GSB#2008-3326, 2011-2710

UNION#2009-0379-0002, 2011-0379-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Allen)

Union

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Jean Chaykowsky Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Pamela LeMaistre Liquor Control Board of Ontario HR Manager

HEARING

November 18, 2011.

Decision

1This award flows from a mediation-arbitration session held between the LCBO and OPSEU in Peterborough, Ontario on November 18, 2011. Going into the session, the parties agreed to utilize an expedited mediation-arbitration process to determine grievances. That process contemplates that the parties would attempt to resolve matters through mediation, failing which, they agreed that the Vice-Chair would determine the matter without formal proceedings. The parties agreed that any decision issued in this process does not constitute a precedent and is without prejudice to the positions of the parties in any other matter. They also agreed that any decision was to provide only brief reasons, if any. In doing so, the parties agreed to a process that will also expedite the release of any decision. If it became apparent to either party, or to the Vice-Chair, that the issues involved were of a complex nature, it was agreed that the case could be taken out of the expedited process and processed through ‘regular’ arbitration. Such was not the case here. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts and leads to a fair and efficient adjudication process.

2The grievances of Eileen Allen (#2009-0379-0002 and #2011-0379-0012) allege that the employer violated Articles 2.1 (a) and (b) and Article 32.1 of the collective agreement. The remedy sought is for Ms. Allen (the “grievor”) to be ‘made whole’. The grievor works as a Customer Service Representative in a Peterborough retail location.

3The grievor began working for the LCBO as a casual employee in July 1991 in Brampton. In 1999 she moved to Niagara Falls. She resigned her position in Brampton and was re-hired by the LCBO as a casual employee in Niagara Falls. In 2005 her family moved to Peterborough. She again resigned and was re-hired by the LCBO. While historical collective agreements provided casuals with certain limited rights to apply for permanent part-time and full-time vacancies, it did so only within the recognized and defined geographic area in which the casual employee was then working. (see for example, the 2005-09 collective agreement at Articles 31.3, 31.4 and 21.4 (a)(i)). The locations where the grievor worked are all in different geographic areas. There were no provisions allowing casuals to transfer between geographic areas; nor any provision to transfer casual seniority; thus the grievor was required to resign and be re-hired as a casual employee in order to obtain work in a different geographic area, notwithstanding that there was generally no actual break in her attendance at work.

4In 2009 the union was successful in negotiating certain changes to the collective agreement. Article 31.4(c) of the agreement now provides that casual employees in retail stores may apply to Permanent Vacancy Review postings in retail stores province wide. Also relevant here, Article 21.10 has been introduced to provide that permanent full-time employees in retail stores also have broader posting rights than previously existed. Subject to certain terms and conditions, permanent full-time employees in retail stores may now apply for postings in retail stores across the province.

5As a result of these changes, these grievances were filed. The grievor seeks to have her casual seniority date adjusted so as to now recognize her service from July 1991. It is the case that, as a result of these changes to the collective agreement, staff from other geographic areas who have not worked with the LCBO for as long as the grievor, but who have had no interruption in service, now have greater seniority that she does and potentially greater access to work in her geographic area; a result she considers unfair.

6According to Article 31.5(a)(i) of both the 2005-2009 and the current collective agreement, seniority for a casual employee will accumulate (subject to a probationary period) “from his/her first day of work of his/her most recent appointment to the casual staff” (emphasis added). The grievor’s most recent appointment to the casual staff is September 2, 2005, when she began work in Peterborough, and is recognized by the employer as such. There is no basis in either collective agreement (a grievance was filed under each of those agreements) pursuant to which recognition for service that occurred prior to the most recent appointment to casual staff may be given. It also appears that this provision has existed over many collective agreements.

7The grievor is upset, understandably, by the fact that she had to resign and be re-hired in 1999 and again in 2005. This circumstance may arguably be compared to the days when women who were pregnant had to quit work in order to have their children and be re-hired when they were ready to return to the workforce. That circumstance has been remedied as a result of the recognition that such circumstances reflected gender discrimination, a protected human rights ground. However, there is no protected ground under the Human Rights Code or the collective agreement that has been violated in the case of these grievances. All casual employees were subject to these rules and it is recognized that casual employees often enjoy fewer rights.

8Certain rules have now changed, providing greater opportunities to casual employees as a whole. However they do not apply retroactively and the basis for calculating casual seniority has not changed. There has been no violation of the collective agreement. These grievances are hereby dismissed.