HomeMy WebLinkAboutSanidad 13-05-16BETWEEN:
LONDON HEALTH SCIENCES CENTRE
[FULL -TIME LABORATORY AND X -RAY]
(hereinafter called the "Employer ")
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 106
(hereinafter called the "Union ")
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DAVID R. WILLIAMSON
ERIC DEL JUNCO
A HEARING WAS HELD IN RELATION TO THIS MATTER IN LONDON, ONTARIO, ON
FEBRUARY 5, 2013, AND MARCH 19, 2013.
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Mr. Alan Sanidad works as a Medical Technologist in the Pathology Laboratory of London
Health Sciences Centre, a position he has held from 2006. Mr. Sanidad commenced work with
the employer in 2004, and from 2004 to 2006 as a casual employee he worked as a Medical
Technologist in the Core Laboratory and in the Immunology Laboratory of London Health
Sciences Centre. By way of Grievance Form. dated November 23, 2011, Mr. Sanidad grieves
that he was denied an interview for job posting #32748 and seeks as settlement that he be granted
an interview and receive consideration as a candidate for this position. The Hospital in its
response of November 24, 2011, stated that there had been no violation of the collective
agreement and denied the grievance.
The evidence discloses that on October 20, 2011, Mr. Sanidad applied for posting 432748, which
was for a regular full -time position as a Medical Laboratory Technologist in the Clinical
Immunology Laboratory of London Health Sciences. The qualifications for this position were
set out in the following way:
QUALIFICATIONS:
Certification with C.S.M.L.S. or equivalent.
Current Registration or eligible as a Medical Laboratory Technologist with the College of Medical
Laboratory Technologists of Ontario with authorization to practice relevant specialties in
Laboratory Medicine.
Recent experience with manual and/or automated immunoassays, protein/urine /CSF electrophoresis,
ELISA, and mass spectrometry.
Demonstrated knowledge of clinical immunology and immunosuppressant drug analysis.
Demonstrated skills in interpretive analysis, critical thinking and multi- tasking.
Demonstrated skills in basic laboratory protocols and medical terminology.
Ability to work with minimal supervision.
Demonstrated attention to detail, accuracy, and organizational skills.
Demonstrated interpersonal, communication and conflict resolution skills.
Demonstrated ability to collaborate, develop and maintain effective relationships within healthcare teams.
Demonstrated knowledge of and commitment to.patient and staff safety at LHSC.
Demonstrated ability to attend work on a regular basis.
The posting also stated:
As part of the assessment process applicants may be required to complete a written examination or test.
Please be advised that an internal reference check may be conducted as part of the selection process.
Your interest in this opportunity is appreciated. Only those applicants selected for an interview will
be contacted.
After the posting came down Mr. Rick Bak, the then Co- ordinator of Special Biochemistry
Laboratories, contacted Mr. Sanidad by telephone to pre- screen him on whether he met the first
three qualifications that were set out on the posting. Mr. Bak determined that Mr. Sanidad did
not meet the minimum qualifications for the position, and therefore would not receive an
interview for the position, because he did not have recent experience within the previous two
years in any of: (a) manual and/or automated immunoassays, (b) protein/urine /CSF
electrophoresis, (c) ELISA, or (d) mass spectrometry.
The union submits that Mr. Samdad has broadly transferable skills as a medical technologist and
should have been considered further. The union also argues in a broader context that the
application by the employer of narrow and specific qualifications restricts an employee's
opportunity to move into another position and has. the effect of undermining the seniority
provision in the collective agreement whereby seniority is the tie - breaker when two or more
applicants meet the qualification hurdle for a position. At the outset of the arbitration the union
advised that, as the successful applicant in this competition had more seniority than Mr. Sanidad,
the remedy now sought was not to have the competition re -run but rather to have a declaration
made that the grievor's exclusion from the interview process was arbitrary and inconsistent with
the collective agreement.
The relevant provisions of the collective agreement include:
ARTICLE 13 - JOB POSTING, PROMOTION AND TRANSFER
13.01 Where a vacancy exists, or where the Hospital creates a new position in the bargaining unit, such
vacancy shall be posted for a period of seven (7) calendar days. Applications for such vacancies shall be
made in writing within the seven (7) day period referenced herein.
13.02 Notices of vacancies referred to in 13.01 shall include, for informational purposes: department,
classification, qualifications.
13.06 In filling posted vacancies the selection shall be made based on skill, ability, experience, and
relevant qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority
shall be the governing factor.
13.07 In matters of promotion and staff transfer, a successful bargaining unit applicant shall be allowed a
trial period of up to sixty (60) days (450 hours for employees whose regular hours of work are other than
the standard work day) worked during which the Hospital will determine if the employee can satisfactorily
perform the job. Within this period the employee may voluntarily return, or be returned by the Hospital, to
the position formerly occupied, without loss of seniority. Should the employee return or be returned to his
former job, the filling of subsequent vacancies will be reversed.
ARTICLE 2 - DEFINITIONS
Article B — Management Rights
B.01 The Union acknowledges that it is the exclusive function of the Employer to:
a) Maintain order, discipline, and efficiency, and to establish and enforce reasonable rules
and regulations governing the conduct of employees, which rules and regulations shall
not be inconsistent with the provisions of this Agreement.
b) Hire, discharge, classify, direct, assign, transfer, promote, demote or discipline
employees, provided that a claim of discriminatory promotion, demotion, or transfer, or a
claim that an employee within. the Bargaining Unit who has completed his probationary
period has been discharged or disciplined without reasonable cause may be the subject of
a grievance and dealt with in accordance with the grievance procedure.
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C) To operate successfully the Hospital as a public institution intended to provide adequate
Hospital and clinical services to patients in a manner consistent with the obligation of the
Hospital to the general public in the area, which will not be interfered with by this
Agreement.
8.02 It is understood that these provisions will not be exercised in a manner inconsistent with the other
provisions of this Agreement.
It is the evidence of Mr. Sanidad that he graduated from Fanshawe College in 1997 with a
Medical Laboratory Technology Diploma, and that he has been registered as a Medical
Laboratory Technologist with the College of Medical Laboratory Technologists of Ontario since
1997. Mr. Sanidad testified that his program at Fanshawe College included modules in
biochemistry, hematology, blood bank, histology, and microbiology, and that his certificate
qualifies him to work in each of these areas. It is his evidence that there are many tests
performed inside each of these areas and that by virtue of his training he is qualified to perform
these tests with additional training.
Mr. Sanidad testified as to his work experience since his graduation. From 1997 to 1998 he
worked in the pulmonary function laboratory of London Health Sciences where he collected and
analyzed blood samples. From 1998 to 1999 he worked at Annapolis Hospital in Michigan as a
core laboratory generalist where he performed a broad range of tests in the core areas of blood
bank, biochemistry, hematology, and microbiology. Mr. Sanidad worked as a medical
technologist for Hospital Consolidated Laboratories in Michigan from 1999 to 2003 where he
worked in the hematology and chemistry department and peformed a wide range of tests in these
areas. From 2003 to 2004 the grievor worked in hematology quality control with the American
Red Cross. From 2004 to 2006 Mr. Sanidad worked for London Health Sciences as a casual
employee at University Hospital in both their core laboratory and in their immunology laboratory
for a total of about 425 hours. He testified that he spent perhaps more time in immunology,
where he carried out a number of specific tests, than in the core lab. Since 2006 Mr. Sanidad has
worked for London Health Sciences as a full -time employee in the pathology laboratory at
University Hospital where he has grossed small tissue biopsies for pathologists to analyze and,
other than staining these samples, he has not performed any tests.
The job posting for the position in the clinical immunology laboratory called for recent
experience with manual and/or automated immunoassays, protein/urine /CSF electrophoresis,
ELISA, and mass spectrometry. Mr. Sanidad gave evidence of his work experience in these
areas. He testified that during the period of 2004 to 2006 when working in the immunology
laboratory at University Hospital he performed manual and/or automated immunoassays and
ELISA tests, but did not carry out protein/urine/CSF electrophoresis tests and has no experience
of mass spectrometry. He said he was trained in how to do the first three of these tests at
Fanshawe College between 1994 and 1997, but that mass spectrometry was only briefly touched
upon in his program. Mr. Sanidad agreed that he would need some re- training in order to be
competent to work in the immunology laboratory but expressed the view in his testimony that he
possessed medical laboratory technology skills that were broadly transferable between different
areas and laboratories and that he would be proficient to perform the work required in the job
posting with only a small amount of training, and that this could be done in a rather short period
of time. It is his evidence that he has not worked in the main London Health Sciences
immunology laboratory at Victoria Hospital where the work associated with the job posting is
located.
It is the evidence of Mr. Sanidad that the Canadian Society for Medical Laboratory Science is a
body that sets competency standards for his profession. In reviewing a document prepared by
this body entitled `Competencies expected of an entry -level general medical laboratory
technologist' Mr. Sanidad agreed in cross - examination that in the time period since 2006 he had
not performed a substantial number of the analytical techniques set out in the "Analytical
Techniques" section of this competency document. Mr. Sanidad was shown a document
prepared by the College of Medical Laboratory Technologists of Ontario entitled `Retraining
Guidelines for Medical Laboratory Technologists' and agreed that it is set out on page four of
this document that "retraining is recommended for MLT's who have not practiced in the new
area of practice or the core lab setting in the previous 3 year period" and that "successful
retraining must include both a theoretical and practical component, followed by a formal
assessment of competence." It is Mr. Sanidad's testimony that both current and relevant
knowledge are important in order to be competent and that, as he has not worked in immunology
since 2006, he requires some re- training in order to be competent in immunology but expressed
his view that this should not take very long. Mr. Sanidad specifically rejected the suggestion put
to him that as immunology is a specialty laboratory it would require more than twelve weeks of
training before he would be competent to work there.
Mary Jane Stansell works as a medical laboratory technologist at London Health Sciences in the
transplant laboratory, a position into which she successfully posted in March 2006 from the
hematology laboratory. It is her testimony that the transplant laboratory is one of many specialty
laboratories at the hospital and that she received training on a one on one basis from a senior
technician, and that this is the standard procedure. The training was in each of ten modules with
instruction, testing, and sign off at the end of each module and that in her case the whole training
process was completed in eight months. It is her evidence that the form of training she received
was in accordance with the Standard Training Guide for the Specialty Biochemistry Laboratories
at the hospital and that she considered the same procedure would apply in the immunology
laboratory, as it is also a specialty laboratory. Ms. Stansell testified that there are many core
skills possessed by a medical laboratory technician that are transferable between various types of
laboratories but that, without the receipt of training upon going into a specialty laboratory one
could not be effective. It is the evidence of Ms. Stansell that as Chief Steward of the Union she
follows issues of concern to the local union and that the increased requirement for recent
experience in specific laboratories or areas set out in job postings is one of these as it would
preclude applications from good and competent technologists in other laboratories.
Mr. Rich Bak is currently the Manager of Quality and Client Support for all the employer's
laboratories, and at the time of the job posting to which the grievor applied he was the Co-
ordinator of Specialty Biochemistry Laboratories consisting of Immunology, Toxicology,
Endocrinology and Maternal Serum Screening, and Trace Elements. Mr. Bak's background is as
a medical laboratory technologist who joined University Hospital, now part of London Health
Sciences, in 1987. Mr. Bak testified that he was part of the team that prepared the job posting
and assessed the applications and that he worked in conjunction with both the section head and
Ms. Angela Monaco, a Recruitment Advisor in Hunan Resources. It is the evidence of Mr. Bak
that there were eleven full -tune and three part -time applicants for the position. Mr. Bak testified
that he saw Mr. Sanidad's application and that he contacted all the fall-time applicants and pre-
screened them in a telephone call to ensure they met the minimum qualifications for the posted
position.
It is the evidence of Mr. Bak that while Mr. Sanidad was a certified Medical Laboratory
Technologist and was registered with the College of Medical Laboratory Technologists of
Ontario, he did not meet the minimum qualifications for the posted position in immunology as he
did not possess the recent experience in manual and/or automated immunoassays,
protein/urine /CSF electrophoresis, ELISA, and mass spectrometry that was stipulated as a
qualification required on the job posting. As such, Mr. Bak did not have Mr. Sanidad take a test
as the next step in the application process.
Mr. Bak testified that he applied the "recent experience' on the job posting as experience
obtained within the previous two years, and he spoke to the matter of why two years was used
rather than some other number of years. It is the evidence of Mr. Bak that there are specific
skills of a technologist that erode over time if not used, that the laboratories are dynamic with
changing technologies and instrumentation, and that tests are being added or removed on an
ongoing basis. It is the testimony of Mr. Bak that if staff don't have recent experience within the
two year time then it is difficult to train them in the standard twelve week training cycle to
ensure the success of the candidate and patient safety. Mr. Bak testified that immunology is a
relatively small specialty laboratory that does not have sufficient numbers for a full-time training
person so the training is clone on a one on one basis by a senior technician and a bench technician
who sign off on the trainee when qualified and who are not able to do their own work while they
are working as trainers. It is the evidence of Mr. Bak that it would take more than six months of
input from the trainers, with added cost and where cost is an important factor, to train. Mr.
Sanidad who has had no immunology experience since 2006 and who had a rather small number
of hours in immunology on a casual basis at an earlier date, before he would be competent and
produce a quality result.
Iu cross - examination Mr. Bak testified that for specialty laboratories he has found that two years
is the right cutoff time for recent experience. He also clarified that the standard twelve weeks of
training is spread out over time, with the trainee then putting the newly acquired skills to work
on the bench following each module of training. He testified that it could take a total of six to
twelve months to work through all the benches. The parties agreed that the successful candidate
for the position to which Mr. Sanidad applied received sixty full days of one-on-one training on
various benches in the immunology laboratory between February 7, 2012 and October 9, 2012.
It is the position of the Union that while it does not dispute that having recent work experience in
an area is a relevant factor in the assessment process, it cannot be used as a factor to screen out a
candidate and deny an interview in circumstances where the Employer will be providing
significant training to the successful applicant so that the duties of the job can be satisfactorily
performed. The Union submits there are a number of factors that influence the length of time it
takes to train a person, and not just whether the person has recent experience working in the area
as submitted by the Employer. It is put forward by the Union that any Medical Laboratory
Technologist has the basic competencies and ability to step into a new laboratory and be trained
on the new skills, techniques, and procedures. In its submission the Union makes clear that it
does not dispute the outcome of the competition, and where the successful candidate has more
seniority that the grievor, but it has issues about the process and sees the use of recent experience
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in the relevant area as a screening device that results in a run on seniority rights. As remedy, the
Union seeks a declaration that the Employer violated Article 13.06 of the collective agreement
when evaluating and screening out candidates for the posted position by using a criterion not
connected to the requirements of the job. In support of its position and submission the Union
made reference to the following arbitral authorities: Re Tung-Sol of Canada Ltd. and UE.,
Local 512 (1964), 15 L.A.C. 161 (Reville); Re Canadian Food and Allied Workers Union,
Local 175 v. The Great Atlantic and Pacific Company of Canada Limited [1976], O.J. No. 32
(Ontario Divisional Court); and to Kingston General Hospital and Canadian Union of Public
Employees, Local 1974 (2010), 191 L.A.C. (4h) 97 (Chauvin).
It is the position of the Employer that it has not violated the collective agreement and that the
grievance should be dismissed. It takes this position on a number of grounds, each of which is
rooted in the need for there to be a violation of a collective agreement provision in order for the
grievance to succeed. First, that Mr. Sanidad has grieved that he was denied an interview. The
employer submits that there is nothing in the collective agreement that requires an applicant
receive an interview, and that in this instance Mr. Sanidad did in fact receive a telephone
interview as an early step in the process. Second, the Employer notes that there is no allegation
by the Union that the Employer violated the job posting provisions as set out in articles 13.01
and 13.02 of the collective agreement. Third, that Mr. Sanidad is not saying that the incorrect
candidate was placed in the position thereby violating Article 13.06, and indeed the Union is not
challenging the. incumbancy of the candidate selected by the Employer. Fourthly, there is no
requirement in this collective agreement for the Employer to provide training so that a medical
laboratory technologist can work successfully in a specialty laboratory. However as a good
employer the Hospital notes that it does offer training and that, in doing so, it can decide under
its retained management rights how much training it wishes to provide and how much cost it
wishes to incur, and that it has determined that it does not want to provide more than three
months of training to a candidate. Finally, the Employer submits that the Arbitrator can review a
complaint by Mr. Sanidad that the wrong candidate received the job but respectfully submits that
the authority of the Arbitrator in this matter does not extend to reviewing the process of
evaluation as this falls under management rights that are not circumscribed.
The evidence and the positions of the parties have been carefully considered. The grounds on
which candidates are to be evaluated in filling a job posting are set out in Art. 13.06 in the
following way:
In filling posted vacancies the selection shall be made based on skill, ability, experience, and relevant
qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority shall be
the governing factor.
Art. 13.06 provides that the evaluation of candidates for a posted position is to be made on the
basis of skill, ability, experience, and relevant qualifications. What Art. 13.06 does not address
is the manner or the process by which candidates are to be evaluated. The evaluation process is
not governed by Art. 13.06, or by any other term of the collective agreement but, rather, is a
retained management right of the employer. Nor is -there any collective agreement provision that
requires the employer to interview each and every applicant for a posted position. Indeed, in the
case of Mr. Sanidad he did receive a short telephone interview from Mr. Bak who determined the
gdevor did not meet the minimum qualifications for the posted position in immunology as he did
not possess the recent experience in manual and/or automated immunoassays, protein/urine/CSF
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electrophoresis, ELISA, and mass spectrometry that was stipulated as a qualification required on
the job posting and that was applied by Mr. Bak as being within the last two years. As such, Mr.
Bak did not proceed any further with Mr. Sanidad's application, and Mr. Sanidad filed the instant
grievance.
The issue of the validity of a stated requirement in a job posting to the duties of the position is
not a new one and has been addressed in many arbitration cases, some of which have been
usefully reviewed in Re Kingston General Hospital and Canadian Union of Public Employees,
Local 1974 (Job Posting Grievance of Susan Kemp), (2010), 191 L.A.C. (4a`) 97 (Chauvin), a
case put forward by the Union in the instant arbitration. Included in the cases reviewed are Re
Reynolds Aluminum Co. of Canada Ltd and International Molders and Allied Workers Union,
Local 28 (1974), 5 L.A.C. (2d) 251 (Schiff; Re St. Joseph's General Hospital and Service
Employees Union Local 268, (unreported, November 14, 1999, Phillips); Re Kingston General
Hospital and Canadian Union of Public Employees, Local 174 (Murphy Grievance), [1992]
O.L.A.A. No. 663 (October 16, 1992, Simmons); Re Halifax Regional Water Commission and
Canadian Union of Public Employees, Local 1431 (unreported, March 11, 1998, Outhouse); Re
General Dynamics Canada and Independent Union of Defense Contractors (2006), 150 L.A.C.
(4ffi) 41 (R-M. Brown); Re Saint Joseph's Health Centre (Toronto) and Canadian Union of
Public Employees, Local 1144 (unreported, March 22, 2007, Nairn); and Re Sault Area
Hospital and National Automobile, Aerospace, Transport and General Workers Union of
Canada (CAW-Canada) Local 1120 [2008] O.L.A.A. No. 362 (June 16, 2008, Devlin). In
reviewing the findings and conclusions reached in these cases regarding of the validity of a
stated requirement in a job posting to the duties of a position, Arbitrator Chauvin stated at 153:
Finally, and most recently, in General Dynamics Canada arbitrator R.M. Brown upheld a
new requirement that the employer had added to a job posting and stated that:
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. An arbitrator's role is to decide whether a qualification is arbitrary, unreasonable
or in bad faith, not whether it is correct. These propositions are so well - established there
is no need to cite authority in support ofthem.
Iu St Joseph's General Hospital the job posting stated, similar to this case, that "current
experience and knowledge of the processing of OR and CSU instruments will be
required'. The grievor was denied the position because she did not have such current
experience. The union advanced essentially the same arguments that were put forward in
this case, including that the current experience requirement amounted to an unreasonable
restriction upon the grievor's seniority rights. Arbitrator Phillips dismissed all of those
arguments and ruled that the current experience requirement was valid and rendered the
grievor unqualified for the position.
The same conclusion has been reached in many other cases. In Kingston General
Hospital (Murphy Grievance) the Switchboard Operator job posting stated that "Two
years recent experience is required. In Halifax Regional Water Commission the Human
Resources Support job description required that the applicant "must have experience
working with a human resources system in a payroll/HR capacity". In Sault Area
Hospital the job posting for a Renal Dialysis Aide position required "Minimum one year
of experience as a Renal Dialysis Aide". In all of these cases the arbitrators applied a
standard of reasonableness, ruled that the above related experience requirements were
reasonable, and stated that an arbitrator should be reluctant to interfere with
management's right to determine such requirements for job postings.
The cases above, and in particular Reynolds Aluminum, St. Joseph's Health Centre, St.
Joseph's General Hospital and Sault Area Hospital, also establish that a trial period is a
period during which an applicant is entitled to demonstrate that he is able to perform the
job, but is not a training period during which the applicant is entitled to receive training
to become capable of performing the job. The cases establish that in the absence of a
specific provision in the collective agreement, an employer is under no obligation to
provide training for a job.
In relation to the instant case, the foregoing cases demonstrate that in reviewing the validity of a
stated qualification for a position in a job posting the role of the arbitrator is to decide whether a
qualification is arbitrary, unreasonable, or has been established in bad faith. In the present case,
and in the absence of a submission from the union that the recent experience qualification has
been made in bad faith, it is found that it is neither unreasonable nor arbitrary for the Hospital to
require an applicant for the full-time medical laboratory technologist position in the clinical
immunology laboratory of the hospital to have recent experience with manual and/or automated
immunoassays, protein/urine /CSF electrophoresis, ELISA, and mass spectrometry.
The evidence in the instant case discloses that immunology is a rather small specialty laboratory
and that the employer provides medical laboratory technologists coming into the area with
specialized training in order for them to be able to perform work to the standard required by the
employer. It is clear from the testimony of Mr. Bak that the training is provided by senior
technicians in the laboratory on a one -on -one basis who put aside their own work while training
with a certain resulting cost. From the evidence of Mr. Bak the length of training is three months
when the person being trained has had recent experience within the previous two years in the
four areas set out on the job posting. This requirement for training of this type is not something
that is mandated under the collective agreement, and is to be distinguished from a provision that
pertains to a trial period. On the basis of the foregoing it must be found that the amount of the
training given, if any, when it will be given, and how it will be provided is a matter that falls
solely inside the discretion of management. Further, should management decide to provide
training and limit it to a period of three months, as in the instant case, this is a decision that is
found to fall inside the discretion of management. Accordingly, the determination made by
management that a job applicant for the position is to have experience in the four listed areas
within the last two years, in order that training can be completed with three months of one -on-
one instruction, is not found to be unreasonable or one arbitrarily determined.
In the instant case the union submits that with three months training Mr. Sanidad could be up to
speed to do the job in the immunology laboratory, and that he was improperly denied an
interview by the employer's use of a screen that recent experience meant experience gained
within the most recent two years. In support of its submission in this regard the union made
reference to Re Canadian Food and Allied Workers Union, .Local 175 v. Great Atlantic and
Pacflc Co. of Canada, [1976] O.J. No. 32 (Ontario Divisional Court). This 1976 case pertains
to the correctness of the employer's application of predetermined job requirements and its
resulting assessment of the applicants. In the instant case the union does not dispute the outcome
of the competition and the awarding of the position to a candidate with more seniority, but
contends that Mr. Sanidad's application was not correctly assessed in accordance with Art. 13.06
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of the collective agreement which calls for "skill, ability, experience, and relevant qualifications
of the applicants" to be the basis for filling a posted position. Specifically, the contention is that
Mr. Sanidad was precluded from further consideration and an interview because the employer
considered only experience gained inside the previous two years.
The evidence makes clear that Mr. Sanidad holds the view that he possesses certain core skills,
by virtue of his training and being a registered medical laboratory technologist, which are
transferable and would enable him to work in specialized areas, such as immunology, with
additional training. In his testimony Mr. Sanidad specifically refuted the suggestion made that as
this is a specialty laboratory his re- training would take more than the twelve weeks set aside by
the employer as its training period.
Mr. Bak, a qualified medical laboratory technologist and the then Co- ordinator of Specialty
Biochemistry Laboratories, reviewed Mr. Sanidad's application and resume and contacted him
and the other full -time applicants by telephone to ensure they met the minimum qualifications for
the position. One of these minimum requirements was to have recent experience in manual
and/or automated immunoassays, protein/urine /CSF electrophoresis, ELISA, and mass
spectrometry. Mr. Bak applied the recent experience requirement as experience obtained within
the preceding two years, because in his professional judgment experience within the preceding
two years was needed in order that the specialty training of the successful candidate could be
completed with twelve weeks of one -on -one training. Mr. Bak's testimony of the reasons
underlying the need for recent experience in the four areas makes sense. Technologies and
instrumentation change, specialty tests are being continually added or dropped, and specific
skills do gradually erode over time if not used. Mr. Sanidad's assertion, bearing in mind that he
is without recent experience in two of the four stipulated areas and has no experience at all in the
other two, that he could complete successfully the specialty training program in the immunology
laboratory within a twelve week period must be considered speculative and is not found to be
The evidence discloses that aside from Mr. Sanidad not having experience within the most recent
two years in these four areas, he has no experience at all in two of them. The job posting lists as
the third item of the qualifications required for the position of medical laboratory technologist in
the immunology laboratory as having "recent experience with manual and/or automated
immunoassays, protein/urine /CSF electrophoresis, ELISA, and mass spectrometry". Mr.
Sanidad's evidence shows that he has no experience whatsoever with mass spectrometry and that
this subject was only briefly touched upon in his Technology Diploma program at Fanshawe
College which he completed some sixteen years ago in 1997. The evidence discloses that from
2004 to 2006 Mr. Sanidad worked for 425 hours (or a period of approximately twelve `full. -
time'weeks) as a casual employee in University Hospital of London Health Sciences with
somewhat less than half of these hours in the core laboratory and the rest in the immunology
laboratory. During this brief time in the immunology laboratory some seven or so years ago Mr.
Sanidad performed manual and/or automated immunoassays and ELISA tests, but obtained no
experience in performing protein/urine /CSF electrophoresis tests. On the basis of the foregoing
it must be found that Mr. Sanidad has no experience at all, let alone recent or inside the previous
two years, in two of the four areas of required work experience. The work experience he has in
the other two specified areas on the job posting are from the approximately 250 hours (or
approximately seven `full-time' weeks) he was in the immunology laboratory at University
Hospital five to seven years prior to the posting. This is neither recent experience, nor extensive
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nor intensive experience from an earlier time. It must be found that Mr. Sanidad did not have the
"recent experience in manual and/or automated immunoassays, protein/urine /CSF
electrophoresis, ELISA, and mass spectrometry" that was set out as a required qualification on
the job posting. It is found that the conclusion reached by Mr. Bak that Mr. Sanidad did not meet
the minimum requirements for the posted position was not an incorrect one.
Mr. Sanidad has grieved he was denied an interview for the position in the immunology
laboratory and seeks a declaration that the employer violated Article 13.06 of the collective
agreement by utilizing a criterion to screen him out as a candidate that was not connected to the
requirements of the job. It is found that, for all the foregoing reasons, Mr. Sanidad's grievance
cannot succeed. There is no requirement in the collective agreement for the employer to provide
an interview to all applicants, and the process by which candidates will be evaluated is not
governed by Art. 14.06. In a situation where job training for a position is required, it falls inside
the retained rights of management to decide how much or how little training it considers is
needed and wishes to provide. Further, should management as in the instant case decide to
provide training and limit it to a period of three months, and thereby requiring in its judgment
relevant experience in the area within the most recent two years, then this is a decision that is
found to fall inside the discretion of management. The requirement set out on the job posting for
candidates for the position to have recent experience with manual and/or automated
immunoassays, protein/urine /CSF electrophoresis, ELISA, and mass spectrometry is found to be
neither unreasonable nor arbitrary. Finally, not only did Mr. Sanidad not have the required
recent experience in the four stipulated areas, he had no experience whatsoever in two of them
and very minimal experience in the other two from five to seven years earlier. Mr. Bak
considered that Mr. Sanidad did not meet the minimum qualifications set out on the job posting
and did not advance Mr. Sanidad's application to the next stage of the process and, upon review,
this cannot be found to be an incorrect decision. Mr. Sanidad is found to have been not
improperly assessed.
The individual grievance of Mr. Alan Sanidad must, accordingly, be dismissed.
DATED AT LONDON, ONTARIO, THIS SIXTEENTH DAY OF MAY,. 201-3.
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