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HomeMy WebLinkAbout1982-0348.Miller.82-11-25IN THE MATTER OF AN ARBITRATION - Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: .For the Grievor: For the Employer: For Third Party:. Hearing: OLBEU (Ron Miller) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer J. W. Samuels Vice Chairman E. McVey Member E.,R. O'Kelly Member M. L. Levinson Counsel J. Bak& Counsel Hicks Morley Hamilton Stewar~t Storie Barristers & Solicitors R. B. Millman. for himself May 12, 1983 i -2- The grievor claims that he should have been promoted to the position of Manager in Store 1293 at Tobermory, following upon his application for the job in response to a notice about the opening in February 1992. The Collective Agreement provides in Article 16.6(a): Where employees are being considered for promotion, length of service from appoint- ment date will be the determining factor provided the employee is qualified to per- form the job. The grievor is more senior than the successful appli- cant, and he argues that he is qualified to perform the job. The store in .question is a "D" store, which is one of the small ones operated by the Liquor Control Board. For most of the year, there is only one person in.the establishment, and that is the Manager. During the summer season, and on some holidays, the Manager has assistance from part-time employees. Thus, the Manager' is responsible for all facets of, the store's operation--handling the money, ordering the stock, taking cash for sales, doing the inventory, security, ordering the sundry supplies for record-keeping and cleaning, and so on. The evidence at our hearing shows that the grievor has done and can do all these functions. The grievor was not given the position because, during the two years previous to the job-posting, he had, received two -3- warning letters for being at work under the influence of alcohol. The employer argues that this must be considered in deciding whether or not the grievor is qualified to perform the Manager's job. Counsel for the grievor suggested that this Board should not consider the griever's disciplinary record. All that !‘ is relevant is whether or not the grievor can perform the functions necessary in the Manager's job. In his written argument, he suggested that: a. b. C. Under no circumstances can an employee's disciplinary record be considered for purposes of promotion because to do so would amount to the imposition of a double penalty. Even if, the employee's record is a relevant consideration for promotion purposes, it cannot be the sole or determining factor in that regard.' Even if an employee's disciplinary record can be a factor or indeed the determining factor for promotion purposes, it cannot be so where such record is stale. Past misconduct cannot preclude job advancement where that misconduct occurred well in the past and has not since been repeated. We agree with the employer here. The Manager is the sole employee in the store for most of the year. The employer must have confidence that the person filling the position can not only do all the meEhanica1 functions invblved in the job, but will also be fit to do them at all times, barring illness or some, other unforeseeable event. Then grievor's personnel record discloses reasonable cause for concern about his ability to perform the job satisfactorily at all times. "Qualified to perform the job" involves both knowledge of the job functions and the ability to carry~ out these tasks. We do not agree with counsel for the grievor.when he suggests that the disciplinary record can never be considered for purposes.of promotion. In our view, it all depends on the language of the collective agreement concerning promotion. In our case, the agreement requires that the applicant be "qualified to perform the job". If there are elements of the disciplinary record which bear on the applicant's qualifications to do-$he job, then these elements can'be considered. The disciplinary record per .se is not relevant, but there may be matters in this record which do assist the employer to judge the applicant's qualifications to do the job. This is the point made in the case cited to us at the hearing by counsel for the Liquor Control Board--The Corporation of the Borough of Etobicoke and The Borough of Etobicoke Civic Employees' Union, Local 185 (unreported, dated October 23, 1981). -5- / With respect to the second argument suggested by counsel for the grievor, we have some disagreement with him. Generally it may be true that the employee's disciplinary record should not be the sole or determining factor in promotion. However, it may be that, in the particular circumstances of the case, the characteristics disclosed by the disciplinary record may well be the determining factor in the promotion decision. And this appears to be the case here. With respect to his third argument, we agree with him. The disciplinary record is only relevant if it is not stale. Put another way, it should not be considered unless it is reason- able to conclude that the characteristics of the applicant dis- closed in the disciplinary record are still characteristics of the person. In our cases we do not consider the disciplinary record to be stale in this sense. The grievor had been repri- manded for coming to work under the influence bf alcohol on August 20, 1981 (Exhibit 3). The job posting was on February 23, I 1982--only six months after the grievor had come to work under the influence of alcohol. Surely the employer may consider this, when deciding upon promotion to the position of manager in a one-man store. For these reasons, we find that the grievor was not qualified to perform the job posted and the grievance is dismissed. -6 - Done at London, Ontario, this /3e day of , 1983. 2100 3000 6: 3220 6: 3310 SEE DISSENTING OPINION ATTACHED E. McVey, Member E.R. O'Kelly, Member -7- EXHIBITS 1. Grievance Form, May 28, 1982 2. Posting, February 23, 1982 3. Memorandum of August 20, 1981 4. Memorandum of 3anuary 23, 1981 MILLER G.B.S. 348/82 (DISSENT) The relevant section of the Collective Agreement is Article 16.6(A) which reads:- "Where employees are being considered for promotion, length c of service from appointment date will be the determining factor provided the employee is qualified to perform the job." A careful reading of the collective agreement does not provide any other determining factor in promotions. The qualifications of the employee are.acceptable to the employer, but a disiplinary warning on~his record has, accord- ing to the employer, made him not qualified to hold the position of store manager. Can the employer use this written warning to disqualify the grievor? In my opinion he cannot. I agree with union council that to. do so would be penalizing the employee twice for the same incident. Union council states it well on page 2 of his written argu- ment. "The arbitral jurisprudence is clear that an employer having assesed a penalty against an employee cannot proceed to assess further and other pen~alties for the same conduct." The earlier cases 1957 to 1'963 are clear in their conclusions~ but I shall'only quote from Re Galt Brantford Malleable-(19741 6 L.A.C. (2d)-302 (Charney) Page 303 - "They take the position that it is well known in Arbitration Law that the company cannot have two bites ,at disciplining an individual; that is if he is once disci- plined they cannot then come back and discipline him a second time. " - -again at page 304 - - the quoted statement by Laskin from Tallman Bronze (1957) 7.L.A.C. 253 at pages 255-6 supports the union position. These cases are very clear in their conclusions about double penal.ty and support for the grievers position. Further “Can .,_ (2) (DISSENT) an employer assess more than one sanction for the same misconduct?" I would say no the employer cannot do so. To allow it would be to put all employ_ees in a position where, if they were warned (penalized), of never really knowing what the penal- ties are for any offence. Page 3 of the union's written submission:- "an employee as a necessary incident to the imposition of a particular penalty is denied certain other benefits which but for the misconduct he otherwise would have received." In this instance the cases quoted deal with loss of Statutory Holiday Pay as a result of suspension. In all cases the union's position is upheld. If in this instance the employer had stated clearly that not only was a warning being assessed, He was being denied a‘ promotional opportunity for a stated time, then there would not in mu opinion be any grounds for a grievance. However the continuing penalty in this case may be. "It may be necessary to suspend you if this occurs again" - very clear - no hint of any loss of promotion - "suspension if this occurs again." , Exhibit 3, August ZOth, 1981 Article 16.6(a) - "length of service from appointment date will be the determining factor provided the employee is qualified to perform the job." There was no evidence presented that could leave the im- - .pression that the employer questioned the job skills of the employee, or that he did not have the skills to do the job. Opportunity was given to the employer to refute the grievor's job skills. The only disqualifying item is the warning in August : 13) (DISSENT) of 1981 - nothing iswritten in the warning that could leave the impression that an opportunity for promotion was lost as as result of the warning. In my opinion the employer cannot assess a second penalty some months after the-first for the same offence. I would therefore uphold the grievance. and award in favour of the grievor and would order his immediate promotion with back pay to the day the promotion should have taken Elmer McVey Member (August 1983) EM/bm opeiu 343 - 12 - This Board finds that the Ministry has violated its own regulations as set out in paragraph 1.10 of the Ministry‘s Manual in the redesi.gnation of the Grievor's headquarters to Gormley, and in so doing has violated the provisions of w Article 22.1 of the Collective Agreement. We do not have evidence before us to determine what headquarter designation would be equitable to both Parties. Accordingly, we leave that issue to the resolution of the Parties, and will remain seized in the event that the Parties are unable to resolve the matter. In the interim, this Board will re-establish the status quo and revert back to Baldwin as the Grievor's designated headquarters pending an equitable resolution of the issue. The Grievor shall be compensated for any and all lost mileage from Baldwin to the job site and return, subsequent to the Ministry's redesignation of his headquarters in May of 1982. In addition, we shall retain jurisdiction in the event that there are any difficulties between the Parties with regard to compensation to the Grievor, or in the interpretation or administration of this Award. DATED at Brantfordi Ontario; this 25th day of November, A.D., 1982. R. L. Verity! O.C., ce Chalnnan 8: 3700 @ u ;.; _. ;/?-l : x---L - 1 L. Robinson, t-?e+er M. Gibb, Nember