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HomeMy WebLinkAbout1983-0139.Kulmann.83-08-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OLBEU (Eric Kuhlmann) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer J. W. Samuels Vice Chairman I. J. Thomson Member D. B. Middleton Member For the Grievor: A. M. Heisey Counsel Blake, Cassels & Graydon Barristers & Solicitors For the Employer: J. Baker Counsel Hicks Morley Hamilton Stewart Storie Barristers 6 Solicitors Hearings: July 5, 1983 August 2, 1983 - 2 - On October 25, 1982, the grievor was promoted from a Liquor Store Clerk 3 to Liquor Store Clerk 4, and was moved from Store 27 in London to Store 192 in the same city. This promotion came as a result of the griever's application for the new classification in response to Job Posting 1092. The Job Posting offered several Clerk 4 positions in a number of London stores, and all applications were for any of the posted positions. The Liquor Store Clerk 4 in Store 192 works primarily as the bookkeeper. On January 25, 1983, the grievor was reclassified back to Clerk 3. He grieves this reclassification. Article 16.6 (a) provides: Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job. And Article 16.10 (a) provides: In the event an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to promotion. The issue in this case is whether the grievor was "unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment". We heard from a great many witnesses concerning the griever's performance as a Clerk 3 before he was promoted, his work as a Clerk 4, and -3- the circumstances of one of the other successful applicants for the Clerk 4 positions offered in Job Posting 1092. In summary, this testimony, and the documentary evidence, discloses the following situation: 1. The grievor is a married man, 53 years old, and joined the LCBO in November 1975 on a full-time basis. He had worked previously for the Board as a part-time employee for about a year and a half. Before entering the Board's employ, he had worked as a Lead Hand in industry, and as a baker. 2. From the time he became a full-time Board employee until his promotion, he was posted to Store 27 in London. Com- mencing in late 1978 or early 1979, the grievor did Clerk 4 work on a rotational basis. It appears that his work in this capacity was entirely satisfactory, and included limited filling of licensee orders, written customer complaints, bank deposits, returns to warehouse, stock transfer forms, daily sales reports, summary of licence holders' purchases, keeping of the perpetual inventory, consolidated sales reports, and ledgers. In short, he appears to have been exposed to virtually all of the Clerk 4 work, and he did it well. The curious thing is that, after his promotion, his new manager, Mr. J. Concannon, and Assistant Manager, Mr. J. Anderson, expressed some concern about the state of the griever's knowledge of these tasks, and apparently the grievor acknowledged his limited knowledge. However, the grievor did not testify to this effect, and his -4- previous supervisors were clear about his competency under them. 3. Store 192 (to which the grievor was promoted) is an A store on two shifts (10 am to 6 pm and 3 pm to 10 pm). It handles all the usual sales, and in addition several rare sorts of transactions, such as hospital accounts, Nato sales, and has around 20 licensees which it serves. At full complement, there is a Manager, 2 Assistant Managers, one Clerk 4, and 4 Clerk 3's. However, throughout the grievor's term as a Clerk 4, the store operated with only one Assistant Manager, because one Assistant was off on a long-term illness. 4. The testimony before us made us familiar with various forms which had to be filled out by the bookkeeper. Messrs. Concannon and Anderson testified that the grievor had difficulties, but their evidence was not satisfactory to enable this Board to come to any firm finding that the grievor was not doing his job properly by the end of the three month period during which he was a Clerk 4. The precise errors, or type of errors, which the grievor was said to be making were not clear at all. And most importantly, under cross- examination, both witnesses appeared to acknowledge that the grievor's errors were made largely in the early stages of his time as a Clerk 4, and that he improved as the first three months progressed. Both witnesses acknowledged that the grievor was a shy and quiet man and that he did not complain about having his errors pointed out. 5. In mid-December, at the height of the Christmas sales rush, Mr. F.G. Varey, a Supervisor, instructed Hr. Concannon to move- the grievor out of the office to the back of the store, to give the grievor a break from the full panoply of forms, and to let the grievor do nothing but sales to licencees for two weeks. This was done. 6. It also appears that, during his three month trial period, the grievor was acting Manager on the night shift for three weeks. This would have meant that for those weeks, from 6 pm to 10 pm, he would have had no possibility of assistance from the Manager or Assistant Manager. However, there appears to be little bookwork done during these late hours. His performance in all his other functions and, in particular, as acting Manager, was acceptable. 7. We heard some evidence concerning two Clerk 3's at Store 192, who had much more seniority than the grievor, and who had also applied for the Clerk 4 jobs, but had failed because of clerical errors they made with respect to their own application forms. It appears that they may not have treated the grievor respect- fully at a11 times. However, this evidence was not conclusive, and, most importantly, it did not appear that this situation had very much to do with the griever's work performance or assessment. 8. On January 12, Mr. C. Restorick, an Assistant Manager in Store 200 in London and a Union zone representative, visited - -6 - Mr. Concannon to discuss the griever's situation. This was after the grievor learned that he might be reclassified. Mr. Restorick testified that Mr. Concannon told him that the grievor was coming along fine and would be a good Clerk 4 within 3 or 4 weeks. Mr. Concannon did'not recall saying this, but we accept Mr. Restorick's testimony, which was based on his contemporaneous notes of the meeting. 9. The evidence disclosed that the actual job of the Clerk 4 will vary somewhat from store to store, depending on the nature of the customers served, and the size of the operation. As well, the training methods for in-coming Clerk 4’s will vary somewhat from store to store, depending on the supervisory style of the Managers and Assistant Managers. Now, what is the effect of all of this? In the first place, this Board is asked to interpret Article 16.10 (a). The issue is whether the newly promoted employee has a full three months to prove him/herself, or whether management may determine that the employee's performance is not satisfactory at any time within the first three months. In Frolack, 44/76, this Board was concerned with a situation where the grievor was not promoted because he passing, the Board referred pages 19-20): was found to be not qualified for the job. In to Article 16.10 (then 16.11) and said (at “Clearly what the provision means is that if, after the promotion, an employee seems unable to meme requirements of the position, then he has three months to prove otherwise." -7- In our view,‘given the language and grammatical structure of the Article, the employee is given the opportunity to perform the requirements of the position in a satisfactory manner up to three months from the date of appointment. It is only if the employee is unable to do the job satisfactorily within the three months that management may then reclassify the employee as provided in the Article. Counsel for the Liquor Control Board urged us to find that the words "within a period not exceeding three (3) months" mean that the LCBO could decide to reclassify after a brief time in the new job (perhaps only one day). But, in our view, this would be a meaning which is not supported by the language and is not reasonable. Article 16.6 (a) provides that promotion is decided on the basis of seniority "provided the employee is qualified to perform the job". So that there is an initial determination that the employee is qualified to perform the job. However, once the employee is placed in the actual position, and the work of a Clerk 4 will vary somewhat from store to store, Article 16.10 (a) gives the employee three months to adjust to the particular requirements of the position. In any event, while we were asked to interpret this provision, in this case the LCBO did give the grievor three months in the position before reclassifying him. And it appears that this was in accordance with Board practice and procedure. In the second place, turning to the specific situation before us, the evidence does not support the finding that the grievor was unable to perform the requirements of the position within three months from the date of his appointment. The grievor did make errors. The evidence as a whole discloses that employee errors are common. It does not appear that the grievor i- .Z -8- made frequent and serious errors. And, the evidence of his Manager and Assistant Manager at Store 192 indicates that the griever's problems were largely at the outset of his time as a Clerk 4 and he did not repeat his errors. In sum, looking at the evidence as a whole, this Board is satisfied that by January 25, 1983, the grievor was performing the requirements of his new position in a satisfactory manner. In the result, we uphold the grievance and order the grievor rein- stated as a Liquor Store Clerk 4 in Store 192. He shall be compensated for any monetary loss as a result of the reclassification to Clerk 3, and we reserve our jurisdiction to decide on the precise amount of compensation if the parties are unable to agree upon this themselves. Done at London, Ontario, this “I concur” I.J. Thomson, Member II ent” * D.B. Middleton, Member _--- " *Mr. Middleton's partial dissent is attached" 6: 2100 6: 3200 6: 3230 6: 3300 -9- EXHIBITS 1. Documents filed by Union 2. Memorandum of December 21, 1982 3. Memorandum of January 8, 1983 4. Memorandum of February 22, 1983 5. Customer's Complaint form 6. Expense Voucher form 7. 8. 9. 10. 11. 12. 13. 14. 15. Stock Transfer Advice form Licensee Purchase Order Summary of Licence Holders' Purchases Petty Cash Disbursements form Consolidated Deposit Slip Deposit Envelope Stock Value Perpetual Inventory form Daily Sales Report form Consolidated Sales Report form RE O.L.B.E.U. (ERIC KUHLNANN) - and - THE CRCWN IN RIGHT <>F OXTAKIQ iL.C.B.0.) - 2- is given the opportunity to perform the requirements of the position in a satisfactory manner up to three months from the date of appointment". Although the majority gain some comfort from Frolack 44/78,my reading of that award demonstrates that it is not a binding precedent, and should be disregarded in the interest of objectivity. Careful and repeated scrutiny by this member of the text of 16.10 (a) convinces me that the language and grammar support both sides of this controversy to a defensible level, and is therefore ambiguous to the point at issue. This is not the first nor will it be the last occasion on which the bargaining parties to a Contract have failed to express their intent in unequivocal terms. Much has been said and written on the subject of ambiguity in a Statute or collective Agreement and a recent Judicial Review in the Divisional Court in G.S.B. cases 292/79~ Johnston, and' 685/81 Blundell gives us guidance on Pages 8 and 9 wherein ambiguity is deemed to exist as follows:- It was strongly urged that, as s. 22(5) refers to the release of a public servant, the word "employment" in the sub-section refers to employment in the public service. We would agree that the words in sub-section are capable of bearing that meaning. When words in a statute are ambiguous and have more than one meaning, the more reasonable and convenient interpretation should prevail. (See K. v. Budget Car Rentals (Toronto) Ltd. (1981), 31 0-R. (2d) 161.1 In ascertaining the more reasonable and convenient interpretation, -3- the whole statute should be considered to determine the intention of the Legislature". While on the general subject of contractual ambiguity I cannot agree with the majority that there was direct evidence before this Board, other than in the instant case, which established that to give the grievor three months in the position before reclassifying was or even appeared to be the established policy or consistent practice of the L.C.B.O. The second paragraph of Page 6 of the majority award is the one under review. What then, returning to the guidance of the Divisional Court where ambiguity exists in the text of a contract, is the more reasonable and convenient interpretation of Article 16.10(a) in the instants case? What experienced practitioner in industrial relations could quarrel with the majority Board wherein it concludes on Page 6 thereof that it would not be 'reasonable to demote 'an employee after a brief period of trial on the job (perhaps only one day) .' To hang an interpretative decision o,f this importance on such a remote possibility would display, in my view, a lack of realism and knowledge of the day-to-day process of industrial relations between mature parties to a Contract. The convenience of the parties to this contract would not appear to be served by abrupt and untimely truncation under 16.10 (a) of the three month probative period or so this member would conclude. - 4 - On the other hand if demotion cannot occur save at the end of the three month period then an obvious misfit, promoted by the Job Posting Selection procedure, would have the contractual right to remain on the job for the whole three month trial period to the embarrassment of all concerned in the work place, and result in the inevitable loss of efficiency and morale such a situation entails. Surely such a condition or end result would be unreasonable and inconvenient in a most demonstrable manner right where it counts on the job site. That such faulty selections occur often cannot escape those involved in G.S. Boards both by cases in which members are directly involved and numerous decisions issued for reading by the Board. In addition to being critical of the selection pro- cedures used by the various ministries and the reconstituting of Selection Boardsiin specific cases Boards (G.S.B.) have reversed the results of the selection procedures used, and, on their own authority, named a successful candidate other than the incumbent. ~Quinn'9/78;'Zuibrycki 100/76; and Bullen 113/82.come immediately to mind among many others quoted in the text of these awards. In conclusion,this member has given careful consideration to the arguments raised at our hearing for and against the interpretative findings on Article 16.10 (a) of the majority Board, and the guidance given us by the Divisional Court on the basis that in fact ambiguity exists in the text under review. In my opinion L.C.B.O. Counsel was correct in argument that 16.10 (a) was negotiated and designed by the parties to the Contract to enable the L.C.B.O. to demote a - 5 - promoted employee at any time during the three month on job trial period once the management becomes convinced on adequate grounds that such action is required, and I would so have found in response to the request made that this Board interpret Act 16.10 (a). Respectfully submitted, D.B. Middleton Member