HomeMy WebLinkAbout1978-0044.Frolack.81-11-25MEXORANDUM
Re: 44/7E OLBEU (Mr. Michael Frolack) and CioWc,'
Ontario '(Liquor Control Board of Ofitario) -
%nclosed herewith is a copy of Mr. Zennessy's dissent in
the above-noted matter for inclusion in the majority
award previously forwarded to you.
$1. ‘F. GOSS
/lb
Encl.
Re: 44/78 OLBEU (Mr. M. Fro&k)
and the Crown in Right of Ontario
(Liouor Control Board of Ontario)
DISSENT
._ I have read. the majority’s thoughtful decision and while I appreciate
the position that they have taken, in my opinion, theevidence and the parties’
actions force me to disagree with the majority’s conclusion that “there are
substantial and important differences between jobs at the airport and jobs in
other stores”.
The Liquor Control Board’s job posting No. 290 called for four
Clerk 4’s. The evidence adduced before this Board, established that the
griever was qualified, on the basis of the Clerk 4 job description, to perform
the work of a Grade 4 classification or ‘Clerk 4. Although there are some
differences between~ the job at the airport and the other stores the employer
did not demonstrate a qualitative difference between them.
Further, if the parties or the employer had agreed or intended to
distinguish between the Clerk 4 and the position of Clerk 4 at the airport then
they would have done so in the agreement or in the job description. The
Liquor Control Board cannot and should not be allowed to raise, as a defence
to the griever’s claim, that the two jobs are qualitatively different given the
present pay levels, job description and the posting procedures. For the Liquor
Control -Board to do so now would allow it to create separate or mutually
exclusive lines of promotion. This procedure would also impugn the validity of
the agreement and specifically the seniority provisions which are the
cornerstone of any collective agreement.
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If the parties intended such a result they would or should have said
so in clear and convincing language. They have not done so here and unilateral
action by the employer cannot create an artificial restrictlon on or negate the
rights of the employees under the present agreement.
I would have allowed the grievance.
,,.
DATED at Toronto, Ontario this 25th day of November, 1981.~
5. R. Hennessy, Member
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