HomeMy WebLinkAbout1985-0981.Voutier.86-03-17199 anads STnEET WEST. TORONTO. o.w.,*. MSG ,a-SUITE 2199 TE‘EPPHONE~ m/599- cl*99
981/85 i
IN THE, MATTER OF AN ARBITRATION
'under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
.OLBEU (F. Voutier)
and
Liquor Control Board of Ontario
J. W. Samuels - Vice-Chairman
W. Walsh - Member
I. J. Cowan - Member
M. Levinson
Counsel
Koskie & Minsky
Barristers & Solicitors
J. Baker
Counsel Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
February 28, 1986
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On October. 26, 1985, the grievor was discharged from his employment
with the Liquor Control Board. He had been a temporary employee since 2
November 1981, and his record With the Board as a clerk in a liquor Store’in”
Port Credit was unimpeachable. However, the Board had recently introduced
a system of security checks for applicants for employment, and for
employees seeking promotion, and the grievor had applied for a full-time
position. In the course of the security check, the Board had discovered that
in September 1980 the grievor had been charged in Newfoundland with
unlawful possession of marihuana and trafficking in a restricted drug
(pheylcyc;ohexyl), and in January 1981 he had been convicted and sentenced
to concurrent sentences of seven clays for the possession and twelve months
for the trafficking. For.this reason alone, the grievor was denied the move. -
to full-time and was discharged.
Upon hls release In Newfoundland, the grievor came to Ontario with
his wife and a very small child, and took up employment with the Liquor
Control Board. He was then around 23 years of age. He was not asked about
a criminal record on the application for employment. He worked as a’
temporary employee for almost four years for,the Board in a very
satisfactory manner. In the last three years, he worked 28-35 hours per
week. Another child was born three years ago. Then a full-time position
became available and the grievor applied for it. Again, he was not asked
about a~criminal record. He took a test and demonstrated his qualifications
for the full-time job; On October 25, 1985, he was told by his supervisor
that he was being recommended for the,full-time position. instead, the next
day he was discharged.
The Liquor Control Board had only recently instituted the system of
Security checks, and by now there’is also an application for employment
whrch asks about the individual’s criminal record. This has been approved by
the Ontario Human Rights Commission. Information obtained from the
security checks is given to Mr. A Schaefer, the Board’s Vice-President of
Human Resources, and he decides Its significance. In the grieVOr’S case, Mr.
Schaefer was concerned that the grievor had shown a disregard for laws I
governing controlled substances, and the Liquor Control Board has.the ‘%
responsibility of implementing just such a law. This would make the
grievor unsuitable for employment with the Board.
It is critical to note here that this is not.a case of falsification of an
application form (as in Re Goukffhnuf~ctufing of Cam&L td andUnited
Stee/worA’ers (19721, 1 L.AC. (2d) 3 14~fShime)), nor was the offence
committed while the grievor was an employee of the Board (as in Rfi DUrf-
Oliver-LangLtd a~dUnit~dSt~elw~r~~r~ L~aI&97(1973), 3 L.A.C. (2d)
193 (O’Shea); & firitis/l Columbia Te;repbone Cm7pf7ya7d
7i?kcommuniGation Workers*l/nion ( 19781, 18 L.AC. (2d) 225 (Weiler); Re
Xshawa &nera~Hospita~ andOntario Nurses’Association (198 1 J, 2 L.AC.
(3dJ 201 (Betcherman);and Ue fh~Cfownin RQMof UntafiuQi~7i/arLhtrol
BoJrdof Unfario andL iquor L icence Roard of- Ontzf id and Or&f io L~iquof
Board.En?p/oyees ,!&i# ( 19841, 18 L.AC. (3d) 251 (GSB, McLaren). In fact,
quite to then contrary, the grievor has served the Board faithfully and Well
from the moment their relationship commenced in November 1981.
The test, however, in all these cases is really applicable here. Does
the grievor’s record render him unfit for employment with the employer?
In our view, in this case, the answer is clearly ‘no’. It is true that the
grievor’s offences related to controlled substances, and that this would
necessarily raise a concern for the employer. But after four years of very .
satisfactory work, these concerns must .be allayed. The grievor is now 28
years old. He hasa wife and two small children. Me haS left his Past in
Newfoundland and established a new life here in Ontario. He has served the
Liquor Control 6oard well for four years. In these circumstances, there is
simply no jUSt cause for discharge.
Furthermore, pursuant to Article 30.4 of the collective agreement,
the grievor should have been promoted to the full-time position. Under this
provision, ‘The Boards agree to give consideration to the qualifications and
I I
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ability 01 . . . . . . . . ..temporary employees to perform the duties of a Vacant
position before going outside the Collective Agreement to fill permanent
positions: We know that, but for the discharge because of his past record,
the grievor w~ould have been moved to a full-time position. Thus, we find”
that the grievor should have been given the full-time position.
We order that the grievor be reinstated, and that he be treated as if
his criminal record had never come to the attention of the Board. He should
be considered to have been promoted to full-time on the day when this
would have OCCUrred. He Should receive compensation for any lost wages
and benefits. And we will remain seized to deal with any matters which.
arise in the implementation of this award.
Done at London, Ontario, this 17th’ day of March , 1986.
Wm. Walsh; Plember
( px,
I. J. Cowan, Member