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Home My WebLink About1980-0210.Gavis.84-01-20INTHEMATTEROFANARBITRATION Under THECROWNEMPLOYEESCOLLECTIVEBARGAININGACT Before THEGRIEVANCESETTLEMENTBOARD Between: Before: For the Griever: For the Employer: 'Hearing: OLBEU (C. Gavis) and Griever The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer S.B. Linden, (2.C. Vice Chairman H.L. Robinson Member F.T. Collict LMember M. Levinson, Counsel Golden, Levinson 8. Boulby, Counsel Hicks Morley Hamilton Stewart Storie March 22, 1983 -2- The griever in this case had been employed as a steady part-time cashier at LCBO Store 563 in Oshawa. She was employed from the fall of 1978 until the end of December, 1979. Ordinarily, there is a slow down after Christmas when there is little or no work available to part-time employees. It generally picks up again after January and into February. Some time in February 1980, after not having been scheduled for work for some time, the grievor went to the store to speak to tile Manager, Mr. Copely. She complained about not being scheduled for work. At the same time she noticed that another person was working, with less seniority than she had. The griever had never been told or heard anything to the effect that her work was unsatisfactory prior to this time. When the griever asked Mr. Copely if she was coming back to work, he said no. The giievor asked if she was being fired or laid off and apparently Mr. Copely’s response was, “I don’t know”. In his own testimony, Mr. Copely confirmed that when the griever inquired about her status he replied, “I don’t know”. He went on to say that he did not fire her and he’ made it clear that he did not have the authority to fire anyone. He stated that a person could only be fired by Head Office. In any event, the griever has not been back to work since that time. Following the discussion with Mr. Copely, a grievance was filed. This grievance his contained in a letter that the griever sent to W.D. McLeod, Director of Store Operations on iMarch 14, 1980. In this letter the griever states as follows: I I do hereby grieve that con&y to article 26, Utilization of Part Time Personnel and the letter of agreement entitled “Employment Practices” that I am suffering a reduction in hours of work due to the altered utilization of temporary employees. 1 wish to have my hours of work placed at their previous level which existed prior to the reduction. At the outset of the hearing, Counsel for the griever submitted that although the grievance itself referred to Article 26 of the Agreement, he was relying on the third letter of agreement contained on page 56 of the Collective Agreement. It was his position that although the grievance was not framed in this manner, this should properly be characterized as a case of dismissal without just cause. The employer’s Counsel objected to. this procedure. As ‘a result, the hearing was split in two. The Board reserved its decision on the objection and we agreed to hear all the evidence with respect to the grievance as originally framed as well as according to the proposed enlargement. It is the view of this Board that after hearing all the evidence and the extensive and capable arguments adduced by both Counsel, the real dispute between the parties is not affected in any significant way. We do not think it is necessary to refer to any of the’other evidence at great length in order to resolve this grievance. For example, there is some dispute about the efforts that were made by.Mr. Copely~or his assistant to communicate with the griever regarding her availability for work. Mr. Copely’s position was that efforts were made to contact the griever, but that she was not available. The griever’s position was that -4- there was always someone home and she was available. It is the view of this Board that resolving this nor other factual matters is of no assistance in resolving this grievance. In our view, the important facts are not in dispute. The fact is that the griever has not been discharged. There is no positive obligation on an employer to provide work for a temporary employee. Certainly an employee can complain about not being used as bften or as frequently as she might like, but she cannot compel her employer to utilize her services. This Board recognizes that a temporary employee enjoys the same rights as a full-time employee to grieve a dismissal. Further, when there has been a dismissal, an employer must prove just cause. We recognize that in some cases, and depending on the facts, it may be that a conscious decision not to assign work to a griever might amount -to a constructive dismissal (269/82). However, in this case, once the grievance was filed, there was a complete breakdown between the employee and the employer. In that situation, it is not unreasonable for the employer not to have further scheduled the griever. However, it is our view that the griever in this case has every right to be scheduled for work as she was prior to filing the grievance. There is nothing in the evidence to justify any decision to be made by the employer adverse to the interests of . the griever. Indeed, the employer took the position throughout the hearing -that the griever has not been laid off and has not been dismissed. Therefore, except for the obvious difficulty created by the passage of time, there is no reason why the griever could not be scheduled for work in the normal course. q. -+ -5- Accordingly, the Board dismisses Counsel for the griever’s application to characterize this as an unjust dismissal case, but the Board upholds in principle the grievance as originally framed. We have already stated that there is no affirmative obligation on an employer to utilize part-time employees, but the Board recommends that the employer comply with the spirit of this award Andy provides the griever with the same opportunity for employment that she had prior to the filing of this grievance. DATED at Toronto this 20th day of January , 1984. S.B. Linden, QTC. Vice Chairman “I dissent” (see attached) --- H.L. Robinson Member g, q@> . F.T. Collict i&6 ber /Ibw DISSENT I concur with the recommendation of the Majority Award that “the employer comply with the spirit of this award and provide the griever with the same opportunity for einployment that she had prior to the filing of this grievance.” If, as it must be hoped he will, the.‘employer complies with this recommendation, the griever’s future employment will thereby be taken care of. But it will do nothing to compensate the griever for the employment which she would have had during the nearly four years since she filed her grievance. The facts of the case are summarized in the Majority Award. Early in 1980, the liquor store where the griever had worked as a part-time cashier stopped scheduling her for work, while another employee with less seniority was scheduled. Although the store manager, Mr. Copely, told the griever that he did not have the authority to. fire anyone, by ceasing to call her for work he effectively terminated her. [Mr. Copely claimed that the griever could not be ‘. reached by telephone and was therefore not avai.lable. The grievor on the other hand said that there was always someone at home and that she was available. In addition, Mr. Copely ceased calling the griever because she asked him to recommend her for another job, which he did by a telephone call to the potential employer. He then assumed, without checking, that the griever had obtained the job and was no longer interested in working in the liquor store. There was thus, even before the grievance was filed, “a complete breakdown : between the employee and the~employer.” Counsel for the griever argued that this breakdown, for which the employer was responsible, amounted to a discharge without just cause. . . . The Majority Award states: The fact is that the griever has not been discharged. There is no positive obligation on an employer to provide work for a temporary employee. Certainly an employee can complain about not being used as often or as frequently as she might like, but she cannot compel her employer to utilize her services. By contrast, in the Kettings case (260/82), the Board in virtually identical circumstances unanimously arrived at the opposite conclusion. In that case, counsel for the employer submitted “that that griever’s unavailability when called provided just cause for not using him,” and that since, as here, “the Collective Agreement provides no positive obligation on the employer to provide work for a temporary employee...the griever cannot complain because he is not scheduled.” However, the Board disagreed and c&cluded: The decision not to assign any work to the grievor, regardless of his availability, amounted, in our opinion, to a dismissal of the griever. . ..The grievor must be reinstated forthwith. In my opinion, the same conclusion should have been reached in this case, and on this basis the griever awarded compensation for the employment which she would have received since May 1980. My understanding of the rule which it is desirable to follow in I~ Grievance Settlement Board decisions is that they should, where the facts are similar and the same articles of the Collective Agreement are involved, interpret these in the same way. In this case, it seems to me that the Majority Award does not do that. llbw