HomeMy WebLinkAbout1980-0481.Abbott.81-05-29IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor: Mr. A. M. Heisey, Counsel Blake, Cassels & Graydon
For the Employer: Mr. R. J. Drmaj, Counsel Hicks, Morley, Hamilton, Stewrirt & Storey
Hearing: January 26, 1981
Ms. Dianne Abbott Grievor
- And -
The Crown. in Right of Ontario
(Liquor Control Board of Ontario) Employer
Mr. S. B. Linden, Q.C. E';Eehairman Mr. E. A. McLean
Ms. M. M. Perrin Member
~u‘._I..-. -- __
c' TERMINATION OF EMPLOYMENT OF PROBATIONARY EMPLOYEE:
The status of probatio;iary,employees has-been the subject
matter of,a great volume of arbital,jurisprudence: A number of
case's 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 he Grievance Settlement Board (80/78, 80/79 1 ,
I and 292/79) which, +though 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 c&e 0f'Mary Leeming et al. We have examined the relevant
provisions of The Public'Service Act, Section 22(S) and The Crown
Employees Collective Bargaining Act, Section 17(Z). 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 hascompleted his/her probationary period that he/she has been unjustly: discha'rged 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 sifter 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 that
time; probationary employees are made permanent i~f their performance
has been satisfactory, or they are released from employment if their
I .
performance has not been satisfactory. .--
Mrs. Abbott began working in March, 1980 and she was given an
jntyrim report on her performance in.June. She was advised in
writing that all areas of her work were satisfactory with the
exception of her duti;'es in warehousing. These duties involved '. 1
lifting heavy cases filled with bottl'es 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 employee must be able
'to lift the cases overhead to reach the top of the pile. .The three
'month interim report states as follows: .
n 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 perform
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. '@at evidence demonstrated that while warehousing
is a small part of the total job, hit 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
’ . -4-
.
that she had difficulty with this aspect of her job. In the .- *
finat report of August 1, 1980 signed by the Manager and concurred
with by the Supervisor, the following recommendationwas made:
" Mrs. Abbott has progressed well in all store duties. In my bpinion warehouse assignments and taking off of l&ads are much too difficult for her to manage., '-~
For this re'ason I am not recommending permanent '
status."
As a .result of this report, Mrs. Abbott was not given permanent
status and was subsequently released from employment. Mrs. Abbott
grieves that termination of employment.
Although Mrs. Abbott wasa probationary employee, the L.C.B.O.
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
the 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
‘. -5-
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 fro,m Mrs. Abbotk's own impressions, to justify any of those
allegations. On the L ontrary, all of the evidence before us is clear :
and consistent in that Mrs. Abbott,had difficulty with the ~I
warehousing aspect of the job. Even those co-workers who testified \
on her behalf left this Board with the impression that, although she
could perform the work, she had some difficulty with it. The L.C.B.O.
has not maintained 'that she could not do the work only that she had
difficulty with it.
If this.were a case involving a seniority-rated employee, it
'. would 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 snot 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 emp;oyee 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 cauSel'.
‘6-
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 considera~tions 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 airailable labour pool has been .!oonsidered an invalid consideration. It should be ..noted, however, that it has been held that an employer is under no.obligation in theses 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 employ~ee 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
I
. . ‘- 7 -
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 thatw
i&being evaluated. Needless to say,,a situation where members of management,,by their actions,' preclude the probationary employee from doing h,is
besti's one where there has been no bona fide test." ~.
In the Casey 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 ~tennination of her
employment, the respondent was a probationary
employee. The requirement contained in Article
1~0.01 for the employer.to show just cause for the suspension or discharge of anemployee 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 privile.ges of the Agreement, except witbrespect
to discharge. The employment of such employees
may be terminated at any time during the probationary period without recourse to the Grievance Procedure'.". 'i
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. Furthennore;the issue
before the Supreme Court of Canada in the Lkeming 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.
.3 \
, . -8-
Therefore, with respect to Mrs. Abbott, the L.C.B.O. was .,-.
not:atisfied that,she was capable of discharging all of her
responsibilities ins a, satisfactory manner. They did not reach
that decision in an ijrbitrary.or unreasonable fashion. On the
contrary, they cautioned Mrs. Abbott at the time.of her interim
appraisal; In then 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 land 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.
Vice Chairman
"I concur"
E. A. McLean Member
"I dissent" - See~attachcd
M. M. Perrin Member
, DISSENT
Dianne Abbott
and
Phe Crown in Right of Ontario
'. Liquor Control Board of Ontario)
F
.,
In the grievance brought before this panel of the
.Jjrievance 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 Pubtic
Service Act. Mr. Drmaj further stated the LCBO did not
object to the arbitrability of Ms. Abbo.tt's grievance,,
provided such does not have grecedential.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(S) 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 be- fore this Board. (In any event, in a number of cases this Board has stated that "at2 emptoyeee have an independ-
ent &ght to come before this Board
in certain cases. That right ie set.
1
-2-
t
out in the Crown.Emptoyees Cottective
Bargaining’ Act, 8. l?‘(2)” -- Ba~aday,
94/78, at p. 3.) :
The AaZdday statement is still applicable, notwith-
! s&ding the C~airman's reliance on the Supreme Court of
Canada decisfon in Mary Leeming et aZ, January 27, 1981, .
foi.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 i,n such legislation, whereas the New Brunswick
Public Service Labour Relations Act (the legislation
under consideration in Mary Leeming), secti-on 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
thaG a coZZectivs agreement is
“subject to and for. the ‘purposes of
this Act” btnding upon employees in
the bargaining unit.. The respondent
oas therefore boundby the provisions
of Articles 10.01 and 22.01(e) uni?ess
there can be found in the Act 6ome
provision ohich diminished their im-
pact upon her.
Article 10.01 in the Mary Leeming 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-
pzoyees shall be entitled to alz
right8 and privileges of the Agree-
ment, except with respect to dis-
I
-3-
oharge. *The employment of such
employees may be terminated at
any time during'the probationary
period without recourse to the
'grievance procedure.
<
'k I 8. 17(2), prox$des the present grievor, Dianne Abbott,
with the provision that diminishes the impact of Article
2211 (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 was follows:
17(2) .In bddition to any other right8 of
grievance, under a collective agree-
ment, an employee claiming, . . .
(bl that he ha8 been appraised con-
trary to-the governing principZes
and standards; or
'_ Cc/ that he ha8 been disciptined or
dismissed br suspended from his
empZoyment,without just cause,
may process such matter in accordance
with the grievance procedure provided
in the coZZective agreement, and fail-
ing fin'al determination under such "
procedure, the matter mtiy be processed
in accordance with the procedure for
final determination appZicable under
section 18.
'The New Brunswick legislation does not contain
a provision reading: "In addition to any other right
. . . under a collective agreement . ..I' 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, whetheribey be pernnnent or probationary on-
ployees. 'Ihis grievance then is not to be strictly determined in
-4- .
accordance with the collective agreement which denies
t the probationary employee the‘right to the grievance/ ,.. .
arbitration process, as appears to have been 'done by
1 the Chairman. \Rat,her, this grievance is to be determined
on .its merits.. . .
,' _.
The LCBO did not invoke their rights under s. 22(5)
of 6~ PubZic 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 minisher may for cause
dismiss.fPom empzoyment .., any
public servant in his ministry.
2215) A deputy minister, may reZease
from einpzoyment any pubZic
servant during the first year of h,i8 empZoyment for faiture
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
64 years as a part-time cashier at Oshawa, ~cashier at
-5-
Agincourt for the Christmas period in 1979, and'she
\ began work at the Markham store in March, 198.0. Her
duties as a Clerk 2 included:
2
cash register duties;
posting ledge i re incoming.stock; filling shelves in
store from warrkhouse; 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 rea.sons stated were:
Mrs.~Abbott ha& progressed well
in att store duties. In my opinion
warehouse assignments and taking off 'of load8 are much too difficult for
her to manage.
For this rhason 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 empldyment with the
Markham LCBO 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 withi,h the discretion of~management tom discharge
prkbationary embl'oyees (as argued'by Mr. Drmaj) to those : :
that conclude's 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 aZZ of them i8 the
principte that althoug~h the em-
pZoyer is 0bZiged to prove 8ome
cause for the discharge of, a
probationary’ employee, it need
not be of the same form OP
: weight as that required to just- ify the discharge bf a seniority
rated ~employee . . . Some of the
~awards. aZso recognz’ze that where
a probationer wa8 discharged for
a specific cause, the empzoyer
. bear8 the onus of affirmativezy
estabzishing such ,a .cause.
(See also: Eriksen, 12/75; Re Porcupine Area AmbuZance
Service and C.U.P.E., ZocaZ 1484 (1974) 7 L.A.C. (2d) 182;
‘Re BeZkin Paperboard and Canadian Paperworkers’ Union,
LocaZ 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
AmbuZance Service at 185:
. . . “‘“* .1... i . . ., _
legitimate interests of the em-
ployer in attempting to secure
the moet competent, compatible
and suitable..oork force it can
acquire. One cannot reasonably
expect an emptoyer. to be able
.to aseee8 the full capabititien
and potentiality ‘of a job apptic-
ant from-a brief interview . ..~
Ra,$her
entitle i
the emptoyefl must be
to an opportunity to
vikw-the new hire in the contert
of:Lthd work environment. That
is,. the sole purpose of the proba-
tionary period. It i8; a8 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 Collectives Bargainin .Q Act, must
not appraise “contrary to . . . governing pri.nciples and
8 tandards. ‘; The employer's burden with respect to such
an assessment includes ((Erikgen 12/75 at 23): _:
(1)
ia
(3)
(4)
(5)
probationer to be given sufficient period
of time to demonstrate his/her proficiency and capability;
dutiesand responsibilities 'clearly articu- ,lated to the probationer;
reasonable standards of behaviour and per- formance expected of probationer;
probationer's progress reviewed systematic- ally;.
and, most significantly, the employer. has made reasonable efforts to coach, instruct and inform the employee through the proba-
tionary period.
Such principles, fundamenta2 to U
probationary period in any sector of
empzoyment, are even more fundamentat in the pubtic service, where the proba-
tionary period is usuat2y of a longer and more prolonged duratton.
A review of the evidence in Ms. Abbott's case in
relation to the above-stated assessment principles of a
probationary employee fbllows.
- a,-
No evidence wad adduced which indicated problems
existed with respect to (1) and (2). Problems can be said to
b\ present re item (4) however, In that the only indication of
an underlying ‘system In the evaluatlon process was the reqtire-
‘4 ment ,$hat the pro ationary employee be assessed at the two
i month: and at the!four month period.
, The body of the assessment form is as follows: ~~_ . . . . -~- ..- _
TM0 MONTE PERIOD:
Do you recommend this employee fork a continued probationary period?
Pee No
PZea& give a fu22 report on the emp2oyee's work, or if you recommend retease, please state your reasons.
FOUR MONTE PERIOD:
Do you recommend this emp2oyee for permanent statue?
: ~Yee No
Please give a futt report on the
employee’s work, or if you recommend release, please state your rea8on8.
_ _ -
This type of form has been called a special-purpose appraisal
form, in that it is very general in nature, there are no
\jelghted 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) against which
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 an6 essistant
manager (Robert Thackar and Don Snedden) stated that in an
average’week an ercployee would spend 3 - 33 hours unloading
warehouse ‘deliveries -- t.he area of concern in thls matter.
In light of a.Clerk 29s duties outl,ined on page two and the
evidence noted above, category evaluation, wlth’stanaaras
a\galnst. which to. measure performance, would better serve the
interests of tha,ymployer and the employee in this typ.e of
situatfon. such z/n evaluation format ++Ld.e~>m!nate the- ._. -,- :’ - .-.
dangsr,w9herent’& special-purpose .appraisaZe.
. . . I Thiy are designed to support a decitlion, _~ whether favourabZe aa in promotion or unfavour-
abZe a8 ‘in disciptine, and are ZikeZy to be
influenced, and exaggerated, by that motiva-
tion. --, Scott, 23176 at 11.
-_ . - ._.__.__...,. ~.__. -..... ~- -~-
The third criterion (reasonable standards of
~behaviour and performance expected) involves two facets: .
- .” -’ w the standards used to measure an
employee ‘8 performance, must be
reasonable in the absence of
promulgated standards (as iti the
case at hand) -- Scott at 6;
(ii) the “conduct complained of reason-
abZy supports the concZu8~on that
the probationary employee i8 ZikeZy
to prove unsuitabte” -- Re Porcupine
Area AmbuZance Service at, !66*, _~ ’ ‘_ 1 _- --
As previously noted, the sole reasonfor Dianne
Abbott’s termination was due to the alleged "difficu2ty1' she
had in unloading warehouse deliveries. Robert -Thacker,
manager,’ stated: “everything she Dianne Abbotywas asked to
do she did satisfactorily,” but she had “difficulty lifting
c~~~s.11 When questioned as to how he judged she vas having
dii’ficulty, Mr. Thacker answred: IJ it appeared to me that She
Strained.”
The esslstsnt manager, Don Snedden,. said DiaMe
.@bb‘cott ‘*tic8 doing c very good job but the problem UQS Uith the
Zifting...; ..~ ‘~ she wouZd Z:ft off the rotter fine but had difficulty
Iheant lifting above the shoulders when he stated "Zifting them,’ .~
higher.. ”
‘L.
.(. .’
At ,thls,polnt, the procedure at the Markham store should
be noted. I, The cash and unloading duties were on a rotationa,l
basis .+mong the employees on duty, although there was evidence
to the effect that an employee~nearing retirement was fairly
consistently assigned to cash rather than unloading duties.
As cases were brought into the warehouse, they were stacked in
pre-arranged areas. The stacks were usually 5 - 7 cases hfgll,
but could reach 9 cases high during peak times. Then it MOtid
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 supr~eme
with respect to the standard of performance a probationer
is to meet; he also stated ,that management could choose- a
standard of lOO$ satisfactory performance if they so desired.
?ir. Helsey argued,the opposite polarity; however, as noted
previous1 y , I accept the “middZe ground”
approach (as argued
fin the alternative by Mr. .Heisey).~
Before commenting as- to~whether the third criterion
has been met by the LCBO, it Is to be noted that while Mr. Drmaj
argued that the LCBO had the right to %ehinete an "unsatis-
factory" fimployee, neither management rmr- union witnesses (nor
the evaluation) ever, stated Dianne Abbott :Jas an lunsatlsfactorY’
tiftkng them higher.” ; On cross-examination, it appeared Mr. Snedden
I j i
__~ -_~~
- ll-
employee. Evidence (In .additlon to that noted previously)
revealed the grlevor was punctual, attendance record good, “has
d pleasant persolabity and relate5 wez,t,: to the pubtjc"! never _ __ - - __ -. -
complained about’any aspect of her job; did not dodge overhead
.I liftlqg, ‘she received no complaints about the quality of her 1:
work, and, as the grleVyr stated: : "I had never been asked to.
do anything I could not doy,".~
The standard of an appearance of “difficuZty”:ln
war~ehouse unloading and stacking 1s slnply not an acceptable
standard of measuring a probationary employee3s performance.
Based. on the evldenc’e heard in thls case, it .does not add up
to an “ui8ati8factoryn iprobatlonary employee. Nor does this
"conduct
” :reasonablg support the LCBO’s conclusion that :
Dianne Abbott 1s likely to prove unsuitable as a permanent
employee.
The last item to he discussed 1s the requirement
that the employer make "reasonabte effort.8 to Coach, in8tPUct
and inform the emptoyee; throughout the probationary period.." ^ .~ ~.
Evidence on this aspect sho.?ed that while the first evaluation
Mas summarily discussed ?!ith Dianne Abbott, there ras no dis-
cussion with the griever as to the lifting “difficu~W at any
other time. The assistant manager never raised the “difficuzty”
issue %!lth her; the manager never mentioned to ,the grlevor
she may have been stralnlng herself; no one in managezcnt ever
suggested ways or means to lm?rove herself In this area. The
conclusion to be dram from this evidence 1s thdt the LCBO
: c
- 12 -
*
failed to fulfill this requirement in that it did not
\ coach or instruct its,probationary employee throughout
the probationary period.
'\ (
Bef+e 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 nu wompn 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