HomeMy WebLinkAbout1982-0269.Kettings.83-05-11IN THE MATTER OF AN ARBITRATION
Under
THE CROWN IZMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OLBEU (Dr Kettings)
and
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
M. Teplitsky, Q.C. Vice Chairman
8. Fishbein Member
P.H. Coupey~ Membei
M.L. Levinson
Counsel
R.J. Drmaj
Counsel
Hicks Morley Hamilton Stewart Storie
Barristeis & Solicitors
R.M. M+xDougall
Staff Relations Officer
Liquor Control Board of Ontar,?
.~ ‘.
May 10, 1983
Crievor
Employer
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The grievor has been a temporary employee since 1Y79. The
prstice of the employer is to maintain for each store a list of temporary
employees whom the Manager can call in as required wlthout permission of
his Supervisors. If he is unable to reach the temporary employees on his
own fist, he calls his Supervisor who maintains another list. It thus appears
that available work is assigned first to temporary employees on the store’s
list. In the fall of 1982, he was working extensively at Store No. 23 in
Halnilton on whose list he appeared, apparently both because two
permanent employees had retired and the Christmas season is quite busy.
On April 10, 1982, two new permanent employees were assigned to
Store No. 23 and the Manager was instructed to curtail and/or eliminate
the use of temporary employees. He ceased immediately to schedule the
griever . However, he asserts that on several occasions he tried to reach
the grievor to offer him employment when permanent employees were ill
but was unable to do so. The telnporary employees whom he did succeed in
obtaining proved more satisfactory to him and by the end of May, 1982, he
decided to stop using the grievor and de facto “struck him froln the fist”.
Mr. Levinsun submitted that the grievor was in fact dismissed
without just cause.
*Mr. Drm.ij, for the employer, submitted that the grievor’s
unavailability when called provided just cause for not using him. He also
submitted that the Collective Agreement provides no positive obligation on
the e,nployer to provide work for a temporary employee. Therefore, the
griever cannot complain because he is not scheduled.
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It is clear that a temporary employee enjoys the same right as a
full-tilne employee to grieve a dismissal and that the employer must prove
just cause. The decision not to assign any work to the grievor, regardless
of his availability, amounted, in our opinion, to a dismissal of the griever.
We are satisfied that the ejnployer did not have just cause to
dismiss. The reason assigned, namely, his unavailability, is patently lacking
in any credibility. There iiad been no prior problem with the grievor’s
availability; he was grieving against the failure to schedule him; no serious
efforts were made to reach him; he was never notified of the reason for
“striking’ him from the lis~t”.~ The truth is that his Manager was not
satisfied with his performance. If his performance was unsatisfactory, tne
grievor was entitled to be treated in the usual way and given a reasonable
opportunity to irnprove and to grieve against any negative assessment and
imposition of discipline. The employer cannot simply stop using him
without .any explanation and thereby effectively undermine his right to
grieve and the security of employment which the concept of “just cause”
creates.
The griever must be reinstated forthwith.
The Board will remain seized on the issue of compensation. As
that issue necessarily involves how much work the grievor would have
received, we will remain seized on the issue of the griever’s entitlement, if
any, to work, assuming work is available. We are hopeful that the
employer will settle this matter, and, in part, thereby undo the wrong which
it has done to this grievor.
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DATED the 11th day of May, 1983.
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