GSB# 2019-1755

UNION# 2019-0164-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hanna)

Union

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE UNION

Adam Veenendaal Morrison Watts Counsel

FOR THE EMPLOYER

Mackenzie Anderson Liquor Control Board of Ontario Counsel

HEARING

October 16 and November 6, 2023

Decision

1This grievance challenges the Employer’s decision not to award a permanent full-time Warehouse Worker 3 (WW3”) position to the Grievor, Sean Hanna, pursuant to a posting in May 2019. The Grievor has since been promoted to that position pursuant to a subsequent job posting. The Union challenges the requirements established in the posting, set out in paragraph 17 of the Agreed Statement of Fact (“ASF”) below, that is, the Employer’s practice of considering an applicant employee's disciplinary record and past work performance when assessing qualifications.

2There is no dispute that Article 22.5(a), the applicable job posting provision in the collective agreement, is a “threshold” or “sufficient ability” clause, stipulating that seniority will govern, provided the applicant is “qualified to perform the work”.

3No notice was provided to the incumbents in the circumstances. Should the grievance succeed, no incumbent would be displaced. Any remedy would reflect compensation lost between the period of this disputed posting in 2019 and the Grievor’s subsequent promotion to the position in 2020.

4The parties’ ASF included documentary materials. I also heard viva voce evidence from the Grievor and from Mark Fletcher, the Manager of Operations at the London warehouse. In submissions I was referred to the following authorities:

-Re United Electrical Workers, Local 512, v. Tung-Sol of Canada Ltd., 1964 CanLII 1021 (ON LA);

-Donald J. M Brown, David Beatty & Adam Beatty, Canadian Labour Arbitration, Fifth Edition, [“Brown & Beatty”] § 6:17. Introduction; § 6:20. Senior Employee with the Required Ability; § 6:23 Ability and Qualifications: Introduction; and § 6:24 Disciplinary Records;

-Hercules Canada Ltd. v. U.S.W.A., Local 13159, 1974 CarswellOnt 1382 (O’Shea);

-Maple Ridge (District) v. C.U.P.E., Local 622, 1979 CarswellBC 1117 (Hickling);

-General Dynamics Canada v. Independent Union of Defense Contractors (Lynch Grievance), [2006] O.L.A.A. No. 196 (Brown);

-Re I.T.T. Communications, Division of I.T.T. Canada Ltd. And I.B.E.W., Loc. 2038 (1973), 1973 CanLII 2016 (SK LA), 4 L.A.C. (2d) 420 (Flynn);

-Ontario (Liquor Control Board) and OLBEU (Baker), Re, 2005 CarswellOnt 10993 (GSB# 2004-1856) (Watters);

-Alcan Smelters & Chemicals Ltd. v. C.A.S.A.W., Local 1. 1988 CarswellBC 1884 (Hope);

-AvisCar Inc. and COPE, Local 378 (McLean), Re, 2015 CarswellBC 738 (Keras);

-Ontario (Liquor Control Board) v. O.P.S.E.U. 2008 CarswellOnt 11277 (GSB# 2006-1322) (Harris).

5The ASF states:

I. The Grievor

1. The Grievor commenced employment with the LCBO in or around August 23, 2011, as a Casual warehouse worker at the LCBO’s London Retail Service Centre (the “London Warehouse”).

2. At all material times, the Grievor was, and continues to be, a bargaining unit employee represented by OPSEU and the terms and conditions of his employment were and are governed by a collective agreement between the LCBO and OPSEU. A copy of the collective agreement for the term April 1, 2017 to March 31, 2021 is attached hereto as Exhibit 15 (the “Collective Agreement”).

3. On January 21, 2012, the Grievor was appointed to the position of seasonal warehouse worker at the London Warehouse, in accordance with Appendix 4, Section 4-4.1 of the Collective Agreement.

4. On December 7, 2020, the Grievor was promoted to a permanent full-time warehouse worker position at the London Warehouse.

II. The Grievance

5. On or about May 7, 2019, the LCBO posted a job posting for three (3) full-time Warehouse Worker 3 positions at the London Warehouse (job posting number WR-028/2019) (the “Job Posting”). A copy of the job posting is attached as Exhibit 1.

6. The Grievor applied for the Job Posting. However, the Grievor was unsuccessful in his application for the Job Posting.

7. The Grievor subsequently filed a grievance with respect to the LCBO’s failure to award him one of the positions of full-time warehouse worker. A copy of the grievance, dated August 15, 2019, is attached as Exhibit 2.

III. The London Warehouse

8. The London Warehouse is responsible for receiving, storing, and delivering beverage alcohol and specialty items to approximately 236 LCBO Retail Stores, 192 “The Beer Store” retailers, 208 grocery stores and 14 Duty-Free stores throughout Western Ontario. In addition, the London Warehouse also supplies products to an LCBO Depot Store in Windsor, Ontario, and Duty-Free Stores within the geographical service area.

9. The London Warehouse is approximately 500,000 square feet in size and handles in excess of 37 million cases per year. The London Warehouse handles approximately 32% of the LCBO’s products.

10. The London Warehouse’s normal hours of operation are 24 hours a day, Monday to Friday, with scheduled overtime on Saturdays and Sundays as needed.

11. The London Warehouse employs approximately 225 warehouse workers, consisting of approximately 117 permanent full-time warehouse workers and 109 seasonal or casual warehouse workers. From the first Monday in April until the second Saturday in January, the London Warehouse will also hire fixed-term employees, to support the Facility during peak volume periods on an as-needed basis.

12. Warehouse workers are responsible for performing tasks related to the storage and shipping of product in and out of the London Warehouse. Specifically, warehouse workers perform functions related to:

• Picking, assembling, and preparing pallet orders in a timely manner.

• Loading and unloading cases of beer, wine, spirits, and cider that weigh between 40 lbs. and 60 lbs.

• Cleaning up accidental spills.

• Manually unloading cases of product from containers and trailers with the assistance of power belts and step stools.

• Filling out dock sheets, checking purchase orders and imputing small data points into a computer.

Casual, seasonal, and full-time warehouse workers perform the same functions and duties.

13. Permanent full-time warehouse workers are regularly scheduled to work 37.5 hours each week. Seasonal and casual warehouse workers are not guaranteed any hours of work, but rather are scheduled according to operational requirements and seniority. A seasonal and/or casual warehouse worker may be scheduled to work 37.5 hours in a week, depending on operational requirements and seniority. Conversely, a seasonal and/or casual warehouse worker may be scheduled to work less than 37.5 hours in a week, or not at all, depending on operational requirements and seniority.

14. Warehouse workers are generally scheduled to work one (1) of three (3) shifts: the morning shift (from 8:00 a.m. to 4:00 p.m.), the afternoon shift (from 4:00 p.m. to 12:00 a.m.), or the midnight shift (from 12:00 a.m. to 8:00 a.m.). The majority of warehouse workers, however, are scheduled to work either the morning or afternoon shift.

15. All warehouse workers currently report to an Operation Supervisors [sic], who in turn report directly to Operation Shift Managers. The London Facility is under the general direction and management of a Senior Director of Distribution.

IV. The 2019 Job Posting

16. Amongst other things, the Job Posting (Exhibit 1) set out what the LCBO determined to be the qualifications for the full-time warehouse worker position. This included:

• Forklift skills

• Ability to perform the essential duties of the position (i.e. working in

pick modules; lifting weights up to sixty (60) pounds on a repetitive basis; standing for prolonged period of time and ability to work in isolation);

• Knowledge of material handling procedures and safe working practices; and,

• Willing and able to work shift work.

17. The job posting also stated as follows:

“Applicants must meet the following basic requirements:

1. satisfactory past work performance

2. satisfactory discipline and attendance record”

3. Fourteen (14) seasonal warehouse workers at the London Warehouse, including the Grievor, applied for the three (3) positions posted.

4. The following three (3) seasonal warehouse workers (as listed by seniority) were selected as the successful applicants for the positions (the “Incumbents”):

Name Seasonal Seniority Date

Erika Gill, née Millson October 21, 2013

Craig Hurley October 12, 2015 Mitchell Gooding October 12, 2015

20. The Incumbents were promoted to the position of full-time Warehouse Worker 3 effective in or around July 15, 2019.

21. The Grievor’s seasonal seniority date is August 23, 2011. As such, the Grievor was more senior than the incumbents, but was less senior than three (3) other unsuccessful candidates. A copy of the candidate summary list for the job posting is attached as Exhibit 3.

V. Relevant Collective Agreement Provision

22. The movement of a seasonal warehouse worker to a full-time warehouse worker is considered to be a promotion. Such promotion is governed by Appendix 4, Section 3.1 of the Collective Agreement which states:

Promotion of a Seasonal employee to a permanent full-time vacancy, at the entry level, shall be in accordance with Article 22.5(a). An employee assigned to such position shall also be covered by Articles 22.8(a) and (b).

23. Article 22.5(a) of the Collective Agreement states:

Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work.

24. Article 22.8(a) and (b) states:

(a) In the event an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment, the employee shall be reclassified to the employee’s previous classification and assigned to the step in the salary range attained immediately prior to promotion.

(b) An employee who is demoted and to whom section (a) above does not apply shall be assigned to a step in the new salary range closest to but less than the rate he/she was receiving at the time of demotion.

VI. Application Review and Selection Process

25. The London Retail Service Centre’s Operation’s Shift Managers, General Manager (if there is someone in the role), the designated Human Resources Advisor, and the Senior Director of Distribution, meet to review the applications received and come to a consensus for selecting the successful applicants for the posted positions.

26. No interviews were held in respect of the Job Posting. Rather, the selection committee reviewed the following employee information, to determine who would be successful in the competition:

a. The applicant summary list, in order of seniority

b. The applicant’s employee file, including

[note: no sub-para i. appears in the ASF]

ii. The applicant’s non-culpable absences within the last three (3) years

iii. The applicant’s discipline record within the last three (3) years

iv. The applicant’s last two completed performance reviews

c. The applicant’s accommodation needs

27. The selection committee started their review with the most senior applicant and progressed through each of the applicants by seniority (from most to least senior) until the three (3) positions were filled.

VII. Review of the Grievor’s Application

28. As with the other applicants, in assessing the Grievor’s application, the selection committee reviewed the applicant summary list (attached as Exhibit 3), the Grievor’s employee file (attached as Exhibit 4), the Grievor’s recent discipline, and the Grievor’s recent performance appraisals.

29. The selection committee determined that the Grievor did not meet the qualifications for the full-time warehouse worker position, and the Grievor was denied the promotion.

a) The Grievor’s Performance

30. A copy of the Grievor’s employee file is attached as Exhibit 4.

31. The Grievor was disciplined due to performance issues, by way of the following:

a. On December 19, 2017, the Grievor was issued a Letter of Reprimand because of his low scanner performance (53.7%) and excess inactivity time (129 minutes) during his shift on December 1, 2017.

b. On April 9, 2018, the Grievor was issued a Letter of Suspension because of his low scanner performance (59.7%) and excess inactivity time (155 minutes) during his shift on February 12, 2018.

A copy of the Letter of Reprimand is attached as Exhibit 5 and a copy of the Letter of Suspension is attached as Exhibit 6.

32. The Grievor received performance appraisals throughout his employment. The Grievor’s performance appraisals for the fiscal years 2015 (March 2015 to March 2016), 2016 (March 2016 to March 2017), 2017 (March 2017 to March 2018), and 2018 (March 2018 to March 2019) are attached as Exhibit 7. Amongst other things, the performance appraisals included an appraisal of the Grievor’s Work Productivity. In this regard, the Grievor was rated and received the comments as follows:

a. March 2015 to March 2016 – Work Productivity rated at a “4” (Improvement Required) and reviewer commented “performance is not yet up to acceptable standards, but continued effort should remedy this.”

b. March 2016 to March 2017 – Work Productivity rated at a “4” (Improvement Required) and reviewer commented “generate[s] inconsistent results and requires a higher level of supervision to ensure that productive work is being performed.”

c. March 2017 to March 2018 – Work Productivity rated at a “4” (Improvement Required) and reviewer commented “performance is not yet up to acceptable standards”

d. March 2018 to March 2019 – Work Productivity rated at a “4” (Improvement Required) and reviewer commented “productivity is generally good however, below average performances are an issue on occasion”

The Incumbents’ Performance

33. None of the Incumbents had any discipline on file at the time of the Job Posting, except for Mitchell Gooding who had a letter of reprimand, dated January 3, 2018, tied to a material handling incident that occurred on December 20, 2017 (attached as Exhibit 14).

34. The employee files for each of the Incumbents are attached as Exhibits 8 to 10.

35. The Incumbents performance appraisals for fiscal 2016 to 2018 are attached as Exhibits 11 to 13.

6As set out in the ASF, the hiring panel reviewed the most senior applicant’s employment record and moved down the applicant list by seniority, until it determined it had three successful applicants. Broadly speaking, this approach confirms that the Employer did not treat the process as a competition between candidates, but appropriately engaged an assessment of the candidates by seniority, to determine if the senior candidate(s) was qualified to perform the work.

7There is no dispute that the onus is on the Union to establish that the Grievor had the requisite qualifications for the job. As a seasonal warehouse worker, the Grievor had been performing the same tasks as those required by the full-time permanent Warehouse Worker 3 position. Ipso facto, the Grievor was qualified, argued the Union, and the Grievor’s discipline record and work productivity did not, and ought not to reflect on whether he was qualified for the job.

8An Employer has the right to establish reasonable qualifications required for a job. As stated in General Dynamics, supra:

20 The most fundamental principle to emerge from the cases reviewed is that an employer has the right to establish and alter job qualifications, unless precluded from doing so by its collective agreement, so long as it does not act arbitrarily, unreasonably or in bad faith.... A qualification is reasonable if it is reasonably related to job performance. As noted by Arbitrator Dissanayake in Schreiber (Township), an arbitrator ought not to intervene unless a qualification falls “completely outside the zone of reasonableness” (paragraph 23) …managers are much better suited to fashioning appropriate qualifications than are arbitrators.

See also Brown & Beatty, at § 6:23, and Maple Ridge, supra, at para. 19.

9Brown & Beatty also concludes at § 6:20:

… the evaluation that is made of the grievor’s qualifications is against the legitimate requirements, the core duties and the responsibilities of the job.... reasonable ability to perform the required tasks is the benchmark for assessing the ability and qualifications of such a person.

10Three applicants who were senior to the Grievor were not considered qualified based on various attendance and/or discipline records. Mr. Fletcher testified that an applicant could be absent for 15 days in each of 2 of the prior 3 years and be considered as having a satisfactory attendance record. The Grievor’s attendance record was satisfactory and did not affect his application.

11Mr. Fletcher testified that an applicant having no discipline on their file for 2 of the prior 3 years was considered to have a satisfactory disciplinary record. Verbal or written counselling and/or coaching was not considered. In rejecting the Grievor’s application, the Employer relied on his disciplinary record. He had been disciplined in each of 2017 and 2018, that is, in 2 of the 3 years prior to the posting.

12Disciplinary records can and have been used in assessing qualifications. Brown & Beatty discusses the relevant considerations at § 6:24:

… where an employee's prior disciplinary record raises a reasonable doubt as to his or her reliability, integrity or responsibility, arbitrators have held that the employer can properly consider the employee’s past transgressions in reaching its decision respecting whether to offer him or her the job. On the other hand, arbitrators have ruled that it is improper for an employer to rely upon a disciplinary offence to deny an employee a position [1] where the nature of the misconduct did not reflect on the employee’s ability to perform the particular job or [2] where a substantial period of time had elapsed since the incident, during which the grievor demonstrated that he or she had the necessary qualifications.

(parentheses added)

13The letter of reprimand from late 2017 and the one-day suspension on April 8, 2018, were both issued to the Grievor for downtime in excess of 2 hours during each 7.5 shift. That is, on each of those two shifts, the information collected by the Employer showed that the Grievor had not performed work for more than 2 hours that shift, a fundamental concern for any employer.

14Mr. Fletcher described the Employer’s use of productivity metrics that identified a 90-98% employee efficiency rating. He noted that the metrics took into account scheduled breaks, lunch, 3 additional washroom breaks, and a level of expected inactivity time. For example, after a warehouse worker staged a complete skid, they would have to travel to another area of the warehouse to pick up a new ticket and then move to the required pick area. During this time there would be no scanner activity, even though necessary work was being performed. That time was accounted for in the metrics. The metrics were based on body mechanics, and incorporated safety factors in assessing the physical job and the time required to complete tasks within appropriate ergonomic standards. It therefore accounted for differences as between the type of skids being picked and did not, for example, rely on case counts as a measure of productivity.

15Based on those metrics, the Employer expected an employee productivity measure of 75-80% efficiency over a shift. That was the standard.

16It was apparent that the Grievor was not aware of the scope of activity (and various appropriate inactivity) considered and incorporated into the productivity measures. He testified that the Employer had not provided him with any advice as to how to improve his efficiency except to work faster, which he felt would jeopardize safety. He believed that the Employer wanted 100% efficiency and acknowledged that he was working at a 52-55% efficiency rating.

17The Grievor noted that employees could and would try to cheat the system and alter their assigned work by choosing certain types of tickets, rather than taking the next ticket. The parties acknowledged that certain picks, such as beer skids, were easier and took relatively less time than other tickets. The Employer did act to prohibit this practice, noting that it was often discovered following complaints from co-workers about the assignment of work. However, there was no evidence that the way the Employer measured productivity did not take this difference into account. The Union did not assert, and the evidence did not establish that the productivity measures used were unreasonable.

18The collective agreement is clear that a move to a full-time permanent WW3 position from a seasonal warehouse worker position is a promotion. It is trite to observe that the manner in which one completes their work reflects on their ability to perform that work. That includes how efficiently one completes tasks. Reliability and the measure of responsibility brought to the job are valid considerations when an employee is to receive regularly scheduled full-time hours of work and other job security benefits associated with permanent full-time employment.

19Article 27.2 of the collective agreement is a ‘sunset clause’. The parties have agreed that no discipline shall be used against an employee if the incident is more than three years old. That provides an indication of what the parties consider to be a reasonable period for consideration of a disciplinary record. See also AvisCar, supra.

20In two prior decisions this Employer has been held to have acted reasonably in screening out candidates based on the individual’s disciplinary record. The language of the collective agreements in both cases was identical to the language in the instant collective agreement.

21In Ontario (Liquor Control Board), supra, (Harris), the more recent decision and involving these same parties, the Board found that a 5-day suspension that was 19 months old was not precluded from consideration when assessing qualifications. In that case, the grievor was found to be unqualified for a full-time permanent Customer Service Representative position, notwithstanding that she had been performing the work on a casual basis. The arbitrator rejected the argument that the grievor was being penalized twice and found:

12 …[the manager] made an unbiased assessment of the severity of the discipline and how proximate it was in time. He considered the behavior in question as it related to the core responsibilities of the position and concluded that the grievor was not ready to compete for a full-time position. He recognized that each situation must be individually assessed, and he made such an assessment. In these circumstances, I am not able to conclude that his decision was unreasonable.

22And see the decision in Ontario (Liquor Control Board), supra, (Watters), particularly at paragraph 54, which reached a similar conclusion, although with the predecessor union.

23Mr. Fletcher testified that he relied on the existence of the disciplinary record to screen out the Grievor from consideration. However, he also testified that in reviewing the discipline, it became apparent that it related to performance concerns. The prior two performance appraisals were also reviewed, each rating the Grievor as “improvement required’ in relation to work productivity. The Grievor acknowledged that, in addition to the discipline issued, he had been spoken to on several occasions by supervisors or managers regarding the need to improve his productivity, although he was unaware that those instances were recorded as verbal counseling and/or coaching, potentially affecting his performance appraisal. On his 2017 appraisal the supervisor comments that, “while a capable employee”, the Grievor “gets caught up in socializing” on work time, negatively affecting his productivity. Mr. Fletcher observed that, absent the 155 minutes of inactivity for which he was disciplined in April 2018, the Grievor’s productivity would have been 80% on the shift.

24The Grievor was aware of the requirements stipulated in the posting regarding satisfactory work performance and a satisfactory discipline record. He was also aware at the time of the posting that the Employer had assessed his work productivity as unsatisfactory and requiring improvement. He disagreed with that assessment based on his then understanding of the productivity metrics and his concern for safety. However, it does not appear that the discipline was challenged based on those concerns when it was imposed, and the disciplinary record must be taken as it stands.

25The Grievor’s last discipline was April 2018, just over a year prior to the posting. According to the documentary material filed, on his performance appraisal in November 2018, the Grievor continued to receive a rating of “improvement required” regarding his work productivity. Also, in April and in December 2018 he received verbal counsels regarding poor performance and inactivity time. That evidence does not demonstrate that, by the time of the posting, the Grievor had met the Employer’s expectations regarding satisfactory work productivity, notwithstanding the time that had passed since the last discipline.

26As noted at paragraph 18 of the decision in Alcan Smelters & Chemicals, supra, filed and relied on by the Employer, a disciplinary record per se is not sufficient to overcome a seniority right. A simple ‘two out of three and you’re out” assessment is unlikely to provide sufficient information as to whether the nature of the misconduct reflects on an employee’s qualifications to perform a particular job.

27That decision considered whether the grievor was entitled to a transfer based on his seniority pursuant to a competitive posting clause. At paragraph 11, following consideration of the nature of the discipline, it was found that the grievor’s disciplinary record “was not unrelated to his work performance and was a proper factor to consider in assessing his qualifications for the position”.

28Similarly, and consistent with the “threshold ability” analysis set out in Brown & Beatty above, the conduct that led to the Grievor’s disciplinary record gave cause for concern about his reliability and his sense of responsibility in relation to his job as a seasonal warehouse worker. The Grievor had consistently worked below expectation to the point where, within the review period contemplated by the collective agreement, the Employer had twice engaged the discipline process in an effort to impress upon the Grievor the need for him to perform to a reasonable standard. There was nothing in the evidence to suggest that the expected standard was unreasonable or unsafe. There was also no evidence to suggest that the Grievor was otherwise limited from meeting that standard. In these circumstances, low productivity reflects reduced application to the job, which reflects on one’s ability to perform the job.

29See also Re Hercules, supra, where the arbitration board discussed that a written warning for failing to meet an acceptable level of performance reflected on the grievor’s qualifications for the job.

30The Employer relied on the Grievor’s disciplinary record in finding that he was not qualified for this promotion. That discipline reflected the Grievor’s level of productivity, a failure to perform the work to a reasonable standard. That failure rendered him unqualified for the WW3 position in May 2019. The concern identified by the disciplinary record was simply confirmed by a review of the Grievor’s performance appraisals.

31The Union also relied on Art 22.8(a) of the collective agreement to assert that the Grievor was entitled to be placed in the position and given a three-month trial period, following which, the Employer had the option of returning him to his seasonal position.

32I disagree. As set out in Brown & Beatty, at § 6:20, “the senior employee will be required to prove that he or she has sufficient present ability” (emphasis added). Article 22.5(a) of the collective agreement states that seniority will be the determining factor, provided the employee is qualified to perform the work. That juxtaposition of future and present tenses confirms that seniority will not govern, unless and until the candidate is qualified. While seniority is a valued consideration, Article 22.5(a) of the collective agreement provides that it is not the only consideration.

33Article 22.8(a) of the collective agreement also presumes that the employee “has been promoted”, that is, the employee has already met the requirements to be successful in being placed in the position in the first instance. This collective agreement requires that a candidate establish that they have the required qualifications, not that they can or will in the future become qualified. See also the discussion in Maple Ridge, supra, at paragraph 57.

34Having regard to all of the above, I find that the Employer’s determination that the Grievor was not qualified for the permanent full-time WW3 position in May 2019 was a reasonable determination in the circumstances. Further, Article 22.8 of the collective agreement has no relevance to the question of whether the Grievor was entitled to be promoted pursuant to the May 2019 posting.

35This grievance is therefore dismissed.