GSB#1604/00
UNION#OLB522/00
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IN THE MATTER OF AN ARBITRATION
Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before
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THE GRIEVANCE SETTLEMENT BOARD
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## BETWEEN
### Ontario Liquor Boards Employees’ Union
(Ramji)
#### Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
#### Employer
BEFORE Nimal V. Dissanayake Vice-Chairperson
FOR THE GRIEVOR Ursula Boylan
Counsel
### Koskie Minsky
Barristers & Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Legal Services
Liquor Control Board of Ontario
HEARING December 13, 2001.
##### DECISION
This decision relates to a grievance dated December 23, 2000, filed by Mr. Rahim Ramji (“grievor”), wherein he alleges that he was dismissed in breach of article 26.4 of the collective agreement.
The grievor commenced his employment with the LCBO on July 10, 2000 at its Durham Logistics Facility in Oshawa, Ontario, as a probationary casual employee. Under article 31.5, his probation period would have ended on or about January 9, 2001. However, prior to that, the grievor’s employment was terminated on December 13, 2000 by the following letter:
Our records indicate that you began your employment with the LCBO on July 10, 2000. Since that time there have been numerous occasions where management has counselled you both verbally and in the form of a letter.
You were verbally counselled on July 20, 2000 for failure to swipe in or out. Following this however, you failed to swipe your card on September 25, September 27, October 26 and December 4, 2000.
You were verbally counselled on August 10, 2000 for returning late from break. You were then late for the start of your shift on August 24, and September 29, 2000. You were late returning from break again on October 6, 2000. A letter was issued to you on October 10, 2000 regarding your punctuality.
You were issued a Letter of Counselling on September 1, 2000 regarding you low/poor productivity during the week of August 28 to September 1, 2000. On September 7, 2000 you were verbally counselled for excessive breakage. On September 27, 2000 you were verbally counselled for errors on the MPL deck.
You were verbally counselled on November 27, 2000 for horseplay. On December 4, 2000 you were issued a Letter of Counselling for horseplay.
It must also be noted that you have left work early due to sickness on October 11, 2000 at 5:00 p.m., November 24, 2000 at 7:55 p.m., and December 11, 2000 at 6:30 p.m. The importance of good attendance and punctuality in the workplace, and the consequences of poor attendance and punctuality, are outlined in the “Terms and Conditions of Employment” which you received during the recruitment and selection process and in the “Durham Regional Warehouse Employee Orientation Kit” which was reviewed during your orientation.
Accordingly, due to your excessive amounts of infractions, your absenteeism and lateness, and in light of your probationary status, your employment with the LCBO is terminated effective immediately.
The union relied on the following provisions of the collective agreement:
26.4 The Employer shall not discipline or dismiss an employee without just cause.
27.7 An employee claiming he/she has been dismissed without just cause shall be entitled to file a grievance commencing at STAGE 3 provided he/she does so within ten (10) days of the date of the dismissal.
The employer did not question the grievor’s entitlement to grieve his dismissal under the collective agreement. It was not the employer’s position that this was a non-disciplinary release of a probationary employee for unsuitability. On the contrary, the employer’s position was that the grievor was dismissed for just cause. In this regard, the employer argued that a much lower standard of just cause is required to dismiss a probationary employee. Counsel accepted that in the circumstances the employer had to establish a culminating incident. It was argued that an incident of leaving early on December 11, 2000 was a culminating incident which constituted just for discharge, based on the prior infractions. The union did not disagree with the proposition that a lower standard of just cause was required to discharge a probationary employee. However, the union’s position was that the employer did not have just cause even at a lower standard to dismiss the grievor on December 13, 2000.
The employer led its evidence first. Mr. Ian McCallum, the P.M. Operations Manager, testified that the grievor was dismissed on his recommendation. He testified about the past infractions on the part of the grievor set out in the letter of termination, and the counselling provided to the grievor in that regard. It was conceded that all of the counselling was non-disciplinary. Mr. McCallum stated that the employer had the authority to discipline a probationary employee, but agreed that the grievor had never been disciplined at any time prior to his dismissal.
The union called no evidence, and took the position that the evidence tendered by the employer failed to establish just cause to any standard. On that basis it was submitted that the grievance should be upheld.
The past infractions on the part of the grievor relied upon by the employer fall into five categories. (1) work performance/productivity (2) horseplay (3) failure to swipe in/out card (4) lateness (5) leaving work prior to end of shift. With regard to the first four categories, the union did not dispute the infractions alleged. Nor did the union deny that the grievor received the non-disciplinary counselling as stated in the letter. However, the union submitted that by December 13, 2000, the grievor had corrected his ways with regard to those four categories. As union counsel put it, “the non-disciplinary counselling had exactly the desired result”. Counsel argued that the employer’s decision not to discipline the grievor for any of those infractions indicated that it did not consider the infractions to be serious enough to be worthy of discipline. Instead, the employer chose to correct the situation through counselling, and the counselling achieved exactly that result. In these circumstances, it was submitted, that on December 13, 2000 the employer was not entitled to rely on past infractions which had been corrected following non-disciplinary counselling.
With regard to the instances of leaving work early, the union’s position was that the grievor left work early for legitimate reasons and after informing his supervisor. Therefore, there was no culpability on his part. It was particularly pointed out that the infraction that triggered the December 13, 2000 dismissal - the alleged culminating incident - was the incident of leaving early on December 11, 2000. It was submitted that the grievor was not culpable in that regard, and that for that reason alone the employer was not entitled to dismiss the grievor on December 13, 20
minicounsel