Loading...
HomeMy WebLinkAbout1985-0561.Cover.89-05-29EMPLOY&DEL4 COURONNE DE “ONT*R,O 1 CPMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEHlkT BOARD Between: Before: For the Grievor:~ For the Employer: HeZ3ringS: OLBEU tT. Cover) and The Crown in Right of Ontario (Liquor Control Board of Ontario) R.L. Verity Vice-Chairperson I. Freedman &mber P.D. CamD Member E. Mitchell Counsel Koskie & Minsky Barristers and Solicitors 0561/85 . Griever Employer 0. Brady COUllSel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors June 23, 1987 October '26, 27, 1987 April\ 13, 14, 15, 20. 1988 June 21, 24, 1988 December 2. 1988 ;i_ .~ - 2 - DECISION Tim Cover was promoted from Clerk 3 at Store #366. (Weston) to Clerk 4 at Store #426 (Etobicoke) effective March 25, 1985. On June 10, 1985, he received written notification of his reclassification to the position of Clerk 3 at Store #445 pursuant to Article 16.10 of the Collective Agreement. The reasons given were as follows:~ (I.* .you require much more training to be competent in bookkeeping procedures. You also appear to disregard, or fail to understand, the Board's policies regarding security". The reclassi which alleged improper 16.10(a). fication resulted in the filing of a grievance demotion and an Employer violation of Article The relevant July 1, Collective Agreement has as its effective date 982. The following provisions are material: 16.6 (a) Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job. 16.10 (a) In the event an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner within a'period not exceeding three (3) months from date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to promotion. reclass i - 3 - Initially, the Union adopted the position that the grievor's fication was racially motivated. At the hearing, the grievor racial discrimination by senior management officials. The alleged Board was also advised that Mr. Cover was pursuing that allegation before the Ontario Human Rights Commission. However, after hearing all the evidence, the parties agreed in final argument that alleged racial'motivation was not a factor for consideration by this Board. The Board heard evidence from a total of ten witnesses over ten hearing days, including detailed evidence from the grievor. It is neither practical nor necessary to repeat the evidence except in some salient respects. The grievor came to Canada from Jamaica in 1962. He became a full-time employee of the L.C.B.D; in January 1976. In the normal fashion, he received training as a C lerk 4 while working as a Clerk 3. The training took place at Store #366, a "B" store, through the combined efforts of the manager, the assistant manager, and the incumbent Clerk 4. Manager Fred Burroughs recommended the grievor's promotion to District Supervisor Tony Marsella. Mr. Marsella did not favour the grievor's promotion at that particular time. Despite Mr. Marsella's reservations, the grievor was promoted to the position of Clerk 4 at Store #426 effecti ve March 25, 1985. In his testimony, the grievor mai relationship with Supervisor Marsella until 1984 which was unrelated to the employment refused to elaborate on the incident. sales. At al six part-time Store #426 is clas.sified as an "A" store with high 1 relevant times there were seven full-time emp employees. loyees and ntained that he had a good "something happened" in relationship. The grievor volume Essentially the Clerk 4 position involves bookkeeping responsibilities - the maintenance of books, records, reports, etc. to record and balance transactions on a daily, weekly and monthly basis. At this particular store, the Clerk 4 is in charge of the Thursday night shift. The incumbent Clerk 4 is expected to work' well ~with all store staff and to provide information to.store management on the functioning of staff. Peer Jensen was Manager of Store #426 until April 20, From the outset, Mr. Jensen had serious concerns regarding the 1985. grievor's suitability for the Clerk 4 position. He documented those concerns in a series of memoranda beginning April 4 and ending April 20. Documented deficiencies included bookkeeping errors, communication and attitudinal problems with staff, the excessive use of staff to complete his own responsibilities, and leaving the store safe open. In a letter to Mr. Marsella dated April 20, 1985, Mr. Jensen wrote, in part, as follows: <” ~. - 5 - 1 Mr. Cover knows the basic mechanical aspects of doing minor book work but he often appears easily frustrated and confused when the sales and consolidated reports did not balance..... Employees Phil Rosato and Dominic Cardarelli, booth Clerks 3 at Store #426, filed written complaints to Manager Jensen regarding the grievor's poor communication skills. Steve Perkins became Acting Manager of Store #426 f ollowing Mr. Jensen's departure. Mr. Perkins was even more critical of the grievor's performance than Mr. Jensen had been. Perkins documented his concerns in a series of memoranda to Supervisor Marsella.' For example, the April 25 memo reads as follows: I feel that Mr. Cover is unworthy of ~the position as bookkeeper. He has constant problems which are as follows: - balancing the safe - balancing the daily sales - problems with procedures; - paid outs - voids - R.T.S. - he has left emergency exit doors locked during store hours As acting manager I find that it takes far too much time to correct Mr. Cover's errors...... On April 30, Mr. Marsella met with the grievor to discuss his job performance. The grievor testified that he personally was unaware of any managerial concern until he met with former Manager Jensen on April 22. The grievor denied that he had received counselling to correct deficiencies.' His evidence was to the effect that he performed the job satisfactorily. On May 2, on the instructions of District Supervisor Marsella, the grievor was abruptly re~lieved of all Clerk 4 responsibilities. His keys were removed and the combination of the safe was changed. He then worked as a Clerk 3 at Store #426 until he was purportedly reinstated to the Clerk 4 position on May 8. On May 4 the grievor was the focal point of racial slurs written on a blackboard in the store premises. The matter was promptly investigated and dealt with appro P riately by management. On May 10 the grievor wrote.to 0 F. 6. Rankin requesting. a transfer from Mr i rector of Store Operations Marsella's district. The reasons for transfer included "prejudice and racism". Obviously, the employer did not act upon the grievor's request. On or about May 10, Mr. Marsella met with the grievor and gave him copies of documentation relating to his performance as a Clerk 4. On May 7 Mr. Marsella had written to the grievor and set forth the following areas of perceived deficiency: A. You appear prone to alot of errors 8. You frequently fail to check your own work C. You frequently require assistance to balance sales report (~17) 0. When errors and problems occur, you do not appear to have the confidence or ability at this time to find errors. ~. ,~.~.~. ., ~. ~~ ;’ 1 - 7 - T E. From reports (verbal and written) you appear to take far too much time to complete the every day and weekly reports. In that letter the grievor was advised that his performance would be monitored for the next three weeks and that he would be advised of problems encountered. David Ashley became acting assistant manager of Store #426 on or about May 1, 1985. He was assigned to monitor the grievor's . performance. On May 28 he reported his findings in a letter to Supervisor Marsella. He documented errors in the completion of various reports during the month of May. Mr. Ashley observed that the grievor left the store safe open on numerous occasions during business hours. He concluded that the grievor lacked basic knowledge in store procedures. However, at the hearing, Mr. Ashley appeared more sympathetic to the grievor's situation. On June 3, Mr. Marsella wrote to Area Manager H. S. Scowcroft and recommended the grievor's reclassification. Mr. Marsella concluded that the grievor was unable to perform his duties in a satisfactory manner on the basis of completing "his nine week probationary period, ending May 25, 1985". The Employer contended that the issue was whether or not the grievor satisfactorily performed the requirements of the position within the probationary period. Mr. Brady contended that the evidence _ -a- of six Employer witnesses conclusively supported the Employer's decision to reclassify the grievor. In support, the following unreported decisions were presented: Black Diamond Cheese, Division of Brooke Bond Foods Limited and Canadian Food and Allied Workers, Local P-688 (Ken~nedy - June 29, 1978); and two Awards of Arbitrator Adams between E. 6. Eddy Forest Products Ltd. and Office and Professional Employees International Union, Local 421 (GILLIS - February 25, 1985) and (MAAHS - September 3, 1980). The Union maintained that the Employer violated Article 16.10(a) by its failure to allow a three month familiarization period to establish satisfactory performance. Ms. Mitchell contended that the issue was whether or not there had been a fair and honest' appraisal. She contended. that the flood of documentation against the grievor, the atmosphere in the store of bias against the grievor, and the short assessment period demonstrated unfair and arbitrary treatment. She maintained that the actual demotion took place on May 2 and that Store Managers Jensen and Perkins conspired to deny the grievor the benefit of the promotion. The following authorities were cited: OLBEU (Kuhlmann) and Liquor Control Board of Ontario 139/83 (Samuels); Re Canadian Steelworkers Union and Atlas Steels Co. (1970), 22 L.A.C. 45 (Brown); Re Canadian Canners Ltd. and International Assoc. of Machinists, Lodge 863 (1975), 9 L.A.C. (2d) 396 (Shime); Re - Sooke Forest Products Ltd. and International Woodworkers of America, Local l-118 (1981), 3 L.A.C. (3d) 252 (Vickers); and Re British Columbia Telephone Co. and Federation of Telephone Workers of British :’ - 9 - : Columbia (1977), 15 L.A.C. (2d) 310 (Weiler) , Under the provisions of this parti cular Collective Agreement, where an employee is considered for purposes of promotion, there is a threshold.level of qualification. Accordingly, when the grievor was promoted to the Clerk 4 position, under the provisions of Article 16.6(a) management deemed him qualified to perform the job. Had he not been qualified he would not have been promoted. In our opinion, this case falls to' be determined on the proper interpretation of Article 16.10(a) (now Article 21.9 of the current Agreement). Two previous panels of the Grievance Settlement Board have interpreted that Article in a consistent manner. In Frolack and Liquor Control Board of Ontario 44/78, Vice-Chairman Jolliffe interpreted the identical provision (then 16.11.) as follows at pp. 19 - 20: . ..Clearly what the provision means is that if, after the promotion an employee seems unable to meet the requirements of the position, then he has three months to prove otherwise. Similarly, in OLBEU (Kuhlmann) and Liquor Control Board of Ontario, supra, a 1983 Decision, Vice-Chairman Samuels gave the following rationale at pp. 6 and 7: In the first place, this Board is asked to interpret Article 16.10(a). The issue is whether the newly promoted employee has a full three months to prove him/herself or whether management - LO- may determine that the employee's performance is not satisfactory at any time within the first three months. After referring to the Frolack Decision of Vice-Chairman Jolliffe, Mr. Samuels continues his rationale at p. 7: In our view, given the language and grammatical structure of the Article, the employee is given the opportunity to perform the requirements of the position in a satisfactory man'ner up to three months from the date of appointment. It is only if the employee is unable to do the job satisfactorily within the three months that management may then reclassify the employee as provided in the Article. Counsel for the Liquor Control Board urged us to find that the words "within a period not exceeding three (3) months" means that the L.C.B.O. could decide to reclassify after a brief time in the new job (perhaps only- one day). But, in our view, this would be a meaning which is not supported by.the language.and is not reasonable. Article 16.6(a) provides that promotion is decided on the basis of seniority "provided the employee is qualified to perform the job". So that there is an initial determination that the employee is qualified to perform the job. However, once the employee is placed in the actual position, and the work of a Clerk 4 will vary somewhat from store to store, Article 16.10(a) gives the employee three months to adjust to the particular requirements of the position. There is, of course, a heavy onus on any party urging a panel of the Grievance Settlement Board to reject earlier jurisprudence. The matter is considered at some length by Grievance Settlement Board Chairman Shime in Blake et al.~ and Amalgamated Transit Union and the Toronto Area Transit Operating Authority $1276187. In that Decision the Chairman makes it clear that established Board jurisprudence should be reversed only in exceptional circumstances. 7 The facts of the instant grievance do not indicate exceptional circumstances which would justify any variance from. the rationale of the earlier Board decisions. This panel is satisfied that the interpretation given Article 16.10(a) by both Vice-Chairmen Jolliffe and Samuels is a properinterpretation of that provision. In our opinion, Article 16.10(a) gives to a promoted employee a three month trial or qualifying period to demonstrate that he or she is able to perform the job in a satisfactory manner. On the facts of the instant grievance, the grievor's conduct is not so extreme so as to allow the employer the right to abridge the three month ~trial period. -In appropriate circumstances, it may be possible to justify a shorter appraisal period where a promoted employee manifests serious personal misconduct in the performance of~his duties.' There is no such evidence on.the facts before us. In cases of promotion, as in pure non-disciplinary demotion cases, the Employer's decision cannot be unfair, arbitrary, discriminatory or unreasonable and the decision must be reached after a fair and honest appraisal. See generally, Canadian Camers Ltd. (1975); 9 L.A.C. (2d) 396 (Shime); Milton District Hospital (1980), 26 L.A.C. (2.d) 201 Pauls Hospital (1980, 28 L.A.C. (2d) 51 (Vickers). The Board is satisfied that the evidence adduced does support the Employer's contention that the grievor did not perform in - 12 - a satisfactory manner during the nine week probationary period. However, for all intents and purposes that appraisal was arbitrarily ended on May 2, 1985 when the grievor was relieved of his Clerk 4 responsibilities. The evidence established that Mr. Cover was never fully reinst,ated to the Clerk 4 position on May.8, as alleged. We accept the evidence that not all of his keys were returned and that he was never given the combination of the store safe. Similarly after May 8, Mr. Cover was not afforded the opportunity of being in charge of the shift on Thursday evenings. In addition, it is difficult to imagine how his performance could be expected to improve when he was frequently being locked out of the office in May by the Acting Manager. Mr. Ashley's evidence was that this lock-out occurred "three, four, five, six times a day". although not on a daily basis, "and for periods of 10 to 15 minutes". Mr. Ashley testified that these lock-outs adversely affected the grievor's performance. Mr. Brady did not suggest, quite properly we think, that the grievor deliberately attempted to mislead the Board. Mr. Cover appears to have erased from his mind the fact that he was given frequent counselling sessions to improve his performance, both in April and May of 1985. It is quite understandable that certain employees will experience numerous errors in adjusting to the requirements of a Clerk 4 position in an "A" store. The grievor appears to have convinced himself that he was performing in a satisfactory manner. However, the weight of credible evidence is to G. . . ! - 13 - the contrary. Mr. Cover must learn to accept accountability for h is own actions and to a Constructive critic i there is no support as alleged. ppreciate rather than to reject assistance and sm. On all the evidence, we are satisfied that for any theory of conspiracy against the grievor In the result, this grievance must succeed. First the griever must have completed a further 6 mbnths as a Clerk 3 in order to uugrade his DerfOrmanCe. The griever shall be reinstated to the position of Clerk 4 and offered one further opportunity to demonstrate satisfactory uerformance for a 90 day appraisal period at a liquor store in ?!etropolitan Toronto chosen by the Employer.- Far obvious reasons, Mr. M~arsel lag shall riot be required to’ tionitor the griever’s performance during his qualifying period. DATED at Brantford, Ontario. this 29th day of May , 19n9. ,* VERITY, Q.C. - VICE-CRAIRPERSON i ~/ P ;y& CL. -: -------_-------_--------------- I. PREEDWAN - MEUBER --------------------______________ P. CAUP - MEMBER -