GSB# 2004-0851, 2004-0852, 2004-0853, 2004-0854, 2004-0855
UNION# OLB220/04, OLB221/04, OLB222/04, OLB223/04, OLB224/04
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union (Zamostny et al.)
Grievor
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Joseph D. Carrier
Vice-Chair
FOR THE UNION
Julia Noble Counsel Ontario Liquor Boards Employees’ Union
FOR THE EMPLOYER
Alison Renton Counsel Liquor Control Board of Ontario
HEARING
October 19, 2004.
Interim Decision
Further to the first day of proceedings in this matter, I propose, here, to confirm the status of proceedings as discussed with Counsel on October 19, 2004.
To set the stage, the Union alleges that the Employer violated the Collective Agreement and related Memorandum of Agreement in the following way:
On or about May 3, 2004 the Employer unilaterally transferred or assigned Mr. Roland Anstett, from the position of Manager of its Southampton, Ontario retail store to the same job in its Walkerton, Ontario store #30
In unilaterally implementing the transfer the Employer failed to post the Walkerton vacancy which had resulted from the retirement of Mr. Charlie Bagnato, the previous Store Manager.
The vacated bargaining unit position, according to the Union, was within the job posting boundaries of the Western Region of the Province. Qualified employees from within that Western Region only were entitled to the 1st opportunity to bid the job in preference to any employee from outside the region.
The Southampton Store where Mr. Anstett had been Manager, was in the North Region of the Province for job posting purposes. He was, therefore, ineligible to bid the job let alone be assigned to the position without its having first been posted as a vacancy.
Additionally, the Union reserved the right to assert that the transfer of Mr. Anstett in the circumstances, here was done in bad faith.
In support of its position that the Province must be considered as four (4) separate regions for the purposes of job posting and bidding procedures the Union intends to rely upon:
a) the clear meaning of the Parties Agreement(s)
or b) if ambiguity exists, the past practice of the Parties;
or c) estoppel.
Particulars have not yet been provided as to the Parties’ past practice or the elements of estoppel upon which the Union intends to rely.
For its part, the Employer denies any violation of the Collective Agreement. Instead, it acknowledges that the Collective Agreement obliges it to post vacancies for the position of Store Manager in “C-Stores” such as Walkerton. However, it asserts that prior to such posting it may exercise its Management right to transfer or assign employees from equivalent positions in the Province regardless of the Regional divisions. In this case, Mr. Roland Anstett was a C. Store Manager in Southampton , the North Region, and was qualified for this lateral move.
Having completed the transfer, the Manager’s position vacated by Mr. Anstett in Southampton was posted, bid and filled as required pursuant to the Collective Agreement.
With respect to the interpretation of the Parties’ Agreement(s) the Employer denies that its rights to transfer employees in these circumstances is fettered. It asserts that it retains rights to implement lateral transfers and or re-assignments within classifications and/or positions before determining or identifying the regional location of a vacancy.
The Employer seeks particulars of any extraneous evidence the Union seeks to introduce with respect to past practice and/or estoppel and reserves its rights to object to the introduction of any and all such evidence.
As to the suggestion of “bad faith”, the Employer denies the allegation and also seeks particulars.
Additionally, if required the Employer asserts and will show that the transfer of Mr. Anstett was done in good faith:
a) Mr. Anstett had, prior to Mr. Bagnato’s retirement applied for transfer to The West Region;
b) he sought the transfer for valid personal and medical reasons;
c) the Employer offered Mr. Anstett this opportunity as a legitimate accommodation of his needs;
d) the Employer does not now seek to justify or characterize the transfer of Mr. Anstett as an “accommodation” under the Human Rights Code since it was not so identified at the time it was implemented.
Mr. Roland Anstett was given notice of these proceedings and appeared on his own behalf. The possibility that the transfer of Mr. Anstett might be characterized as an “accommodation” under the Human Rights Code did not clearly arise until the first day of proceedings. Since there exists the possibility that Mr. Anstett’s rights pursuant to the Human Rights Code might trump all other consideration, confirmation concerning the potential exercise of those rights by Mr. Anstett is required before the matter proceeds.
Accordingly, Counsel have agreed to provide Mr. Anstett with copies of letters outlining the issues to be determined which were exchanged between them prior to the commencement of these proceedings. It is hoped that those documents together with this letter will assist in identifying those areas in which Mr. Anstett’s special interests might arise.
We have requested that Mr. Anstett, on consultation with Union Counsel and, if considered appropriate, on further advice from independent counsel, contact this tribunal and the Parties to clarify:
a) Whether or not he will seek to rely upon the Human Rights Code to defend his transfer to the position of Manger, Walkerton store;
b) the manner or nature of his claim to entitlement to the protection of the Human Rights Code.
I expressed to Mr. Anstett a request that he make his best efforts to confirm the position to be taken on his behalf within six (6) to eight (8) weeks of receipt by him of the information from Counsel.
In the meantime, this matter stands adjourned pending confirmation of Mr. Anstett’s position and participation in the continuation of these proceedings.
As to particulars to be provided by the Parties and referred to earlier in this letter, I trust that Counsel will co-operate with each other. For the time being, we will refrain from attempting to schedule continuation dates.
Issued at Toronto this 28th day of October 2004