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HomeMy WebLinkAbout1982-0469.Robertson.83-01-06IN THE XATTER OF AX ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (G.J. Robertson) 469182 Griever' - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Emplogei. Before: R.L. Kennedy Vice Chairman E. McIntyre Member K. Preston Member For the Grievor: M. Levinson, Counsel Golden, Levinson For the Employer: P. Jarvis, Counsel Hicks, Morley, Hamilton, Stewart & Storie Hearing: November 29, 1962 -2- AWARD The Grievor's employment was terminated by letter dated September 2, 1982, which letter provided as follows: Consideration has now been given to the incident of August 7, 1982 which caused your manager to notify you of intended disciplinary action. This incident has prompted an examination of your complete record and it has been decided that your employment is terminated effective September 4, 1982. Termination documents will be forwarded in due course. The grievance alleges-that the Grievor was dismissed without just cause and claims reinstatement and reimbursement of all monies lost. At the outset of the hearing, Counsel for the Union stated that it was clear that the Employer relied on the incident of August 7, 1982 as a culminating incident and that the termination decision would be supported, not on the basis of the incident itself, but rather on the cumulative effect of the Grievor's work and'discipline record. In these circumstances, he argued, the Board ought to deal first with the specific incident of August 7, 1982 and make a determination whether or not anything occurred on that date which would justify a disciplinary response on the part of the Smployer, prior to receiving any evidence with respect to prior disciplinary incidents involving the Grievor. Counsel for the Employer agreed that it was a situation of a culminating incident wherein -3- the severity of the penalty was supported by the overall record rather than by the seriousness of the incident itself. He did not agree to the appropriateness of dividing the issues and, in the first instance, hearing only evidence relating to the specific culminating incident. Mr. Jarvis made further reference to an incident that occurred August 4, 1982 which, while not referred to in any of the written documentation leading up to the termination, was he argued in the mind of management at the time the decision was made and therefore comes properly before us. Mr. Levinson indicated to us that he had no knowledge of any incident on August 4th such as was referred to by the Employer. It was our ruling at the hearing that we would proceed to hear evidence limited to the issue of whether or not there occurred on August 7, 1982 an incident justifying a disciplinary 1 response on the part of the Employer. It is quite true that, because of a bad record, a relatively minor incident may have disproportionately serious disciplinary consequenses. That record, however, cannot be used to turn an incident that would not of itself justify some form of discipline into such a disciplinary incident. It is therefore our view that the interest of the parties are better served by a consideration of the specific culminating incident itself and only once it is established that such an incident took place, is,it necessary to go on to receive evidence as to the past disciplinary record of the Grievor. We therefore proceeded to hear evidence with respect to the August 7th incident itself which, apart from the reference to the Griever's complete record, constitutes the only incident identified in the letter of discharge. We indicated that in the event that that matter were resolved unfavourably to the Grievor then the Board would receive evidence relative to the appropriateness of penalty. The status of the alleged August 4th incident would be something to be resolved at that time. With respect to the incident itself the substantive factual. background is not in dispute between the parties. The Grievor was employed in the Employer's retail store situate at' 2300 Yonge Street in the City of Toronto. Under the Collective Agreement, employees are entitled to a one hour lunch period and a break of 15 minutes during the course of each of the morning and afternoon. The manager of that store, as at the date of the Griever's discharge, had been manager of the store since November 1981. Shortly after the manager took over that store, he introduced a policy with respect to employee breaks to the effect that any employee who wished to leave the store during the break period had to obtain permission from the manager or an assistant mangager. The rational behind that policy was to enable management to know where the employees were so that in : . .: i:... . ..j -5- the event of an emergency in the store, they could be requested to return to work and continue the break at another time. That policy was made known to all employees by the two assistant managers of the store: and, in addition, the statement of the policy was posted on the employees' bulletin board in the kitchen of the store. The evidence establishes that, from its implementation, the policy was enforced by the manager and the assistant managers consistently and it is further clear that the Griever was aware of the policy and that prior to August 7th, he had consistently complied with it. The evidence offered on behalf of the Employer-outlined the business reasons for the implementation of the policy and we are satisfied on that evidence that there are legitimate reasons in the context of the store's operations for having such a policy. The policy, however, does not apply to the one hour lunch breaks and during that period employees can go anywhere' they wish without any specific permission. The policy is not uniformly applied across all, of the Employer's stores and there would appear to be many stores that do not impose any limitation on employees with respect to leaving the store during the break period. It was further the evidence of management witnesses that, in the event an employee was actually on a break, he could only be asked to return to work before the 'break ended and could not be ordered to return to work. The evidence was, however, that employees generally responded to such requests. : i :.. . . . ..I -6- On the date in question, August 7, 1982, the Griever was scheduled for his lunch break from 12:00 to 1:OO and for his break from 3:00 to 3:15. It would appear on the evidence that there were at least two other employees also scheduled to take a break at the~same 3:00 to 3:15 time. At 3:OO, the Griever who was working on a cash register, glanced around the store and did not see the manager. He did not walk back in the store to check for the manager either in the manager's office or in the kitchen but immediately left the store to go on an errand to a nearby drug store. The Griever readily acknowledges that he was aware of the policy that was in force in the store and that on all prior occasions when he had been leaving during a break, he had sought permission from the manager or an assistant'manager. On this occasion, both assistant managers were away and when he did not see the manager, the Griever was concerned that he would not have enough time to complete the errand during the 15 minute break unless he left immediately. The purpose of the errand was to acquire some vitamin pills that the doctor had perscribed for his pregnant wife and the Griever had been aware from the time he arrived at work that morning that he had to pick up those pills. He apparently forgot about it in the course of his lunch hour and was only reminded when he phoned his wife right at the end of his lunch break. He returned to the store at about 3:12 p.m. and the manager asked who had given him permission to leave. It is the manager's evidence that the Griever responded ., i . . . .,*i i -7- that he did not need permission to go and the manager reminded the Griever of the store's policy. Apparently heated words were exchanged between the pair and the manager advised the Grievor that the circumstances would be written up and sent to head office for further action. The Griever indicated that he was quite upset and asked the manager for permission to sign out and go home and the Grievor signed out at 3:30 p.m. The Griever was advised by registered letter dated August 9, 1982 that he was in a state of suspension for leaving the store without permission and that wi thin three calendar days he was to submit a written I statement explaining the matter. His employment was subsequently terminated by letter dated September 2, 1982. ,ich The provisions of the Collective Agreement to wh the parties referred read as follows: ARTICLE III MANAGEMENT FUNCTIONS 3.1 The Union acknowledges that it is the exclusive function of the Boards to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent. and such matters will not be then subject of collective bargaining nor come within the jurisdiction of a Board. - 8 - ARTICLE V HOURS OF WORK AND OVERTIME 5.13 There shall be one fifteen (15) minute rest period during each half (l/2) shift or each half (l/2) work day. Such rest period shall be at times designated by the Store Manager or Department head (except with respect to rest periods referred to in Article (5.2). It is the position of the Employer that there was a PO licy or rule in effect in' the store since November of 1981. That rule was communicated to employees and posted and it has uniformly been enforced from that date. The Griever has consistently followed it in the past and when he left the store on August 7th, he knew he was doing so contrary to the rule. Mr. Jarvis further argued that the need and the reasonableness of the policy had been established on the evidence and that the Grievor simply ignored it. It was further the position asserted on behalf of the Employer that whatever degree of urgency might have existed when the Griever chose to leave the store, it resulted solely from the Griever's neglect both in acquiring the pills when he had the earlier opportunity to do so on his lunch break and thereafter in failing to notify the manager that he would have to leave the store prior to his actual time of departure. It was Mr. Jarvis' position that Article 5.13 provides simply for a rest period and leaves the time thereof strictly up to management and in no way deals with the place of where that rest period is to be taken. He argued that the - 9 - language of Article 3.1 clearly gave management the right to implement the policy and that right was in no way restricted by the language of Article 5.13. For the Union, it was argued by Mr. Levinson that the effect of Article 5.13 was to grant a rest period to employees and that the Employer has no right to interfere with that right once it has been granted under the Collective Agreement. He argued that it constitutes a break in service during which time the employee is not under the control of the Employer and therefore the Employer cannot put conditions on the allowance of time that is conferred by the Collective Agreement. He argued that no rule could be reasonable that purported to put conditions on a specific right granted by the Collective Agreement. It was argued that such an interpretation of the break period was confirmed by the clear evidence of management to the effect that they could not order employees back to work during that period. Such a position recognized that the time involved belonged to the employee. Mr. Levinson's second argument was to the effect that the Collective Agreement was meant to cover all stores and all employees in those stores and that if a rule was to be applied consistently and uniformly, it had to be applied throughout the Employer's stores and not simply to isolated stores. His third it ,,I ‘.‘* : - 10 - argument was that on the evidence the rule was not reasonable and necessary in the business interests of the Employer since at any time there were other employees both on duty and on break who could be called to fill in during an emergency. Therefore, the Griever's presence was not so required during the break period. Mr. Levinson pointed out that there was no suggestion that during lunch periods 'there was any such restriction on the employee's time and yet those periods were much longer than the breaks and exactly the same sort of problems could come up during them. The rule was therefore not in Mr. Levinson's view one which was reasonably required for business purposes on the evidence which we heard. The final argument asserted on behalf of the Union was that in all of the circumstances it would be unreasonable to apply the rule to the specific incident in view of the Griever's need to acquire the drugs for his wife and the limited time within which he had to get them. It was argued that there was a reasonable basis for the Griever acting as he did and that no harm had resulted in any way to the Employer. In this matter the Employer substantially relies on the breach of a rule by the employee as justifying the imposition of discipline. In Re K.V.P. Co. Ltd. (19651, 16 L.A.C. 73 (Robinson) certain tests are set out at page A5 of the .: : i,. . : _. : - 11 - report which must be met by a rule unilaterally introduced by the Employer and not specifically agreed to by the Union. Those tests are as follows: (1) It must not be inconsistent with the collective agreement; (2) It must not be unreasonable; (3) It must be clear and unequivocal: (4) It must be brought to the attention of the employee affected before the company can act on it: (5) The employee concerned must have been notified that a breach of such rule could result in a discharge if the rule is used as a foundation for discharge: (6) Such rule should have been consistently enforced by the company from the time it was introduced. Based on the evidence, we are satisfied that it is only the first and sixth of the foregoing tests which need be considered on this Arbitration. It was argued by the Union that the rule' is inconsistent with Article 5.13 of the'collective Agreement and that the rule has not been consistently enforced because it does not exist in many of the Employer's work locations. In determining whether or not the rule is inconsistent with the Collective Agreement, we must determine the nature of the 15 minute rest period to which an employee is entitled under Aricle 5.13. Counsel for the parties were unable to refer us to any Canadian authorities on point but, subsequent to the hearing, Mr. Levinson drew our attention to the decision in Re Robertshaw-Fulton Controls Co. (1949) 15 LA 147 (Gregory), which dealt with collective agreement language which simply - 12 - provided that the company agreed to allow two lo-minute rest periods for each shift. At page 149 of the decision, the 'arbitrator stated as follows: The arbitrator believes from the evidence that the rest periods were not granted or allowed with the meaning of the agreement, so that the men were relieved from all responsibility during real rest periods. For a rest period is really not such if all responsibility is not removed: and it certainly is not removed if the men are asked to relax while standing by the furnaces in order to see that nothing goes wrong. The arbitrator thinks it was up to the company to take a position on such rest periods and to allow them in the sense that the men involved could, if possible, procure complete relaxation. This virtually implies their being able to get away from the furnaces entirely, presumably by having them turned down for a lo-minute period twice a day, so that all of the group may relax at the same time. That decision on the face appears inconsistent from Re St. Michael's Hospital (1973) 3 L.A.C. (2d) 443 (Rayner) wherein the arbitrator held that employees were required to take their breaks at their work stations where the consequences of allowing the employee to leave the work station would be extremely onerous to the employer. It may be noted, however, that in the St. Michael's Hospital situation, there was a statutory requirement that the employees involved remain at the iyork station and the additional costs that would be incurred by the employer if such employees were to be covered on the breaks would have been very great. Those factors were not present either in the evidence that was before us or in the circumstances of the Robertshaw-Fulton case. In all of the circumstances, we feel that the approach taken by the arbitrator in the Robertshaw-Fulton case is the appropriate one to apply to the Collective Agreement before us. The substance of the rule purportedly imposed by the Employer was that employees could not leave the premises during their breaks without the permission of the Employer. In our view, such a rule is inconsistent with the Collective Agreement requirement giving to each employee a 15-minute rest period during each shift and in our view the Employer has no basis on the evidence which we heard to restrict the location at which the employee takes the break. We would recognize that it would be reasonable that the Employer know when the employee is to be off the premises but that is a different thing than requiring specific consent before ,the employee leaves. The rule in question goes beyond the simple requirement that the employee notif the Employer before leaving the premises and requires the positive consent of the Employer before the employee leaves. In that respect, it is our view that the rule is inconsistent and conflicts with Article 5.13 of the Collective Agreement and therefore its breach by the Griever cannot constitute the foundation of a disciplinary response on the part of the Employer. In view of the position which we have taken relating to the confli ct between the purported rule and the Collective - 14 - Agreement, it is not necessary to deal with the arguments raised by the Union relating to consistency of application. In the result, it is our conclusion that the incident relied upon by the Employer as the culminating incident on August 7, 1982 was not an incident such as would justify a disciplinary response on the part of the Employerand therefore, could not constitute a DATED at Toronto this 6th day of January, 1983. R.L. Kennedy E. McIntyre Member "I dissent" (no paper) K. Preston Member 7:4312 4:1500 culminating incident. The grievance must therefore be allowed and the Grievor reinstated with full seniority and with compensation for wages and benefits lost. We will remain seized should the parties _not be able to agree upon the quantum of compensation.