GSB#683/01
UNION#092/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employee’s Union
(Bell)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE N. Dissanayake Vice-Chair
FOR THE UNION Graham Williamson
Counsel
Koskie Minsky
Barristers & Solicitors
FOR THE EMPLOYER Myfanwy Marshall
Counsel
Liquor Control Board of Ontario
HEARING December 17, 2001; March 7, 8; June 17, 18 of 2002.
DECISION
This is a grievance dated March 20, 2001 filed by Ms. Marg Bell (“grievor”). The statement of grievance reads “Article 26.4 and any other applicable articles in the collective agreement”. Article 26.4 states “The employer shall not discipline or dismiss an employee without just cause”.
The grievor commenced employment with the employer as a casual Customer Service Representative (“CSR”) on September 30, 2002 at its store #369 in Harriston, Ontario. Store # 369 is a C rated store. Its workforce consisted of two permanent full-time CSRs and three casual CSRs, all of whom were in the bargaining unit. One of the permanent full-time CSRs, Mr. Gerry Lariviere, served as manager of the store.
As a new employee, the grievor was subject to a probation period. Article 31.5(a) of the collective agreement provides:
A casual employee’s seniority will accumulate upon completion of a probationary period of not less than six (6) calendar months and will be calculated from his/her first day of work of his/her most recent appointment to the casual staff of the Employer. Where an employee has worked less than four hundred `(400) hours in the six (6) calendar months, it will be necessary to extend the probationary period.
The grievor’s letter of appointment dated October 4, 2002 signed by her District Manager, Mr. Ron Holmes stated, inter alia,“You will serve a probationary period of employment of at least six months and 400 hours of work. Where you have worked less than 400 hours in the six calendar months, it will be necessary to extend the probationary period. During the probationary period, your work performance and availability will be assessed and continued employment determined”.
Prior to commencing employment, the grievor also received and signed a document called “Terms and Conditions of Casual Employment”. It restated the description of the probation period set out in the letter of appointment and went on to state:
The work performance of a casual employee is carefully monitored both through day to day observation and a formal performance appraisal. Any work deficiencies will be discussed with the employee and steps taken to upgrade performance. In the absence of improvement the employee would be dismissed.
Approximately 5 months after she started, the grievor was terminated by the following letter dated March 2, 2001, signed by Mr. Holmes:
As we had discussed in our March 2nd telephone conversation, I have reviewed the appraisal of your job performance over your probationary period and the February 14th letter containing your comments.
While you have achieved satisfactory results in stock handling, customer interaction and merchandising, there have been major shortcomings in your performance in the areas of cashiering and retail point of sale systems. These are key areas of responsibility for the position.
Unfortunately, your performance has not met the standard necessary for successful completion of your probationary period. Your employment with LCBO is therefore terminated, effective March 2, 2001. I thank you for your interest in working for the LCBO and wish you well in your future endeavours.
It is common ground that at the time the grievor had less than six calendar months of probationary employment. Nor had she performed 400 hours of work.
The employer’s position is that despite all attempts to train and assist the grievor, she was unable to perform to an adequate standard in some key areas of CSR duties. The employer was convinced that she was not going to improve to the required standards to be able to function as a competent CSR. The employer accepts, for purposes of this case, that it has the onus of establishing just cause for the termination. It takes the position, particularly since a lower standard of just cause is required in the case of a probationary employee, that in the circumstances it had just cause to terminate the grievor.
In his opening statement, on March 7, 2002, union counsel stated that on a number of grounds, the union would be taking the position that there was no just cause for the grievor’s termination. However, during the cross-examination of the employer’s second witness on March 8, 2002, for the first time counsel took the position that the termination should be declared void ab initio because the employer had contravened article 26.3. That provision reads:
An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay.
A meeting was held on January 10, 2000 between the store manager Mr. Lariviere and the grievor. The evidence is that at this meeting the grievor was informed that her work performance was deficient in certain key areas, and that if no significant improvement were shown by February 14, she would be terminated. She was also given the following confirming letter at the meeting.
As per our conversation today, January 10, 2001, I am concerned with your comprehension of the Cash Register and Computer Technique. At this time I wish to advise you that if I do not have a marked improvement in your performance by February 14, 2001 I will have to have a further discussion with the District Manager, Mr. Ron Holmes, to discuss if you have shown the necessary skills to pass your probationary period.
If there is anyway in which we can assist you with these skills, please do not hesitate to ask.
A number of issues were raised between the parties with regard to the union’s position based on article 26.3. Employer Counsel argued that the union ought not be allowed to raise article 26.3 for the first time on the second day of hearing. However, the main issue between the parties was whether the meeting on January 10, 2001 was “a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee”.
After the employer closed its evidence in chief, union counsel advised that it would not be calling any witnesses, and that it would be relying on the evidence adduced by the employer to establish a violation of article 26.3. It was the union’s position on the just cause issue, that the employer’s evidence did not establish just cause and therefore the employer had not discharged the onus it had.
Article 26.3
The Board does not agree with the employer that the union should not be allowed to raise article 26.3 for the first time at arbitration. It is now established in GSB jurisprudence that the rights in article 26.3 are substantive, and not procedural. For example see Re Lahay, 809/94 (Gorsky); Re Pednault, 1568/98 (Briggs). Therefore any delay in asserting those rights does not result in deemed waiver, but may affect the grievor’s remedial entitlement if successful.
This provision confers upon an employee required to attend a meeting falling within its ambit, three distinct rights. First, the employee must be made aware, in advance, of the purpose of the meeting. Second, the employee must be made aware, in advance, of his/her right to union representation at the meeting. Third, the employee is entitled to have a union representative at such meeting provided that does not result in undue delay. On the evidence I find that the employer did not afford to the grievor any of the three rights specified in article 26.3. Therefore, if article 26.3 applied to the meeting in question, it was not complied with.
Thus the issue is, was the meeting on January 10, 2001, “a meeting for the purpose of discussing a matter, which may result in disciplinary action being taken”? Union counsel accepted that for his article 26.3 argument to succeed, the answer to that question must be in the affirmative.
In Brown and Beatty, Canadian Labour Arbitrations (3rd Ed) at p. 7-143, it is stated:
Boards of arbitration have consistently affirmed management’s right, in the proper circumstances, to discipline employees who fail to meet reasonable production standards, who are careless or negligent in the performance of their work, who disregard announced safety procedures, or who generally exhibit poor work habits. However, in other contexts, if such behaviour can be attributed to factors beyond the employee’s control (involuntary misfeasance), for example his physical or mental capabilities, rather than to some factor within his control (voluntary misfeasance), for example inattentiveness, carelessness, disregard for safety procedures, etc., then discipline of any form will not usually be regarded as a valid response. Thus, where it is established that an employee is simply incapable of meeting a particular production standard, or of attaining the quality of work which the employer expected of him, arbitrators have generally taken the view that the imposition of disciplinary penalties is not appropriate.
In Re J.M. Schneider Inc. (Hamilton) Unreported July 29. 1997, the collective agreement contained the following:
Article 8.08
“If an employee is dismissed for any reason whatsoever, the Company shall inform the employee, the Shop Committee, and the Union, in writing, of the reasons for dismissal”
Article 10.01
“No employee shall be disciplined by management without a Shop Steward being present.”
After concluding that probationary employees were entitled to grieve dismissals, at pp. 10-20 the arbitrator wrote:
While the evidence in this case must be assessed against the standard of “just cause” this will be done in the context that the two Grievors were on probation and, therefore, the standard of review is broader than what would be the case in the termination of a non-probation/regular employee. The decision of the Company must be a reasonable one, meaning that the assessment must be made against standards that were reasonably related to the work in question or the Company’s legitimate operational requirements. Essential to this determination is the fact that probationary employees ought to be apprised not only of the standards expected but also of deficiencies noted in their performance. The Company is not required to meet the precise tests of a progressive disciplinary regime when assessing a probationer’s overall performance and particularly when the probationer’s termination is not based on a specific culpable disciplinary offence. If a specific “culpable” offence is the reason for a probationer’s dismissal then the Company will bear the onus of proof in the normal course. In such a situation, the prerequisites of Articles 8.08 and 10.01 of the Agreement ought to be followed. However, on the evidence, Cvitan and Glowala were terminated on broader grounds (i.e. general suitability). This is not prohibited by the Agreement and is consistent with the arbitral tests I have summarized.
In a case between the present parties, Re Senia 248/85 (Samuels) the Board at p. 7 wrote:
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 the present case, the evidence is very clear that the employer was not alleging any blameworthy or culpable conduct on the part of the grievor. There is no alleged offence or incident. The testimony of Mr. Lariviere and Ms. Hepburn was to the effect that the grievor had an inability to retain information repeatedly provided to her. There was no suggestion that the grievor intentionally, or even carelessly failed to perform her duties. The thrust of their testimony was that she was trying but without success. This is evident even in the letter of termination where Mr. Holmes states: “Unfortunately your performance has not met the standard necessary for successful completion of your probationary period”. The letter handed to the grievor at the meeting in question describes the employer’s concern as “Your comprehension of the cash register and computer technique”. Based on all of the evidence, I am convinced that when Mr. Lariviere met the grievor on January 10, 2001, there was no contemplation on the part of the employer that discipline may follow. The purpose of the meeting was to put the grievor on notice about the employer’s concerns about the grievor’s incompetence in certain areas and about the possibility that she will not pass her probation if no improvement is shown. No culpability or blame was alleged. That cannot fairly be described as “a meeting for the purpose of discussing a matter which may result in disciplinary action”. No discipline was contemplated and none was imposed.
Therefore, I find that article 26.3 did not apply to the meeting in question, and the union’s argument in that regard fails.
Just Cause
As noted, the only evidence before the Board is that adduced by the employer. The employer called Mr. Gerry Lariviere (Store Manager), Ms. Ann Hepburn (the senior casual in the store), and Mr. Ron Holmes, the District Manager. As store manager, Mr. Lariviere was responsible for instructing and supervising probationary employees at the store. Ms. Hepburn was from time to time assigned to train new employees and did so in the grievor’s case. Mr. Lariviere made the effective recommendation that led to the issuance of the letter of termination to the grievor by the District Manager, Mr. Holmes. Mr. Holmes did not work at the store and did not personally assess the grievor’s work performance. Rather, he relied on information provided by Mr. Lariviere and Ms. Hepburn about the grievor’s deficiencies and their unsuccessful attempts to coach her. Mr. Holmes testified that sometime in December 2000, Mr. Lariviere expressed to him concern about the grievor’s competence in cashiering and the POS computer techniques. Mr. Holmes instructed Mr. Lariviere to bring these concerns to the grievor’s attention and to take steps to assist her. This led to the January 10, 2001 meeting, and the setting of the February 14, 2001 date for assessment. Mr. Lariviere subsequently kept Mr. Holmes informed of the steps taken to assist the grievor and of the lack of success. He informed that the grievor had shown no improvement in the functions of cashiering and computer techniques despite all of the attempts by himself and Ms. Hepburn to assist. Based on all of the information before him, Mr. Holmes concluded that the grievor had not achieved the required standard in key CSR functions and that she was unlikely to improve in those functions to pass probation. Therefore, rather than wait for the end of the probation period, Mr. Holmes decided to terminate the grievor on March 2, 2002.
There is no dispute that cashiering and the ability to properly operate the POS computer system are key functions of a CSR, and that one cannot be a competent CSR without those skills. Mr. Lariviere estimated that those two functions accounted for about 80 percent of the grievor’s job. He testified that the grievor was instructed and coached on those functions when she commenced, by himself, and in his absence by Ms. Hepburn and Mr. Doug King, a full-time employee. However, after 3 to 6 weeks it was evident to him that the grievor’s performance was deficient. For example, she got advancing the till and selling back the till mixed up and was confused about the proper void procedures. She also could not distinguish between debit and credit transactions. According to him those were very basic skills. While it was understandable that mistakes were made the first few times, once shown a few times, one should be able to learn and remember the various transactions. However, despite repeated coaching by him, the grievor kept making the same mistakes. Mr. Lariviere decided to assign Ms. Hepburn to train the grievor. Ms. Hepburn was experienced in CSR functions as the senior casual in the store, and also was trained in training techniques in her capacity as the District Trainer for the LCBO. Mr. Lariviere testified that before Ms. Hepburn took over, he sat down with her and the grievor and explained to the grievor that there were concerns about the grievor’s performance in cashiering and computer techniques despite much coaching on his part, and that Ms. Hepburn would be taking over her training.
As District Trainer, Ms. Hepburn trained new LCBO employees on specific customer service programs. In order to do that she received a week long course on techniques for training adults. Quite apart from the role of District Trainer, Ms. Hepburn had trained new employees at store 369 prior to taking over the gievor’s training.
Ms. Hepburn testified that she stood by the grievor as she worked and showed her the steps she had to follow to do the various transactions. In her view, a new employee should be able to master the procedures within a week, assuming she worked at least a couple of hours a day. However, despite repeated coaching by her, the grievor had problems retaining information on a day to day basis. She kept repeating the coaching hoping that with a little more time the grievor would learn the procedures. However, that did not happen. Therefore, Ms. Hepburn resorted to a teaching technique she had learned in her course. She had the grievor write down each step of the transaction as she did it under Ms. Hepburn’s supervision. The expectation was that the writing down would better help the grievor remember the steps for each transaction. However, that did not help either. The grievor could not perform the steps in the procedure without referring to her notes each time.
In another effort to assist the grievor, Ms. Hepburn created for the grievor a document called “Basic Cash Techniques”. She wrote down for the grievor each type of transaction step by step. She also drew on paper a layout of the key board, and colour coded it to match the colours of the cash register keys. These were given to the grievor, so that she could follow it and practise “dry runs” on the cash register. Ms. Hepburn watched her do that to ensure she was following the steps correctly. At first, Ms. Hepburn felt it was helping. However, the grievor continued to have problems, particularly with the cash back and debit transactions. The grievor got frustrated with her inability to get it right.
By late November/early December 2000, Ms. Hepburn concluded that despite her efforts to train the grievor, she had not shown improvement. She felt that a detailed document setting out more information may be helpful. In early January 2001 she created a document titled “LCBO 101", which described in detail the proper steps for all CSR functions. After reviewing it with Mr. Lariviere, she asked another casual employee (who had been hired around the same time as the grievor) and some non-LCBO persons to use the “LCBO 101", in order to see if they could follow it. They had no difficulty following it. The document was provided to the grievor as an aid to learning the various transactions. However, no improvement was achieved. From her experience, if someone performed the transactions at least once a week, within a month he/she should be competent with all of the tasks dealt with in “LCBO 101". As an example, Ms. Hepburn stated that she also trained the other casual employee who started at the same time as the grievor, and that employee learned the basic transactions within a week.
Brown and Beatty, Canadian Labour Arbitration, (3rd Ed), at p. 7-268.1 summarizes the status of probationary employees with regard to job security as follows:
However, with respect to matters of employment security generally, and discharge and dismissal in particular, the status of the probationary employee has been uniformly regarded by arbitrators as being more vulnerable than, and to be distinguished from, that enjoyed by seniority rated employees. Although arbitrators have differed as to precisely what rights, if any probationers enjoy with respect to their security of employment, there is a firm consensus that, from the very nature of a probationary period, such persons cannot expect the full and unqualified protection provided by the just cause provision which is enjoyed by those employees who have completed their probationary period. That is, and apart from any specific clauses in the agreement, virtually all arbitrators now accept the rationale for, and the legitimacy of, the probationary status as being like an apprenticeship, a learning experience and a period of time during which the employer is free to assess the full potential and capability (viz., the suitability of such persons in the broadest sense) of both new employees and employees who have not worked for a period of time in the particular position.
In Re Porcupine Area Ambulance Service, (1974), 1974 CanLII 2347 (ON LA), 7 L.A.C. (2nd) 182 (Beatty) at pp. 186-87, the arbitrator wrote:
We would go further and state that in any case involving the discharge of a probationary employee the employer must not only prove the acts complained of which precipitated the discharge, but in addition he must demonstrate that this reasonably supports his conclusion that the discharge was appropriate. Were it otherwise an employer might well be justified in asserting that a probationary employee who was late on one occasion (with or without justifiable excuse) had fallen below the standards of punctuality thereby demonstrating his unsuitability as a future employee. In short, the employer must not only prove the facts upon which he based his action, but in addition that the employee’s conduct demonstrates that it is reasonable to conclude such an employee will likely prove unsuitable as a seniority-rated employee. This will necessarily entail a board of arbitration assessing both the reasonableness of the standards imposed by the company against which the employee’s conduct is to be measured, as well as the conclusion that the conduct complained of reasonably supports the conclusion that the probationary employee is likely to prove unsuitable.
One should add that in our view this review by a board of arbitration should not take on the nature of an appeal as to the correctness of the company’s prognostication as to the future prospects of the probationary employee. We have already stated that some of the legitimate concerns of an employer in assessing the future employment relationship of a new employee, viz. his character, compatibility, potentiality for advancement and general suitability are necessarily vague. Further the judgement of the company is necessarily in the nature of a prognostication. Arbitrators should therefore be reluctant to interfere with that prognosis unless it is plain that the employer’s assessment or standards are palpably unreasonable. However, should the employer fail to establish any basis for the termination of the probationary employee, or should it be demonstrated that his assessment or the standards against which the assessment is made are unreasonable, boards of arbitration must not sanction such disciplinary action simply on the basis that it was invoked against a probationary employee. In sum we would assert that although the proper basis for discharge of a probationary employee may be somewhat broader than that justifying the termination of a seniority-rated employee, and although the standards of review by boards of arbitration will be less rigorous, nevertheless the employer must affirmatively establish that his termination of a probationary employee was reasonable in the circumstances.
Some authorities state that a lesser standard of just cause applies to probationary employees. This in my view, is an incorrect use of terminology. A lesser standard of just cause applies to probationary employees only if the collective agreement says so. Article 26.4 of the collective agreement makes no distinction between types of employees with regard to just cause for discipline and dismissal. Therefore, the employer has the onus of proving just cause for the termination of a probationary employee to the usual standard of “a balance of probabilities”. However, in assessing whether just cause has been proven in any given case, a number of factors may be taken into account. The employee’s probationary status is such a factor. In Re Cotter, 971/88 (Fraser), the GSB concluded that probationary employees were entitled to the usual just cause protection, but also held that “a probationary employee is a special case”. At pp. 17-18 it went on:
These two matters may be reconciled in view of the broad scope of a just cause provision. Although the onus remains on the employer, a probationary status is clearly a relevant factor in assessing in any case whether just cause existed. Arbitral awards are replete with the adoption of various forms of status as relevant factors in assessing just cause for discipline or discharge. If for example, one is a teller or cashier, the resulting fiduciary relationship has long been an important factor in assessing just cause in many past cases involving the current employer. If, for another example, a probationary employee is essentially off the street, and has never worked for the employer or otherwise before, then a review for just cause would take account of that probationary relationship, including the lack of any employment record of the employee, and the risk the employer has accepted in embarking on that relationship. For a further example, if the probationary employee has had some eight years service with the employer in another capacity, prior to entering a formal probationary period (as we understand the situation to be in the case before us), then the factor of probation may be given a different weight in reviewing for just cause, than in the first case.
Taking a similar approach in Re Grace Hospital (1993) 1993 CanLII 16638 (BC LA), 35 L.A.C. (4th) 410 (Bluman) at pp. 20-21, the arbitrator wrote:
In my view, that some authorities say that an employer must meet a lesser or less rigorous standard to prove cause for discharge of a probationary employee is, with respect, unfortunate terminology. None of these authorities suggest that the employer need not prove its case on a “balance of probabilities”, the usual standard of proof. Cause itself cannot be measured against any definable standard. What constitutes “cause” for discipline will depend upon all the circumstances, most importantly, the employment context. For example, sleeping while on shift may be considered acceptable in some work environments or a fairly minor infraction. In another employment context it may be considered “cause” for a severe disciplinary penalty. Even theft which is broadly accepted to be a “firing offence” has been held to fall short of “cause” for discharge by a distinguished arbitrator because of the vagaries of the particular employment context under his consideration: see Alcan Smelters & Chemicals Ltd. (Ivanakis grievance), unreported, 1983 (Hope)
The master collective agreement specifically provides that new employees are on probation for the first three months of their employment. The fact an employee is on probation must properly be taken into account in assessing whether the employer has proven “just cause” for her discharge. A probationary employee is by definition “on trial”. The trial period gives the employer an opportunity to assess whether the employee has demonstrated what arbitrator Dorsey has described as “the ability to meet a reasonable work standard”. Stated perhaps simplistically, if the employer is able to prove on a preponderance of evidence that the employee had a fair opportunity to demonstrate such ability but failed to do so, it has met its burden of proving “cause”. It is not a matter of the employer having faced a lesser burden, rather, the fact of probation added a category of “malconduct” which justified termination.
The union accepted, after some hesitation, that as a general matter, poor work performance and unsuitability may constitute just cause for the non-disciplinary discharge of a probationary employee. However, it took the position that no just cause existed for the grievor’s discharge for a number of reasons. I shall deal with each separately.
Termination was premature
Counsel for the union argued that in article 31.5(a) the parties had agreed to a probationary period of 6 months or 400 hours. The grievor was terminated after just over 5 months of probationary employment. She had not completed 400 hours of work at the time either. Counsel argued that a probationary employee was entitled to a fair and full opportunity to show ability, and that requires that the employee be allowed at least 6 months or 400 hours.
Article 31.5(a) is about when seniority will commence to accumulate, i.e. upon completion of probation. It provides that probation will be completed after 6 months of probationary employment provided the employee has worked 400 hours. Otherwise, probation is completed only when the employee has worked 400 hours.
From that language, the union derives the proposition that the employer must always allow probationary employment of 6 months/400 hours before assessing and deciding on the employee’s suitability or unsuitability for permanent employment. That, in my view, is not a reasonable interpretation of the provision. Article 31.5(a) does not address the issue of when the employer may make its determination about suitability. If the parties intended to guarantee probationary employment for 6 months/400 hours before a decision is made, they would have provided for that. Article 31.5(a) does not do so. Therefore, whether an employee received full and fair opportunity to show ability must be assessed on a case-by-case basis based on the particular facts. Where the employer decides to terminate an employee prior to the completion of the probationary period specified in the collective agreement, as was the case here, the onus is on the employer to establish that it came to a reasonable conclusion that allowing the employee to continue would not have resulted in the employee attaining the required level of competence.
In the present case there is no dispute that cashiering and the P.O.S. computer tasks are key elements of a CSR job. Two employer witnesses who directly observed the grievor testified about the deficiencies the grievor had in those areas. These deficiencies were confirmed by a formal performance appraisal. The grievor made a written complaint, suggesting inter alia that a hostile work environment, particularly intimidation by a co-worker, was responsible for her poor performance. Those suggestions are unsubstantiated because the employer witnesses denied every suggestion put to them in cross-examination. And no contrary evidence was led on behalf of the grievor.
The employer also led detailed testimony about the numerous attempts made to instruct and assist the grievor over a period of over 5 months. The grievor did not testify about any inadequacy in the training she received or about a lack of opportunity to learn. In the circumstances, the employer has met its onus to show that its determination after 5 months, that the grievor was unlikely to be a competent CSR, was reasonable.
The manner in which the termination was effected
In this regard the union made two arguments. First, it was submitted that in terminating the grievor the employer failed to follow its own policy. Secondly, it was argued that the employer failed to properly bring its concerns to the attention of the grievor and therefore deprived her of the opportunity to prove her ability.
The union’s allegation of breach of policy relates to a LCBO document titled “Guidelines for administering the probationary period”. Counsel relied on the following passage:
A request to terminate a probationary employee should be supported by DOCUMENTATION. This documentation should represent your effort from when the employee was hired to your final efforts; you must document as you go. This includes copies of written information given to the employee, notes regarding verbal counselling and discussions, letters/memos given to the employee informing him/her that his/her performance was not acceptable and that change was required or else termination may be the result. The termination of a probationary employee should be the result of the failure of every reasonable effort to help the employee reach her/his potential. And the onus of proof that every reasonable effort has been taken is on YOU.
During cross-examination, Mr. Lariviere and Ms. Hepburn admitted that they kept no notes about the various discussions they claimed they had with the grievor, wherein the grievor was advised of her shortcomings and counselled on ways to improve. It was submitted by union counsel that termination of the grievor was therefore preceded by a breach of the employer’s own policy and that such a termination could not be for just cause.
I agree with counsel to the extent that Mr. Lariverie and Ms. Hepburn did not do what the document states they should do. However, I do not agree that this has any bearing on the just cause issue. The document in question is an internal LCBO document which forms part of a larger document titled “Manager’s Guide - Casual employee orientation”. The document sets out certain things which manager’s administering probation periods are expected to do. Namely (1) Ensure that the new employee understands the tasks that are to be performed as part of his/her new job; (2) Ensure that the standards to which these tasks are to be performed are understood; (3) Ensure that the employee is properly trained in performing tasks to an acceptable level; and (4) Ensure that constructive feedback is provided in a timely manner. The foregoing are for the benefit of the probationary employee. Where a manager fails to comply with them, the employee may be able to argue that she/he did not have a fair opportunity to demonstrate her ability.
The passage relied on by the union instructs managers to document the steps taken to comply with the four above factors. For example, if a manager has a verbal discussion during which feedback is provided to the employee, the manager is expected to document it. However, that documentation is not for the employee’s benefit. It is clear from the passage that managers are expected to document what they do to assist and train probationary employees because that will enable the employer to prove what it did in the event the termination is challenged. Recognizing that the onus is on the employer to prove the employee’s unsuitability, it is to the employer’s advantage to have documented proof of what it did. The passage in question is merely a recognition of that. The failure of Mr. Lariviere and Ms. Hepburn to document what they did may be a failure to follow good management practice expected by the employer. However, as long as they in fact took the necessary action to assist the employee, their failure to document what they did does not have any bearing on the just cause issue. It simply means that if the instructions in the passage were followed, it would make proof of just cause easier for the employer. The documentation does not assist the employee to attain competency.
The union’s other argument is that until January 10, 2001, the employer did not advise the grievor of any problems with her work performance, and then a month later she was terminated. It is submitted that the grievor did not get sufficient time and opportunity to improve her work performance.
The employer witnesses testified without reservation that on numerous occasions they discussed with the grievor about her short-comings and suggested ways to correct them. They tried to assist her in different ways. The grievor did not testify. Therefore, there is no evidence that the grievor did not understand what was expected of her or what the employer’s concerns were about her work performance. Through cross-examination, union counsel did establish that January 10, 2001 was the first time an “official” meeting was held and the first time the grievor was put on notice in writing about the employer’s concerns about the grievor’s work performance and the need for improvement as a condition of passing her probation.
However, the collective agreement, the employer’s own policy nor arbitral jurisprudence requires “official meetings” or “notice in writing”. The employer’s evidence is uncontradicted that Mr. Lariviere at first, and subsequently Ms. Hepburn, had discussions with the grievor on an on-going basis. Indeed, Mr. Lariviere, under cross-examination, stated that he did not believe that giving the grievor “60 notes” would have helped. Instead he felt that it was more useful to informally talk to her and coach her about the concerns. In my view, what is required is that the grievor be made aware of the deficiencies and of the fact that the failure to improve will result in her not passing probation. Absent a requirement in the collective agreement, it is not mandatory that this be done in writing or at an official meeting. Given the testimony of the employer witnesses and the absence of any contrary testimony from the grievor, I cannot accept that until she received the letter at the formal meeting on January 10, 2001, she would not have known about the employer’s concerns or of the fact that she needed to correct her deficiencies if she was to pass her probation.
The assessment of the grievor’s work performance
The union’s final grounds in support of its argument that there was no just cause for discharge is based on the fact that the assessment of the grievor’s work performance, which effectively led to her discharge, was done by Ms. Hepburn. The District Manager testified that as store manager, it was Mr. Lariviere’s responsibility to train and evaluate probationary employees and make recommendations. In the grievor’s case, Mr. Lariviere delegated the training as well as the evaluation to Ms. Hepburn. He did not give her a training plan but left it up to her how to train the grievor. The union’s concern was that Ms. Hepburn, a casual CSR, was training and evaluating another casual CSR. The union also questioned Ms. Hepburn’s qualifications to train a new CSR.
There is no question that the ultimate responsibility to coach and assist a probationary employee and to evaluate her is on the employer. In this case that responsibility fell on the store manager, Mr. Lariviere. However, the union did not point to any requirement that Mr. Lariviere must carry out these functions personally. The uncontradicted evidence is that at store 369 it was not uncommon for experienced bargaining unit employees to train new employees. Indeed, Ms. Hepburn had trained many new employees, including one who started around the same time as the grievor.
Once gain, the union’s argument is a technical one with no consequence on the substantial issue, which is whether the grievor was provided appropriate training and properly assessed. It does not matter whether that training and assessment are provided by the Store Manager personally, or by someone else assigned by the Manager. (If the union objects on principle to a bargaining unit employee training and/or assessing another bargaining unit employee, that issue has to be raised elsewhere). The evidence is that Ms. Hepburn has been employed at the LCBO as a casual CSR since July 1997. As the senior casual at store 369 she worked approximately 25 to 30 hours a week. As such she was very experienced in all aspects of her CSR job. She was also the District Trainer. The District Trainer position involves training new employees on specific customer service programs. It is not part of a district trainer’s role to train new employees on CSR duties. Nevertheless, the uncontradicted evidence is that Ms. Hepburn had received training on general training techniques. Given that knowledge of training techniques, combined with her experience as a CSR and her experience in training other probationary employees, it is not reasonable to infer that she was unqualified to train and assess the grievor. This is more so because the appropriateness of her training and assessment of the grievor was not challenged. The grievor did not testify to the effect that the training and assessment by Ms. Hepburn was inappropriate or inadequate. If the grievor’s position was that the training provided was inappropriate or that her assessment was unfair, there is no evidence to support that. Although the evidence indicates that Ms. Hepburn had some absences due to illness during the time she was the grievor’s trainer, there is no indication that it contributed to the grievor’s inability to attain the required standard of performance.
In Re Porcupine Area Ambulance Service, (supra) at p. 185 the Board described the purpose of a probation period as follows:
... one must also recognize the legitimate interests of the employer in attempting to secure the most competent, compatible and suitable work force it can acquire. One cannot reasonably expect an employer to be able to assess the full capabilities and potentiality of a job applicant from a brief interview ... Rather (the employer) must be entitled to an opportunity to view the new hire in the particular context of (the) work environment. That is the sole purpose of the probationary period. It is, as we have said, a legitimate purpose.
In pursuing that legitimate purpose, particularly in the face of a just cause requirement, the employer must take steps to ensure that it administers the probationary period in a fair and reasonable manner. The onus is on the employer to establish that this was done. In order to discharge that onus the employer must be able to satisfy the Board of the following:
(1) The employee must be made aware of his/her duties and responsibilities and of the standards of performance expected during the probationary period.
(2) The employer must provide the employee reasonable assistance, through coaching and instruction, to achieve the required standard of competence.
(3) Any deficiencies must be brought to the employee’s attention and the employee given reasonable time to correct them.
(4) The employer must not act in bad faith or act in discriminatory fashion.
(5) The employer must satisfy the Board that it came to a reasonable conclusion that the employee failed to meet the expected standard and that as a result she was not suitable to be placed permanently in the position.
Based on the evidence before me, I am satisfied that the employer has met the foregoing criteria. In the circumstances, just cause has been established.
Accordingly, the instant grievance is dismissed.
Dated at Toronto this 30th day of July, 2002.