Ontario Public Service Employees Union (Bissonnette) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2010 CanLII 18869

GSB#2007-1870, 2007-3512, 2008-1462, 2008-1920, 2008-1921, 2008-1923

UNION#2007-0682-0002, 2008-0682-0001, 2008-0682-0003, 2008-0682-0014, 2008-0682-0015, 2008-0682-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bissonnette)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Laurie Kent Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Michael Horvat Ogilvy Renault LLP Barristers and Solicitors

HEARING

October 14, 15 and 16, 2009.

DECISION

1Except for a few months in 2005, the grievor was a casual employee of the LCBO at various stores in or near North Bay from late October 2000 until her employment was terminated effective August 18, 2008. Throughout that period she was also employed at a long-term care facility in North Bay. As her seniority with both employers increased, and particularly after she became a full-time employee at the long-term care facility, the shifts assigned to her by her two employers began to conflict. She frequently chose to be absent from or unavailable for shifts for which she had been scheduled at the LCBO store because she was working at the long-term care facility. Over a period from May 2007 to August 2008 the employer responded to this by imposing progressive discipline and, ultimately, discharging the grievor.

2The core issues in these proceedings are whether the employer had cause to disciple or discharge the grievor on the occasions it did. From the union's perspective, at least, those issues turn on whether the grievor's breach of certain employer rules about the availability that it requires from casual employees was cause for discipline in the circumstances.

Casual employment at the LCBO

3The employer operates roughly 600 retail stores in which it sells alcoholic beverages and related products.

4The amount of work that has to be performed in an LCBO store varies during the day, from day to day and from week to week in reasonably predictable patterns. Generally speaking, the volume of sales per hour in an LCBO store is greater during Friday evenings, Saturdays and Sundays (at stores open on Sunday) than during other days of the week, greater before holidays and during holiday periods than at other times of year and, at stores in or near summer vacation or tourism areas, greater during the summer or tourism seasons. A store will need to have more employees at work during times when more sales per hour are taking place, and when scheduled deliveries of liquor or beer arrive at the store and must be unloaded. Substitute employees will also be needed to fill in during the lunch breaks and other absences of employees who are otherwise scheduled to work.

5The parties' collective agreement contemplates four types of employment: Permanent Full-time, Permanent Part-time, Seasonal and Casual. Permanent employees are entitled to regularly scheduled hours of work. Generally speaking, permanent employees are used to satisfy a store's relatively constant, minimum daily needs for staff. Casual employees are not entitled to regularly scheduled hours of work. Casual employees (and in certain circumstances seasonal employees) are assigned to work those parts of the day, days of the week and times of the year when the employer needs more people at work than the scheduled and available permanent employees, and to fill in for permanent employees' lunch breaks and absences due to illness and other causes. Permanent employees in retail stores are only required to work some Saturdays, although their schedules can include more than the required minimum if they wish. Work on Sunday is voluntary for permanent employees, but not for casual employees.

6The employer has roughly 3000 casual employees.

7At times relevant to this dispute, the employer's practice was to tell applicants for casual employment at a retail store that at minimum they would have to be available to work (but were not guaranteed work) during periods that included Friday nights, Saturdays all day and Sundays all day. They were asked to state their availability in their application – that is, with respect to each day of the week they were asked to state what hours they would be available to work on that day. The form applicants were to complete made no provision for giving different answers for different weeks of the year: what was sought were the hours when the applicant would be available every week. Applicants were told that if the availability stated on their application was considered acceptable, they would be scheduled in accordance with that "stated availability" and the operational needs of the store.

8As I note later, the collective agreement requires that hours of work be "allocated" among the casual employees assigned to a store "in accordance with seniority." The employer treats this as an obligation to assign the longest of the store's casual shifts on any given day to the most senior of the store's casual employees who is available for it. For this purpose, the employer assumes and expects the employee to be available as indicated in her or his "stated availability," unless store management has given advance approval for the employee to be unavailable on a particular day. Changes to the employee's "stated availability" itself must be approved by the district manager. Requests for approval of an employee's being unavailable on a specific date despite the employee's "stated availability" must be approved by the store manager.

The Collective Agreement

9The right to schedule employees is one of the management rights confirmed in Article 1.1 of the collective agreement:

1.1 …

(c) The Union acknowledges that it is the exclusive function of management to:

• maintain order, discipline and efficiency;

• hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff, recall, suspend or otherwise discipline employees subject to the right to grieve as provided for in this Agreement;

• manage the operation and without restricting the generality of the foregoing, the right to plan, direct and control operations, direct its employees, determine complement, methods and the number, location and class of employees as required from time to time, the scheduling and assignment of work, cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this agreement.

The Employer agrees that these functions will be exercised in a manner consistent with the provisions of this Agreement.

10Provisions of the collective agreement define regular or normal hours of work for Permanent Full-time and Permanent Part-time employees, but those provisions do not apply to Casual employees. Scheduling and absence from work of Casual employees is addressed in the following provisions of the (2005-2009) collective agreement:

31.1 (a) Hours of work shall be posted at least two (2) full weeks in advance for each establishment. …

(b) There shall be no change in the schedule after it has been posted unless notice is given to the employee one (1) week in advance of the starting time of the shift as originally scheduled, or the employee and the Employer mutually agree to change the schedule. …

(c) Casuals, when scheduled to work on any day, shall not be employed for less than two (2) hours.

(e)

(iii) The Employer agrees not to schedule two (2) shifts within a store that, if combined, would become one continuous shift of eight (8) hours or less, provided that the two (2) shifts are not separated by more than one (1) hour and no overtime is incurred. It is understood that this provision does not apply to overlapping shifts.

(j) Casual employees in retail stores shall be scheduled to work Sundays in accordance with the Letter of Agreement – Sunday Openings.

31.2 …

(c) Casuals may observe up to three (3) weeks of vacation period provided such period is taken at a time acceptable to the Employer. …

31.5 …

(b) A casual employee will lose all seniority and his/her employment will be deemed to have been terminated if he/she is unavailable for work for a period of three (3) months or more, exclusive of any approved leave of absence.

31.7 Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department.

31.9 A casual employee, who would otherwise be at work, shall be allowed up to three (3) consecutive days leave of absence with pay, for those hours scheduled, inclusive of the day of the funeral, in the event of the death of a member of his/her "immediate family". "Immediate family" shall be as defined in Article 17 of the Collective Agreement.

It is common ground that for casual employees in retail stores the retail store to which they are assigned is the "applicable work unit" for purposes of Article 31.7.

11Scheduling of employees to work on Sundays is addressed in a letter that forms part of the collective agreement:

LETTER OF AGREEMENT Sunday Openings

The LCBO and the Union agree that work resulting from the opening of LCBO's stores on Sunday shall be voluntary for Permanent Full-Time (PFT) and Permanent Part-Time (PPT) employees.

Sunday Work shall also be voluntary for Casual employees for whom such Sunday work would result in overtime.

Sunday work shall be offered in the following manner and sequence:

(a) First, to PFT employees on a voluntary basis in order of seniority.

(b) Should fewer than the required number of PFT employees volunteer, such Sunday work shall then be offered to PPT employees, in order of seniority.

(c) Should fewer than the required number of PPT employees volunteer, such Sunday work shall then be offered to Casual employees in order of seniority.

(d) Should fewer than the required number of casual employees volunteer, such Sunday work may be assigned to casual employees who have worked less than forty (40) hours during that week.

Unless otherwise agreed between the casual employee and the Employer, the maximum number of hours that may be assigned shall not exceed the difference between the number of hours worked by the casual during the regular work week and forty (40) hours with such hours not to exceed eight (8) hours on the Sunday.

12Availability and scheduling are also referred to in Articles 50 and 51:

ARTICLE 50 Unforeseen Work at Stores

50.1 When it is necessary to offer permanent part- time and/or casual employees work that becomes available after the schedule was posted, the following procedure shall apply.

50.3 (a) The work shall be offered by store in order of seniority, to permanent part-time employees first, then to casual employees, provided they are qualified to perform the work and no overtime is incurred.

(b) In the event that the employee's availability cannot be confirmed at the time of offer, the next most senior employee shall be offered the work.

(c) An employee who declines the offer as mentioned above will not be subject to discipline as a result.

(d) An employee who is not available when the schedule was posted will be deemed not available until the next schedule is posted unless the employee confirms their availability to the Manager prior to when the work is offered.

(e) If the employee identified by (a) above is already scheduled on the date the work is required, he/she must work the scheduled shift unless there is mutual agreement between the Employer and the employee, in which case, his/her schedule may be changed.

ARTICLE 51 Call In of Permanent Part-Time and/or Casual Employee's [sic] From Other Stores

51.1 When it is necessary to call in permanent part-time and/or casual employees from other stores, the following procedure will apply:

(a) For the purpose of this agreement each store will have a designated store that is to be contacted first. Stores will be designated by the Employer. In remote areas of the province it may not be practical to do so. The Employer agrees to provide the Union with a list indicating the designation of stores as per this Agreement and changes as they occur.

(b) Available employees at the contacted store shall be called in, in order of seniority, permanent part-time employees first, then casual employees, provided they are qualified to perform the work and no overtime is incurred.

(c) In the event that the employee's availability cannot be confirmed at the time of offer, the next most senior employee shall be offered the work.

51.2 It is understood that employees are not entitled to solicit work outside their home store.

51.3 An employee who declines the offer as mentioned above will not be subject to discipline as a result.

51.4 Permanent part-time and/or casual employees must work scheduled shifts at their home store. Employees must fulfill their obligation to work scheduled hours at their home store and cannot fail to appear for work by virtue of having obtained work at another store.

51.5 In the event there is a need to call-in employees from a store other than the designated store, the same procedure will apply.

13Article 26.4 of the collective agreement provides that the employer shall not discipline or discharge an employee without just cause.

Prior Decisions about Availability and Scheduling of Casual Employees

14During closing argument counsel referred to three decisions of this Board that addressed the rights and obligations of casual employees under collective agreements between the employer and the union's predecessor, the Ontario Liquor Board Employees' Union:¹ Kruczak, 1993-1359 (Briggs, March 25, 1996), Costa, 1997-2286 (Brown, August 9, 1999) and Goncalves, 1999-0134 (Brown, February 23, 2000).

15The grievor in Kruczak was a casual employee who availability was affected by his having a full-time job elsewhere. The grievance concerned a 12:00 noon to 8:00 p.m. shift that the employer was assigning to casual employees junior to the grievor. The union said that this breached article 31.7, because the grievor was available during some of the hours of that shift and should have been scheduled for the hours he was available. The Board noted (p. 2) that "Casual workers fill out availability sheets to let the Employer know when they are free to work." The grievor's availability sheets had indicated that on some days of the week he was available for part, but not all, of the time between 12 noon and 8 p.m. On his behalf the union argued that the obligation to allocate "hours of work" in article 31.7 required the employer to assign the grievor the hours for which he had indicated he was available, and then assign the balance of the 12 noon to 8 p.m. shift to another casual employee.

16The Board found that the contract language was ambiguous and unclear, and that it had to look to extrinsic evidence of past practice to determine the appropriate interpretation:

The evidence of all, including the grievor, was that the Employer has consistently allocated established blocks of time or shifts to the casual employees on the basis of their seniority, including the grievor. Casual employees fill out a form regarding their availability every year or as their availability changes. Where there is a match between the available hours of a casual employee and the block of time or shift that the Employer needed to staff, that casual employee was assigned the work. The Collective Agreement does restrict the scheduling of shifts for casual employees to the extent that shifts cannot be split and they cannot be scheduled to work for less than two hours.

We are of the view that if the Union were correct in its interpretation it would lead to an absurd result. It would require, in every store within the LCBO, the manager scheduling the most senior casual employees for every hour of their availability so long as that period of time is not less than two hours. We are of the view that this is not the intended result of Article 31.7. Given the documentary and viva voce evidence that the Board heard regarding the practice of scheduling hours of work to casual employees, we find that the Collective Agreement cannot be interpreted as suggested by the Union.

17In Costa the Board noted (at page 13 of the decision) that the employer's approach to availability of casual employees had changed significantly in 1996:

The evidence indicates casual employees were allowed to determine their own availability for at least several years prior to 1996. At that time, the district manager began to scrutinize requests for changes in availability. In negotiations for the 1996-98 agreement, the employer served notice that universal, minimum availability requirements would apply to casual employees hired in the future. The employer also stated these universal requirements would not apply to existing casuals.

18The grievor was an "existing casual" (having been hired in 1992) to whom the district manager had written as follows:

It has been brought to my attention that you have been difficult, if not impossible, to reach for work due to your limited availability.

Your latest availability, dated May 31, 1997, indicates that you are available Monday and Tuesday 9:00 a.m. to 9:00 p.m., Wednesday and Thursday 9:00 a.m. to 1:00 p.m. and Friday and Saturday pending. If your availability has changed, you must request a change in writing stating the reason(s). I will review your request and make a determination regarding your continued employment based upon store operational needs. If your availability has not changed then you are expected to be available as so indicated.

Please advise me of your intentions regarding employment with the LCBO by October 27, 1997. If you cannot provide acceptable availability I will have no alternative but to recommend termination of your employment.

The grievor had responded by advising her store manager that she was available Mondays and Tuesdays, 1300 to 2100. The assistant store manager had then informed her that that was unsatisfactory to the district manager. The grievor had then written that she would be available Thursdays and Fridays, 1600-2100, and additional hours on Mondays, Tuesdays, Thursdays and Fridays during the Christmas season. The district manager responded by terminating her employment. The termination letter said:

As a casual employee you are expected to be reasonably available at all times, especially on Thursday evenings, Friday evenings, Saturdays and Long Weekends and during peak periods such as the Christmas season. Unfortunately, the availability indicated on your letters is not compatible with the operational requirements of this store.

In light of your unacceptable availability and as indicated in my letter of October 9, 1997, I have no alternative but to terminate your employment with the LCBO effective immediately.

19The Board found that no minimum availability requirement had been brought to the grievor's attention before she was terminated for unacceptable availability. On that basis alone the Board found that the termination was unjust, having regard to the requirements set out in KVP.² That conclusion made it unnecessary for the Board to address union arguments that articles 31.5(b) and 31.7 precluded the employer from enforcing its minimum availability. The union had urged the Board to address those arguments even in that event, however, and the Board did so.

20At page 9 of his decision, Vice-Chair Brown noted that

The union concedes that an employee's freedom to change her availability is limited by article 31.1 requiring hours of work to be posted one week in advance. In particular, an employee is obliged to work scheduled hours falling within the availability stated at the time the schedule is prepared, baring [sic] illness or similar circumstances.

21He then considered and ultimately rejected the union's argument that article 31.7 gave "all casual employees, including the most junior employee in a store" the right to "decline work if it falls outside their stated availability." In the course of doing so, although neither counsel had addressed the question, he speculated (at page 10 of the decision) about whether article 31.7 might be read as allowing a casual employee to reject an assignment of hours outside when a more junior employee could be compelled to work them:

Is the entitlement to preferential treatment based upon seniority limited to claiming work or does this entitlement also apply to rejecting work? Consider two employees who prefer not to work a particular block of casual hours during which one of them is needed. Article 31.7 might be read as requiring the employer to schedule the more junior of the two -- i.e. as permitting the more senior to be unavailable. When the work is distributed in this way, one also might say hours have been "allocated in accordance with seniority."

If article 31.7 is read as allowing an employee to utilize his seniority both to claim work and to reject it, then "allocated" would mean both "offered" and "assigned." According to this interpretation, the employer would be obliged initially to distribute hours among employees in order of their seniority and availability -- i.e. to offer work according to seniority. If the number of employees willing to work was not adequate to meet the need, the employer would be obliged to proceed in reverse order of seniority in assigning hours outside their availability.

The union's interpretation of article 31.7 goes much further than asserting seniority rights may be exercised to reject work as well as to claim it. The union contends all casual employees, including the most junior employee in a store, are entitled to decline work if it falls outside their stated availability. Under this interpretation, the employer would never be able to compel anyone to work when not enough employees volunteered to do so. The union's argument finds no basis in the wording of article 31.7. It deals exclusively with preferential treatment in scheduling based upon seniority. Nothing in the language of this article suggests it addresses scheduling matters unrelated to seniority.

22Vice-Chair Brown also considered and rejected the union's argument that the inclusion of article 31.5(b) in the collective agreement reflected recognition that casual employees could not be terminated for lack of availability except in the circumstances described in that article, finding that the article addressed only prolonged absences³ and did not limit the employer's response to other circumstances. He said that

The preceding analysis leads me to conclude the union's interpretation of the collective agreement cannot be sustained. This ruling does not mean the employer has an unlimited right to terminate an employee for not being available to work a sufficient number of hours per week. In addition to the limitations described in KVP Co., article 31.7 might be read as permitting an employee to exercise her seniority rights so as to limit her availability. I refrain from ruling on whether article 31.7 has this effect, because the matter was not addressed by counsel.

23Vice-Chair Brown also considered and rejected the union's argument that casual employees could not be required to meet any standard of minimum availability because the employer had made no reciprocal commitment to provide work, saying

This argument cannot be used to give articles 31.5(b) or 31.7 a meaning which their language does not support, but the lack of reciprocity should be taken into account when determining whether any management rule about availability passes the reasonableness test in KVP Co.

24In light of the union concession in Costa that I quoted in paragraph [20] above, and the language of the second paragraph of the passage quoted in paragraph [21], it is apparent that references in the latter passage to a possible employee right to be unavailable on the basis of seniority must relate to unavailability at times outside the hours that the casual employee has stated in writing that she will be available. The decision says nothing about the employer's right to discipline or discharge a casual employee for breach of the obligation that the union acknowledged in Costa – that is, the obligation to work scheduled hours falling within the availability stated at the time the schedule is prepared, barring illness or similar circumstances.

25As I have noted, the evidence before Vice-Chair Brown was that when the employer adopted "universal, minimum availability requirements" in 1996, it told the union that those requirements would not be applied to casual employees hired before then. Vice-Chair Brown did not have to determine whether that estopped the employer from insisting that the grievor in Costa, who had been hired before 1996, be available for the employer's newly designated universal minimum availability period. Before me, the parties acknowledged a shared understanding that the employer does not and has not applied its universal, minimum availability requirements to casual employees hired before 1996.

26The grievor in Goncalves was a casual employee. The circumstances that gave rise to his grievance were succinctly stated in the first paragraph of the decision:

On certain days, grievor worked from 12:00 to 5:00 p.m., and at least one casual employee with less seniority worked from 4:00 to 9:00 p.m. According to availability sheets completed by Mr. Goncalves, he was available to work from 12:00 to 9:00 p.m. The union contends he should have been scheduled for this entire interval by virtue of his seniority.

The Board dismissed the grievance for the following reasons:

The general principal emerging from the Kruczaj decision is that the collective agreement does not fetter the employer's power to fix the start and finish times of the shifts to be allocated to casual employees. Article 31.7 comes into play only after those shifts have been established. This article requires management to distribute the predetermined shifts on the basis of seniority. For present purposes, the important point is that an employee has a seniority claim only to those shifts created by management for which he or she is available. In Kruczaj, the grievor failed precisely because he was not available for part of the shift on offer. Ms. Briggs declined to alter the established shift by awarding part of it to the grievor.

Union counsel sought to distinguish the facts in Kruczak from those at hand on the basis that Mr. Goncalves is available to work from the beginning of the 12:00 to 5:00 shift until the end of the 4:00 to 9:00 shift. This argument misses the point. The grievor is unable to provide the services of two people during the one-hour overlap in these shifts. In other words, having accepted the 12:00 to 5:00 shift, the grievor was no longer available for the first hour of the 4:00 to 9:00 shift. In this sense, he was unavailable for part of an established shift, just as the grievor in Kruczaj was.

In the absence of bad faith, the employer's decision to schedule overlapping shifts should not be second guessed by this board. Scheduling by arbitration would be highly impractical. As the union has not alleged bad faith, I need not comment on the evidence relating to the reasons for overlapping shifts in this case.

The Evidence

27Before the evidentiary hearing began, the parties exchanged books of documents and particulars of the allegations on which they relied. The employer delivered its particulars first. At the hearing the union agreed (with one exception noted later) with the allegations of fact in those initial employer particulars. The employer's case in chief consisted of the facts thus agreed upon and testimony by a District Manager, Stephen Young, about the rationale for the employer's requirement concerning casual employees' minimum availability. Some facts were agreed upon concerning union allegations about the employer's tolerance of some other casual employees' unavailability. The union also had one witness testify about that issue, and called another witness – a bargaining unit member employed as a "D" store manager – to testify about how scheduling is done in her store and her opinion about the reasonableness of the minimum availability rule. The grievor was also called to supplement and amplify the agreed facts concerning the history of her employment, discipline and discharge.

The Grievor's Employment prior to the Discipline and Discharge in issue

28The grievor was first hired in October 2000 to work as a casual employee in the employer's store in Bonfield, a community about 30 kilometres from North Bay.

29When she applied for casual employment at the Bonfield store, the grievor was asked to fill out and sign a apparently standard form entitled "Terms and Conditions of Casual Employment" (hereafter referred to as a "Terms and Conditions" or "availability" form). Near the top of the form it asks "What hours are you available and willing to work?" Below that is a table with seven columns each headed by the name of a day of the week, and in each column there is one space below the day name in which to write the hours that the applicant is available and willing to work on that day of the week. Immediately below this table the applicant is asked to sign this declaration:

I hereby declare that the foregoing information is true and complete to my knowledge. I understand that a false or misleading statement may disqualify me from employment, or cause my dismissal.

Below that, the form described the selection process, the training that new retail employees must undergo, the employer's dress code and the duties a casual employee must perform. The form further said that

A casual employee does NOT have a guarantee of hours. This individual MAY be pre-scheduled or called in to work on short notice. Hours of work are assigned on the basis of operational requirements of the store in accordance with the collective agreement. Casual must be available during peak business periods (e.g. Thursday and Friday evenings and Saturday and Sunday all day, Christmas, tourism periods, etc.). Where your availability (as per your written confirmation in this document) is deemed to be acceptable, the LCBO store will schedule hours of work in accordance to operational requirements and your stated availability. It is the responsibility of all casual employees to be reasonably available for work in to meet the operation requirements of the store. Casual employees who are not reasonably available for work will have their services terminated.

After setting out some further information, the form asked the applicant to sign an acknowledgment that she had read and understood the terms and conditions of casual employment as set out in the form and agreed to abide by them.

30The grievor filled in and signed this form. She stated in it that she was available during all of the hours during which the Bonfield store was open. She was hired.

31The parties agree that the course her employment at the LCBO took from then until February 2005 is as set out in the following portions of the Employer's particulars:

16. In the correspondence provided to the Grievor confirming her hire by the LCBO, dated October 27, 2000, the Grievor was specifically reminded of her obligations and the availability she provided [sic] to LCBO and was advised that:

As a casual employee you will be expected to be reasonably available at all times to meet the operational requirements of the store, especially on Thursday evenings, Friday evenings, Saturdays, Sundays and Long Weekends. Casual employees who are not reasonably available for work will have their services terminated.

17. On March 21, 2001, the Grievor renewed her hours of availability, in regard to the Bonfield store, she stated that she would be available to work 9:00 a.m. to 6:00 p.m., Monday to Saturday, but not Sunday as the store was closed. The Grievor's available hours of work coincided with the operational hours of the store.

18. In September 2003, through correspondence to the District Manager at that time, Mr. Dave Toner, the Grievor sought a change in her store location in order to have an opportunity to be scheduled for more casual hours of employment. The Grievor "resigned" from the LCBO and requested that she be re-hired at Store #387 in North Bay.

19. On September 26, 2003, the "re-hire" was confirmed effective September 27, 2003 as the appointment date in the new store, but the Grievor's seniority date was unchanged and remained as of her first seniority date with the LCBO.

20. On October 2, 2003, the Grievor was again required to advise the LCBO of her casual availability for Store #387, to which she simply responded "all" hours Monday to Sunday.

21. On February 21, 2005, the Grievor once again tendered her resignation from the LCBO. The resignation was tendered to Mr. Danny Lalonde, the Store #387 Manager at the time.

22. Unlike her first resignation, which she stated was to have greater opportunity to be scheduled for a greater number of hours, this resignation was stated by the Grievor to be the result of her obtaining full-time employment at Leisureworld in North Bay. The LCBO understands that Leisureworld is an old-age retirement and health care facility in North Bay.

23. As a result of her new full-time employment with another company in North Bay, the LCBO understood that the Grievor would no longer have the required availability necessary for a casual employee of the LCBO.

24. The Grievor's resignation from casual employment with the LCBO was accepted by correspondence dated March 7, 2005, effective March 5, 2005.

32The grievor had also been working for Leisureworld on a part-time basis since 1998. She became a full-time employee there in 2005, and was assigned to the night shift, working between 10:30 p.m. to 6:30 a.m. on various days of the week on a rotating schedule. These night shift hours did not conflict with the hours during which store 387 was open. Seeking to augment her income, in June 2005 the grievor applied to Mr. Lalonde to be rehired at store 387, with a stated availability of 9:00 a.m. to 9:30 p.m., on Thursdays, Fridays, Saturdays and Sundays only. The grievor testified that Mr. Lalonde asked her how she could do two jobs, and she assured him that she was working steady night shifts at Leisureworld and it appeared she would be working 5 p.m. to 10 p.m. shifts for him, so there would be no conflict. She was rehired.

33The union agrees with the following paragraphs of the employer's particulars with respect to her employment at store 387:

25. On June 17, 2005, the Grievor contacted Mr. Lalonde and submitted in writing a request that she be considered for part-time employment with the LCBO. The Grievor stated in her correspondence to Mr. Lalonde that her "hours of availability would be quite clear".

26. On June 21, 2005, the Grievor met with Mr. Lalonde, who advised the Grievor that the LCBO would re-hire her, but with a new seniority date and pay scale, which would be reflective of her re-start date and not her prior period of employment.

27. On June 28, 2005, the Grievor was "re-employed" as a casual employee with the LCBO. A letter from Stephen Young, District 24 Manager (which encompasses North Bay), was sent to the Grievor confirming her new employment with the LCBO. Given her formal resignation due to a conflict in availability, the Grievor was hired as a "new" casual employee with an appointment date of June 27, 2005 and a new later seniority date of June 30, 2005.

28. The Grievor was also advised in the letter of re-hire provided to her that, as is was when she was first hired during her first term of employment, she was expected to be available as a casual employee to meet operational requirements of the store, particularly on Thursday evenings, Friday evenings, Saturdays, Sundays and Long Weekends. The Grievor was advised that if she was not reasonably available for work as noted, her services would be terminated.

29. On June 27, 2005, the Grievor confirmed her hours of availability for the North Bay Store to be 9:00 a.m. to 9:30 p.m., Thursday to Sunday.

Request for Leave Process and Counselling

30. Upon her return to work during her second period of employment, the Union filed and settled a grievance with the LCBO regarding a Notice of Intended Discipline ("NOID") dated December 22, 2005. The grievance related to the advance reasonable notice that was necessary when the Grievor was to request a leave of absence.

31 The Memorandum of Settlement, dated January 11, 2006, stipulated that the NOID would be replaced by a Counselling Letter outlining the expectations of the LCBO to the Grievor of her casual employment availability and requirements for requests for leaves of absence in the event she is unavailable for work. The Grievor further agreed that she would provide, in advance of the posted schedule, a written request for leave for the LCBO's consideration.

32. The Counselling Letter, dated February 6, 2006, referenced discussions between the Grievor and Mr. Young on January 11, 2006 regarding the attendance concerns that the LCBO had of the Grievor in December 2005.

33. During the meeting, Mr. Young advised the Grievor of the LCBO's expectations regarding her casual employee availability and referenced her commitment to availability which she made on the Terms and Conditions form.

34. With regard to any conflict between her casual availability with the LCBO and scheduling by other employers with whom the Grievor may work, Mr. Young stated that:

Should you have a conflict relative to scheduling with respect to your alternate employer(s), you must ensure to communicate with them that you have a minimum obligation as outlined above relative to your commitment for work at the LCBO.

35. Any request for a leave of absence would have to be completed in writing, with approval of the LCBO, as stipulated in Article 31.2(c) of the collective agreement and the Minutes of Settlement.

36. The Grievor was advised that:

All leaves must be submitted in writing and submitted to your Store Manager/Designate. In order to provide fair consideration, such request should be submitted in advance of the posted schedule to which your request applies. Casual employee May be granted up to three (3) weeks in a calendar year providing it can be accommodated based on operational needs. You are not to assume the leave is granted until such time that your Store Manager has authorized it.

37. The Grievor was advised that it was not to be assumed that she would be replaced for the requested time off and that such requests could be denied such that she would be expected to work her pre-scheduled shifts, which were scheduled in accordance with her seniority as provided under the Collective Agreement.

34The grievor testified that the issue that arose in December 2005 was not that the schedules in her two jobs overlapped, but that the LCBO store started scheduling her for eight hour shifts. She felt she could not work two eight hour shifts a day, one at Leisureworld and one at the LCBO store. She testified that she sought to exchange her eight hour shifts at the LCBO store with the five hour shifts of a more junior casual employee there. The casual employee agreed to the exchange, but the store manager did not. He told her they were her shifts and she would have to work them. The denial of permission to swap shifts was not grieved.

35In her testimony the grievor acknowledged having thereafter been absent from scheduled shifts in that month, and that to explain the absences she had submitted a doctor's note saying that the doctor had recommended that she take a leave of absence from work during December. She further admitted that during these absences she had continued to worked her regular shifts at Leisureworld, and had also worked as a school bus driver. There is no suggestion that the employer was aware that she had been working elsewhere during her supposed illness when her absences were addressed in the manner described in the agreed facts.

36I note that before the union agreed with the employer's particulars, its own particulars included an allegation that during the meeting of January 11, 2006, the Northern Region's Manager of HR Services had told the grievor that "if she presented her availability with enough advance notice, Lalonde would be happy to work within her schedule." The grievor made this allegation in her testimony. She seemed to regard this as an agreement that store 387 would work around her work schedule at Leisureworld, whatever that schedule might be. Since the union did not take that position in closing argument, I will simply note that the proposition that such an undertaking was given is inconsistent with the agreed facts and the inferences that can fairly be drawn from them. There was nothing to that effect in the Memorandum of Settlement that the parties signed afterwards to reflect what they had agreed at the conclusion of that meeting. The contention is inconsistent with the Counselling Letter that was subsequently substituted for the NOID in accordance with that Memorandum of Settlement. As the grievor admitted, she made no objection to the contents of the substituted Counselling letter at the time.

37In any event, on March 10, 2006 the grievor asked to be transferred from store 387, and on March 16, 2006 was transferred to store 54. The day before she made that request she completed and submitted a revised Terms and Conditions form, indicating that she would be available from 9 a.m. to 9:30 p.m. on each of Monday thorough Sunday inclusive. This added Monday, Tuesday and Wednesday to the availability undertaking that she had given when she was rehired. The union agreed with the following:

40. On March 16, 2006, the Grievor was provided a transfer to Store #54, also in North Bay. Store #54 was a smaller store that was not open on Sundays. The more limited hours of work at Store #54 might have caused less conflict with the Grievor's other employer as there would be less overlap of the minimum availability required by the LCBO and another employer's schedule, particularly on Sunday.

38At around this time – early 2006 – the grievor's hours of work at Leisureworld changed: she was given and accepted a two week rotating schedule as follows:

• Monday, Tuesday and Wednesday 6:30 a.m. to 2:30 p.m.; Thursday off; Friday 6:30 a.m. to 2:30 p.m.; Saturday and Sunday 2:30 p.m. to 10:30 p.m.

• Monday 2:30 p.m. to 10:30 p.m.; Tuesday off; Wednesday, Thursday and Friday 6:30 a.m. to 2:30 p.m.; Saturday and Sunday off.

It is not entirely clear whether this change in her Leisureworld schedule occurred before or after the grievor revised her availability statement to include all store hours every day of the week. There is no evidence of what led to this change, and no suggestion that it was forced on the grievor.

39Unlike the situation that existed in 2005 when the grievor applied to the LCBO for re-employment, there was now a potential for actual conflict between her hours of work at Leisureworld and the availability she had offered to the LCBO. Indeed, she had increased that potential by extending her stated availability to all store hours. There is no evidence that she brought this potential to the attention of her new store manager at this point.

40The grievor testified that there were actual conflicts between her schedules at Leisureworld and the LCBO in the period March 2006 to May 2007. The conflicts increased in May 2007, she said, when Leisureworld became unwilling to make changes to her scheduled hours in an effort to work around shifts for which she was scheduled at the LCBO.

41The grievor was counselled on March 8, 2007 concerning her availability. In that connection the union agrees with the following allegations in the employer particulars:

41. On March 8, 2007, the Grievor attended a counselling session with Mr. Ron Gauthier, Manager of Store 54, a summary of the issues discussed during the meeting was provided to the Grievor in the form of a counselling memo dated March 9, 2007.

42. During the counselling session, Mr. Gauthier advised the Grievor that requests for a leave of absence had to be provided in advance of the two-week notice posting process as provided under the Collective Agreement and the Minutes of Settlement.

43. Mr. Gauthier advised the Grievor that she had not been following the advance notice requirements for requesting leave as provided in the Memorandum of Settlement. The Grievor was counselled to abide by her stated hours of availability and to request allowable leave with advanced written notice.

44. During the counselling meeting, Mr. Gauthier advised the Grievor that she could submit a revised Terms and Conditions form that would "waive" her availability during noncritical days of work (i.e. Monday through Thursday and for Friday during the day shift). This would have reduced the availability of the Grievor to the minimum required by this store, more particularly Friday afternoons, Saturday and peak season times. The Grievor declined this option.

There can be little doubt that when Mr. Gauthier told the grievor to "abide by her stated hours of work," she understood he was referring to the statement of availability that she had made in the Terms And Conditions form that she had submitted in March 2006. There is no evidence that on this or any prior occasion the grievor told her store manager that she had made a commitment to another employer that regularly required her to work hours that fell within her stated availability.

The Written Warning of May 11, 2007

42The union agrees with the following portion of the employer's particulars:

45. On May 11, 2007, following the delivery of several NOIDs, the Grievor was provided with a written warning regarding her failure to properly request a leave of absence prior to the posting of the work schedule under the Collective Agreement and her failure to attend for scheduled work as assigned by her seniority under the Collective Agreement for 12 days in February 2007 within her stated dates and times of availability.

46. The Grievor was advised in the warning letter that further similar incidents could result in further disciplinary action, up to and including discharge.

The written reprimand (as it called itself) dated May 11, 2007, included this paragraph:

Further to the NOID's of April 03, 13 and 23, 2007, a pre-disciplinary meeting was held for which you received advance notice in accordance to Article 26.3 and were provided union representation, namely Jackie Jackson, President, OPSEU LBED Local #682. Despite our continuous efforts for you to fulfill your understanding [sic], you continue to absent yourself from work after the LCBO schedule has been posted and without authorization (e.g., Friday, February 02, 2007; Saturday, February 03, 2007; Friday, February 09, 2007; Saturday, February 17, 2007; Friday, March 02, 2007; Saturday, March 03, 2007, Tuesday, April 10, 2007, Friday, April 13, 2007, Thursday, April 19, 2007, Thursday, April 26, Friday, April 27, 2007, and Saturday, April 28, 2007).

It appears from the written reprimand itself that by this time Thursday evenings were no longer part of the minimum availability requirement to which the earlier Terms and Conditions forms had referred.

The grievor's use of RTO forms

43It is common ground that before she received the written reprimand of May 11, 2007 the Grievor met with Mr. Gauthier, the Store Manger, Steve Young, the District Manager, and Jackie Jackson, the Local Union President, to discuss her availability. During this meeting the grievor referred to her work schedule at Leisureworld and asked that she be scheduled at store 54 in a manner that did not conflict with that schedule. She had a copy of the schedule with her. The grievor testified that Messrs. Gauthier and Young would not look at the schedule and that they said they were not concerned with her schedule at Leisureworld, but only with her schedule at the store.

44This seems to be the first occasion when the employer was asked for what the union now describes as "accommodation" of her arrangement with her other employer. Although the written reprimand for her absences prior to this request was grieved, the refusal of the store manager and district manager to consider or provide what the union now says it ought to have considered or provided was not distinctly or separately grieved.

45In its particulars, the union alleged that at this meeting

29. … Gauthier and Young advised the Grievor to fill out a Request for Time Off Form ("RTO Form") in advance of the work schedule being posted to alleviate her scheduling conflict.

Here again it appears that the grievor took this advice as tantamount to agreement that the LCBO would work around her work schedule at Leisureworld, whatever it might subsequently be, so long as she filed out RTO forms. Since the union did not argue in closing that management had made such an agreement or given such an undertaking in that meeting, I will simply note that the proposition that it did so is inconsistent with the surrounding circumstances, the agreed facts and the inferences that can fairly be drawn from them.

46There is no dispute about the content of a blank RTO form. It is essentially this:

Re: REQUEST FOR TIME OFF

Date:

I would like to request the following date(s) off:

The reason I am requesting time off is:

EMPLOYEE SIGNATURE:

APPROVED ( ) NOT APPROVED ( )

STORE MANAGER'S SIGNATURE:

47At some point after she received the written reprimand, the grievor began filling out RTO forms requesting time off for the times when she expected to be scheduled to work at Leisureworld. The grievor believes she began doing this shortly after receiving the written reprimand of May 11, 2007. The earliest RTO forms produced by either party are dated October 11, 2007. Nothing turns on how long before then the grievor's use of RTO forms began.

48One of the several RTO forms dated October 11, 2007, is illustrative of the way the grievor used RTO forms in an attempt to avoid schedule conflicts. Under the heading "I would like to request the following date(s) off:" the grievor wrote

Oct 29 230-6 available 9-2

Oct 30 available all day

Oct 31 9-230 available 3-6

Nov 1 9-230 available 3-6

Nov 2 9-230 available 3-9

Sat Nov 3 – not available

Nothing was written under the heading "The reason I am requesting time off is." When she used an RTO form to request time off for some reason other than a preference to work the hours scheduled by her other employer, such as to assist in her daughter's move or to visit her dentist, she gave the reason for the request in the form.

49In its particulars the union made these allegations about the grievor's use of RTO forms:

30. … The day following the meeting, the Grievor printed off twenty (20) copies of the RTO Form, filled out her availability, and provided them to Gauthier.

31. Three days later, the Grievor went to get more copies of the RTO Form. At that time, Gauthier advised the Grievor that she was only allowed to fifteen (15) days off a year. The Grievor was taken aback by this comment and told Gauthier that during their meeting she was advised that as long as she completed the RTO Form in advance of the work scheduling being posted, her scheduling conflicts would be alleviated.

32. The Grievor continued to fill out the RTO Forms indicating her availability. Despite being aware of the Grievor's full-time work schedule, once the fifteen (15) days had been exhausted, Gauthier scheduled the Grievor without regard to her stated availability. It is the Union's understanding that every time the Grievor indicated that she was not available for all or part of a day, that day would be counted towards her vacation entitlement pursuant to Article 31.2(c) of the Collective Agreement.

33. As a result of being scheduled to work without regard to her availability as set out in the RTO Forms and submitted prior to the work schedule being posted, the Grievor notified Gauthier in a letter dated October 11, 2007, that she was not available to work on Friday October 26, 2007 from 11:30 a.m. to 2:30 p.m. and Saturday October 27 from 3:00 p.m. to 6:00 p.m. On that same date, the Grievor provided the Employer with her availability for the weeks of October 29, November 5, and November 12, 2007.

It was common ground that at some point the grievor started filing numerous RTO's, that the employer treated her requests for time off as requests for "vacation" if no other reason was given, that the grievor was informed at some point that there was a limit to the number of days in respect of which such requests that would ordinarily be granted for vacation or when no acceptable reason was offered, and that after that number of days' leave had been granted subsequent requests were denied unless supported by what the employer considered justification, such as her requests for time off to help her daughter move and time off to attend an appointment with her dentist. I note parenthetically that I am not called upon to determine whether it was proper for the employer to treat a request for time off for which no reason is given as though it was a request for vacation time in accordance with article 31.2 of the collective agreement.

50With one exception the union agreed with the following allegations in the employer's particulars:

47. On October 11, 2007, the Grievor provided written notice to Mr. Gauthier that she was not available for two shifts for which she had been scheduled to work and which had been posted in accordance with the Collective Agreement. No reason was provided by the Grievor on the request for the leave.

48. On October 27, 2007, the Grievor submitted Request for Time Off forms … for the scheduling of work from November 19, 2007 to December 8, 2007. Again, no reason was provided by the Grievor on the RTF [sic] Form supporting the request for leave.

49. A further request for leave for work between December 10 and 16, 2007, without a reason supporting the absence, was provided by the Grievor on November 13, 2007.

50. The requests for leave were denied in writing by Mr. Gauthier.

51. The Grievor was scheduled to perform and did not attend on scheduled shifts on five days between November 2 and 19, 2007. The Grievor was not provided approval for leave on these dates as she had exhausted her leave entitlement under Article 31.2(c) of the Collective Agreement and she did not otherwise provide reasonable grounds in support of the leave request.

52. On November 16, 2007, the Grievor was provided with a five-page letter from Mr. Young, advising of her attendance obligations for shifts scheduled in accordance with the Collective Agreement and the commitment she made regarding her minimum availability to the LCBO. The Grievor was advised that she was required to meet the obligations of her stated availability to the LCBO and to consider submitting a revised Term and Conditions form that met at least the minimum availability requirements of an LCBO casual employee.

The one exception was that the union disagreed with the assertions in paragraph 48 and thereafter that no reason was provided for the grievor's requests for time off. The union asserted, and the employer agreed when the hearing began, that the employer had been aware that when requests for time off were made without some other explanation, they were being made because the grievor's schedule at Leisureworld conflicted with the time periods for which she was seeking leave. The union also asserted, and the employer agreed when the hearing began, that the grievor's having identified certain hours as "unavailable" in the RTO forms amounted to a representation that she would not in any circumstances work the hours she had identified as "unavailable." It was also asserted by the union, and apparently not in dispute, that when the employer nevertheless scheduled her to work a shift that included hours identified as "unavailable" in one of her RTO forms, the grievor generally wrote the store manager a further note saying that she would not work the shift.

The One Day Suspension imposed December 19, 2007

51The union agreed that the following allegations in the employer's particulars were true:

53. On December 19, 2007, following the delivery of several NOIDs, the Grievor was assessed a one-day suspension for failing to report on nine scheduled shifts between November 2 and December 10, 2007, to be served without pay on January 3, 2008.

54. In the suspension letter, the Grievor was once again advised that casual employees, at a minimum, were required to be available for a minimum reasonable period of time to meet the business demands of the LCBO and its stores, being Thursday and Friday evenings, Saturday and Sundays all day (and only on Sunday if the store was open); and during the Christmas and local tourism period. She was once again reminded of the consequences of failing to be reasonably available for and attend at work for shifts scheduled in accordance with the Collective Agreement.

I note that of the nine shifts identified in the suspension letter, only two (Saturday shifts) fell within the periods then covered by the employer's minimum availability requirement.

The Two Day Suspension imposed January 22, 2008

52The union agreed that the following allegations in the employer's particulars were true:

55. On November 13, 2007, the Grievor had, prior to her one-day suspension, requested leave for certain times between December 17 and 22, 2007.

56. On December 8, 2007, the Grievor advised Mr. Gauthier that she would not be available for three specific shifts for which she had been scheduled during the Christmas period in accordance with the Collective Agreement on December 17, 18 and 22.

57. On December 4, 2007, the Grievor requested leave for certain times from December 24 to 31, 2007.

58. On January 22, 2007, following the delivery of several NOIDs, the Grievor was assessed a two-day suspension for failing to report to work on scheduled shifts during the Christmas period between December 14 and 24, 2007. The LCBO determined that the Grievor was not reasonably available for work during a peak business period and disciplinary action was warranted. The suspension was served, without pay, on February 5 and 7, 2008

I note that the suspension letter identifies five shifts for which it says the grievor "failed to report." Only two – a Friday shift that included the evening and a Saturday shift – fall within the employer's minimum availability period. The other three were weekday shifts during the day.

The Five Day Suspension imposed July 4, 2008

53The union agreed that the following allegations in the employer's particulars were true, with the same agreed upon caveat about whether the employer knew why the leaves were sought when no reason was expressly given:

59. On December 4, 2007, the Grievor submitted requests for time off for days between December 31, 2007 and January 5, 2008. On December 5, 2007, the Grievor submitted requests for time off for days between January 7 and 11, 2008. And on January 4, 2008, the Grievor advised Mr. Gauthier that she would not be available for her previously scheduled shift of January 18, 2008. She also provided requests for time off for January 21 to February 8, 2008.

60. As had occurred previously, no reason for the request for time off was provided. However, as these requests applied to dates in the new calendar 2008 year, Mr. Gauthier applied the Grievor's entitlement to three weeks vacation to the first 18 days of leave requested in 2008.

61. The Grievor exhausted her entitlement to leave under Article 31.1 (c) as of February 6, 2008. Her request for leave on February 7 and 8 were denied in writing by Mr. Gauthier.

62. On January 16, 2008, the Grievor requested leave for time off for dates between February 11 and March 1, 2008.

63. On February 14, 2008, the Grievor also requested leave specifically for shifts previously scheduled on February 21, 25 and March 1, 2008.

64. On February 20, 2008, the Grievor also requested time off for shifts previously scheduled for March 3 and 7, 2008.

65. The Grievor stated that her request for time off on March 7, 2008 was due to a doctor's appointment. For the requested leave, other than March 7, 2008, no reason was provided by the Grievor

66. On February 12, 2008, the Grievor requested time off for dates between March 3 and 29, 2008.

67. Save for the request for March 7, 2008, which was approved, each of these leave requests were denied by Mr. Gauthier.

68. On February 26, 2008, Mr. Gauthier received a telephone call from the Grievor indicating that she would be late for her pre-scheduled shift on that date. No reason was provided other than that was "the best she could do."

69. On February 27, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on March 15, 2008.

70. On March 4, 2008, the Grievor requested time off for dates between March 31 and April 18, 2008.

71. On March 22, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on March 29, 2008.

72. On March 26, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on April 12, 2008.

73. On March 22, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on March 29, 2008.

74. On April 1, 2008, the Grievor requested time off for dates between April 21 and May 16, 2008.

75. Again, no reason was provided for these absences and the requests were denied.

76. On April 17, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on April 24, 2008 as her daughter was moving to Ottawa. This request for leave was approved.

77. On April 22, 2008, the Grievor requested time off for dates between May 19 and June 7, 2008, which were denied in writing. Again, no reason supporting the request was provided by the Grievor.

78. On April 28, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on May 10 and 15 2008, and required May 12th for a dentist appointment. The first two days were denied, but the third absence was approved.

79. On May 6, 2008, the Grievor requested time off for dates between June 9 and July 5, 2008, which were denied in writing.

80. On May 13, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on May 24, 2008, which was denied.

81. On May 17, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shift on June 9 and 10, 2008 for a doctor's appointment, which was approved.

82. On May 25, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on June 2, 3 and 7, 2008.

83. On June 3, 2008, the Grievor requested time off for dates between July 7 and 19, 2008.

84. On June 5, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on June 12, 16, 20 and 21, 2008.

85. On June 8, 2008, the Grievor advised acting manager Wendy Guitard that she would not be available for her pre-scheduled shift on June 22, 2008.

86. On June 18, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on June 23, 30, July 2, 4 and 5, 2008.

87. As with prior requests, no explanation or reason was provided, other than those specified, by the Grievor to support her request for leave and each of the unsupported requests were denied in writing.

88. On July 4, 2008, following the delivery of several NOIDs outlining her absence from scheduled shifts stipulated above, the Grievor was assessed a five-day unpaid suspension, served on July 14, 15, 16, 17 and 21, 2008 for absences that occurred on January 18, February 8, 16, 20, 21, 25, 26, 27, 28, March 3, 15, 29, April 12, 26, May 7, 10, 15, 24 and June 7.

89. The Grievor was specifically advised in the suspension letter that if she failed to report for any subsequent Friday or Saturday shift, as required under the Terms and Conditions form for casual employment at the LCBO, and for which the Grievor advised she would be available, the next step in progressive discipline for her continued culpable behaviour would be a 10-day suspension.

54From the content of the suspension letter it seems that of the 19 absences for which the five day suspension was imposed, 8 were from shifts scheduled for Saturdays, two were for shifts on Fridays (although it is not clear whether either shift included evening hours) and the other 9 were from shifts on other days of the week. The letter again made it clear that except for requested days off that were approved, the grievor's most recently approved Terms and Conditions form would be treated for scheduling purposes as stating her availability, and that if she was not available for all store hours outside the minimum availability requirement, she should submit a revised availability form for approval:

… The last availability form that you signed (the terms and conditions of employment form) dated March 9, 2006 indicated that you are available all hours and for all days of the week. If your availability has changed for your Monday to Thursday shifts, you are to submit a new availability form for approval. You will be scheduled based upon your last availability form and if you fail to report for a shift for which you are scheduled from Monday to Thursday, in the absence of reasonable explanation, you will receive discipline as appropriate in the circumstances.

The suspension letter went on to emphasize that the obligation to work Friday evenings and Saturdays as required was not one that could be avoided in that way:

However, the LCBO considers your unavailability for shifts on Friday evenings and Saturdays differently from shifts from Monday to Thursday. You must be available on Friday evenings and Saturdays and the LCBO will discipline you for any shifts for which you are scheduled and fail to report on Friday evenings and Saturdays. Friday evenings in your store are shifts that are scheduled from 5:00 pm to close. If you fail to report for any Friday or Saturday shift that is scheduled after the date of this letter, in the absence of satisfactory explanation, then you will be issued progressive discipline with the next discipline being a 10 day suspension followed by termination for just cause.

55This is only one of several occasions when the employer had advised the grievor that she could submit a revised "Terms and Conditions" form identifying fewer hours as "available" than she had in the form she had submitted in March 2006, so long as the new form satisfied the minimum availability requirement. In that regard it is noteworthy that the grievor's Leisureworld schedule left her available every Thursday and Friday evening. The store was closed Sunday. The only part of the minimum availability period with which her Leisureworld schedule conflicted was her 2:30 p.m. to 10:30 p.m. shift at Leisureworld every second week.

56In her examination-in-chief the grievor was asked why she had not submitted a revised availability form. After initially answering that the union had advised her not to do so, she said that she had been scared to do so because she thought that the employer could "use it to fire me." She said another reason was that the form was "only one week," which I took to mean that she could not have used it to identify her different availability in alternate weeks.

The Ten day suspension imposed August 1, 2008

57The union agreed that the following allegations in the employer's particulars were true:

90. On June 30, 2008, the Grievor advised Ms. Guitard that she would not be available for her pre-scheduled shifts on July 7, 9, 11, 14, 15, 16 and 19, 2008, which were denied [sic].

91. On July 4, 2008, notwithstanding her stated unavailability for July 4 and 11, 2008 from 1:00 to 9:00 p.m., the Grievor filed two grievances regarding her Article 31 shift entitlement, presumably due to her seniority, for the July 4 and 11, 2008 shifts between 4:00 p.m. to 9:00 p.m.

92. On August 1, 2008, following the delivery of several NOIDs outlining her absence from scheduled shifts stipulated above, the Grievor was assessed a ten-day unpaid suspension, served on August 11, 12, 13, 14, 18, 19, 20, 21, 25 and 26, 2008 for absences that occurred on July 4,5, and 11, 2008.

93. The Grievor was advised in the August 1, 2008 correspondence that if she were absent again for a scheduled shift on a Friday evening or Saturday, without approval, the next step in progressive discipline would be termination for just cause.

July 4 and 11 were Fridays and July 5 was a Saturday. Each of the Friday shifts she was disciplined for missing was a 1 p.m. to 9 p.m. shift. The grievances referred to in paragraph 91 are not before me for arbitration.

The Termination effective August 18, 2008

58The union agreed that the following allegations in the employer's particulars were true, with the same agreed upon caveat about whether the employer knew why leaves were sought when no reason was expressly given in the RTO form:

94. On July 17, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on August 1 and 2, 2008.

95. On July 23, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on August 6 and 7, 2008.

96. On July 28, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on August 1, 2, 6 and 7, 2008

97. On July 29, 2008, the Grievor requested time off for dates between September 1 and October 3, 2008, without providing any reason supporting the request for leave. The request was denied in writing.

98. On August 5, 2008, the Grievor advised Mr. Gauthier that she would not be available for her pre-scheduled shifts on August 16, 2008.

99. On August 18, 2008, following the delivery of a NOID, the Grievor was terminated as a result of her failure to report for scheduled shifts on Friday, August 1 and Saturday, August 2, 2008 and due to her demonstrated inability to meet the LCBO's minimum availability requirements for a casual employee notwithstanding the LCBO's clear direction, her stated availability and the prior progressive discipline imposed.

As in the case of the 10 day suspension, the culminating incident was absence from shifts for which the grievor was scheduled on a Friday and Saturday. According to the termination letter, the shift that she missed on the Friday was a 1 p.m. to 9 p.m. shift.

The Store Manager's refusal to permit shift exchanges

59At the end of her examination-in-chief the grievor was asked whether she had spoken to other casual employees about exchanging shifts in the period May 2007 to August 2008, to deal with conflicts with her schedule at Leisureworld. She answered that on about three occasions she had spoken to Shelly Storie, a less senior casual employee at store 54, about Ms. Storie's either taking one of her conflicting shifts on a day when Ms. Storie was not scheduled, or working her longer and conflicting shift in exchange for the grievor's working a shorter, non-conflicting shift for which Ms. Storie had been scheduled. She said that on each occasion Ms. Storie agreed to take the shift or swap the shifts, but Mr. Gauthier refused to allow it, insisting that the Grievor was required to work her assigned shifts. She said that after doing this three times, she did not pursue it further.

60It is not apparent that any of the discipline before me relates to any date about which the grievor made these tentative arrangements with Ms. Storie. If any grievance was filed concerning Mr. Gauthier's refusal to permit shift swaps or substitutions, it is not before me.

61The union's particulars baldly alleged that other casual employees had been available to work all of the shifts for which the grievor had sought time off in her RTO's, and had been willing to exchange shifts with the grievor. As for the availability of other casual employees, the employer admitted that this had sometimes but not always been true. No evidence was adduced to prove what the employer did not admit about the availability of other casual employees. As for the willingness of other casual employees to exchange shifts with the grievor, there is only the grievor's evidence about the three occasions on which Ms. Storie had been willing. Although all of the schedules for the pertinent periods were produced to the union, none of them was introduced into evidence to show the schedules of other casual employees assigned to the store on the occasions in respect of which the grievor was disciplined (or discharged). There was no attempt to prove that substitutions or exchanges had been possible on any of those occasions. In particular, in so far as disciplinary action was a response to failures to work Saturday shifts, there is no evidence that for any of those Saturday shifts there had been any casual employee assigned to the store who was not otherwise scheduled to work some of the hours of the shift.

Employer's Rationale for the Minimum Availability Requirement

62In his opening statement, employer counsel stated that the rationale for the employer's minimum availability requirement is that it limits the number of casual employees the employer has to employ in order to provide stores with full coverage, and limits the problems created by having casual employees who work few hours. Without prejudice to his position that the basis for such a rationale is largely self-evident, he called Stephen Young to testify about it.

63When he testified Mr. Young had been District Manager for District 24 for four and a half years. District 24 includes 29 retail stores between or in North Bay in the north, Orillia in the south, Mattawa in the east and Verner in the west. Five of these are "A" stores, four are "B" stores, five are "C" stores and 15 are "D" stores.⁴ Prior to becoming District Manager he had been a store manager for about 15 years.

64Mr. Young testified that permanent full-time employees work five days per week, including some Saturdays. Extra staff are needed to cover the lunch times of full-timers, load times (periods when trucks arriving at a store with product must be unloaded) and peak sales times, which include Friday evenings, Saturdays and long weekends. He said that Friday nights and Saturdays are peak sales days in all stores. When he had been an "A" store manager he had had nine or ten full-time permanent employees and a greater number of casual employees. He said the casual employees had all been scheduled to work most Fridays and Saturdays – it was the "odd time," he said, that not all of them had been scheduled on either a Friday evening or a Saturday. He noted that if a casual employee is unavailable when needed, another has to be found either from the store's complement or, if that complement is exhausted, from another store if possible. A casual employee's being unavailable makes scheduling harder.

65Mr. Young observed that it costs money to hire and train a casual employee. The number of hours of casual employment that a store can offer is a function of its sales and operational needs. If a store has too many casual employees in relation to those needs, some of them will get very few hours of work. In his experience, casual employees will quit if they do not get enough work hours.

66Mr. Young testified that in identifying the hours to which a casual employee may be entitled on the basis of seniority, the employer looks only at the hours set out on the employee's most recently approved availability form.

67Laurie Miller is a bargaining unit employee and President of Local 682, which covers part of District 24. The union called her to testify about the scheduling at the "D" store where she has been store manager since 1988. Ms Miller is the only permanent full-time employee at that store, which needs one employee at work when it is open, two employees at work at peak times (but not for a full eight hours except in the summer), and perhaps three at work on the Civic holiday weekend. The store normally had three casual employees (four employees in total), she said, but the most junior casual employee had quit in the summer and, due to the seasonal nature of the store's sales, replacing her would not be considered until the following spring. The two remaining casual employees at the store had been hired in 1981 and 2000.

68Ms. Miller testified that when she does the scheduling for the store she pays no attention to the Terms and Conditions forms signed by her casual employees, because the form has no "flexibility." Instead, she asks her casual employees to specify, four weeks in advance, the days when they would be available to work and the days they would like to have off over a three week period. If more than one casual employee is available for a shift, she assigns the shift to the most senior of them. When she had three casual employees there was almost always one of them available for every shift for which she needed a casual employee. Since the departure of the third casual employee she has sometimes had to call the managers in other stores in nearby municipalities, to ask if one of their casual employees could fill her need. If she could not get someone to cover a shift, she said, she would not "accommodate" her casual employees. She could not remember an occasion in the previous four years when she had had to require someone to work on a day that they wanted off. She described the other activities in which she understood her two casual employees engaged in their personal lives, and explained that the schedules that resulted from her manner of scheduling seemed to suit them. She expressed the opinion that management's focus on the Terms and Conditions form and minimum availability created inflexibility that could itself be the cause of an employee's quitting.

Employer Tolerance of Other Casual Employees' Being Unavailable During the Minimum Availability Period

69In its particulars the union alleged the following:

72. The Employer's policy regarding minimum availability has not been universally applied across the Province of Ontario. In order to be considered for casual employment at the LCBO, candidates must complete a Terms and Conditions of Employment Form setting out their availability. The form states that casual employees must be available during "peak business periods" (e.g., Thursday and Friday evenings and Saturday and Sunday all day, Christmas, tourism periods, etc.). Although all casual employees have filled out this form, many are not available for work during what the Employer has defined as peak business hours. The Employer continues to accommodate casual employees who are not available on Thursday, Friday, Saturday and/or Sunday because of other commitments, including full-time jobs with othcr employers. Outlined bellow [sic] are examples of casual customer service representatives who are not available during "peak business periods":

The examples identified were addressed during the hearing. Employee names have been replaced with initials in each case except that of Brian Teggart, whose circumstances are the subject of a pending arbitration.

70At the hearing the parties agreed that casual employee P. S. was terminated for non-attendance at shifts, and grieved. The grievance was settled. One of the terms of the settlement was that the employer would accept the grievor's being unavailable every second Friday evening due to a conflict with his full-time work for another employer, on the basis that he would be available at other times every day of the week including all store hours every Saturday and Sunday. In the settlement document the union expressly agreed that this agreement was "not an admission of fault or liability by the Employer," was entered into "without precedent or prejudice to any other matter or issue between the Employer and the Union" and would "not be raised or relied upon in any other proceeding between any of the parties."

71At the hearing the parties agreed that discipline grievances by casual employee E. D. were settled by the parties on terms that included the employer's approving his request for change of availability to "all Saturdays and all Sundays," and that the grievor would make any future request for change to his schedule on the employer's "Change of Availability Request Form." E. D. was unavailable on Friday evenings due to his ongoing education and professional training. In the settlement document the union agreed that the settlement was "not an admission of fault or liability by the Employer," and was entered into "without precedent or prejudice to any other matter or issue between the Employer and the Union."

72At the hearing the parties agreed that the employer had approved casual employee C. G.'s being available only every other Saturday 9 to 6, 5 to 9 every Saturday on a Holiday weekend, and every Friday 6 to 9. They put before me the "Request for Change in Casual Availability" form submitted by C. G. on which this approval was noted by the District Manager on May 24, 2007. The "hire date" that C. G. apparently wrote on the form is "June/94." There is no suggestion that this date is incorrect.

73The union's particulars made allegations about how B. M., who is now a permanent employee, had been treated when he was a casual employee. The employer disputed the union's allegation that when B. M. was a casual employee he was "accommodated" in some way in relation to an obligation he had then had to another employer every other Saturday. The employer's position was that when B. M. was a casual employee he was not the senior casual employee at the store where he worked, and there had been no issues about his availability for shifts for which he was actually scheduled. The union adduced no evidence in support of its allegations about B. M.

74At the hearing the parties agreed that a termination grievance by casual employee P. K. was settled in January 2004 on the basis that the grievor would provide the employer with her two week rotating schedule with the workplace at which she was also employed, and would keep the Store Manager up to date with respect to any shifts that she has accepted from that employer that varied from the schedule previously submitted. It is not apparent from the settlement document whether and to what extent the schedule she was expected to submit would or could exclude all or part of the minimum availability period, nor does the settlement expressly oblige the employer to tolerate any particular degree of unavailability during that period. The parties expressly agreed in the settlement document that its terms were confidential and, most importantly, that it was "signed without precedent or prejudice to any other matter between the Employer and the Union or [sic] without any admission of liability by the Employer."

75At the hearing the parties agreed that prior to July 2007 Bryan Teggart was not scheduled for hours that conflicted with his work schedule as a Correctional Officer. In July 2007 he was issued a NOID for being unavailable during such hours. (He testified that he received six such NOIDs between May and July 2007). He grieved. Thereafter the parties agreed that pending resolution of his grievance he would not be disciplined for being unavailable and he would continue to be scheduled as he had been before the NOID was issued. No hearing had begun in his grievance when he testified in this matter.

76Mr. Teggart testified. He said that in 1998 when he was first hired as a casual employee at the "B" store in Owen Sound, the store manager knew that he was then a casual Correctional Officer at the Owen Sound jail. The store manager told him that they would work around his schedule at the jail. For his part, Mr. Teggart tried to "accommodate" the LCBO by trading shifts at the jail with other Correctional Officers (which he evidently had no difficulty doing. He shared with the store manager the information he had about the shifts for which he was scheduled at the jail. The store manager scheduled around those shifts. If he was offered another shift at the jail on short notice for hours when he was already scheduled to work at the LCBO, he would turn down the extra shift at the jail. If he had a couple of days' notice of an extra shift at the jail, he would try to find another casual employee at the store who could take his shift at the store.

77Mr. Teggart testified that he was seconded to the Wiarton store for 18 months in 2002-2003. When that happened he and the store manager of the Owen Sound store explained to the store manager of the Wiarton store about his circumstances and how he was scheduled at the Owen Sound store. The manager of the Wiarton store said he foresaw no difficulty scheduling Mr. Teggart in the same way. Mr. Teggart said that when he was transferred to the Wiarton store he was available for Fridays and Saturdays 50 to 60 percent of the time, and for other days as well.

78Mr. Teggart testified that he became a full time correctional officer in July 2004. He identified his current schedule at the jail, which is a 20 week rotating schedule. He said he had been providing those schedules to the store manager.

79The union alleged that until G. H. went off work on a leave, G. H. and P. K. were allowed to work alternate weekends at a particular store. The employer alleged as follows:

[G.H.] and [P.K.] were two casual employees who had retired and [sic] in receipt of pension earnings from other employment. Neither wished to work greater than 40 hours in a bi-monthly period to avoid any impact upon their pension earnings. [P.K.] has been the subject of progressive discipline regarding his non-attendance during scheduled shifts. [P.K.] currently abides by his necessary availability as provided in the Term and Conditions of Employment Form. [G.H.] was also the subject of progressive discipline regarding his non-attendance during scheduled shifts, which the Union has grieved. [G.H.] is currently absent from work on sick-leave.

At the hearing the parties agreed only that the unavailability of G. H. and P. K. on alternate weekends had been tolerated from 2004 to 2007 but not thereafter.

Argument

80Both counsel made extensive arguments. I will only summarize them here.

81Employer counsel noted the employer's acknowledged management right to schedule. He argued that the employer's scheduling of the grievor had been an exercise of that right on in a manner that did not conflict with any provision of the collective agreement, and that accordingly no question of the reasonableness of its minimum availability requirement or the rationale for it came into play under KVP.

82Employer counsel argued in the alternative that if KVP applied, its requirements had been satisfied. He submitted that the business rationale for the employer's minimum availability requirement was largely self-evident from the nature of the business, and in any event had been identified by Mr. Young. He noted that the employer had taken a consistent approach to staffing since 1996 with regard to minimum availability, that its requirements were clear and unequivocal, that it had brought those requirements to the grievor's attention repeatedly and that it had made it clear to her that failure to comply would lead to discipline, including discharge. He reviewed the Kruczak, Costa and Goncalves decisions to which I referred earlier in paragraph [14] and following, and the elements of the KVP standard, which was quoted in Costa.

83As for the union's allegations that the minimum availability requirement had not been consistently applied, employer counsel noted that three of the examples offered by the union were the result of settlements made expressly "without precedent or prejudice to any other matter or issue between the Employer and the Union," to which the union had agreed no reference would be made. He argued that it would be inconsistent with the terms of the settlements to allow the union to rely on the employer's compliance with those terms in this matter, citing Gentek Building Products Ltd. v. United Steelworkers of America, Local 1105 (R.R. Grievance), [2002] O.L.A.A. No. 662 (Levinson) and Ontario Public Service Employees Union v. Ontario (Ministry of Health and Long Term Care) (Dale Grievance), [2002] O.G.S.B.A. No. 21 (Abramsky). He also submitted that in any event the number of examples offered was so small in a workforce of 3000 casual employees that their existence did not establish that the employer's application of the minimum availability requirement was not substantially consistent.

84Employer counsel submitted that the grievor's conduct in refusing to work shifts for which she had sought and been denied time off had been just cause for discipline and discharge no matter what might be said about the enforceability of the employer's minimum availability rule. He argued that her conduct was analogous to requesting vacation at a particular time and then, despite denial of the request, taking a vacation at that time anyway. Reference was made to Re St. Joseph's Hospital and Ontario Nurses' Association (1995), 1985 CanLII 5441 (ON LA), 19 L.A.C. (3d) 165 (Picher), Re Hendrickson Sprint v. United Steelworkers of America, Local 8773 (J.S. Grievance) [2005] 82 C.L.A.S. 38 (Haefling), Re Abbott Laboratories, Ltd. and Retail, Wholesale Canada, Division of Canadian Auto Workers, Local 462, (2001) 2001 CanLII 62140 (ON LA), 98 L.A.C. (4th) 302 (Thorne), and Regional Municipality of Halton v. OPSEU (Shirley McKenzie Grievance), [2001] O.L.A.A. No. 538 (Kaplan).

85Anticipating the union's argument that the Terms and Conditions form was a "pre-hire" agreement, employer counsel said that the employer's position was that the minimum availability requirement was a policy and not a term of a pre-hire agreement. In any event, he submitted, the terms of a pre-hire agreement are only unenforceable after hiring to the extent they are inconsistent with the terms of the collective agreement, citing Bowater Pulp and Paper Canada Inc. V. Communications, Energy and Paperworkers Union of Canada, Local 257 (External Job Posting Grievance), [2001] O.L.A.A. No. 315 (Surdykowski). He submitted that the policy was not inconsistent with any term of the collective agreement

86Union counsel noted that the issue is whether there was just cause for the discipline and discharge, and that the employer bore the onus on that issue. She submitted the employer was relying on its minimum availability rule on the issue of cause. She argued that as a term of a pre-employment agreement it was unenforceable, and as a unilateral rule it was neither reasonable nor reasonably applied to the grievor and, hence, not properly the basis of cause for discipline or discharge.

87In connection with this pre-hire agreement argument, union counsel cited and relied on Loyalist College of Applied Arts and Technology v. Ontario Public Service Employees Union, 2003 CanLII 29709 (ON CA), 225 D.L.R. (4th) 123, (Ont. C.A.), and ADT Security Services Canada Inc. and International Brotherhood of Electrical Workers, Local 636 (2007), 163 L.A.C. (4th) 363 (Surdykowski). Canada Post Corp. and Canadian Union of Postal Workers (Larabie) (1988), 1988 CanLII 9259 (CA LA), 1 L.A.C. (4th) 138 (Weatherill) was also put before me. On the question whether the pre-hire conditions were inconsistent with the collective agreement, union counsel argued that the provisions of the Terms and Conditions form conflict with the letter of agreement on Sunday Openings and articles 26.4 (just cause), 31.7 (allocation of hours by seniority) and 31.5(a) (loss of seniority and deemed termination after three months' unavailability).

88On the issue of the reasonableness of the rule, union counsel submitted that the employer bore the burden of proving its rule was reasonable: Costa, p. 7. She argued that the rule provided no flexibility, no way to work with employees to schedule differently. She observed that there had been no consideration of the grievor's schedule with her other employer, nor of whether it was possible to work around it. Reference was made to Metropolitan Toronto (Municipality) v. C.U.P.E., 1990 CanLII 6974 (ON CA), [1990] O.J. No. 537, (C.A.) Zehrs Markets and U.F.C.W., Loc. 1977 (Grusso), [1996] O.L.A.A. No. 159 (E. Newman), Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance), [2004] O.L.A.A. No. 565 (Shime), Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson), Nova Scotia (Civil Service Commission) and N.S.G.E.U. (1990) 1990 CanLII 12715 (NS LA), 13 L.A.C. (4th) 322 (Cromwell), Sherwood Co-operative Assn. Ltd. and R.W.D.S.U., Loc. 539, (1989) 1989 CanLII 9314 (SK LA), 8 L.A.C. (4th) 265 (Prial), Champion Road Machinery Ltd. and I.A.M., Lodge 1863, (1992), 1992 CanLII 14564 (ON LA), 25 L.A.C. (4th) 1 (Verity) and Helping Hands Agency Ltd. and B.C.G.E.U. (1999), 1999 CanLII 35956 (BC LA), 84 L.A.C. (4th) 42 (Dorsey). Atco Lumber Ltd. v. United Steelworkers, [2005] B.C.C.A.A.A. No. 204 was also put before me.

89Union counsel urged me to adopt the interpretation of article 31.7 about which Vice-Chair Brown speculated in the passage from Costa that I quoted in paragraph [21] above, and conclude that the employer's rule was inconsistent with the grievor's right under article 31.7 to decline work on the basis of seniority.

90Union counsel argued that the employer's disposition of the grievor's RTOs was unreasonable, and that they should have been accepted as change of availability forms. She submitted that the employer had been obliged to consider the availability offered in each one and assess whether it could be "accommodated." She argued that because the grievor was a casual employee to whom it had not offered a guarantee of hours, the employer acted unreasonably in not considering her work schedule at Leisureworld. In that regard she drew my attention to the observation of Vice-Chair Brown in Costa that the absence of a reciprocal commitment by the employer to provide work should be taken into account when determining whether the employer's availability rule passes the reasonableness test in KVP Co.

91In reply on the pre-hire agreement issue, employer counsel observed that it was the Terms and Conditions Form that the grievor signed in March 2006 in the course of her employment, not the earlier applications for employment, on which employer relied for the grievor's stated availability when it scheduled the shifts in issue. He reiterated that the employer did not rely on that and the earlier Terms and Conditions Forms as individual agreements by the grievor to abide by the minimum availability rule, but as evidence that she had notice of the employer's requirements when she made representations about her availability in those forms.

Analysis

92The grievor was disciplined and, ultimately, discharged for her repeated culpable failures or refusals to work shifts for which the employer had scheduled her in the exercise of its express management right to do so.

93By contrast, the grievor in Costa was discharged for having, in effect, proposed a change to her stated availability that the district manager was not prepared to approve because of a minimum availability requirement of which the grievor had been given no notice. She had not failed or refused to work assigned shifts. Apart from the injustice identified by the Board in its decision, it also seems unjust that an employee would be discharged merely for seeking approval of a change in stated availability. Surely the risk associated with a casual employee's submitting a request for approval of changed availability should be no more than that the request may be denied, leaving the employee's stated availability as it was when the request was made.

94The union's position here is essentially that it was not just to punish the grievor for being absent from work at times when she wanted to work somewhere else because the employer knew she wanted to do that and did not do enough to "work around" her schedule with her other employer. It says the employer did not "accommodate" her in that regard.

95The words "accommodate" and "accommodation" are fraught with secondary meaning because of their use in the Ontario Human Rights Code and similar legislation; their use rhetorically evokes (among other things) a sense of employer obligation to endure hardship unless it is "undue." There is no human rights issue here, however. The culpable absences or refusals for which the grievor was disciplined were not the result of disability, religious conviction or any other personal characteristic protected by human rights legislation. They were the consequence of her wanting to work two jobs that made conflicting demands on her time, and of her repeatedly choosing not to comply with the demands of her job at the LCBO when they conflicted with the demands of her other job.

96In Article 1.1(c) of the collective agreement the union expressly acknowledged that it is the exclusive function of management to "manage the operation," and that this includes the right to "direct its employees" and "determine scheduling." The employer had the express right to schedule the grievor as it saw fit, subject only to any limitation, express or implied, that the collective agreement placed on that right: see Costa, p.12.

97The employer exercises its management right to determine the scheduling of casual employees in accordance with certain policies that it has unilaterally adopted. Central to these policies is that an applicant for casual employment must state his or her availability in writing and, if hired, cannot change that stated availability without the approval of the district manager. The employer clearly treats a casual employee's stated availability as an undertaking to be available, not just an expression of scheduling preference. The employer relies on the availability undertakings of members of the store's casual employee workforce in scheduling them, as well as in determining who will become part of that workforce.

98The employer requires that all casual employees (other than those hired before this requirement was adopted) undertake to provide certain minimum availability. When the grievor was first hired, she was told she would have to be available for "peak business periods (e.g. Thursday and Friday evenings and Saturday and Sunday all day, Christmas, tourism periods, etc.)." The description of the minimum availability requirement changed over time, but throughout the period relevant to this dispute the employer required that all casual employees (other than those hired before this requirement was introduced in 1996) be available for evening store hours on Fridays and all store hours on Saturdays and Sundays.

99According to the language of the Terms and Conditions forms that the grievor signed, both in her applications for employment in October 2000 and June 2005 and in her request to change her stated availability in March 2006, her signing the forms signified agreement to the terms and conditions described in them, including the minimum availability requirement The union did not agree to those terms, and argues that they are therefore unenforceable for reasons explained in the "pre-hire agreement" cases to which it referred in argument.

100The simple answer to this argument is that the employer is not seeking to enforce a purported individual agreement with the grievor. It relies on her having thus been given notice of the minimum availability requirement, but it does not rely on her having said she agreed with it. Its having asked employees to acknowledge and agree to some or all of its policies concerning scheduling and availability does not make it any less entitled to exercise its management rights in accordance with those policies than it would have been if it had not asked them to do so.

101The employer's requirement with respect to minimum availability was one of the considerations that led to its scheduling the grievor for shifts that she did not want to work and was disciplined for failing or refusing to work. If she had only been disciplined for having failed or refused to work shifts for which she had been scheduled, I might have accepted the employer's argument that the analysis in KVP was not directly applicable, although in that event a test of reasonableness might have been found in some other part of the analysis. As it is, the employer's particulars make it clear (at paragraph [99]) that the grievor's unwillingness or inability to comply with the minimum availability requirement was one of the reasons she was terminated:

… the Grievor was terminated as a result of her failure to report for scheduled shifts … and due to her demonstrated inability to meet the LCBO's minimum availability requirements for a casual employee notwithstanding the LCBO's clear direction, her stated availability and the prior progressive discipline imposed.

(emphasis added).

102In KVP⁵ the grievor had been terminated on the basis of a unilaterally promulgated employer rule that "any employee on whose behalf the Company is obligated to process more than one garnishee, will be discharged." The arbitration board found that the collective agreement provision authorizing it to determine whether a discharge was unjust gave it jurisdiction to review the rule on which the employer acted in discharging the grievor. It distilled from a number of prior awards the following principles:⁶

Recapitulation re Rule Unilaterally Introduced by the Company

For convenience the above may be summarized as follows:

I - Characteristics of Such Rule

A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:

1. It must not be inconsistent with the collective agreement.

2. It must not be unreasonable.

3. It must be clear and unequivocal.

4. It must be brought to the attention of the employee affected before the company can act on it.

5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.

6. Such rule should have been consistently enforced by the company from the time it was introduced.

II - Effect of Such Rule re Discharge

1. If the breach of the rule is the foundation for the discharge of an employee such rule is not binding upon the board of arbitration dealing with the grievance, except to the extent that the action of the company in discharging the griever, finds acceptance in the view of the arbitration board as to what is reasonable or just cause.

2. In other words, the rule itself cannot determine the issue facing an arbitration board dealing with the question as to whether or not the discharge was for just cause because the very issue before such a board may require it to pass upon the reasonableness of the rule or upon other factors which may affect the validity of the rule itself.

3. The rights of the employees under the collective agreement cannot be impaired or diminished by such a rule but only by agreement of the parties.

103The criteria in paragraphs 3, 4 and 5 are clearly met here.

104The "must not be unreasonable" criterion requires that there be a rational connection between the rule and some operational concern or business interest of the employer. A rule that is arbitrary, capricious, discriminatory or motivated by bad faith would be unreasonable.

105The number of employees that the employer needs to have at work in a liquor store at any one time varies with the time of day, day of the week and time of year. The cost of employing a casual employee includes hiring, training and other costs that are more or less independent of the number of hours the employee works. The total of these costs can be minimized by not employing more casual employees than are needed to fully staff stores at peak times, but only if all those casual employees can be scheduled to work at those peak times. Thus, a requirement that all casual employees must be available at peek sales times serves a rational business goal of reducing the cost of sales. By dividing the hours that must be worked by casual employees among the smallest number of casual employees needed to achieve full staffing, the employer also improves the number of hours worked per casual employee, a result that it rationally believes will reduce turnover and thereby further reduce costs.

106The union argues that this strategy reduces scheduling flexibility for casual employees, and that reduced flexibility will lead to employee dissatisfaction and turnover, thus increasing costs. It submits that for a rule to be reasonable it must take the interests of the affected employees into account.

107The reasonableness test is not whether the employer has made what an arbitrator may think is the wisest choice from among possible strategies for achieving its bona fide business objectives. It is only whether the strategy selected is rationally related to those objectives. A judgment about whether its interests are better served by a rigid rule or a flexible one is the employer's to make. Insofar as being reasonable requires consideration of employee interests, the employer is entitled to look at the interests of all employees, not just those of the particular employee whose grievance raises the issue. It is not unreasonable for the employer to give the most weight to the interests of employees who are prepared (whether from choice or necessity) to treat it as their primary employer.

108The rule in question satisfies the "not unreasonable" criterion in KVP.

109The union argues that the minimum availability requirement has not been consistently enforced, and therefore cannot be enforced at all. The argument that the requirement has not been consistently enforced is not based on the fact that the employer has honoured the statement it made when it introduced the requirement in 1996, that it would not apply to existing casual employees but only to those it hired thereafter. The union does not suggest that differential treatment on that basis makes the requirement unenforceable against those hired since it was introduced.

110Of the examples of differential treatment raised by the union, only seven were acknowledged or established in evidence. One of those concerned a casual employee apparently hired before 1996 (C. G.), about whom no more than that need be said.

111Three of the remaining six examples concern the employer's treatment of casual employees P.S., E.D. and P.K. pursuant to written agreements between the employer and the union. Each of those agreements expressly provided that its terms were "without precedent or prejudice to any other matter or issue between the Employer and the Union." I agree with the employer that the union cannot rely on these examples to show that the requirement is not consistently enforced. Apart from the impropriety of the union's so doing in defiance of the "without precedent or prejudice" provisions to which it agreed, there is the simple fact that, in the result, the employer does not apply the requirement in scheduling those employees because in each case it is bound by an express written agreement with the union that it will not do so. There is no such agreement with respect to the grievor.

112In the remaining three examples (G. H., P. K. and Mr. Teggart), the employer tolerated some departure from the minimum availability requirement for a period of a few years that ended in 2007, the year when the first of the grievance now before me was filed. In the case of G. H. and P. K., that tolerance did not continue thereafter. In Mr. Teggert's case, tolerance has continued only pursuant to an agreement between the union and the employer to maintain the status quo pending arbitration of a dispute about whether the employer is obliged to continue tolerating it. By contrast with Mr. Teggart's testimony, the grievor here was never told that less than full compliance with the requirement would be tolerated.⁷ The facts here are entirely to the opposite effect.

113The union's submission on inconsistent enforcement therefore rests on examples of the employer's having tolerated less than total compliance with the minimum availability requirement by three casual employees for periods of a few years that ended around the time the discipline in issue here began. To the extent the argument evokes the consistent enforcement component of the KVP test, it is noteworthy that the award in KVP applied the "de minimus non curat lex" rule in determining whether the adverse impact on the employer of wage garnishment justified a rule that an employee would be discharged if his wages were garnished more than once.⁸ In my view, the de minimus rule is also applicable in determining whether there has been inconsistent (and, hence, arbitrary or discriminatory) application of a rule. The parties agree that the employer has 3000 casual employees. Its having tolerated a departure from its policy in the scheduling of three them during periods that ended some time ago is de minimus. I am not persuaded that it rendered unreasonable the application of this policy to the scheduling of the grievor during the period in question here.

114When she was rehired in 2005, the grievor undertook to the employer that she would be available to be scheduled for hours between 9:00 a.m. to 9:30 p.m., Thursday to Sunday. In March 2006 she requested and was granted approval of a change to her stated availability, so that her undertaking thereafter extended to all store hours. The employer's repeatedly advised the grievor that she could narrow her stated availability as long as it met the minimum availability requirement. She did not do so.

115The union argues that the grievor's requests for time off should have been treated as requests to alter her stated availability. I disagree. A request for time off is not a request for approval of a changed "stated availability" undertaking. It is a request for a one time exception to the "stated availability" undertaking. These are different types of request. They are made to different levels of management. The grievor knew and understood the distinction. She was quite clear in her testimony that she had not wanted to request a change to her "stated availability."

116The union also argues that the grievor's requests for time off for the purpose of engaging in regularly scheduled work elsewhere were not given proper consideration. It says that the employer should have considered whether it could "work around" her request by scheduling someone else at those times. I disagree. It is self evident that such a work around would have involved the employer's doing what was, from its perspective, unnecessary work. It is not unreasonable of an employer to treat an employee's desire to work for a different employer as insufficient reason to excuse the employee from her or his obligation to perform work for it when scheduled. That is so even though the collective bargain it has made with the union does not require the employer to reciprocate availability with any greater commitment to provide work than is found in article 31.

117Article 31.7 of the collective agreement requires that casual employee hours of work at a store "be allocated according to the seniority of" the casual employees assigned to the store. In practice, the employer treats this as requiring that the longest shift of a day be assigned to the most senior of the casual employees for whom the shift's hours fall within their "stated availability." The union argues that this article also allows casual employees to decline shifts on the basis of seniority.

118The speculation in Costa about a right to decline shifts on the basis of seniority was about a right to decline shifts that were outside the employee's "stated availability." It is not clear whether for this purpose the Vice-Chair thought of "stated availability" as being something that could only be changed with the approval of the district manager, as the decision notes was the practice at the time, or something that could be unilaterally altered or avoided by the employee without the employer's consent. In any event, the shifts that the grievor sought to avoid here were all shifts that fell within the grievor's stated availability. Accordingly, and whatever the Vice-Chair in Costa may have had in mind, the union's contention seems to be that a casual employee can unilaterally decline a shift that falls within her stated availability if the store has on its roster of casual employees another casual employee (presumably one who would not otherwise be required to work a shift that overlaps the one in question) who has less seniority and could therefore be compelled to work the shift.

119There is reason to doubt that the parties intended "allocate" in article 31.7 to mean "offer and/or assign" – that is, first "offer" shifts to willing casual employees in order of seniority and, if there are insufficient volunteers, "assign" them to unwilling casual employees in reverse order of seniority. The parties were able to describe that sort of sequence quite clearly in their Letter of Agreement on Sunday Openings, which is quoted in paragraph [11] above, and also in article 31.11:

31.11 Casual employees shall only be scheduled on night shift (as defined in Article 6) on a voluntary basis however, if insufficient numbers of permanent full-time, permanent part-time, seasonal or casual employees volunteer for such shifts, casual employees may be assigned by reverse order of seniority commencing with the most junior qualified casual employee.

The parties' use of different language in article 31.7 suggests that they had in mind something different from what these other provisions clearly contemplate.

120Viewed in isolation from the practice that the employer has followed in applying it, the words of article 31.7 could describe a number of different scheduling practices. In Kruczak the Board found the language of article 31.7 ambiguous, and relied on the employer's long practice in administering the article to resolve the ambiguity. If it were necessary for me to decide this point on the evidence and argument before me, I would be inclined to do the same.

121The union did not establish that its proposed interpretation of article 31.7 would have assisted the grievor, however. Even if the grievor's unapproved requests for time off (or her written responses to the denials of time off) could be characterized as the exercise of a purported right to decline a shift on the basis of seniority (despite the absence of evidence that they were characterized that way at the time or in any contemporaneous response to the discipline), there is no evidence that a less senior employee could have been scheduled on any or all of the shifts that the grievor was disciplined for failing to attend. The employer expressly denied, and the union led no evidence to establish, that there were other casual employees who could have been scheduled to work on all of the occasions when the grievor failed or refused to work scheduled shifts. Although the employer made an unparticularized admission that other casual employees had been available for some of the shifts in issue, the union did not establish which shifts those were nor, more importantly for this purpose, that any of the available casual employees had had less seniority than the grievor.

122Because it cannot affect the outcome here, I am reluctant to state a firm conclusion about whether article 31.7 affords casual employees more rights than the employer's practice recognizes. For one thing, I would have preferred a more fulsome description of the employer's practice in administering the article than the very brief and unchallenged one that Mr. Young gave in his testimony. For another, and in retrospect, I would want to know whether the union concedes that, on the interpretation it advocated here, one casual employee's unilaterally declining to work hours that fall within her or his last approved "stated availability" could result in a more junior casual employee's being forced to work those hours even if that junior casual employee had never included those hours in his or her own stated availability. If the union did not concede this, then I would have difficulty distinguishing its proposed interpretation of article 31.7 from the one that the Vice-Chair specifically rejected in Costa.

123There is another issue that need not be decided because there was no proof that more junior casual employees could have been scheduled to cover the shifts in issue.

124The grievor's unchallenged evidence was that there had been about three occasions in 2007 when she had tried to avoid scheduling conflicts by arranging with a more junior unscheduled casual employee to work her shift or, when the more junior casual employee was scheduled to work that day on a shorter shift that did not conflict with the grievor's other work schedule, to swap shifts. The grievor testified that on those occasions the store manager had refused to accept any such substitutions or swaps, saying only that the hours for which the grievor had been scheduled were hers and she had to work them. The only justification for this position that employer counsel offered in his closing argument was that article 31.7 would have precluded the employer from doing as the grievor proposed.

125On the grievor's unchallenged evidence it seemed that she was the only person whose right under article 31.7 would have been adversely affected by allowing the swaps and substitutions that she had proposed. I found it difficult to understand why a right of the grievor's that she was clearly waiving would be the sole reason for denying her requests. It is possible, of course, to imagine circumstances in which article 31.7 might be a legitimate concern notwithstanding the grievor's waiver ­– for example, if the senior employee's arrangement by-passed the next most junior casual employee who, in the result, would be scheduled for fewer hours than an even more junior employee with whom the arrangement wais made. It is also possible to imagine other reasons why a swap or substitution might be contrary to legitimate employer interests, such as when the swap or substitution might result in the employer's having to pay the junior employee an overtime or other premium, or when the work of the shift in question requires skills or qualifications not possessed by the junior employee proposed to work it. There was no such explanation for the occasions when the store manager refused to implement a swap or substitution proposed by the grievor, however. There is no evidence or suggestion that implementing a swap or substitution that had been fully worked out between and agreed to by the affected casual employees would require more from the store manager than the de minimus work involved in changing a couple of schedule and payroll forms. It will have been apparent during argument that I was troubled by this aspect of the employer's conduct and position.

126I am bound to note, however, that the denials of shift swap or substitution about which the grievor testified were not shown to relate to any of the shifts involved in the discipline and discharge that are the subjects of the grievances before me. Since it has not been shown that more junior casual employees could have been scheduled so as to cover the shifts that the grievor was disciplined and discharged for failing or refusing to work, there is no basis for any conclusion that the outcome would likely have been different if the employer had been prepared to consider swaps or substitutions.

127With respect to the discharge and each of the earlier impositions of discipline, I find that on each occasion the employer had cause to discipline the grievor for culpably failing or refusing to report to work as scheduled. When the misconduct was repeated, the employer was entitled to increase the penalty. Indeed, it could have progressed in larger and more rapid steps than it did, given the total absence on each occasion of any indication from the grievor that she would not continue to defy the schedule when it suited her. The disciplinary response was certainly not excessive on any of the occasions, including the last one.

128I have given careful consideration to whether there is some feature of this case that warrants the exercise of my discretion under subsection 48(17) of the Labour Relations Act to substitute a lesser penalty. I can find none.

129Accordingly, these grievances are dismissed.

Footnotes

1. 1For ease of reference, in this decision the predecessor union and current union are both referred to as "the union."
2. 2Lumber & Sawmill Workers' Union, Local 2537 and KVP Co. Ltd. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson).
3. 3Although the Vice-Chair did not expressly say so, I take it from the surrounding context that the reference was to prolonged non-culpable absences.
4. 4These designations reflect the sales levels at the stores, with an "A" store having the highest sales level of the four and "D" having the lowest. The store managers of "C" and "D" stores are bargaining unit employees.
5. 5supra, fn. 2.
6. 6id., pp. 85-6
7. 7Whether this difference should affect the outcome for Mr. Teggart (if it is established in evidence in the arbitration of his grievances) is not for me to decide in these proceedings.
8. 8supra, fn. 2, p. 87.