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HomeMy WebLinkAbout1985-0248.Senia.96-06-27. 240185 IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OLBEU (Senia) Grievor - and - The Crown in Right of Ontario (Liquor Controi Board of Ontario) Employer Before: J.W. Samuels S.J. Dunkley A. McCuaig Vice-Chairman Member Member For the Grievor: Martin Levinson Counsel Koskie & Minsky Barristers & Solicitors For the Employer: S.L. Moate Counsel Hicks, Morley, Hamilton, Stewart, Atorie Barristers & Solicitors Hearings March 25, 1986 May 21, 1986 . . DECISION 2 L, . The grievor entered the employ of the Liquor Control Board in May 1983,.and worked as a temporary clerk in various stores in Hamilton until January 7, 1985. He was then laid off, because of lack of work, Until he was discharged by a letter dated April 2,, 1985, from Mr. A. L. Torrie, the Regional Director inHamilton. In the letter of termination, Mr. Torrie said “AS diSCUSSed In my office, and on the telephone, your job performance has continued well below the standards set for temporary employees”. Article 3.2 of the collective agreement provides that an employee can be terminated only for just cause, and this applies to temporary employees. In order to show just cause, the Board called various persons to testify concerning the grievor’s work performance---Mr. G. Martini, who has been with the Board for 20 years and a store manager for 7 l/2 years, and who was the grievor’s manager at the Dundurn store from March 1984 until January 1985; Mr. W. Gelllng, who has been an assistant manager in VariOUS stores for 5 years, and was the assistant manager at the Dundurn store and knew the grievor from June 1984 to January 1985; Mr. Robert Greenly, who has been an assistant manager for roughly 7 years, and:who.had the opportunity to observe the grievor’s performance after Mr. Greenly went to the Dundurn store in August 1984;‘and Mr. D. Broadribb, who has been 3 store manager since 1974, and who managed the grievor at the James and Fennel1 store during the Christmas season in 1983. .The temporary clerk does a variety of simple tasks---cleaning the store, listing products required on the shelves, getting the bottles from the storeroom, pricing bottles, shelving, answering customer enquiries concerning the whereabouts of products, maintaining the lawn and parking lot when assigned to do so, and on occasion handling the cash. There was considerable conflict in the evidence concerning the grievor’s performance of these tasks, and discussions between management and the grievor. We have no hesitation in saying th2t we accept the testimony of the Boards witnesses where there was a conflict. The grievor was not a good witness. He had little recollection of events and discussions. He lacked candour before this Board of Arbitration. Indeed, at one point during cross-examination, he said that he didn’t know what had occurred,on a particular occasion, then asked what he had Sald during his examination-in-chief and said that whatever he said then was the fact. His position was simply that he had done his best, that he had not made all the errors attributed to him and had not worked~in an unsatisfactory manner. We were not impressed with the grievor’s attitude to his job, nor wfth his demeanor as a witness before us. < In May 1984, the grievor came to work at the Dundurn store, under Mr. Martini. The manager showed the grievor his duties. From the beginning, though the grievor had been in other stores, Mr. Martini observed that the grievor worked slowly in filling shelves, that he had difficulty figuring where to put things, and that bottles which would have been tagged by the grievor were mispriced. On July 27, 1984, Mr. Martini spoke with the grievor about his poor work. He mentioned wrongly priced or unpriced Stock, the length of time it was taking the grievor to stock shelves, and the grievor’s failure to learn where things go on the shelves. He was prompted particularly to speak to the grievor because he found a bottle wrongly prlceu, and the grleVOr had done poorly in cutting the grass and cleaning up the parking lot. Mr. Martini told the grievor that his performance must improve, or “it would be reported and would go against his record”. The manager made notes of the conversation that day. On September I, 1984, Mr. Martini spoke to the grievor aga1.n about his poor performance and his lack of product knowledge. The grievor assured the manager that he would improve. Again, the manager made notes of the conversation. On.September 12, 1984, Mr. Martini evaluated the grievor’s performance, and rated the grievor “unsatisfactory”. in “Quality of Work and Initiative’ and “Warehousing and Sales Area”. He wrote that the grievor -- .- 4 ‘should have a better knowledge of the stock and proper procedures”. He \ spoke with the grievor about the evaluation, and we have no doubt that the ‘grievor was made aware of Mr. Martini’s concerns, and the need for improvement.. Mr. Martini observed that the grievor would stand around and let someone else list the required stock for the shelves, that the grievor had little knowledge of the stock in the store, and was therefore unable to answer customers’ enquiries, and that the grievor showed no initiative in learning how to process customers’ complaints. On October 15, 1984, there was a major price-change operation in the store. This requires that tags be scraped off bottles and new prices be applied. Mr. Martini observed that the grievor was very slow, and had to have help with the work assigned to him. We also heard from Ms. E. Thomas, a long-time clerk with the Board, who was a!so involved in this price- change. She testified that the grievor worked satisfactorily on that day, and that she was the only person who assisted the grievor, and that she volunteered her help when she had completed her assigned section. We are satisfied that Mr. Martini’s recollection and observation were more accurate concerning the grievor’s work on that day. Mr. Martini spoke to the grievor on October 15, and expressed his displeasure with the way in w,hich ~the grievor had worked. On December 9, 1984, Mr. Martini again did a’formal evaluation of the grievor’s performance. ~Again, he rated the grievor as “unsatisfactory’ in “Quality of Work and Initiative” and “Warehousing and Sales Area’. He wrote that the grievor had “improved somewhat, however I still find his knowledge of brands and his ability to keep the shelf sections assigned to him stocked is not satisfactory”. He also mentioned the poor performance of October 1.5, during the price-change. Mr. Martini spoke with the grievor about the evaluation, and there Is no doubt that the grievor knew of the manager’s concerns and the consequences if he failed to improve. The grievor testified that he signed the evaluation form because he was intimidated by Mr. Martini ‘because he feared for his job’. over the Christmas period, Mr. Martini observed the grievor’s work and noticed that it had not improved. On January 7, 1985, the grievor was involved in another price-change in the Dundurn store. Mr. Martini observed the same problems which occurred in the October 1984 price-change. However, he did not have a chance to discuss this wfth,the grievor, because the grievor was laid off for lack of work after that day. The manager did record his thoughts in an evaluation of the grievor.done on February 25. Mr. Gelling testified that, in the fall of 1984, he was COnStantly checking the shelves in the grievor’s area and the grievor did not keep them stocked properly. On one occasion, he pointed out to the grievor the particular shelves which needed stocking,~but the job wasn’t done before the grievor left the store that day. He observed the grievor frequently just walking around the store, whereas the other clerks were looking at their bins, listing stock which was needed and stocking the shelves. Mr. Greenly observed that the grievor showed little initiative in learning about procedures such as special permits or returns to stock. He said that the grievor had to be watched all the time to get his job done. He spoke to the grievor during the Christmas rush and asked the grievor to do better. The grievor replied he was doing his best. Mr. Greenly said that his best was not good enough. This assistant manager also noted that the grievor had poor knowledge of the wines. Mr: Broadribb, who knew the grievor only briefly. in the 1983 Christmas rush, recalled that the grievor did not list and restock adequately. He told the grievor to get moving and to improve his work habits. During argument, counsel f~or the Union made much of the lack of precision in the Employer’s evidence---no precise count of work done, bottles scraped, bottles priced, and so on. However, we have no difficulty in accepting the overall import of the evidence. The jobs to be done by the grievor were simple and straightforward. It was easy to observe his work 6 2 3 and to form a clear Impression of how he was doing, and we find the observations and recollections of all these experienced managers and assistant managers to be very convincing. While Mr. Martini might not have seen the grievor actually mlsprlcing bottles, Often when the grievor worked, there would be incorrect prices or no prices on bottles, and almost no mistakes would occur when the grievor was not working. There were always a lot of errors in the grievor’s section. The Union made much of the ~difficulty of learning all the wines, but the grievor was clearly around long enough to have learned most of them. In short, it is really inescapable that the grievor was simply not doing a satisfactory job, involving simple tasks, and it did not require time-studies or computer-assisted counts to determine that the grievor was not performing adequately. We heard some argument concerning the distinction between a disciplinary and a non-disciplinary termlnation;ano the need for the proper procedural foundation for a disciplinary discharge (a culminating incident, and a progressive disciplinary approach) ---see,~ in particular, Re America Stanffaro: Divfsion of U/a&co-StandafdL to: anulnternati~na/8foro~ of Potte/yandA//ied WoHem ( 19771, 14 L.A.C. (2d) 139 (BurketO, at pages 142-l 46. In our view, the distinction is irrelevant in this case. If the grievor’s termination is characterlzed as non-disciplinary, then the Employer’has demonstrated clearly that the grievor is unsuited to the job, and has met the criteria for such a termination. Concerning these criteria, we agree with the statement in ReFditn CaveNPfivateHospital andHospita/ Empfoyees’ Union, Lo&V 180 ( I 982),6 L.AC. (3d) 229 (Hope), at page 233: / (a) The employer must defme the level of job performance required. (b) The employer must establish that the standard expected was communicated to the employee. Cc) The employer must show it gave reasonable kqervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard. Cd) The eniployer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to tind alternate employment within the competence of the employee. (e) The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in diimieeal. Some comment should be made concerning cd), and the suggestion that ‘reasonable efforts were made to find alternate employment within the competence of the employee”. The grievor was employed as a temporary clerk. There is no simpler job in the organization. If he couldn’t do this job satisfactorily. then there was no place for him with the Liquor COntrOl Board. While generally non-disciplinary discharge applies to cases of mental or Physical incapacity, in our view it can also apply to circumstances such as we have here where, though there is no such incapacity, the employee simply insists and has demonstrated that he is doing his best and his best is not good enough. In f?e American Standard, the Board speaks of, non- disciplinary termination being justified when “it is established that the involuntary employee shortcomings is (sic) such as to undermine the employment relationship and when it is also established that the situation. r is not likely to improve” (at page 146 l/3). This is precisely the situation we have in our case. If, on the other harid, the grievor’s termination is characterized as disciplinary, then the Liquor Control Board has established just cause for termination and, in the circumstances of this case, can be excused from the need for.progressive discipline. Counsel for the Union argued’strenuously that the Board could not discharge the grlevor without first having tried to correct his behavior by means of progressive discipline. However, the theory and practice of progressive discipline applies only where there is the possibillty of correction. The grievor’s entfre career with the Liquor Control Board was marked by poor performance, right up to the last day on which he worked, and repeated urging by his managers and assistatit managers to do a.better job. The grievor knew what was required of him-- . the tasks were Sfmple--and he knew that he could not go on fOreVer performing as he was. He told us and he told his managers that he was doing his best. We accept that he was. Therefore, it is clear that there was no polnt in the Board attempting progressive discipline. In our View, in the circumstance of this case, the Board did all it could do to bring home to the grievor that his work was unsatisfactory and that he simply had to improve. The grievor knew what was required of him, he knew the consequences of continued poor performance (he “feared for’his job”), but he was adamant that he was doing his best and he demonstrated convincingly that there iaS _ really nothing that could be done by the Employer to improve his performance. In, Re American Standard, the, learned arbitrator referred to. the reasons for the requirement of progressive discipline (at Page 145): The reasons underlying this sec- ondary requirement are set out in Re Ryemm Polytechnical hutitute and Rytmm Fwulty Awx. (1976), 12 L.A.C. (26) 58 (Simmons), wherein the arbitrator statea [at pp. ‘71-21: The reason for the elrislence uf the general principle iy due to lhe concept lhat discipline is intended to be corrective and not punilive. It allows the employer Lu signify to aa wr~~loyer thtll whal he is’doingir wrong and that its continu- ~lnc(! will not be lolera(Ld. The employer @diiee* itr displcrwure through some mild form of dixiplinu such as a warning. eilher oral UT written. ‘If the em- ploycc pemirls in hia wrong-doing the employer will rhrn t&r sterner meas- !.IIW which may involve a susptmsiiion from work withoul pay. tintinued prr- sistenl wrong doings may next RYUR in dismissi of the employee. Czcarly, wrh an app-mch lu diwipline ia smnd. It clffw& blh parties fhe opptiunit~ to indicate (heir posilti~: Lu each other and the p&bility of adjuatmenl to art acceptable atmdmd ~fcundut in their rpapciu psitians if such pwitima we /lud ta br un.accqd&!e tu Ihr 01&r ptwty.IEnyhaati added.] See also Re L.&we World Nursing Hmes Ltd. andService Em- ployees Union, Loed 201, (November 1,1974), unreported (Adams), and the cases cited therein and Re North Ym-k General Hospi!al and C.U.G.E. (19’73), 5 L.A.C. (2d) 45 (Shimej.1 “Discipline is intended to be corrective.” If it isclear that there will be no corrective value in discipine, then an employer can simply terminate. i,~.. .., . , . - .’ 9 + ‘” .i Thus, whether this is a disciplinary dr non-disciplinary termination, there is just cause for the discharge of~the grievor. For all of these reasons, we dismiss the grievance. Done at London, Ontario, this z7thJ. dqy of, June 1986. LNL%. A McCuaig, Member