HomeMy WebLinkAboutCadoo 14-09-051
In the Matter of an Arbitration
Between
Seneca College [employer]
And
Ontario Public Service Employees Union, Local 563 [union]
And
In the Matter of a Job Competition for the Academic Support Officer Position
Before: M. Brian Keller, arbitrator
Daniel Michaluk, for the employer
Jesse Gutman, for the union.
Hearing in Toronto on April 13, December 23, 2013, March 17 and August 15, 2014
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Award
This arbitration deals with the screening out of the grievor on two occasions from the competition for
the position of Academic Support Officer, School of Fashion, Faculty of Communication, Art and Design –
Newnham Campus. The grievor, at the time of the competitions, had performed the work, very
successfully, for approximately 3 ½ years. The eventual successful candidate was given notice of the
hearing, attended, and chose not to participate.
The first competition posting was July 13, 2012, with a closing date of July 19, 2012. The posting
indicated that one of the qualifications was a minimum of a two-year post-secondary diploma in
business or office administration. The posting was canceled and no one was appointed to the position.
The second competition had a posting date of October 29, 2012, and a closing date of November 2,
2012. It, too, had an educational qualification. As a result of internal discussions the qualification was
broadened from the earlier posting to read a “minimum of a two year post-secondary diploma that
included courses requiring analytical, interpretation of data, problem-solving and computer skills.” The
grievor, not possessing the minimum educational qualification, was screened out and not considered for
the position.
For a number of years, job postings appear to have provided for an equivalency to the educational
requirement, although they distinguished between educational requirement and experience. It would
appear, however, that in approximately 2010 equivalency was removed from at least some job postings,
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and perhaps all. Certainly, two job postings, one in May 2010 and the other February 2012, for Academic
Support Officer positions did not contain any equivalency to the educational requirement. The union
Local President acknowledged that she received copies of every job posting.
The parties are agreed that the employer has the right to establish qualifications for positions. They are
further agreed that the work of the position in question is complex and an academic qualification is not
unreasonable. Finally, the employer acknowledges that the grievor is qualified to perform the work in
question and was not considered only because she did not possess the required academic qualification.
The issue in this case, therefore, is a narrow one: did the employer have the right not to consider the
candidacy of the grievor on the basis that she did not possess the required academic qualification, or
were they required to consider her experience as equivalence to the required academic qualification.
The relevant provision of the collective agreement is article 17.1.1, entitled Consideration – Bargaining
Unit Employees. It reads as follows:
“When a vacancy occurs and employees within the bargaining unit at the College apply, the College shall
determine the successful candidate based on the qualifications, experience and seniority of the
applicants in relation to the requirements of the vacant position. Where the qualifications and
experience are relatively equal, seniority shall govern, provided the applicant has the necessary
qualifications and experience to fulfill the requirements of the position.”
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The union argues that there is no issue that the grievor is capable of performing the job in question.
What is at issue, it submits is whether the employer had the unfettered right not to consider that as an
equivalency to the educational requirements it set for the position in determining who should be
interviewed for the position. It acknowledges that if the grievor had been interviewed for the position,
the employer would have been within its right not to credit her for the educational requirement in the
job posting.
The union further submits that as the provision in the collective agreement refers to qualifications,
experience and seniority, none of the three can be looked at in isolation. Rather, it is an amalgam of the
three, and they must be looked at together.
The union argues that the employer had considered equivalency in the past and they had provided no
objective reason why equivalency should not have been considered in this case. It acknowledges that
the employer can set the bar for eligibility, given the language, but in the instant case, that line was
drawn in the wrong place. With respect to that, it argues that when the initial educational qualifications
were posted, they were limited. Following an internal discussion, the new posting significantly
broadened the educational qualifications such that almost any type of courses, certificate or diploma
met the educational requirements of the employer. This, according to the union demonstrates that
there is no logical underpinning for its educational requirement.
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Finally, it submits that even if there is no equivalency language, it is open to an arbitrator to determine if
the grievor meets the qualifications based on her experience.
A number of authorities were provided by the union. I have carefully reviewed those authorities and it is
my view that most are not on point. I will deal with what I consider to be the relevant authorities later in
this award.
The employer takes the position that it established a bona fide requirement related to the job, and in its
view that should end the analysis under the collective agreement. It submits that the job goes to the
most senior candidate who meets the requirements set by the employer. In the instant case, says the
employer, the argument of the union is not that the requirement is unreasonable, but rather that it was
required to consider the experience of the grievor as an equivalency to the educational requirement but
there is no contractual requirement for it to do so.
The employer submits that what it did in the instant case is no different than what it has done in the last
few years. That is, it has stated an educational requirement and has not considered an equivalency to
that requirement. It states that the union, which receives all job postings, has been aware of this and
has not grieved.
The employer submits that in determining the educational qualification it was not being arbitrary. It had
a rationale for its requirement and that it says is demonstrated by the evidence. Further, it argues that
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having an objective criterion, as did the instant case, ensures a fairer process and deals with any issues
of perceived favoritism.
With respect to the collective agreement, the employer submits that it has the right to establish
requirements for a position. It did so in the instant case, and the bona fides of those requirements are
not being questioned. The employer referred to various articles of the collective agreement to support
its position, but ultimately, the issue will be determined by looking at article 17.1.1.1.
With respect to that provision, the employer submits that the requirements of the position are
determined by management, as well as the necessary qualifications. The necessary qualifications are
mandatory: that is, they are required if an employee is to be successful in a job posting. Finally, the
employer submits that the article requires the candidate to have both qualifications and experience. It is
not sufficient for a candidate to have only one of the requirements. It is only where qualifications and
experience are relatively equal that seniority need be looked at.
The employer submits that the case law is clear that it has the right to set objective requirements,
subject, of course, to acting in good faith. It also submits that every word in the collective agreement is
to have a meaning and, in the instant case, the word “necessary” means that there is a requirement to
have both qualifications and experience.
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The employer provided various authorities to support its position. I will deal with any that I consider to
be relevant below.
As an aside, and with respect to authorities, I had asked the parties on the first day of hearing whether
there were any cases on point. Both parties indicated that they had not found any. In my review of their
authorities, I agree that there are no cases directly on point. But, as always, it is rare that there are no
authorities that are at least somewhat instructive in helping to resolve issues such as this.
In the instant case, it is acknowledged by the employer that the grievor is qualified to do the job, but
that she lacks the academic qualifications. It was on the basis that management has the right to
establish qualifications and that the grievor did not possess those qualifications that she was screened
out for further consideration for the position. The question is whether her experience in the position
should have been considered as an equivalency to the educational qualifications required.
There are, in this case, two competing principles. The first is the right of the employer to establish
qualifications for a position provided it does so in good faith and the qualifications are reasonably
related to the requirements of the position. The second is the often held view of arbitrators that the
purpose of a job competition is to find the person most capable of performing the job in question. Those
two principles, at least to some extent, come into play in this case.
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There appears to be no issue on the part of the union that the employer did have the right to establish
qualifications for the position in question, that it did so in good faith, and that qualifications are
reasonably related to the requirements of the position. There equally appears to be no question that the
grievor, who had performed the work in question for approximately 3 ½ years, was capable and,
perhaps the most capable of performing the work of the position. The issue is one of reconciling those
two principles in light of the provisions of the collective agreement.
The employer relied on a decision of arbitrator Martin Teplitsky in Re St Catharines General Hospital and
SEIU, Local 204 (1984) 13 LAC (3d) 378 to support its position. In that award, arbitrator Teplitsky wrote,
at page six as follows:
“… where management is afforded the right by the collective agreement to establish qualifications for a
particular position, once it’s determined that the qualifications not reasonable, that is, relevant, and
made in good faith, then, in my respectful opinion, it is not open to an arbitrator to require
management to accept an employee without such qualifications, notwithstanding the employee may be
able to perform to work competently.”
The award of arbitrator Teplitsky was commented on by arbitrator Burkett in Re Toronto Public Library
and CUPE, Local 1996, (1989) 5 LAC (4th) 192, at page 202. With reference to the award of arbitrator
Teplitsky, arbitrator Burkett wrote:
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“In that case, the job in question was a Maintenance Worker “B” that had welding as a basic
requirement of the job. The grievor, although prepared to learn how to weld, did not possess this skill at
the time he applied for the job. When reference was had to the facts of that case, the above statement
of arbitrator Teplitsky is easily reconcilable with the views of arbitrators Rayner and Adams. There is no
question of equivalency in Mr. Teplitsky’s case. The grievor did not know how to weld and, therefore,
was not qualified. There are no awards which I am aware that can be read as standing for the
proposition that an employer can be somehow forced to accept an applicant who is not qualified. Mr.
Teplitsky is correct when he states that, where management has the right to establish qualifications and
does so in good faith and the qualifications are relevant it is not open to an arbitrator to require
management to accept an employee without these qualifications. [i.e., an employee who cannot weld
were welding is a relevant, requirement]. He does not suggest, however, that where an employee has
equivalent qualifications, these equivalent qualifications can be ignored by management in refusing to
consider the individual. It is our view, along with that of arbitrators Rayner and Adams, that absent
express language to the contrary, an employer, in determining whether an applicant is, in fact, qualified
[that is, meets the qualifications established by the employer], must consider whatever equivalent
qualifications are brought to the competition by the individual.”
That last statement of arbitrator Burkett is a statement of position held by arbitrators consistently.
The most relevant authority, in my view, cited by either party is a decision of a Board Chaired by
Maureen Saltman in another Community College matter. (Loyalist College and OPSEU, Local 421, dated
October 16, 2001). In that case, there were two applicants for a posted position. Both were deemed
unqualified for the position. The grievor claimed that he ought to have been granted an interview as he
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performed the duties of the position, although he did not possess the educational qualifications
required by the employer.
The employer in that case, argued, as the employer in this case has, that it had a broad right to establish
the qualifications required for a particular position provided the qualifications were established in good
faith and bear a reasonable relation to the work to be done. It was submitted that deference ought to
be given to the exercise of the employer’s judgment in establishing qualifications.
At page 24 of the award, the arbitrator restated a portion of the employer’s argument as follows:
“The College further submitted that although posted qualifications may be disregarded where they are
higher than the requirements of the job would indicate, this is not such a case. Moreover, although it
was acknowledged that an employee may be exempted from an educational qualification, in
appropriate circumstances, such as where the employee has performed the job in question, in this case,
although the Grievor assisted in many of the job functions under Mr. Haskins supervision, he has never
performed the job without supervision. Furthermore, although one exception has been recognized for
employees who can demonstrate their ability to perform the job in question, an exception of this nature
has application only was the collective agreement provides for such a result, such as where the
agreement provides for a familiarization/trial period.” (emphasis added)
Further, at page 34, the arbitrator wrote:
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“Although there was no dispute as to the Board’s jurisdiction to consider equivalent qualifications, it
seems clear that the Building Maintenance Mechanic certificate, which the Grievor obtained, is not
equivalent…”
The arbitrator ultimately dismisses the grievance on the basis that there is no indication that the grievor
had ever performed the job, or even substantially performed the job, without supervision.
I find this decision particularly instructive because there was an acknowledgment in that case by the
employer, [and adopted by the arbitrator], that there can be an exemption from an educational
qualification in appropriate circumstances. One of those appropriate circumstances was where the
employee had performed the job in question, although it has been stated that an exception of that
nature has application only were the collective agreement provided for such a result, such as where the
agreement provided for a familiarization/trial period. Equally, there is no dispute as to the ability of an
arbitrator to consider equivalent qualifications.
In the instant case, there is no issue that the grievor is qualified to perform the work of the position as
she did it very successfully for over three years. This was explicitly recognized by the employer. In my
view the fact that she did the job clearly obviates the need for the collective agreement providing for a
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familiarization/training period. If there is no need for such a training period, then the acknowledgment
of the employer in the Loyalist College case, an acknowledgment adopted by the Board of arbitration,
becomes particularly relevant in deciding the matter before me.
To repeat, the acknowledgment of the employer was that an employee may be exempted from an
educational qualification in appropriate circumstances. As the Saltman Board did, I accept that as an
appropriate and equitable position to take. Thus, the only question that remains to be determined is
whether there were appropriate circumstances in this case. In my view, there were. The grievor clearly
demonstrated her ability to perform the duties of the posted position. To screen her out and not give
her an interview by not considering her experience as an equivalency to the educational requirement is
inappropriate. Under article 17.1.1.1, the employer has the right at the interview stage, to consider all of
her qualifications, including her educational qualifications. It would be open to the employer, at that
stage, to determine how to score her given her lack of educational qualifications.
The grievance succeeds. Given the particular circumstances of this case, where the grievor had
performed the work of the posted position, and had demonstrated her qualifications for the position,
her experience should have been considered as an equivalency for the educational requirements, and
she should have been interviewed for the position. It is to be clearly understood that this decision in no
suggests that the grievor would have been the successful candidate following the interviews of all the
candidates.
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This award deals with two grievances. There was no candidate appointed to the position after the first
job posting, which was the subject of the first grievance. Accordingly, I consider that grievance moot.
The employer takes the position that the second grievance is also moot. The union takes a different
view, and proposes that I either order that the job competition be rerun or that I appoint the grievor to
the position.
I would not, in any event, appoint the grievor to the position. At best, what I would do is to order that
the employer rerun the competition. However, there is the question of mootness as raised by the
employer. This question was not canvassed by the parties and, consequently, I am not in a position to
determine whether the employer is correct or not. I remit the issue of remedy to the parties. If they are
unable to agree on the disposition, including whether the matter is moot, the matter may be remitted
to me for final disposition.
I remain seized as required.
Ottawa, this 5th day of September, 2014
M. Brian Keller, arbitrator