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HomeMy WebLinkAbout1984-0561.Leach.85-11-13IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT : Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (C. Leach) and The Crown in Right of Ontario (Liquor Control Board of Ontario) 561184 Befke: P. M . Draper Vice-Chairman C. Nabi Member P. D. Camp Member For the Crievor: M. Levimon Counsel Kcskie &Minsky i+risters & ,Solicitors For the Employer: M. Hines Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: July 24, 1985 July 25, 198s Grievor Employer DECXSION The Griever, Charles Leach, a Liquor Store Clerk Grade 3 (Clerk 31, grieves that in June, 1984, he was wrongfully denied a promotion to the position of Liquor Store Clerk Grade 4 (Clerk 4). The promoticn went to an employee junior to the Griever who, we note, chose not to attend or to be represented at the hearing. ,The Classification Guides for the CJerk 3 and Clerk 4 classifications are appended hereto. The Grievor is fifty years old. He was first employed by the L.C.B.O. in December, 1972, as a Clerk 2 and became a Clerk 3 in early 1974. He has been employed throughout at Store No. 70 at Smiths Falls, a ‘8’ store with (at the relevant time) a staff consisting of a Manager, an Assistant Manager, a Clerk 4 and three Clerk 3’s. A Clerk 4 at a ‘B’ Store is the equivalent of an Assistant Manager at a ‘C’ (smaller) store. The Griever has never received a written reprimand for his work and has no disciplinary record. The Grievor testified that when an earlier opportunity for promotion to Clerk 4 arose he did not apply because he considered an employee junior to him (who, in fact, received the promoticn) to be better qualified. With reference to the Clerk 4 Classification Guide, he does not understand what is meant by the requirement to make decisions “on relatively complex store operational questions” or to make judgements “in situations which diverge from day-today practice”. Until spoken to, he did not call the L.C.&O. head office for certain’ approvals of -3- ~:....:.;: ,: .Y,. ‘,., ..;I .‘-.,:I; r:; :‘ii 1 .,_.,. __ ,.. : Spe$al Occasion Permits, and did not complete vouchers for customer refunds because he thought these functions were “for management”. He did not know it was contrary to store procedure for him to leave the store during hi shift with a temporary employee alone on the floor. On a Licencee Purchase Order made out by him in January, 1984, he made four separate errors, three of which he failed to correct when told to rewrite the order. He.has been verbally reprimanded on two occasions that he can recall for his manner of dealing with cu.stomeTs. He leaves promptly at the end of his shift because he is entitled to do so. Ronald Van ,Meer has been the Manager of the Smiths Falls store for the past six years and was Assistant Manager the& for the previous seven years. He rates the Grievor as a “borderline” Clerk 3. The Grievor must be told to carry out dutig of his position that he shDuid do on his own initiative. He work at a slower pace and makes more error in hi paper work than the other clerks do. He continues to have difficulty with cash register procedures and does not do his share of routine Clerk 3 duties such as cleaning the premises and handling stock. .A Clerk 4 has greater decision-making authority and more administrative responsibility than a Clerk 3 does. He is required to advise and assist jurior clerks even when the Manager or the Assistant Manager is on duty. He is in charge of the store for a ._ part of his shift when either the Manager or the Assistant Manager is on his day off and could also be in charge on a Friday second shift. -4- David Grant, who was Assistant Manager at the Smiths Falls store for five years prior to hi appointment as Manager of the Amherstview store in January, 1984, was called as a witness on behalf of the Grievor. He testified that the Grievor and the other Clerk 3% at the Smiths Falls store performed various duties of the Clerk 4 classification in rotation and under supervision. He believes that a store manager is competent to appraise the members of hi staff. He considers the Grievor to be qualified to don the work of a Clerk 4. .’ completing reports accurately and in a reasonable time and the Area Supervisor concurred. In 1980 the Manager noted that the Grievor was fully capable of performing all the duties of a Clerk 3. In 1981, 1982 and 1983 no remarks were recorded. In 1984 the Manager noted that the Griever was showing initiative “at c the present time”. Performance appraisals are a vital part of an employee’s employment record and are logically to be regarded as relevant to the matter of qualifications for promotion. Appraisals of the Griever covering the period 1977-1984 were filed in evidence. In the 1977 appraisal the Grievor was rated “Above Average” in five of thirteen categories and “Average” .in the other eight. In the remaining appraisals he was rated “Average” or “Satisfactory” in all categories. In 1977 the Manager noted that the Grievor was a willing worker with a good attitude to the public and the Area Supervisor noted that he was capable of performing the duties of his classification. In 1978 the Manager noted that the Grievor required further experience in office procedures and recommended against advancement, and the Area Supervisor noted that he was generally satisfactory but required further training in accounting and operating procedures. In 1979 the Manager noted that the Griever required constant supervision and correction and had problems -5- The relevant article of the collective agreement between the parties is the following: 16;6 (a) When employers 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. The article provides, in effect, that the senior qualified applicant is entitled to the promotion. His qualifications are not to be measured against those of other employees but against the requirements of the position sought. However, despite the emphasis on seniority, the words “provided the employee is qualified to perform the job” must be given meaning; they cannot be read out of existence. To conclude otherwise would be to find that employees are simply to be promoted in order of senicrity. Further, the qualificaticns required, are not lessened by the prominence of the seniority factor. They are either sufficient to warrant promotim or they are not. The word “qualified!!~. has been defined as being possessed of accomplishments which fit one for a certain function or as having been trained.into acquaintance with and expertness in performing the business to be done. See e Northern Pigment, I L.A.C. 216 (Laskin, 1948). The standard of quahfications to be applied is a matter of fact. See Governing Council of the University of Toronto, 30 L.A.C. (2d) 187 (Palmer, 1981). Accordingly, we are entitled to review the Employer’s decision as to the Griever’s qualifications .to perform the work of a Clerk 4 as a question of fact to be determined on the evidence. -6- Article 16.6 (a) clearly implig that there are qualifications to be met. The qualifications reasonably to be required of applicants for promotion to the pasiticn of Clerk 4 are thxe contained in the Guide for that classification. We are satisfied that ;he Griever’s qualifications were ‘measured against the criteria described therein. A comparison of the Guides fez the Clerk 3 and Clerk 4 classifications reveals that there are many prescribed duties and responsibilities common to both. “What diitinquisbes the two classificatims is that the Clerk 4, as the senior clerk, is less dcsely supervised; has broader authority to make judgements and to take decisions; and must be sufficiently capable at‘a variety of accounting, recording and reporting tasks not only to perform such functions accurately and quickly but to guide and instruct junior clerks in performing them. Finally, although the position is not in any sense a managerial one, a Clerk 4 is required to assume responsibility fa the store on occasion as a stand-in for the Manager or the Assistant Manager. In brief, a5 the Board found in Mac Lean, 437/83, “leadenhip, the ability to take responsibility, and a complete understanding of store procedures and why things are done the way they are done are all threshold requirements” for the &erk 4 position. The onus is on the Crievor to establish a prima facie case that he is qualified for promotion. If he does so, the Employer must then endeavour to show that, in fact, he is not qualified. In ouropinicn the evidence lending material support to the Grievor’s claim to be qualified consists of the performance appraisals mentioned earlier. With the exceptim of the earliest one, these . . c ’ -7- c describe him as an average Clerk 3. They contain, overall, a rough balance of positive and negative comment on the Crievor’s capabilities asa Clerk 3. We view them as being inconclusive evidence of the Griever’s qualifications for promotion. Agaimt the appraisals must be weighed the testimcny of the Griever and Van Meer regarding a series of incidents that reflect adversely on the Grievor, among them the mistakes on a Licencee Purchase Order, leaving the store inadequately staffed, and failing to perform some duties on the pretext that they were managerial f uncticns . In addition, there is ‘Van .Meer’s testimony as to the Griever’s _. shortcomings which, we find, was not satisfactorily answered. Van Meer is familiar with the duties of Clerk 4’s and for several years has had the opportunity to observe the Grievor at work. He is well’ equipped to judge the Griever’s qualifications and we find hi testimony pertinent and convincing. We are puzzled by the Griever’s apparent disinterest in doing hi job to the satisfaction of his superiors when he aspires to be given the additional responsibilities of a Clerk 4. We can only surmise that he does not consider it necessary to demonstrate by his work Performance as a Clerk 3 that he is qualified to advance to the higher classification. Re Douglas Aircraft, 22 L.A.C. (2d) 208 (H. D. Brown, 1979) is authority for the proposition that in promotion cases, if an employer has acted reasonably, without discrimination or bad faith and has properly applied the relevant provision of the collective agreement, its decision should stand. That standard is met in the present case. We find that the evidence before us amply supports the decision of the Employer and that it should therefore not be disturbed. The grievance is dismissed. -a- DATED at Toronto, Ontario this 13th day of November, 1985. P. M. Draper, Vice-Chairman P. D. Camp, Member \ I L.C i3.P. & L.L.B,O. CLASSIFICATION GUIDE . * 2 . EVALUATION CRITERIA SUMMARY OF RESPONSIEILITY LEVEL TYPICAL’ DUTIES . DECISION, MAKiNGI COMPLEXITY CONTACTS SUPERVISION GIVEN SUPERVISION RECEIVED e’ ENTRANCE WALIFICATIONS Fw 1’. le7H CLASSIFICATION LIQUOR STORE CLERK GRADE 4 This cover3 pohltions iat the advanced VorktnS level I” convc+nr~anel YCOCCJ inwAGed wltb al& score operarions end activitlea in essistinp. cuetomerS, in arnck .end etore malncmancc and srcurlty and in cesh he”dllnS and all kiUgeple”r reporting. Also, may act 88 Assistant Store nnnagur L” * ,: level st*lx. “urler may include: u*SiYti”,J fUStOT.e=S CO interpret price lists and/or to complete purchase orders, fetChinS and !=eppi”S me=- chendise, u”lO~dl”~. checking and Scoring stock. pricing bottles. restocking bins, dusting displsyed stock, C1ee”i”g store, “are- house end surrounding premises.- Other duties may include operating the canh rC$&ter, prL~ari”S bank envelopes, under- teklng daily sales rcpurts, proceasing llcenerc end special occasion permit spplicatlo”s, taking inventories, pOsti” ledgers and doing seles analysis. In sbsenca Of n;meSeC or AssiSCent lla”eSer mny handle etore m;l”oSe,Ue”t end staff oversight fu”CCio”s such Ss SSSignfng work to junior staff., ‘?Xp1Si”i”g procedures, .~ DOnitorl”~ casks end hnndling the entire range of customer COlBpl*i”tS. Decision making is required on telarlvely complex store opera lonol questions. May teiuse sales to rainore and those judsou to be intoxicated. J;dgmenr is sometimes required in situa~i~na vhtcb diverge from day-to-day practice. i-f=jOKity of ConCeCt~ are wlrh the Se”ere1 public where the incumbent is expected to Snsver complex questions COnCeXTIi”~ stock. Store procedures or epplicefion of policy to specific *ttuacions. Expected to handle complaints where kaoWledSe of etore procedures end sensitivity ere required. I” the abaunce of rhe Menager or Assistant ?4e”eger, oversees the work oE all junior staff such es eesi@i”S teaks. rXplai”inS’proCedurra and monitorinS eeeiS”J0e”ts. Jerk is “erformed under aeneral su~ervieion. Dev-co-dav rouclne ioaks ~r‘r not ua;ally checird. _ Any U”age!E”t ’ reports. sales analysis, inventories and requlslclone are :hrcked carefully for accuracy end complcce”ess. :ompletion of two years OF ercondary schooling or.equivelenc. Lbility to exercise conslderabla cncc end jud~mmenr in handling :uetomer complaints and inquiries. A minimum of 14 year* !xperience eS Liquor Scaru Clerk Grade 3 or equivalent :clated exprriencc. EVALUATION CRITERIA SUMMARY OF RESPONSIBILI~, LEVEL TYPICAL DUTIES Ex% COMPLEXITY .j i CONTACTS-: 2: SUPERVISION GIVEN SUPERVISION RECEIVED ENTRANCE WJALIFICATIONS L.C.E.O. & L.LB.0. CLASSIFICATION GUIDE February’ 1. 19’ CLASSIFICATION LIQUOR STORP. CLERK GRADE 3 This cover6 positions at the working level In conventional and self-serve stores Involved with store operations and activities in assisting customers. in store and stock maintenance, security, and to a limited extent in cash I handling and management reporting. Duties may include: assisting CustOmers to interpret price lists and/or to complete purchase orders. fetching and wrapping merchandise, unlwding, checking and storing stock. cleaning sture. warehouse and surrounding prkalses. pricing bottles, restocking bins, dusting displayed stock. Other duties may Include operating the cash register, preparing bank envelopes. undertaking dally sales reports, processing licensee and special occasion permif applications, taking inventories, posting ledgers and doing sales analysis. Some decision making is required. May refuse sales to minors and those judged to be Intoxicated. In smaller stores may participate with the Manager on the layout of storage area or requisirions for furure etocks. fias,frequenf customer contacts while answering inquiries and pror#ding ‘assistance oniall qtiCs+ns Xegarding ‘stpckrand :::;r: store procedures..;.. Expectedk,to ‘handle.~ndrrral day-to-day-.--.\ cu~tomer-complai~ts.-~ 1’. Hay occasionally~ oversee work of junior staff particularly in training new clerks or temporary employees. - Jerk is performed under supervision. Periodic spot checks nay be undertaken for most routine tasks. Reports (sales snalysis, inventories, etc.) are checked thoroughly by the 4anager. :ompletio” of two years of secondary schooling or equivalent. Ability to exercise tact and judgment in handling customer Lnquirles and complaints. .4 minimum of one year’s experience LS a Liquor Store Clerk Grade 2 or equivalent related !Xperie”Ce. I