Loading...
HomeMy WebLinkAbout1981-0117.Byrne.82-12-29117/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAIN Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (E. Byrne) 'ING ACT . . Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ohtario) Employer Before: P. Draper H. E. Weisbach G; Peckham Vice Chairman Member Member For the Grievor: E. Baker General Secretary Ontario Liquor Boards Employees' Union for the Employer: M. P. Moran Counsel .-.' Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors Hearings: October 13, 1982 November 26, 1982 DECISION The Griever, Eugene Byrne, grieves that he has been .f~ improperly denied a salary increase to the maximum step for his classification, Liquor Store Clerk Grade 3 ("Clerk 3"). No objection is made by the Employer to the form or timeliness of the grievance or to the jurisdiction of : the Board. Under the collective agreement concluded by the Em- ployer and the Union in 1980, a fourth step was added to the salary-range for Clerk 3's and so became the maximum salary for that classification. As agreed in a Memorandum of Agreement executed by the parties during negotiations, employees who had been at the third step for one year or more as of August 1, 1980, were to move to the fourth step effective that date "if so recommended". Seven hundred and forty-three Clerk 3's, including the Grievor, were in that group. Following individual appraisals, 664 were granted the salary increase to the fourth step. Seventy,-nine, among them the Grievor, were not. The Grievor's appraisal took place on October 3, 1980, and led directly to the Employer's . decision, communicated to the Grievor on November 10, 1980, not to grant him the salary increase. The issue before the Board is the validity of that appraisal. Article XVI of the collective agreement provides that: Employees shall progress through the salary ranges of their classification in accordance with the procedures of the Boards, as established from time to time, on the basis of satisfactory written recommendations and sub- ject to the approval pf the Salary Committee of the Boards. -3- Appraisals are part of the established procedures of the.Employer for determining progression through the salary ranges applicable to the various position classifications included in the bargaining unit. Under Article III of the.collective agreement, employee appraisal is one of the functions reserved to the Employers. That article also provides that an employee may grieve .~. "that he/she has been appraised.'ccontrary to the governing principles and standards" and that such a grievance may be submitted to this.Board for final and binding decision. The results of appraisals are recorded on a form entitled "Store Manager's and District Supervisor's Annual (Salary/Promotion) Rating Report of Store Personnel". .The form completed for the appraisal in issue is appended to this decision. In June, 1978, the Grievor.was appraised as being "Below Average" in judqement, quality of work and .~. knowledge of work, and "Average" in the other categories. He refused to sign the rating form. In July, 1979, he was appraised as being "Average" in all categories. In July, 1980, he was appraised as being "Below Average" in quality of work and leadership, and "Average" in the other'categories. The Grievor signed-the rating form but expressed his dis- satisfaction with the appraisal in a memorandum to the District Supervisor. In the appraisal of October 3, 1980, the subject matter of these proceedings, the Grievor was appraised as being "Below Average" in judgement, quality of work and leadership, and "Average" in the other categories. He refused to sign the rating form and subsequently filed '-4- the present grievance. These-appraisals took place while the Grievor wasemployed at Store No.' '437, a self-serve store. All were made by the Store Manager, Gordon Parkin, and concurred in by the incumbent District Manager. The Grievor testified that he is 59 years old and has -: been employed by the LCBO since February, 1971. He per- forms the full range of duties required of Clerk 3's and does not consider that he is any slower or less accurate in. his work than are other Clerk 3's: He has been told about errors and omissions he has committed in daily and weekly sales reports. He has sometimes been "short" when acting .asa cashier, but so are other employees. He does not recall being spoken to about overloading shelves and does not think he was given fewer inventory sheets to check,than were other employees. He believes he can give guidance to junior clerks and part-time employees. He differs with the opinion of his superiors about his abilities but does not consider that he has been discriminated against. He feels that he is qualified to be a Clerk 4. Gordon Parkin testified that he has been Store Manager of Store No. 437 since April, 1978. The Grievor requires more direction than do other Clerk 3's. He does not have a good understanding of what is expected of him yet insists that he does not need guidance. He consistently makes more errors and works more slowly than other ,employees do. When inventory is taken he has to be given a lighter assignment . -5- than other employees are because of his slowness and inaccuracy. His paperwork is slipshod and often has to be re-done by him or given to someone else to complete. Despite being spoken to a number of times, he seems in- capable of making intelligent decisions about replenishing stock in the customer area, overloading some shelves and leavings others depleted. When he is "on cash" he has 'more shortages/overages than any other employee. Brian Steed testified that he was an Assistant Manager at Store No. 437 in October, 1980, and still holds that position. He has spoken to the Grievor several times about the latter's habit of overloading shelves in order to use a whole case instead of returning part cases to storage, which is the prescribed practice. The Grievor cannot perform the same amount of inventory-taking work as other employees do and it has been necessary to giv‘e him less check- ing to do. The Grievor is careless when "on cash" and does not usually "balance:. Parkin showed him the October 3, 1980 appraisal with which he agreed. i Cameron Leblanc testified that he was an Assistant Manager at Store No. 437 in October, 1980. He found the Grievor to be below average in performing office functions, He "cashed out" the Grievor from time to time and found that he "balanced" less often than other employees did. Parkin showed him the October 3, 1980, appraisal and he agreed with it. As the Board concluded in Scott, 23/76, where no "governing principles or standards" have,been formulated, -6- the propriety of an appraisal must be tested against a standard of reasonableness, that is to'say, what may reasonably be required of the Employer. The Board made clear that it would intervene where an appraisal was made in bad faith and, noting that a management decision may be made bona fide but be wrong, went on to state: In additipn to a requirement of good faith, then, we consider it appropriate also to require of manage- ment that its appraisals not be manifestly wrong. Al- though we would be unlikely to interfere with an ap- praisal merely because we doubt that it coincides .with that of the grievor, or because it is not the apprai al we would have made, 2. we have a responsibility under 18(z) (b)] the CrOQM.EmplOyeeS Collective Bargaining Act to overturn an appraisal which appears, on the basis of the evidence before us, to be wrong. The onus of proof of that proposition, of course, lies on the grievor. The parties are agreed'that the procedure by which the Grievor was appraised on October 3, 1980, was an appraisal as contemplated by Article III of the collective agreement. It is not seriously suggested for the Grievor that the Employer acted in .bad faith. The question that ., remains, therefore, is whether, in the result, the appraisal was right or wrong. It is not too much to say that if the Employer's progression system is to have credibility and is to achieve its purpose of recognizing effort and ability, those who administer it must ~decline to recommend the pro- gression of any employee whose work performance, fairly measured against appropriate criteria, is unsatisfactory. To do otherwise would not only compromise the system but would be unfair to those employees who accept that their .’ -7- advancement to higher salary levels is dependent on the quality of their work performance. The profile of the Grievor that emerges from the evidence is that of an employee who prefers his own version of what is good work practice to that of management and who does not respond--for what reasons is not clear--to efforts to make him a more productive member of the store staff. The several examples of the Griever's paperwork filed in evidence~are unacceptable by any measure and show an obvious lack of clerical competence. Testimony disclosing the Grievor's failure to comply with housekeeping prac- tices in the customer area; his' ineffectiveness in inventory taking; and his inaccuracy as a cashier leads to the ines- capable conclusion that his work performance, in general, is below the level of that reasonably to be expected of a Clerk 3; Weigh.ing the evidence as a whole, and mindful that the Grievor's testimony stands alone and that of Parkin ,is confirmed by Steed and Leblanc, we are satisfied that the Grievor has failed to discharge the onus he bears in the matter. We find that the October 3, 1980, appraisal of the Grievor meets the standard of reasonableness in that it was made bona fide and cannot be said to have been wrong. The grievance is dismissed. I . * - 8 - '. DATED at Toronto this 29th day of December , 1982 P. Draper, Vice Chairman "I concur" (see adder&m) H. E. Weisbach, Member I. 8: 2310 117/8-l IN THE MATTER OF AN ARBITRATION under THE.CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before the GRIEVANCE SETTLEMENT BOARD Between OLBEU ( E. Byrne) and The Liquor Control Board of Ontario. ADDENDUM; --_c~~~-___~-----_ After a careful study of the award for the above Arbitration matter, I must, 'even reluctantly , agree with the decision of the Board. While I sympathize with the problems the grievor encountered, the evidence submitted by the employer was substantial. It also bothered me, that the Union did not--call any witnesses supporting the grievor. The Board considered all the evidence. The case is.well set .;-~_out by the Board and 1 cannot help but agree with the decision the Board made. Respectfully submitted: Toronto, December 20th 1982. Henry Weisbach :SNOllWON3WW033t ONW SXUVW3H S.tlOSlA~3dfi qn>as pue r”o!,e,ay 3!,q”d hwqepuadao 39~ElAV WI 3DW3AV 3AOEV WV’) --.-- ^........ w - :3NNOStl3d 3klOlS JO ltlOd3ki 3NllVU (NOllOWO~d/AtrVlVS) lt”IINNV S.tlOSIAtl3dr-E 13lUlSIQ CINV S,kl33VNV’MI 3&S