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HomeMy WebLinkAbout1984-0813.King.85-03-06813184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: OPSEU (W. King) Befc For the Grievor: For the Employer: Before - and - Grievor The Crown in Right of Ontario Liquor Control Board of Ontario) Employer R. L. Verity, Q.C. Vice Chairman I. Thomson I.1 e m b e r A. Stapleton Member M. Levinson Counsel Koskie and Minsky R. J. Drmaj Counsel Hicks Morley Hamilton Stewart Storie Hearing: January 8, 1985 - 2 - TNTERTH DECTSTON The griever's employment as a Liquor Store Clerk at Store #I98 was terminated by letter dated September 11, 1984. Tn that letter F. 8. Rankin, Direct0.r of Store Operations detailed the reasons for termination: "This refers to recent events which caused your store manager to notify you of possible disciplinary action, by notices dated July 27, 1984 and August 16, 1904. These events have prompted an examination of your employment record which reveals several prior disciplinary actions for similar misconduct, including a final warning of possible dismissal, by letter of December 29, 1983. Tt is apparent that the Board's efforts to cause you to improve your performance through corrective discipline have not succeeded; and you have been given every opportunity to improve your time-keeping, but to no avail. We can no longer tolerate your conduct. It has, therefore, been decided that your services with the Board are terminated effective upon receipt of this letter...' At the Hearing, Counsel for the Union requested the Board to hear evidence restricted to the alleged culminating incidents in order to establish whether or not they did occur - 3 - prior to hearing any evidence concerning the griever's employment record. Counsel for the Employer agreed that the instant grievance involved a culminating incident; however, he did not agree to dividing the issues as proposed by the Union. The Board ruled in the Union's favour on this procedural matter, primarily following the .rationale of Vice-Chairman Kennedy in OBLEU (G. 3. Robertson) and Liquor Control Board of Ontario, 469/82. Accordingly, the Board proceeded to hear evidence on the ,issue of whether or not the .'. incidents referred to in Mr. Rankin's September 11 letter justified any disciplinary response. ./~ Liquor Store Manager, Ronald Lott, testified that he had been Manager of Store 11198 since October 17, 1983. Shortly after his appointment, Mr. Lott expressed concern that employees did, not arrive for work consistently at any given time. Tn December, 1983, the Manager informed his assistants that regular hours of work on the day shift would be either 9:00 a.m. to 6:00 p.m. or 8:30 a.m. to 5:30 p.m. Subsequently, the manager was advised that all staff preferred to work from 8:30 a.m. to 5:30 p.m. Accordingly, on December 19, 1983, Mr. Lott formalized that arrangement, allegedly with the agreement of his staff. - 4 - On 3une 21, 1984 each staff member signed an acknowledgement of having read an extract from the L.C.B.O. Store Operating Manual entitled "Employee Attendance". Section 04 of the Operating- Manual extract is relevant to the instant grievance: “04. Tf an employee is unable to report for work for any reason, it will be~her/his responsibility to notify the Manager within fifteen minutes of the scheduled starting time. Failure to notify the Manager may result in disciplinary action." _.: The effective date of that extract from the Operating Manual was 0,ctober 3, 1,983. Mr. Lott testified that on July 24, 1984 th-e grievor telephoned him to advise that he had overslept and apologiied for having done so. The griever subsequently reported for work at 8:50 a.m. At the time, the Manager took no action as a result of that incident. Subsequently on 3uly 27, 1984 the Manager received a telephone call, again from the griever, that he. had overslept and , apologized for so doing. Mr. Lott te~stified that;he advised the griever during that telephone conversation that the incident would be recorded in writing. The grie-\jor did re,port for work at 8:55 a.m. - 5 - On 3uly 27, 1984, Mr. Lott wrote to the Grievor as follows: The purpose of this letter is to advise you that as a result of your failure to report for work on time on Tuesday 3uly 24, 1984 and again on Friday 3uly 27, 1984, there may be disciplinary action takenagainst you. Therefore, within three (3) calendar days from receipt of this letter, you are required to submit a written statement, by registered mail, to the Director of Store Operations in which you are to explain why you were late twice in one week. The Board's decision concerning this matter will be made known to you in due course.” On the same date, the griever sent a letter to Store Operations Manager F. 6. Rankin which acknowledged that he had been disciplined previously for tardiness, "but not for arriving at work before 9:00 a.m. in the morning". The griever’s letter also contained the following statement: "According to the Agreement between the LCi30 and OLBEU, Art V, para 5.2, sub para (i) my hours of work are (9a.m. to 6:p.m.)" tant Manager 3ack~Moore testif.ied Liquor Store Assis 'that he managed the store on ion. On that August 16, 1984 duri;ng the Manager's vacat date, all employees reported for - 6 - work as scheduled at 8:30 a.m. with the exception of the grievor. When the grievor failed;‘t~o report 'within a reasonable period of time, Mr. Moore attempted, without success, to obtain instructions from District Supervisor Ken Fletcher. He did, ~however, speak to senior Store Manager Bud McKeon who provided advice on procedures to be followed in the circumstances. At IO:12 a:m., Mr. Moore 'received a telephone call from the,grievor and was advised that the griever had overslept and had just awakened. Mr. Moore immediately advised the grievor tliat the incident would be recorded in writing. The grievor again apologized for the incident and requested that the matter remain at the store level. ‘Mr. Moore advised the griever that was impossible as Mr. McKeon was already aware of the situation. According to ,Mr. Moore's testimony, he enquired what shape the grievor was in "Are you sick or drunk or okay to report for work?". The griever replied "No, 1 am not drunk, T am okay - what should T do - come into work or book off sick?". Mr. Moore advised the grievor that it was not up to him to make that decision. The griever then replied "Fine.,. T will not be coming in to work.“. On August 16, 1984, Mr. Moore wrote to the griever as follows: - 7 - "The purpose of this letter is to advise you that as a result of your failure to report for work on time, Thursday Aug. 16, 1984, and also your failure to phone and inform me of your whereabouts, can only lead me to assume that you have deserted your duties. There may be disciplinary action taken against you. Within three (3) calendar days from receipt of this letter, you are required to submit a written statement, by registered mail, to the Director of Store Operations in which you are to explain the matter mentioned’ above which has pr~ompted this letter. The Board's decision concerning this matter will be made known to you in due course." In his testimony, the griever alleged that he had told Mr. Moore towards the end of the telephone conversation that he wasn't feeling well, that he had a high fever, and that he had the flu. However, in cross-examination the grievor admitted that he hid not disagree with the testimony presented by either Mr. Moore or Mr. Lott. The grievor further acknowledged that he was familiar with paragraph 04 of the Operations Manual extract. On Friday, August 17 and Saturday, August‘J~8, the griever was absent from work alleging that he was ill. The griever testified that he.attempted, without success, to make anappointment with his family physician on Friday, August 17. Unfortunately, the physician was out of the jurisdiction and - 8 - unavailable for medical consultation. The grievor did not seek other medical assistance. The grievor testified that he believed that he had the flu. Mr. Ormaj, the Employer's Counsel, characterized the August 16 incident as a culminating incident and that the 3uly 27 memorandum had been properly referred to in Mr. Rankin's termination letter. Tt was argued that the events of July 24 and 27 also merited discipline which had not been relayed to the griever prior to Mr. Rankin's letter. The Employer did not accept the griever’s explanation that his absence on August 16 was as a result of illness. Mr. Drmaj also contended that the two earlier incidents of lateness in Duly were inexcusable and warranted discipline. On behalf of the griever, Mr. Levinson argued that no culminating incidentor incidents had been established and that the griever’s conduct in July and August was not proper subjects of discipline. He alleged -that the Employer must establish both culminating incidents referred to in the letter of termination. Mr. Levinson contended that the griever was genuinely ill on August 16 as was evidenced by the continued absence on August 17 and 18, and that the Employer was .e~ prevented from taking disciplinary action for the alleged - 9 - lateness in July by the wording of the Collective Agreement. Having considered the Parties' submissions careful'ly, the Board does not.find that&he griever’s actions on July 24 and 3uly 27 merit disciplinary response. Article 5.2(a) of the Collective Agreement reads in part: “The Boards shall prescribe the number of hours in each working day not exceeding eight (8) hours for the various departments or establishments of the Boards. Normal hours of work will be as follows: ..~ (i) Stores: 9:00 a.m. to 6:00 p.m. (day shift)..." Thus it can be said that management's unilateral right to schedule hours of work is limited to the "normal hours of work" provided for in Article 5.2(a). Simply stated, the Employer does not have the right to vary the normal hours of work to have any binding legal effect upon the Parties, in the absence of an amendment of the Collective Agreement, or a ~ Le’ft’er of Understanding of a subsequent agreement in writing executed by proper signing officers of the Parties. Tn the instant matter, no such documentation was entered into by the Parties, and accordingly it would be improper for the Employer to impose discipline upon the grievor~for failure to report to work prior to 9:00 a.m. 2 - 10 - The Collective Agreement does provide an exception in Article 5.2(b) to the normal hours of work specified in Article 5.2(a). The wording of Article 5.2(b) is as follows: "Normal hours of work may be subject to change by the Boards depending upon local conditions." Here, the change in hours of work does not arise from local conditions, but rather from employee preference, and accordingly, Article 5.2(b) is inapplicable. Vice-Chairman Adams considered the local conditions exception in L.C.B.O. and L.L.B.O. Employees' Associations, (Herrington), et al and Liquor Control Board of Ontario. This Board adopts the rationale of Vice-Chairman Adams at page 19 of the Award where it is stated: "We wish to emphasize that management cannot exercise its discretion under the local conditions exception in such a way as to render its earlier agreement to the normal hours of work nugatory. Were the employer able to effect 3 change it .wanted under this exception the totality of Article 5.2 would make little sense. For this reason then we are of the view that some localconditions must reasonably justify variations from the normal hours -provided for in the agreement. For example :this would appear to be the case with respect to the variations that exist in the large stores in that the size of the - ll- store; customer service, or truck delivery schedules are the stated reasons for such variations. But mere employee or employer preference for some other work schedule, unsupported by a bona fides local problem, would not support a change in the normal hours of work under this exception...” However, the griever’s actions on August 16, 1984 are a separate consideration which can -stand on its own merits. As a general proposition, most arbitrat0r.s agree that an employee who is absent from work as a resultof a bona fides illness cannot be disciplined by the Employer. On the evidence presented, we are not satisfied that the griever was ill on Thursday, August 16 when he spoke with Assistant Manager Moore at IO:12 a.m; On the griever’s own evidence, the issue of sickness did not arise unt il.the end of his conversation with the Assistant Manager. Mr. Moore's testimony was to the effect that the griever told him that he was able to come to work. Again on the griever’s own evidence, he did not seek,medical assistance until Friday, .A,ugu.st 17 when he made an unsuccessful attempt to contact his family physician. The Board can only conclude that the grievor's- . request to be booked off sick was a direct result of his predicament in having overslept. Tn our view, the evidence of Mr. Moore is the preferable account of the gist of the telephone conversation on the morning of August 16. Clearly, the griever failed to convey to Mr. Moore that he was ill and - 12- we do not accept his explanation that he advised the Assistant Manager that he was suffering from a fever and had the flu. Tn our opinion, the evidence is quite to the contrary, and it is clear that the grievor left Mr. Moore with the impression that he was indeed able to come to work on the morni ng of August 16. lephone Tn addition, Mr. Moore had a second te conversation with-the grievor~on August 16 in wh no indication from the griever that he was ill. ich there was 'In this matter, the Employer relies upon the breach of a procedure set out in the L.C.B.O. policy manual, which was known to the grievor, as the reason for the imposition of discipline. The Union alleges that the rule was patently unreasonable and offended several of the tests set out by Arbitrator Robinson in Re: KVP Company Ltd. (1965), 16 L.A.C. 73. The Board rejects that submission.as being without merit. Tn the .August 16 incident, the grievor failed to report for work prior to 9:00 a.m. and failed to advise the Employer in a timely fashion of his inability to attend contrary to t’he Ministry’s pro.cedures. No~credible explanation was offered by the griever for that lateness. Tn our opinion, the gri~evor’s actions on August 16 do warrant'some ,disciplinary response by the Employer. - 13- The form of discipline imposed by the Employer for the August 16 incident is quite immaterial - what is material is that the conduct of the grievor warrants some form of discipline. Arbitral precedents generally support the proposition that even conduct warranting no more discipline than an oral reprimand may constitute a culminating incident which in turn justifies.a review of the employee's entire work record, including the culminating incident, in a.determination of .justcause for discharge. Accordingly, the Registrar of the Grievance Settlement Board shall be requested to reschedule the Hearing to complete the evidence and argument of the Parties. DATED at Brantford, Ontario, this 6th day of March, A.D., 1985. R. L. Verity, Q.C. - Vice-Chairman (;Part.ial Dissent) homson - Member - & /?l+&T$ A. Stapleton - Memb r PARTIAL DISSENT I agree with~the majority decision as it relates to the events of July 24th and 27th, 1984 in which the Board found there was no basis for any disciplinary action. I cannot agree, however, with the majority decision as to a. culminating incident on August 16th, 1984. The Grievor was late in phoning in on that date but I'm sure there are very few of us who have not 'done this at some time or other. When he did call in and reported to Mr. Moore he knew he was already in trouble since Moore told him it already been reported to someone in a higher position. had It adv was is obvious tha~t Mr. Moore panicked and rushed to seek ice from someone else without waiting to see if there any explanation from the Grievor. He sought the advice of the Assistant Manager as to whether he should book off sick or not since he wasn't feeling~well. Gut he was in a Catch 22 position. He was in trouble no matter what he had done. Mr. Moore knew this since the Grievor's.record had been discussed with him. . _.? - 2 - The Employer stated that because the events of Jul,y 24th and 27th were ajready being considered by a disciplinary panel of his Employer the event'of August 16th wasn't part of that consideration. Since this Board found there was no basis for the action taken in the July incident the August 16th case should have been considered on its own and an explanation sought from the Grievor other than the telephone conversation. It is obvious the decision to term inate the Grievor had already been made. I would have allowed the grievance. Respectfully submitted+~