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HomeMy WebLinkAbout1983-0482.Kalichuk.85-11-25180 DUNDAS STREET WEST. TORONTO. Ontario MSG lZ8 -SUITE 2100 TELEPHONE! 416/598- 0688 482/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Wally Kalichuk) and The Crown in Right of Ontario (Liquor Control Board of Ontario) Befae: P. M. Draper V ice-Chai rm an I. Freedman Member P. D. Camp Member For the Grievor: A. M. Heisey Counsel Perry, Farley & Onyshuk Barristers & Solicitors For the Employer: P. Moran Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Grievor Employer Hearing: September 19, 1985 DECISION This grievance concerns a claim for payment of the premium provided by Article 5.12 (a) of the collective agreement between the parties for acting for the Manager of Store No. 559 at Brantford from 9 a.m. to 2 p.m. on July 8, 1983. At the relevant time the permanent staff of the store, a “B” store, consisted of a Manager, an Assistant Manager, a Clerk 4 and two Clerk ‘3’s. The Grievor has been Assistant Manager there for about four years. Article 5.12 (a) reads: 5.12 (a) The Boards agree to pay a premium of four dollars and fifty cents ($4.50) per day to an employee acting for the Store Manager in his absence, provided he is assigned to act for a miminum of three (3) consecutive hours. Such premium will not be paid to an Assistant Manager in charge of thesecond shift. However, it would be applicable to the person designated to act for the Assistant Manager in his absence while working the second shift. An earlier decision of the Board dismissed the grievance. On an application for judicial review filed by the Grievor and the Union, the Divisional Court ordered that the Board's decision be quashed and set aside, and that the grievance be remitted to a differently constituted panel of the Board "for rehearing in accordance with the Reasons for Decision of this Court". The Court's Reasons state that the grievance is to be reheard “in accordance with the construction we have placed on the article". The Reasons are appended hereto. -3- Before proceeding to the merits, we took the position that since we are directed to rehear the matter in accordance with the Court's Reasons, we must first determine the extent to which we are governed by those Reasons in our conduct of this proceeding. After hearing the submissions of counsel, we made the following preliminary rulings: 1. The earlier decision of the Board having found that Article 5.12 (a) is not ambiguous; the Court not having disapproved that finding; and the Court having given an interpretation of the article for the purposes of this rehearing, we find that the issue of ambiguity has been decided. 2. We take the Court to have construed Article 5.12 (a) to mean that any employee acting for a Manager in his absence, provided he is assigned to act for a minimum of three consecutive hours, is entitled to the premium; and that an Assistant Manager so acting on the first shift is such an employee. We will therefore adhere to that construction in our consideration of the merits. What remains to be determined is the question whether or not, during the first shift on July 8, 1983, the Grievor, in fact, acted for the Manager of Store No. 559 in his abence, having been assigned to act for a minimum of three consecutive hours, so as to qualify for the premium under Article 5.12 (a). We permitted to be filed, subject to a ruling to be made as to its admissibility, material relating to the duties and responsibilities of the Grievor's and other positions as contained in classification guides, and material relating to the administration of Article 5.12 (a) as contained in a L.C.B.O. Store Operating Manual. We have concluded that the material constitutes extrirsic evidence and is -4- theref ore inadmissible. It is not in dispute that on July 8, 1983, a Friday, the Grievor worked the first (9 a.m. - 6 p.m.) shift and the Manager worked the second (2 p.m. - 9 p.m.) shift; that the Grievor was in charge of the store between 9 a.m. and 2 p.m., that is, until the Manager came on shift; and that he was not paid the premium provided by Article 5.1 2 (a) f cr that period. It is submitted for the Employer that when the staff of a store, including the Manager, are on a normal work schedule, the Assistant Manager is not entitled to the premium under Article 5.12 (a) for taking charge of the store. However, it is conceded that when the staff are on an abnormal work schedule, such as when the Manager is on vacation, the Assistant Manager is entitled to the premium for taking charge of thestore. As we understand the argument, it is that in the first instance the Assistant Manager is merely "filling in" for the Manager, whereas in the second instance he is acting for and has been assigned to act for the Manager. We see no sanction in the article for exceptional treatment of an Assistant Manager according to whether staff work schedules are normal or abnormal. It seems to us that a Manager is absent within the meaning of Article 5.12 (a) whenever he is not on duty because he is not scheduled to work. Whether he is absent because of an illness or a vacation, or simply because he is not required to be on duty for part of the daily period when the store is operating, we think is immaterial. The article makes no such distinction and we would expect that if it were intended to apply only to ahsences of managers for extended periods or for specific reasons, of Managers, either it would not have a minimum qualifying period for payment of the premium, or it would not have one as short as three hours. -5- As to whether, on a particular occasion, an Assistant Manager is "filling in" or "acting”' for a Manager he is, in either event, required to assume full responsibility for the store. We believe it is a reasonable inference that he will always necessarily assume as much of the Manager's authority as will ensure the orderly and efficient operation of the store. In these circumstances we do not think it can be said that he is still functioning as the Assistant Manager and performing no differently than he would if the Manager were present. Certainly, there is no language in Article 5.12 (a) to suggest that when an Assistant Manager takes charge of a store he is to be treated differently than any other employee who does so, in that he is to be considered as performing only the normal duties of his position. We find that when an Assistant Manager is in charge of a store in the absence of the Manager, he is acting for the Manager. Work schedules, which are drawn up by the Manager and posted two weeks in advance, automatically reveal which employees (including the Assistant Manager) are assigned to work for any period of at least three consecutive hours when the Manager is not scheduled to work. The testimony of the Grievor is that he has never been formally assigned to take charge of the store and that the only such assignment he is ever given is that contained in the posted work schedules. This is confirmed by the testimony of Robert MacDougall, L.C.B.O. Staff Relations Officer, that no formal procedure exists for assigning an Assistant Manager to act for a Manager. We are satisfied that there is no appointment or assignment of Assistant Managers to act for Managers apart from the work schedules. Finally, we note that the only disqualification of Assistant Managers for payment of the premium the parties have chosen to include in Article 5.12 (a) is that they will not be paid it for being in charge of the second shift. -6- In the result, we find that on July 8, 1983, the Grievor acted for the Manager of Store 559 in his absence, having been assigned to act for a period of four consecutive hours, and that he is entitled to payment of the premium prescribed by Article 5.12 (a) for so doing. The Employer shall make payment accordingly. We remain seised of the case for the purpose of clarifying our decision, should that be necessary. DATED at Toronto, Ontario this 25th day of November, 1985. P. M. Draper, Vice-Chairman I. Freedman, Member P. D. Camp, "I dissent” (see attached) P. D. Camp, Member DISSENT The basic concern of this Board member is that someone classified as, and paid as an "Assistant Store Manager" or "Liquor Store Manager 2", whichever title is used, cannot assume certain Managerial functions wi thout addi ti ona 1 premi um payment. The testimony of Mr. Robert MacDougall, L.C.B.O. Staff Relations Officer, was to the policy and practice which flowed from the terms of the Collective Agreement. This policy and practice set out the normal procedure related to day to day shift operations whereby an Assistant Store Manager would be the senior employee in terms of the routine store operation for short irregular periods of time (hours). circumstances flowing from the work schedules, an added premium would not be appropriate or paid. In these In circumstances where a Manager may be absent by sickness or vacat for an extended period of time (days or weeks), a formal assignment made to the Assistant Manager and the appropriate payments are made on is In this members opinion the foregoing practice is not in conflict with the intent and interpretation of Article 5,72(a) of the Collective Agreement. Further in support of non payment of added premiums, surely if Article 5.12(a) states that an Assistant Manager is properly paid and requires no additional premium while in charge of the second shift, it must follow that no additional responsibilities were necessary during the 9 a.m. to 2 p.m. shift on July 8, 1983, and no additional premium would be required or appropriate. In conclusion and with respect this member must dissent from the award for payment of $4.50 and the supporting reasons for such. P. D. Camp, Member