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Home My WebLink About1985-1113.DeBonis et al.89-05-29IN TRE MATTER OF AN ARBITRATION Under TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (DeBonis, Knight, Piwerka) Grievor - and - The Crown in Right of Ontario (The Liquor Control Board of Ontario) Employer Before: For the Grievor: For the Employer: J. Forbes-Roberts Vice-Chairperson J. Anderson Member M. OrToole Member E. Nitchell Counsel Koskie & Minsky J. Chaykowsky Classification Officer Ontario Liquor Boards Employees Union R. Little Counsel Hicks Morely Hamilton Stewart Storie Barristers & Solicitors August 18, 1987 Eearinq: -2- DECISION This case involves tv0 (2) job competition grievances for the position of Control Console Operator at the Durham Warehouse. Initially there were three (3) grievances but the third grievor withdrew. The two (2) successful candidates were notified of these proceedings and their right to participate. The parties agreed that the grievors (Messrs. DeBonis and Knight) had more seniority than the successful candidates. The relevant portion of the collective agreement states as follovs: 16.6 (a) Where employees are being considered for promotion, length of service from appointment will be the determining factor provided the employee is qualified to perform the job. The facts leading up to the grievances are as follows. The Durham Warehouse ("Durham") is the largest warehouse for the distribution of alcohol in North America. It is almost entirly automated. Along vith many other employees both the grievors transferred to Durham from the Kipling warehouse ("Kipl- ingl'). In fact Kipling was eventually closed in favour of Durham. The transfer of employees vas a gradual process and for a period of time leading up to Durham becoming fully operational the- tvo warehouses worked in tandem to meet the Employer's distribution needs. The result vas that from May of 1984 to February of 1985 employees were shuttled between the two (2) locations on a regular basis. More accurately, if on a given day there vas no vork at Kipling the employees were offered the option of going to Durham or staying home. For a variety of personal reasons on a number of these occasions the grievors chose to take the day off. Their reasons are unimportant as the Employer did not criticize them for their choice nor vere they counselled regarding their attendance records. By late February 1965 Durham vas fully operational and became the grievors'permanent vork location. In August of 1985 the Control Console Operator job was posted indicating two (2) vacancies. Along vith several others, the grievers applied. Both grievers passed the aptitude test the Employer set and were granted interviews. Both were subse- quently advised that they had lost the job competition because other candidates vere more qualified based. on their attendance records. The Union challenges the Employer's consideration of attendance as a qualification vithin the meaning 16.6(a). of article The Employer called Mr. W. Kennedy vho at the relevant time vas the Manager of the Controls Department at Durham and thus the supervisor of the job in question. It was Mr. Kennedy who drafted the job posting (in vhich it is stated that attendance will be a consideration), held the interviews, and made the recommendations regarding the promotions. Mr. Kennedy explained the nature of the Control Console Operator ("Operator") position. As earlier indicated Durham is almost fully automated, and like most things these. days it is controlled by a computer. The Control Console Operation Room contains the computer and fea= screens. It is the Operator's job to monitor the system. In the event of a g%GtiH.in the programme he or she may have to shut the system dovn to allow for mere human intervention. Failure to detect a problem or to react properly to it could produce serious consequences. Because of the sensitive nature of the position, and the training required for it, it is not possible to simply "parachute" someone in to cover for an absent Operator. The absence of an operator could thus mean that no work was prepared for the next shift, that the previous shift's Operator hip to =,,rkta double shift,.a:~~:.~Itimately .that distrihutron vas delayed to the retail outlets. Because of these factors Kennedy perceived attendance as an important consideration. As an "acceptable" attendance level bench mark i$nnedy..used the 1984 average absence rate for all varehouse employees, which figure vas 7.14 days per year. (This figure excluded vacation, long term absences r-vorkers Compensation ; etc.) The 1984 rate was chosen because it was the most current and the most representa- tive data available. Kennedy testified that the selection procedure vent as follovs. First, applicants were ranked according to their seniority. Second, the aptitude test vas administered and a pass or fail grade vas recorded. Finally those vho had passed the vritten test had to meet the "1.14 day test". Both grievers failed the latter. Union counsel argued that the Employer's use of attendance records was arbitrary, unreasonable and unfair. Applicants were not varned that attendance was to be a consideration, nor had they been previously advised that cRefr attendance vas unaccept- able. Counsel suggested that in failing to advise the grievors in the interviev that attendance vas a consideration the Employer had set qualificatios after the posting had appeared. In any event, if attendance was to be a consideration at all, the comparative figure should have come solely from Kipling emplb~yeea - 4 - Employer counsel argued that in light of the sensitive nature of the Operator position attendance vas a valid consider- ation when determining qualifications. Further the 1.14 day per year absence figure vas not arbitrary or unreasonable. The Division's previous year's average vas both representative and current. Finally, unless the Employer's chosen standard was arbitrary or unreasonable the Board should not interfere. Arbitrators have long held that attendance may be considered a qualification for purposes of job competitions (re: Glvsinskie G.S.B. 42/81 and cases contained therein; re: Riddock G.S.B. 592/83 at p. 91. We were persuaded by the evidence of Mr. Kennedy that it was a valid consideration in the present case. An operator could not be readily replaced by another employee, and vithout anoperator the entire warehouse could be jeopardiz- ed. We also find that the grievors had notice that attendance vould be a consideration in the job competition. The posting itself clearly states: QUALIFICATIQNS: All applicants will be required to take an aptitude test and to have demonstrated an acceptable level of attendance. (emphasis added) Notice is therefore not an issue. Nor can the Union suggest that simply because the grievors had not been previously disciplined for absenteeism, their records must be "acceptable" for the purposes of a competition. In re: gof Etobicok (unreported) Arbitrator Schiff states: Nor can the union find help in the employer’s earlier failure to discipline Tremblett for absenteeism or check on the reasons. They vere determining vhether.competing ap- plicants for an available position possessed necessary elements of ability in equal or unequal measure. When an employer imposes discipline, earlier failure to give fair notice of unacceptable conduct may be decisive. But, when employers choose among applicants for promotion, arbitra- tors have not so far seen any notice as relevant. (at page 4) Obviously what may be acceptable attendance in one position might not be equally acceptable in a more or sensitive position. ,responsible The only issue which remains is the fairness of the standard used by the Employer to judge the acceptability of atf,endance.. We do not find the Division average rate of absence to be an unfair or unreasonable unit of measurement. applicants by Surely judging the record of their peers is not unfair. Indeed to have used simply Kipling statistics unfair as it probably vould have been vould have been gearing specific group of employees. the competition to a We therefore,.find that the competition was fair, and the grievances are. hereby dismissed. Dated at Toronto this 29th. day of Ray.. 1989. .9 r---.- J. Forbes-Roberts, Vice-Chairperson M.F. O'Toole, Member