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HomeMy WebLinkAbout2000-1604.Ramji.02-01-22 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _r11, i~~i~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB# 1604/00 UNION#OLB522/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees' Union (RamJI) Grievor -and- The Crown III RIght of OntarIo (LIqUor Control Board of OntarIo) Employer BEFORE Nimal V DIssanayake Vice-Chairperson FOR THE GRIEVOR Ursula Boylan Counsel Koskie Minsky BarrIsters & SOlICItorS FOR THE EMPLOYER AlIson Renton Counsel Legal ServIces LIquor Control Board of OntarIo HEARING December 13 2001 DECISION This decIsion relates to a grievance dated December 23, 2000, filed by Mr Rahim Ramjl ("grlevor"), wherein he alleges that he was dismissed In breach of article 26 4 of the collective agreement. The grlevor commenced his employment with the LCBO on July 10, 2000 at ItS Durham Logistics FacIlity In Oshawa, Ontario, as a probationary casual employee Under article 31 5, his probation period would have ended on or about January 9, 2001 However, prior to that, the grlevor's employment was terminated on December 13, 2000 by the following letter. Our records Indicate that you began your employment with the LCBO on July 10, 2000 Since that time there have been numerous occasions where management has counselled you both verbally and In the form of a letter You were verbally counselled on July 20, 2000 for failure to sWipe In or out. Following thiS however, you failed to sWipe your card on September 25, September 27, October 26 and December 4,2000 You were verbally counselled on August 10, 2000 for returning late from break. You were then late for the start of your shift on August 24, and September 29, 2000 You were late returning from break again on October 6, 2000 A letter was Issued to you on October 10, 2000 regarding your punctuality 2 You were Issued a Letter of Counselling on September 1, 2000 regarding you low/poor productivity dUring the week of August 28 to September 1, 2000 On September 7, 2000 you were verbally counselled for excessive breakage On September 27, 2000 you were verbally counselled for errors on the MPL deck. You were verbally counselled on November 27, 2000 for horseplay On December 4, 2000 you were Issued a Letter of Counselling for horseplay It must also be noted that you have left work early due to sickness on October 11, 2000 at 5 00 pm, November 24, 2000 at 7 55 pm, and Decem ber 11, 2000 at 6 30 P m The Importance of good attendance and punctuality In the workplace, and the consequences of poor attendance and punctuality, are outlined In the "Terms and Conditions of Employment" which you received dUring the recruitment and selection process and In the "Durham Regional Warehouse Employee Orientation Kit" which was reviewed dUring your Orientation Accordingly, due to your excessive amounts of Infractions, your absenteeism and lateness, and In light of your probationary status, your employment with the LCBO IS term Inated effective Immediately The union relied on the follOWing provIsions of the collective agreement. 264 The Employer shall not discipline or dismiss an employee without just cause 3 277 An employee claiming he/she has been dismissed without just cause shall be entitled to file a grievance commencing at STAGE 3 provided he/she does so within ten (10) days of the date of the dismissal The employer did not question the grlevor's entitlement to grieve his dismissal under the collective agreement. It was not the employer's position that thiS was a non- disciplinary release of a probationary employee for unsuitability On the contrary, the employer's position was that the grlevor was dismissed for just cause In thiS regard, the employer argued that a much lower standard of just cause IS required to dismiss a probationary employee Counsel accepted that In the circumstances the employer had to establish a culminating Incident. It was argued that an Incident of leaving early on December 11, 2000 was a culminating Incident which constituted just for discharge, based on the prior Infractions The union did not disagree with the proposition that a lower standard of just cause was required to discharge a probationary employee However, the union's position was that the employer did not have just cause even at a lower standard to dismiss the grlevor on December 13,2000 The employer led ItS eVidence first. Mr Ian McCallum, the P M Operations Manager, testified that the grlevor was dismissed on his recommendation He testified about the past Infractions on the part of the grlevor set out In the letter of term Inatlon, and the counselling provided to the grlevor In that regard It was conceded that all of the counselling was non-disciplinary Mr McCallum stated that the employer had the 4 authority to discipline a probationary employee, but agreed that the grlevor had never been disciplined at any time prior to his dismissal The union called no eVidence, and took the position that the eVidence tendered by the employer failed to establish just cause to any standard On that basIs It was submitted that the grievance should be upheld The past Infractions on the part of the grlevor relied upon by the employer fall Into five categories (1) work performance/productivity (2) horseplay (3) failure to sWipe In/out card (4) lateness (5) leaving work prior to end of shift. With regard to the first four categories, the union did not dispute the Infractions alleged Nor did the union deny that the grlevor received the non-disciplinary counselling as stated In the letter However, the union subm Itted that by December 13, 2000, the grlevor had corrected his ways with regard to those four categories As union counsel put It, "the non-disciplinary counselling had exactly the desired result" Counsel argued that the employer's decIsion not to discipline the grlevor for any of those Infractions Indicated that It did not consider the Infractions to be serious enough to be worthy of discipline Instead, the employer chose to correct the situation through counselling, and the counselling achieved exactly that result. In these Circumstances, It was submitted, that on December 13, 2000 the employer was not entitled to rely on past Infractions which had been corrected follOWing non-disciplinary counselling 5 With regard to the Instances of leaving work early, the union's position was that the grlevor left work early for legitimate reasons and after Informing his supervisor Therefore, there was no culpability on his part. It was particularly pOinted out that the Infraction that triggered the December 13, 2000 dismissal - the alleged culminating Incident - was the Incident of leaving early on December 11, 2000 It was subm Itted that the grlevor was not culpable In that regard, and that for that reason alone the employer was not entitled to dlsm ISS the grlevor on December 13, 2000 as It chose to do The eVidence IS that upon his hire, the grlevor signed acknowledging receipt of a document "Terms and Conditions of Casual Employment", which Included the following statement. "Work performance, punctuality and attendance are monitored on an on-going basIs Absenteeism, tardiness and/or poor performance will result In termination of employment" DUring his exam Inatlon-In-chlef, Mr McCullum was asked why he recommended that the grlevor's employment be terminated He replied that his recommendation was based on the grlevor's probation report which recorded Instances of "lateness, absences, tardiness and poor job performance" Under cross-examination Mr McCullum agreed that after the grlevor received a letter of counsel on October 10, 2001 with regard to lateness, there had been no further Instances of lateness on the grlevor's part. He agreed that since October 10th, the lateness problem had been rectified Similarly, Mr McCallum agreed that the 6 grlevor's probation report Indicated that since the counselling the grlevor received on September 27, 2001, there had been no performance problems except for the Incident of horseplay on December 4, 2000, for which he received a further letter of counsel Based on that eVidence union counsel pOinted out that as of December 13, 2000, there had been no lateness Issues for two months and no performance problems for 2% months The grlevor had rectified his lateness and performance deficiencies several months before his dismissal Counsel pOinted to Mr McCallum's agreement under cross-examination that the probation report Indicated that by November 17, 2000, the grlevor was an "OK" employee The only recent Infraction was an Incident of horseplay which only attracted a non-disciplinary counselling letter Now I turn to the eVidence relating to the Incidents of leaving early on October 11th, November 24th and December 11th of 2000 As noted, It IS that last Incident on December 11th that IS relied upon by the employer as constituting the "culminating Incident", which entitled It to rely on all of the prior Infractions The eVidence IS that on October 11, 2000, the grlevor left work early claiming that he was sick. Mr McCallum agreed under cross-examination that the grlevor Informed management before he left, that thiS was the first occasion where the grlevor had been absent due to sickness, and further that he had no reason to believe that on October 11 th the grlevor was not actually sick. 7 The eVidence IS that on November 24, 2000 the grlevor left early claiming that he had to leave because he had received a call that his apartment had been broken Into Mr McCallum testified that when the grlevor stated that he had to leave, he Informed the grlevor that his absenteeism was "on a bubble" and added, "you know what you have to do" Mr McCallum testified under cross-examination that on December 11, 2000, the grlevor Informed that he had to leave because his apartment had been broken Into again Mr McCallum said "Didn't you say the same thing on November 24th?" and the grlevor replied "yes" According to Mr McCullum he then said to the grlevor "This does not Sit well with your probation status here ThiS makes your absenteeism 3 days In a short period Do you understand that?" The Grlevor replied "yes" Mr McCullum asked "Do you stili feel you have to leave?' and the grlevor replied "yes" Mr McCullum was asked whether he warned the grlevor, after he stated that he stili felt he had to leave, that he would be discharged If he left. Mr McCullum replied "No I didn't discuss that at all" When asked "why not", Mr McCullum replied, "I didn't feel It was the place to do It. He said he had to leave" As noted, the employer's position IS that there was just cause for the grlevor's discharge Therefore, It follows that the onus IS on the employer to establish a culminating Incident - that around the time of his discharge the grlevor engaged In conduct which Justified some form of discipline Once that onus IS met, and only then, It becomes necessary to consider whether that conduct constituted just cause for 8 discharge, In light of his past record, taking Into account the fact that the grlevor was a probationary employee DUring cross-examination, Mr McCullum stated several times, that the grlevor was discharged on the basIs of his overall record However, where an employer purports to discipline a probationary employee, the well established principles relating to discipline continue to apply, albeit to a much less stringent standard Mr McCullum conceded that the grlevor could have been disciplined for his past Infractions relating to lateness, poor productivity, horseplay, failure to sWipe, etc However, In each case the employer elected not to address those situations by way of discipline Instead, the employer resorted to non-disciplinary counselling Having elected to do so at the time, the employer IS not entitled some months later to again discipline the grlevor for the same Infractions Moreover, the employer has failed to establish that any of the "leaVing early" Incidents gave rise to just cause for any form of discipline On October 11, 2000, the grlevor was at work but left early due to Illness It IS agreed that he Informed management before he left. There IS no suggestion that the grlevor was not In fact III at the time Nor IS there any eVidence that management In any way adVised the grlevor that he was not authorized to leave early, or that any Investigation was made as to the legitimacy of the grlevor's claim that he was III Particularly considering that thiS was the first and only time that the grlevor had left early claiming to be III, and considering the employer's failure to make any Investigation In that regard, one must accept the 9 grlevor's claim that he was In fact III that day Illness IS a legitimate reason for being absent from work. An employee, even a probationary employee, may not be disciplined for that. Similarly, on November 24, and December 11, 2000, the grlevor Informed management that he had received calls adVISing that his apartment had been burglarized and that he had to leave If management considered that he had no authority to leave, It was Incumbent to so adVise A vague statement that his leaving early "will not Sit well with your probationary status" at most suggests that there will be a negative Impact on the grlevor's probation record It certainly does not convey to the grlevor that he had no approval to leave early and that If he left Without approval he would be discharged Before the employer can discipline the grlevor for any of the "leaVing early" Incidents It must be established that the grlevor was In some way culpable Mr McCullum agreed that Illness IS a legitimate reason to be absent. With regard to the other two Incidents Mr McCullum pOinted out that Within a short period the grlevor had tWice claimed that his apartment had been broken Into ObViously, he was SUSpICIOUS about the truth of that claim However, mere suspicion IS not suffiCient grounds to discipline any employee, Including a probationer It was open for the employer to Investigate the truth of the grlevor's claim before discharging him It did not do so Other than hint that It IS Implausible that the same apartment will be burglarized tWice In 10 a short period, no eVidence was adduced to contradict the grlevor's claim that his apartment was In fact burglarized tWice The JUrisprudence recognizes that the principles relating to discipline and discharge will be applied less stringently, where the employee IS a probationary employee Thus for example, misconduct which will give rise to just cause to suspend a seniority employee, may be sufficient to Justify the discharge of a probationary employee However, arbitrators have not recognized that employers are entitled to discipline and discharge probationary employees with Impunity In disregard of all the basIc principles Here the grlevor was discharged for alleged just cause As In any other case, the onus rests on the employer to establish just cause for discharge, albeit the standard of just cause required would be lesser than what IS required for the discharge of a seniority employee In the present case the employer failed to establish just cause for discipline to any standard It had addressed the grlevor's past Infractions through non-disciplinary measures It was not entitled at a later pOint of time to decide to discipline the grlevor for the same Infractions With regard to the leaving work early Incidents, the employer has failed to establish any culpability on the grlevor's part. For all of those reasons the grievance IS allowed The employer IS directed to reinstate the grlevor In his former position at the same pOint In the probation period he stood at the time of his discharge Additionally, the grlevor IS entitled to be compensated for all losses that resulted from his discharge 11 The Board remains seized In the event the parties have any disputes with regard to the proper Implementation of thiS decIsion Dated at Toronto, thiS 22nd day of January, 2002 ~ .,*wW ;. . ...... . .f :. . ...<<..<::~ Nlmal V Dlssanayake, Vice-Chairperson 12