Loading...
HomeMy WebLinkAbout1982-0322.Sabharwal.82-12-27Before: Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: Forthe Hearings: L OLBEU (R. Sabharwal) Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer*" R.H. McLaren Vice Chairman R. Russell Member G. Peckham Member A.MJ, Heisey, Counsel Blake, Cassels & Graydon B. Boulby, Counsel Hicks, Morley, Hamilton, Stewart & Storie October 21, 1982 December 10. 1982 . -2- AWARD Ms. Rajvinder Sabharwal has been employed bye the Liquor Control Board of Ontario since March of 1976. "She has received several promotions the most recent of which was to the position of a Clerk Grade III in the payroll department which was effective inDecember of~l978. On April 14, 1982 a position as a Clerk Grade IV in the cash sales reporting department of the general accounting division of the Employer was posted and the Grievor applied. The,qutilifications required were listed.as: \ "QUALIFICATIONS - a sound wo~rking knowledge of accounting principles and store accounting procedures, with emphasis on accuracy - good communications skills, both verbal and written - ability to interpret computer records - give guidance and direction in the C.S.R. section whennecessary" ,*; (Exhibit #5) The Grievor was denied the promotion and a more.junior employee, Ms. Tasikas, a Clerk Grade III in general accounting was promoted to the Clerk G,?acJe IV in the C.S.R. department of. general accounting. It is as a result of this action that Ms. Sabharwal filed the grievance under consideration in this award. ‘. -3- The Collective.Agreement in Article 16,6(a), provides for a "sufficient ability" clause in job postings. It reads as follows: "Where employees are being considered for promotion, length of service from appoint- ment date will be the determining factor provided the employee is qualified to perform the job." The e,ffect of this provision is to promote the most senior employ~ee in a job posting provided that employee is qualified to perform the job. The determination which this Board must make is a factual one. The Employer defines the qualifications for the job (Exhibit 05) and they become the starting point for the analysis. In order for a person to qualify for the job post- ing they must have a sound working knowledge of accounting principles with emphasis on accuracy. The evidence before this Board indicates that the Grievor has such a knowledge of accounting principles. Her yearly performance appraisals, Exhibits #ll and #12, indicate that not only is she an employee who works with ac.curacy but is generally,.considered.to be an excellent employee. The testimony of Mrs. Norma Lien, the Grievor'ssupervisor, confirms the quality and-accuracy . -4- of the Grievor's work. The Grievor must, therefore, be considered to have met this qualification. The applicant must have a working knowledge of "store accounting procedures". It is on this qualification that Mr. Watt, the manager of the accounting.department, faults the Grievor as being unqualified. From his testimony it appears that what he meant by that phrase was familiarity with the code numbers a~nd the procedures followed to complete the C.S.R. report. The C.S.R. Report, Exhibit #lo, contains cash.receipts and deposits summary together with a debit and credit summary which is somewhat akin to a weekly financial statement for each store. The Grievor in her present work as a Clerk.Grade III 'in the payroll department has familiarity with store accounting procedures in respect of payroll. The Grievor does not deal with the store sales accounting in her present work. The Grievor, however, has related experience in working.for her husband and also in courses taken at George Brown College wherein she has a general working know- ledge of sales accounting procedures although not specifically those of the Liquor Control,Board. The Grievor also took the trouble to inform herself about how the Consolidated Sales Report was completed.~and her testimony on this. point reveals both a high degree of initiative and level of intelligence that enables her to learn new thinss'cuicklv. Her testimony -5- on the completion of the C.S.R. form did in some respects indicate a less than complete knowledge of how to complete the forms. That point was adequately demonstrated in the testimony of Mr. Watt, However, the Grievor did reveal some working knowledge of the C.S.R. form and how it was to be completed despite the absence of any direct on the ..-. ;_ job experience. -Furthermore, from the testimony of Mr. Watt it became clear to every member of this Board that the completion of the C.S.R. report was a somewhat mechanical process which a person with the general knowledge of accounting could carry out with a relatively minimum degree of experience. The Board, therefore, concludes that on this qualification the Grievor had some working knowledge of store accounting procedures although it would not be so complete as to enable her to be inserted in the job and immediately do everything associated with the C.S.R. form without some period of familiarization. Another qualification listed.in Exhibit #5 was that the applicant have "good communication skills, both verbal and.written". There is absolutely ,no doubt that the Grievor has these qualifications. It was also required that the successful applicant have "ability to interpret computer reports". The Grievor -6- has all of the necessary qualifications in respect of this matter as a result of her present employment in the payroll department. The final qualification was that the person be. able to "give guidance and direction in the C~.S.R. section when necessary". It is unclear what was meant by this qualification and that was never clarified in the examination or cross-examination of~Mr. Watt who had composed the qualification in discussions with the director of finance. If it is a personality or leadership requirement there is no doubt that the Grievor has the type of personality and, : therefore, leadership ability to give guidance and direction to others. If it was intended that it be some sort of supervisory capacity it is noted,~that there is a supervisor for the C.S.R. department and then there is the posted position of Clerk Grade IV and two Clerk Grade III employees. There would, therefore, be little necessity for supervision. Finally, if the requirement is merely to pass-one's experience onto others when that may be required, there is little doubt that the Grievor would be able to do so and be willing to do so should the necessity arise. The Board ~also notes that Mr. Watt in his testimony does not rely upon this qualification as the reason for not accepting the Grievor"s application. The Boa~rd, therefore, finds that the Grievor possessed th 'ication as did the Employer. is qualif -7 - In reviewing the qualifications listed'in the job.posting, the Board notes that there is no requirement of experience related to completing the C.S.R. form or parts of the form. It is' the testimony of Mr. Watt that one of the factors which influenced his decision was the fact that Ms. Tasikas had been working in the general accounting department where he was the supervisor and had familiarity with parts of the C.S.R. form, The Grievor, of course, had no direct similar job related experience but it is noted that that was not a requirement on Exhibit #5. Mr. Watt made his decision by proceeding down the listing of applicants in order of seniority until he found an employee who in his opinion had the neces.sary qualifications.' The information which he examined to arrive at his opinion was based exclusively~upon the personnel files of the various applicants. No interviews were conducted, no information~was obtained from supervisors and no attempt was made to ascertain what other relevant experience various applicants might have had. It is the h Board's view that the duty imposed by Article 16.6(a) will not have been observed unless the Employer once having defined the necessary qualifications, undertakes some sort of systematic method of gathering information in 'order that each candidate may be assessed on the basis of the qualifications. * -8- It is not satisfied in this case that the process used to make this particular decision was sufficient to have merely relied upon the personnel files, Mr. Watt testified that he knew all of the. employees and he relied upon that knowledge. Yet, in doing so, he could not recall anything about an interview he conducted with the Grievor in 1978 following which he recommended her promotion to her present classi- fication. The vagaries of the human memory make it necessary that to properly carry out the duty imposed by Article 16.6(a) a systematic scheme for making the determination of each applicant's qualifications is necessary. On the review of all of the testimony and the argument of both counsel it is the Board's conclusion that the Grievor had all of the necessary qualifications listed in Exhibit #5 with the exception of "store accounting procedures". The Griever had taken the trouble to acquaint herself with some aspects of store accounting.procedures at the time of her application. It cannot be said that she had a "sound working knowledge" of store accounting procedures, but it can be said that she had some working knowledge of store accounting procedures. Her broad and thorough~knowledge of general accounting principles coupled with her own personal initiative and ability would ensure thatshe would be able to obtain a "sound. working knowledge" of store accounting procedures in a relatively limited time period. It is this point which is important as revealed in the testimony -9 - and cross-examination of Mr. Watt. Mr. Watt testifies that the successful applicant required a familiarization period of one month during which she worked~ along side the two Clerk III employees. The Board also notes that there was some work in the position on a fill-in basis while the precedessor occupant of the position was absent. In spite of that acquaintance with the work the successful applicant required a further month of familiarization. The Board, therefore, takes the view that the Employer in this case did not require an absolute threshhold knowledge of store accounting procedures at the time of promotion to the job. While the Collective Agreement might be interpreted as requiring that standard. in Article 16.6(a) the Employer in this specific case did not require that standard. Therefore, the Grievor in this case would have been entitled to a familiarization period which based on the facts of the successful applicant should be a one month period. The Board, therefore, finds that the Grievor had the necessary qualifications to do the job as' those qualifications were outlined in Exhibit 85. Therefore, ,. when Mr. Watt ignored the Grievor and her greater seniority and selected Mrs. Tasikas a violation of the Collective Agreement occurred. The Board having found that the Grievor had the necessary qualifications this is not the type of -10 - case in which the matter ought to be remitted to the Employer for redetermination. It is ordered that the Grievor be promoted to the position of Clerk Grade IV as advertised in the job posting filed as Exhibit #5. The Grievor is to have a familiarization period of one month after which if it can be demonstrated by the Employer that she does not possess the qualifications as discussed in this award and set out in Exhibit #5 then she may be returned to her former position. The Board notes that in making this order the successful applicant will be dislodged from the position. That is a regrettable result although one which the parties were given the opportunity of dealing with themselves by the Board requesting the parties to settle the matter prior to ~the issuing of this award. The Board is advised that the successful applicant was properly s'erved with notice of these proceedings and that she electeh not to be present. It is further ordered that the actions of the Employer being in violation of the Collective Agreement results in the Grievor being entitled to receive compensation provided that she can demonstrate that she has the qualifica- tions listed in Exhibit #5 at the completion of her familiarization period. The Board, therefore, makes a contingent order that the Grievor is entit1ed.M comgensation (: . . - 11 - from the date of the gr ,ievance unt ,il the time of actual promotion to the position following the issuing of this award. This order for compensation will be contingent upon the Grievor having completed the familiarization period and being able to demonstrate that she has the qualifications set out in Exhibit t5. In that event, the Grievor is to be paid compensation at the Clerk IV grade level from the date of the grievance. By agreement of the parties the Board remains seized of the question of compensation in the event that the .-.rX:: counselare unable to agree as to the appropriate amount of money to be paid to the Grievor. On written application to the Registrar of the Grievance Settlement Board within ninety (90) days following the date of this award, either party may request that the Board be reconvened~for the purposes of,determining the compensation owing to the Grievor. After the expiration of the ninety (90) day period, the Board will have no jurisdiction to deal with the matter of compensation. - 12 - DATED at London, Ontario this 27th day of December, 1982. R. H. McLaren, Vice-Chairman .R Rp 5 R. Russell Member G. Peckham lCember 6:3210