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HomeMy WebLinkAbout1981-0125.Crites.82-09-10, \ 125181 . IN ME MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COiLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: OLBELI K. Crites) and The Crown in Right of Ontario (Liquor Control Board of Ontario) P.G. Barton - Vice-Chairman K. O’Neil -. Member A.G. Stapleron - Member ,M. Green, Counsel Golden, Levinson Baxisters & Solicitors D.W. Brady, Counsel Hicks, Mor!ey, Hamilton, SreLvart Jr StOrie Sarristers & Solicitors km 9, 19S2 Griever Employer -2- AHARD On January 7, 1981 the Grievor who was at that time a Clerk 3 filed a grievance alleging that the Employer had violated the Collective Agreement, Article 16.6(b) and the letter of Agreement re temporary replacement,in that itfailed to appoint him as a temporary replacement of a Store Manager in Store 2435: At the time in question the Grievor was at the highest level of Clerk; .the position of Clerk 4 which he presently holds was re-established in 1980 and he was subsequently appointed to that position which he now holds. At the time the Grievor was working in Cornwall in a 8 Store. A permanent vacancy'of Store Manager came up,in Long Sault. From November 1980 to the end of January 1981, a temporary appointment, was made‘. This appointment was given to 0. Gunn, seniority date August 1976. tie and the Griev.or,were two of six persons considered for the position, two of whom did not wish to fill it. Accordingly as far as we are aware the Grjevor,with a seniority-of August 1973 was the most senior clerk in the geographic area covered by the competition. A preliminary issue was raised by the Employer concerning issue estoppel. The Grievor had grieved the failure to be appointed to the permanent position of Store Manager at Long'Sault as well as the temporary position. He withdrew the grievance for the permanent posting and continued with this grievance. It was alleged by the Employer that the result of the withdrawal of the other grievance was to estop the Doard from hearing the matter concerning the temporary posting. It was the ruling of the Board that the withdrawal of a grievance does not give rise to any res judicata, in that there $;ias no decision made on the merits by an independent person concerning the first matter and accordingly no issue resolved. The relevant provisions of the Agreement are as follows Article 16.6(b) “In filling temporary vacancies (including summer stores) which will last five (5) working days or more, the Board shall appoint the most senior employee in the department or section involved, provided the employee is qualified and available to,perform the job. However, the minimum requirement of five (5) days not apply in the case of stores." A letter of Agreement re temporary replacement of Store Manager reads as follows: Were it is decided that it is necessary to make a temporary appointment to replace the absent store manager, it~is the policy of the ' Board to appoint the most senior person in the next lowest classification who is qualified and available to perform this store manager's job." As can be~seen from this letter of Agreement, assuming that the Grievor was the most senior person, the issues in this matter are whether or not he was (a) qualified and (b) available to perform the job. The successful candidate, i-h-. Dunn, was also a Clerk +3 at the relevant time, acting as an Assistant Store Xanager in Lancaster The Grievor was, as indicated, working in Cornwall in a B store. His appraisals for the year from 1977 to 1950 are consistently in the A or .4 (above average) range. The most recent comnent concerning his activity, that of the Manager of the Cornwall Store reads as follows: "Since being transferred to this store August 19, 1979, ilr. Crites has done all phases of office work and shows he has a good knowledge of the \yorrk. He is a good influence to the temporary employees and I so recommend him for the extra step." The comments on the 7979 appraisal by the Manager, read as follows: "Since being transferred to this store on July 23, of the year Mr. Crites has shown that he has a good knowledge of all phases of the work and has helped immensely with the part time help with regards to the extra business we have due to the Quebec strike. Mr. Crites is at the maximum of his classification. He is neat in appearance and is ve,ry polite with customers and has a good knowledge of all products." The Supervisors remarks read as follows: "Mr. Crites is always neat and well groomed, he is a good worker. Initiative is good. % He is well versed in all phases of the operation.. He is presently at the maximum of his classification." The 1978 and 1977 remarks are equally positive. Under the terms of the relevant Collective Agreement, employees can receive $4.00 per day for certain additional responsibilittes. This responsibility includes such things as opening the store, putting cash in the registers, closing the doors at the end'of the day, and perhaps making up bank deposits. In 1978 the Grievor apparently received this extra $4100 on approximately 30 occasions and in the 12 month period prior to October 1980 he apparently received it 10 times or so. in addition to this minor responsibility it annears that the Grievor'had I .: : .:,, -5- on at least one occasion for at least two days been in charge of the Cornwall store. The Grievor's disciplinary record indicates that in October 1980 he received a written warning for being late on three occasions, in April of 1979 he was suspended for one day for a matter related to the consumption of alcohol, in 1976 he received a two day suspension for absences related to alcohol. His evidence was that since 1979 he has never been in a situation where his work has been effected by f alcohol. It is clear however that the position of the Employer was that the Grievor had a continuing alcohol problem and was undependable and for that reason in part,.he wasdenied the temporary posting.’ !.!e have not found any evidence to support this suggestion of a problem. It appears that the Grievor was eager for a promotion and was somewhat thwarted in this by the way in which the Manager of the Cornwall store,Al Bush,ran that store. The Manager did not take time to train his employees in the more complicated aspects of running a store, preferring to do more of the work himself. AS a result,although the Grievor had read the Policy and Procedure Manuals and was totally familiar with the daily operations of stores, he might not have been as familiar as he could have been with end of month reports. The reasons given for rejecting the Grievor and for appointing Dunn seem to have been as follows: '1. Ounn who is acting as an Assistant Manager at the time was better qualified. 2. The period in question, Llovember through danuary is a busy ;er:od , in all stores. The Cornwall store was having a problem with absences of full time employees and the decision of the Employer was that the Grievor was not available because he could better be utilized in Cornwall to supervise the many pdrt time employees that would be hired for the Christmas season.. 3. There seem. to have been some doubts about the dependability of the Grievor, doubts that we have not found to be substanti.ated by the evidence. Under the relevant Collective Agreement where the position sought is a promotion, seniority is the determining factor provided the employee is "qualified to perform the job'! Under the same Agreement,in the case of temporary vacancies the employer "shall apooi.nt the most senior employee" provided the employee is "qualified and available to, perform the job". Both of these provisions are of course, provisions designed to protect seniority. They are based on the oft-quoted principle that all other things being equal the mxt senior employee should be entitled to job perks. Insofar as the word"qualified"is used in both provisions, it is used asa threshold requirement, Thus if a person is able to do the job he is entitled to that job, even though there may be somebody better qualified but with less seniority. Thus any consideration of the better qualifications of Dunn is irrelevant. Insofar as qualifications are concerned, given the experience of the Grievor and the positive job evaluations over several years, we have no difficulty in concluding that he bras qualified to act as an acting Store Xanager. There :qas no suggestion that making up month er,d reports was something that he could not do. There bias a suggestion that he had never forecasted sales but since the evi,"ence 'xas tnat ti,e volL,me - 7 - in the Long Sault Store did not increase at the Christmas time as substantially as in Cornwall. and since previous years figures would be available to the Store %anager, we do not think it fair to say what the Grievor was seeking was a job training period. The more difficult question concerns the meaning of the word "available".The interpretation placed upon this word by the Employer as evidenced by its actions is that it means "available in the opinion of the Employer". Thus in this case,because the Grievor was more valuable in Cornwall it was decided that he was unavailable for the temporary posting. We have some'difficulty with this interpretation. It follows from this position, that if the .Employer wishes to avoid giving a seniority clause it fu??'effect, it can say as follows: "You are much more useful to us in your present position. Therefore you are not available for the position that you seek." Such an interpretation makes a mockery of the purpose of clauses such as Article 16.6(b). This is because the seniority would not count in the employee's favour but in fact work against the employee. Thus I do not accept the interpretation of available as suggested'by the Employer which was basically as follows: "It is management prerogative to schedule people for positions. If we feel that it is economically better to maintain a person in a position rather than move him we will do so. The Board is limited in reviewing our decision to the classic bases of bad faith and should not second-guess the decision of the basis of reasonableness." The question of"available"con:es up in a number of sitijationsin lrbout relations. In the case of part time employees for example, there are .5. L , - B - a number of awards in which ths question of blhether or not part time employees were or were not avaiiable for call-ins was raised. See, e.g., - Government of B.C. 26 L.A.C. (id) 442 (Basford 19BO). As long as such part time employees are not putting themselves in.positions in S:ihich they are not available and as long as they accept a certain large number of * call ins, they cannot be.disciplined for being unavailable. Thus in this context available means wanting to do the work and not having substantial other commitments which prevent the taking of calliins. It is.perhaps of note that on the facts of this case there were two Employees who indicated that they did not wish to do the job and were therefore'tinavailable"as far as the Employer was concerned. In the j case of the Grievor, he wished the job and was prepared to do it. In the result we feel that the most reasonable interpretation of the word "available" is one that addresses~itself to the position and characteristics of the employee rather than one that addresses itself' to wishes of the employer. The former interpretation is consistent with the purpose of seniority clauses, the latter is not. In the result the grievance is allowed the Board finding that the Grievor was wrongly denied the temporary posting. 'rle retain the jurisdiction to deal with ( the question of compensation and will deal with it should it become necessary. DATED AT London, Ontario this 19th day of Septeoioer, 1982. P. C. Barton , Vice-Chairman