previous
letters and recommendations.
,Mr. McKean's oral;evidence was basically confirmatory~ of, this
written evidence, and he was firm in his view~that the grievor was slow,
needed direction, and lacked aptitude for work in the L.C.8.0. He
indicated that he based his timing assessments on his own years of
experience with the'L.C.B.0. and also upon the times taken by other
employees (in one case a student working as a temporary employee).
Against Mr. McKean's evidence, the Union produced the
evidence of the grievor himself and of two co=workers, one of whom.
testified only in respect of the events at Store No. 7. The evidence
is clear that the grievor received no formal instruction in Store
No. 528, but was placed directly on the usual duties of a Clerk 2
after a very brief introduction to the store layout. Store No; 528
is a self-service store, and the layout and some procedures are
'considerably different from those in a conventional store such.as
Store No. 7, where the grievor had received all of.~his previous
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training. Nevertheless, although the grievor was to be assessed on a
monthly basis, it was only two weeks later when Mr. McKean ~had,come,
to the conclusion, in his letter of April 18, 1977, that the grievor
was not to be recormnended for future employment with the L.C.B.8.
The Union's evidence also contests several specific
criticisms set out in the Employer's evidence. First, the grievor
agrees that he lost $21.00 on cash in the first two weeks, but he
jnsi&s that the loss was because of inexperience (he had very little
experience as a cashier in ~Store No. 7) and that no further untoward
losses occurred. Second, he insists that if he was "needing direction
most .of the time," he did not receive it, since no one ever attempted I
to advise him as to how to overcome his difficulties. Finally, he
does not agree that he was markedly slower thanother employees in
the store.
As to the June 13, 1977 letter, the Union's case is that the
data 'listed are virtually meaningless. Without some control over
extrinsic factors, such as requirements to assist on cash register
duties, the stock levels at the time of the specific operations Andy
the general activity in the store, the Union suggests that comparing
the grievor's time with that of a temporary employee can be of no
real value. In addition, the grievor's evidence in relation to the two
other matters. noted, the accident with the forklift truck and the .
suggestion that he was eating in the store, make these events seem
very unimbortant.
The evidence of the ~grievor's co-worker is that the duties
assigned to the grievor were rather complex ones, taking some time to
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learn, and that the grievor had appeared to be performing-them as
well as many employees in the'store, and better than some. He also.
gave evidence that Mr. McKean.had adverted to the grievor's past
experiences,when he had heard of the transfer, but this evidence
does not really carry us very far. '~
We have not found this grievance a particularly easy one
to resolve. On the one hand, we were impressed by the evidence of
Mr. McKean, and we can see no sign that he acted other than in good
faith in his assessments of the grievor. 'On the other hand, it is
difficult to believe, given all of the objective circumstances
.~ surrounding this case, including the grievor's past work record,
. his apparent physical and mental alertness and his general demeanour,
that he would not be able to attain a reasonable standard of~perfor-
mance. In this case, the onus is upon the Employer to demonstrate
that an employee who has passed through a probationary period without '
being rejected, albeit apparently through inadvertence/has shown
such incompetence in performing his duties that there exists just
cause for his discharge. In our view, the passage of the probationary .
. period marks an important stage in an employee's career, and a higher
standard of just cause may properly be applied once that period has
expired.
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Several inferences were urged upon us'by the union, based
on the evidence presented. First, the union submitted that Mr. McKean
had proceeded on the basis.that the grievor was fully trained, and
that Mr. McKean's duty was to assess his capabilities as a trained
employee.,‘The. lack of training provided and the remarkably early
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decision'of unsuitability reached by Mr. McKean add weight to this
submission.
Second, the union submits that Mr. McKean applied an
unreasonably high standard to the grievor; indeed, given the letter
of June 13, 1977, it is possible to infer that this standard was
entirely arbitrary, created simply,to provide some objective assess-
ment of the griever's work. The standard test for an employee's,
capability in cases where incompetence is al~leged is found in
RP Am Canada Limited. (1975). 10 L.A.C.. (22) 81 (Beatty) at pp 88 - 89,
where the board of arbitration holds:
This conclusion accords ~with the views 6f a number
of arbitrators that, unless the agreement provides other-
wise, management is not &titled to insist on perfection
on every conceivable task that is assigned to a job
classification; Re Oil, Chemical I& Atomic Workers,
Local T-14, and Polymer Corp. Ltd. (1972), 24 L.A.C.
277 at p. 285 (O'Shea). That is both qualitatively as
well as quantitatively the company must accept the
relative strengths and weaknesses of each employee so
long as they are able to meet some general standard of
ability. The test that is ~adopted by the majority of
arbitrators to assess the qualifications and capabilities
of an employee, to perform a particular job is that of
reasonable ability or the ability of a reasonably able,
skilful and efficient workman of the same classification;
Re Oil, Chemical and Atomic Workers, Local 9-14, and
Polymer Corp. Ltd., supra; Re V.A.W., Local 112 and
De Havilland Aircraft of Canada Ltd. (1970), 22 L.A.C.
13 (Jotmstbn).292
Was Mr. McKean using such a standard in his "time studies"
of the grievor, or was his standard much higher? His evidence was to .
the effect that he had compared the.grievor's time against that qf
other employees, but no specifics about those employees .were provided.
At leait on& was a temporary employee, and .therefore presumably
inexperievced, but the evidence does not make it clear whether the
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control employee.was really doing the same job, in the ~same'way, with
the same'results and subject to ~the same external distractions as the
grievor. Inthe result, we are not satisfied, onthe evidence, that
the employer had just cause to discharge the grievor. We come to
that conclusion with some difficulty, since the evidence is.so equivo-
Cal, but in a case such as this the on.us'of~ proof.means that the
employer, not the grievor, must bear the risk of loss of equivocal
evidence.
The matter of remedy, however; gives us some problems.
There is some evidence that the grievor's job performance merited
some action by the employer, and we would be less than satisfied
with a result that gave the grievor a permanent position virtually
by default. An appropriate employer response to the evidence before
us, 'in our view would have been to, extend the grievor's probationary
period and ensure that he received a fair and reasonable test of his
abilities to perform the job, based on the principles which this Board
has Set Out in Re Erikson, 12/75; Re Joyce, 21/76; and Re Maniate, 56/77.
Although it was too late on August 8, 1977 for the employer
to have proceeded in this way, it does not appear that our jurisdiction
under s.18 of the Crown Employees Collective Bargaining Act is in any
way limited. Indeed section 18(3) permits us to substitute a penalty
which is "just and reasonable in all the circumstances" where we are
satisfied that there were reasons for some disciplinary action by the
employer but where that actually imposed is excessive, We have therefore
determined that Mr. Alp should be reinstated, but that something in the
nature of a continuation of probation is appr.opriate to act as a caution
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to him that his performance may be less than satisfactory.
We therefore order that.the grievor be reinstated in
employment with the Employer within two weeks of the date of the present
award, provided that his reinstatement be conditional on his meeting,
within six months of the date of reinstatement, the reasonable standards
properly required of an employee on probation. The grievor's reinstate-
ment shall be with full compensation from the date of discharge, subject
to the usual rules of mitigation. Needless to say, the Board urges
upon the Employer its observations in the cases cited above as to
the scope of the duty owed to an employees on probation by an Employer
who finds that employee's progress wanting.
Dated at Toronto this 11th day of January 1978.
I
K. P. Swan
Vice-Chairman.
(I concur)
A. Fortier
Member
(I concur)
W. Walsh
Member