Loading...
HomeMy WebLinkAbout1985-0986.Kelly.88-02-240986/85 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (C. Kelly) and The Crown in Right of Ontario (Liquor Control Board of Ontario) Before: P. Draper Vice-Chairman x S.R. Hennessey Member A. C. Stapleton Member For the Grievor: M. Zigler Counsel Koskie and Minsky Barristers and Solicitors For the Employer: B. Brown Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers and Solicitors Grievor Employer Hearing: June 10, 1987 December 9, 1987 DECISION The Grievor, Charlie Kelly, grieves that he has been disciplined without just cause by being demoted as of October 21, 1985, from the classification of ‘A’ store assistant manager to store clerk grade 4 and further, that the demotion contravened Article 16.10(b) of the collective agreement then in effect (Article 21.9(b) of the successor agreement.) Counsel to the Employer agreed to lead off without thereby conceding that the demotion of the Grievor was disciplinary in nature or accepting the onus of proving just cause. The Grievor was first employed by the Employer in February, 1971. He became a ‘8’ store assistant manager in November, 1978 and an ‘A’ store assistant manager in June, 1980. In the latter capacity he worked under five different store managers. At the time of his demotion he had been working for about two years as one of two assistant managers at Store 207 at the Cloverdale~Mall in Etobicoke. The store employs twelve full-time staff including the manager and five or six temporary staff. The assistant managers work either a 9 a.m. to 6 p.m. or 3 p.m. to 10 p.m. shift, rotating weekly. The assistant manager on the second shift is in full charge of the store from 6 p.m. until closing. -2- Mr. G. Beuk was appointed manager of Store 207 in October, 1984. He met with the store clerks and separately with the assistant managers to make clear what he expected of them and also began to keep notes on the job performance of the entire staff. His notes on the Grievor, from which he testified, record some twenty-five delinquencies of the Grievor in the period from November, 1984 to September, 1985. They involve failure to give priority to the more important tasks, to assign work to the best qualified employees, to assign work before the store opened, to delegate employees to keep the store clean and shelves restocked and faced up, and to assign sufficient cashiers; failure to post lunch and break periods; accepting the return of the daily float from cashiers without requiring completion of the payback form, reporting cash register voids as NSF transactions, and failing to attach ‘Z’ readings on cash register tapes to daily sales reports; failure to follow standard procedure regarding daily deposits in LCBO and Brinks safes, and leaving the LCBO safe closed and on hold instead of locking it on leaving the office; failure to get the driver’s signature on a bad order form to cover breakage on a delivery; accepting a return of goods without having the transaction checked by another employee; failure to retain a copy of a levy tax form showing tax collected on a banquet sale; failure to check the price book for the correct price of a case of beer; failure to make required entries in the store log book; leaving the store briefly during the second shift without putting another employee in charge; failure to do a satisfactory periodic sales estimate; having the store radio tuned to sporting events on the second shift. The Griever’s usual explanation (or excuse) was that he had forgotten, had been too busy, or had only done what other store managers had permitted. -3- On April 9, 1985, Mr Beuk completed an appraisal in which he rated the Grievor as unsatisfactory in one category, the training and supervision of staff, and commented to the effect that he should be more aggressive in that respect. On April 17th the district supervisor, Mr. T. Marsella, added to the appraisal the comment that if the Grievor failed to improve, tiis “position status” would be reassessed. On April 30th Mr. Marsella and Mr. Beuk addressed a memorandum to the Grievor describing their dissatisfaction with his job performance and containing the following paragraph: If within six months time you have not shown any sufficient improvement in these areas we (Supervisor and Manager) will be forced to recommend reclassification. Mr. Beuk had wished the trial period to be one month but Mr. Marsella decided,it should be six months. This would normally have expired on October 30th. On June 10th the director of store operations, Mr. F. 8. Rankin, wrote to the Grievof commenting on the April appraisal, expressing the belief that he possessed “the capability to perform your job in an acceptable fashion” and warning that the Grievqr “must make an attempt to improve . . . or more serious action may result.” -4- Following a discussion with Mr. Marsella in which it was decided not to await the expiry of the trial period Mr. Beuk wrote a memorandum to Mr. Rankin on September 14th the text of which reads: Further to my letter of April 30th, 1985, advising Mr. C. Kelly that he was not performing the duties of an “A” store assistant manager in a qualified manner, I would like to recommend at this time that he be reclassified to a lower position for re training. Although Mr. Kelly has tried to improve his performance and in fact has shown some improvement, he still lacks the full qualifications to be an effective “A” store assistant manager. In the past few months as Mr. Kelly tried to improve his performance he has also shown that he is deficient in his knowledge of store operations and board procedures. He has left the store while on night shift without leaving anyone in charge so that voids could not be done and cashiers could not make deposits to retain minimum cash in their registers. He still at times does not have the store completely cleaned in the morning ready for business. There have been occasions when he has failed to set up sufficient cashiers in peak periods i.e. Saturday Sept. 7th, one cashier set up from 9:30 till IO:00 causing another employee to leave his assigned duties to bag for this cashier for 10 minutes. Lastly, Mr. Kelly’s ineffectiveness as an “A” assistant manager has adversely affected staff morale to perform their job functions as per store oper’ative guide lines and board procedures. Mr. Marsella added the following to the memorandum: Mr. Beuk and 1 have concluded that re-classification is necessary due to a lack of procedure knowledge. Furthermore, employee is laxed in many other areas, ie. organization skills, planning, supervising, etc. Sometimes it would appear to others that he does not care, (we get this feeling due to the many breakdowns). His unsatisfactory performance affects the overall operation of the store. A remedial course may help this employee. However, at this time we are certain that re-classification is necessary. Our decision has not been an easy one, but there is no choice. -5- On October 8th the regional director, Mr. H. 5. Scowcroft, wrote to Mr. Rankin referring to a meeting he had had with the Grievor on August 21st and recommending his reclassification to store clerk grade 4. The memorandum concludes: It is hoped that Mr. Kelly will prove himself in his new position and acquire the necessary skills he is now lacking, thus making him promotable in the future. Mr. Rankin testified that the decision to reclassify the Crievor to store clerk grade 4 was made because that classification involves no supervisory duties. It is two steps down from the ‘A’ store assistant manager classification. Although no period was mentioned, the demotion was not intended to be permanent. The Grievor could expect to be promoted if he showed he was capable. There is no remedial course such as was referred to by Mr. Marsella in his addendum to Mr. Beuk’s memorandum of September 14th. No procedure has been set up to evaluate the Griever’s job performance apart from the usual appraisals. Some months after the Griever’s demotion Mr. Marsella told him that it was possible that he could get his former job back and recommended that he take a Dale Carnegie course. The Grievor did so and having passed, requested reimbursement of the $695.00 cost of the course. On August 13, 1986 Mr. Scowcroft wrote to the Grievor denying the request because prior approval had not been obtained, but expressing his personal congratulations. Subsequently the decision not to reimburse the Grievor was reversed, apparently at the instance of Mr. Scowcroft. -6- Article 16.10 of the collective agreement reads: 16.10 (a) 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 the 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. (b) An employee who is demoted and to whom section (a) above does not apply shall be assigned to a step in the new salary range closest to but less than the rate he was receiving at the time of demotion. The applicability of section (b) above in the present circumstances was not extensively argued. For that reason and because it is not necessary to our decision, we believe an interpretation of that section should await a case which turns on that issue. For the reasons which follow, we find that the Grievor’s demotion was disciplinary in nature, that there was just cause for disciplinary action, but that the particular demotion was an excessive penalty in all the circumstances. If the conduct which has caused a demotion reflects directly and adversely on the employee’s job performance and is both voluntary and corrigible, it is generally held by arbitrators to be a proper subject for disciplinary action. See generally Brown and Beatty, Canadian Labour Arbitration, Section Edition, at PP. 421-427 and Palmer, Collective Agreement Arbitration in Canada, Second Edition at pp. 253-256. -7- Those criteria are met in this case. The conduct revealed in the incidents noted by Mr. Beuk had to do exclusively with the Griever’s unsatisfactory job performance; it was not caused by some inherent or involuntary condition in the Grievor; and it was considered by management to be capable of correction. It is our conclusion that the Griever’s conduct in the months preceding his demotion displayed a careless, if not obtuse approach to compliance with established policies and procedures. The cumulative effect of the deficiencies noted by Mr. Beuk and the underlying attitude they reflected could not be tolerated and were deserving of a disciplinary response. There remains the question of the appropriateness of the discipline imposed. It is significant that the Grievor’s difficulties began with the arrival of Mr. Beuk at Store 207. With one exception, appraisals made at six and ten month intervals in each of the years from 1977 to 1984 (not including those for 1980 which could not be found) rate the Grievor’s job performance as average, or above average, or satisfactory and he is referred to as capable, dependable, with a good knowledge of store procedures and a good rapport with staff and customers. The 1984 appraisal was made by Mr. Beuk’s immediate predecessor at Store 207 and concurred with by Mr. Marsella. The one exception is the six month appraisal made in 1981 in which the manager concerned rated the Grievor as unsatisfactory in the training and supervision of staff and commented that he preferred to do tasks himself rather than “chasing” the staff to do them. The manager’s recommendation -a- against a salary increase was rejected by the then district supervisor. Salary increases were recommended in 1977, 1978, 1979, 1981 and 1982. By 1983 the Grievor was at the maximum salary level of his classification. We do not fault Mr. Beuk for his determination to have a highly efficient store operation and to demand the standard of job performance from employees necessary to achieve that objective. But we cannot escape the conclusion that he soon became unduly preoccupied with the Griever’s shortcomings. His notes contain references to a number of relatively minor occurrences. None of the incidents recorded, standing alone, can be said to have posed a serious threat to the efficiency or security of the store. None carries any implication of dishonesty, or insubordination, or gross negligence. Further, Mr. Beuk and his superiors obviously attached little importance to the Griever’s long service or employment history, and apparently no thought was given to possible reasons for the sudden deterioration of his job performance. The Griever had fourteen and one-half years of service at the time of his demotion. If he has a disciplinary record we were not told of it. He had worked one and one-half years as a ‘8’ store assistant manager and five years as an ‘A’ store assistant manager. It was, of course, decisions taken by the Employer that appraised him favourably, granted him his promotions and placed him in the position from which he has now been removed. If, despite all of this, the Grievor was ultimately found to have inadequate training and a poor work attitude there was, in our view, a i -9- managerial responsibility to take a remedial approach to his problems; that is, to provide the motivation and the means which would assist the Grievor to renew his capabilities. Instead, management’s about-face resulted in the Griever’s demotion two classifications to a non-supervisory position he had held seven years earlier. It is difficult to see what real opportunity, much less incentive was thus provided to the Griever to work towards regaining his former position which, in management’s expressed belief, he has the potential to do. We believe it is a just and reasonable disciplinary penalty in all the circumstances that the Grievor be demoted to a position in which he has already proved himself and which offers a legitimate opportunity for rehabilitation. 1 Accordingly, the demotion of the Grievor as of October 21, 1985 to store clerk grade 4 is~ revoked and demotion to ‘B’ store assistant manager is substituted therefor. The Grievor shall be reimbursed for the loss of the difference in salary between the two above classifications for the period from October 21, 1985 to the date of his actual appointment to a position in the new classification. The Employer shall assist in the Griever’s rehabilitation by ensuring that he performs the full range of duties normally assigned to ‘8’ store assistant managers. The Griever shall remain in that classification for a period of not less than six months. At any time thereafter he may apply for promotion under the relevant provisions of the collective agreement and any such application shall be considered .by the Employer without regard to the circumstances which led to the present grievance. - 10 - We retain jurisdication in order to resolve issues related to the implementation of this decision should any arise. DATE,, at: TORONTO, ONTARIO this 24th day of February, .1988. -- P. IM. Draper, Vice-Chairman --- -- --- 5. R. Hennessy, Member _----- _~ A. G. Stapleton, Member