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HomeMy WebLinkAboutBalan 04-02-09 . J '. . ,'" IN THE MATTER OF AN ARBITRA nON FEB 1 \ ,lj~4 Between: Chatham-Kent Health Alliance ,(the "Hospital") - and - Ontario Public Service Employees Union (the "Union") and in the matter of job-posting grievances of Jeff Balan (03-149-191), Sandra Mcltitrye (03-149-1029) and Mandy Sherman (03-149-1030). Russell Goodfellow - Sole Arbitrator APPEARANCES FOR THE HOSPITAL: D. Brent Labord, Counsel Joan Whitson Debbie Ancocik Rudy Oldewening APPEARANCES FOR THE UNION: Mitch Bevan, Counsel Jeff Balan Mandy Sherman Sandra McIntyre A hearing was held in this matter in Chatham'on January 26,2004. D " AWARD This award arises out of three job-posting grievances. The grievances were filed in respect of a single position, that of full-time ECG Technician. At the time of the posting all of the grievors, as well as the successful candidate, were part-time ECG technicians and all had performed the duties of the position for many years. The successful candidate was also the most senior. The difficulty that arises, however, is with respect to the terms of the posting. In a commendable exercise in hearing room efficiency, the parties agreed to place before me, as a preliminary matter, the issue of whether the successful candidate - Barb Spicer - waS entitled to be considered for the position or whether she was properly excluded by the terms of the posting. If Ms. Spicer was entitled to be considered for the position, then, because the collective agreement contains a relative equality clause and there is no dispute that all four of the candidates were relatively equal within the terms of that provision, seniority would prevail and the grievances would be dismissed. If Ms. Spicer was properly excluded from consideration by the terms of the posting, however, it might then be necessary to continue the hearing to determine which of the three grievors was entitled to the posted position. Facts The posting for the full-time ECG position was prepared by Joan Witson. Ms. Witson is the Clinical Co-ordinator for the Cardio Respiratory Program. Under the heading "essential qualifications", the posting called for "certified ECG technician". At the time of the posting, Ms. Spicer and the three grievors were part- time ECG technicians. Ms. Spicer had held the part-time position since 1987. Over the I course of that time Ms. Spicer had accumulated approximately 24,000 hours seniority. Mandy Sherman, the second most senior applicant, has been a part-time ECG technician since 1990. Ms. Sherman has approximately 21,500 hours seniority. In addition, Ms. Sherman has completed a 12-lead electrocardiograph course at Fanshawe College. Sandra McIntyre, the next most senior candidate, has held a part-time ECG technician . . . 2 position since 1986. Over the course of that time Ms. McIntyre has accumulated approximately 19,000 hours seniority and has also completed an ECGtechnician course at Fanshawe College. The third most senior grievor, Jeff Balan, has held a part-time ECG technician position since 1990. Mr. Balan's seniority is approximately 17,000 hours. Mr. Balan has also completed a two-week 120-hour ECG program at Georgian College. In addition, Mr. Balan is a member of the Cardiovascular Technology Association of Ontario. Membership in that organization requires the completion of 1500 hours of on-the-job training in a Hospital, a practical examination and a four-hour written examination. There is no dispute that the incumbent and all of the grievors are qualified to perform the duties of the posted position and, indee~ all are good and competent ECG techniciàns. There is also no dispute that all of the grievors and Ms. Spicer are otherwise relatively equal within the meaning of the job competition clause of the collective agreement. ,"I,.. The posting was the first that Ms. Witson had prepared since she assumed the co-ordinator position approximately one and one-half years previously. It was also the first posting for a full-time ECG technician position at the Hospital in the last 10-15 years. When creating the posting it was Ms. Witson's expectation that all of the individuals in question would apply and it was not her intention to increase the qualifications associated with the position or to exclude any of the individuals from consideration. The purpose of including the word "certified" in the posting was to ensure that persons not currently in the position would only be considered qualified if they could perform the duties of the position without training. In other words, in the mind of management, the reference to "certified" meant "proof of minimal training to perform the duties". The absence of any reference to "equivalent experience", which appears in the job-description for the ECG technician position, was an oversight. In conducting her assessment for the position, Ms. Witson concluded that all of the applicants met the posted qualifications insofar as they had proof of knowledge, training and practical experience to perform the work and as would be required by any '. 3 form of certification. It was also understood by management that all of the existing part- time staff met the requirements of the posting on an "equivalency" basis. Finally, it bears noting that "ECG technician" is not a designated profession under the Regulated Health Professions Act and there is no province-wide or common standard or licensing ,- requirement for the position. Instead, there are a variety of courses, programs and organizations that provide for a type of training or examinations, some of which have been taken by the grievors. Submissions The Union submits that the posting is clear on its face. It requires certification as an ECG technician and makes no reference to "equivalent experience". The evidence establishes that all of the grievors possess some form of certification, while the successful' candidate does not. If the posting had said what Ms. Witson intended it to say, there would be no argument. However, it does not say "or equivalent experience" and the Union, which had no role in drafting the posting, and the candidates, are entitled to rely on its express terms. If the Hospital is able to say, after the fact, "oh well, we actually meant something different from what we said in the posting", the possibility for abuse is created. Although no such abuse, bias or bad faith is alleged in this case, the Union submits that to allow the Hospital's argument to succeed would give rise to that possibility in future cases. The bottom-line is that the posting called for certification, all of the grievors are certified, the successful candidate is not, and that is the end of the matter. Hospital counsel was quick to point out the irony of the grievances: the Hospital is being challenged for awarding the job to the most senior of four relatively equal candidates all of whom have been performing the duties of the position in at least a satisfactory manner for many years. The Hospital goes on to defend the grievance in two ways. First, it submits that the intended or actual qualification was ECG certification or equivalent experience and Ms. Spicer met that qualification. Second, in the alternative, the Hospital submits that when assessing candidates for posted positions it is entitled, if not also required, to consider equivalency to posted qualifications regardless of whether ,', 4 the posting so prescribes. considered for the position. On that basis, Ms. Spicer was properly entitled to be Decision I agree with both of the Hospital's submissions. I begin by referring to the language of the collective agreement. Article 15.02 sets out the content and purpose of job po stings as follows: "notices of vacancies . . . shall include, for information purposes: department, classification, qualifications" (emphasis added). The selection process is governed by Article 15.06, which states: , , In filling posted vacancies the selection shall be made based on skill, ability, experience, a1ld relevant qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority shall be the governing factor. It is to these two obligations that the Hospital is subject in any job posting situation. The Hospital must :first post the basic elements of the job (ie. department, classification, and qualifications) and then select ITom among the applicants on the basis of skill, ability, experience, seniority and relevant qualifications, in accordance with the prescribed test. It is clear ITom the evidence that the relevant qualifications for the position of ECG technician are ECG certification or equivalent experience, regardless of whether the posting so stipulated. That is what was intended by management, that is what is included in the job description and that is what is needed to perform the work in a satisfactory manner. The fact that the posting did not so indicate was an oversight. To now allow that oversight to dictate the outcome of the job competition would be to permit the faulty form of the posting to triumph over the substance of the position. That is sometlllng which the parties, in my view, have quite wisely precluded in their choice of collective agreement language. On that basis alone, I find that Ms. Spicer was properly entitled to have been considered for the position. 5 However, I am also persuaded by the Hospital's second argument. In my view, the evidence establishes that Ms. Spicer has achieved a form of practical equivalency to the posted qualification of "certification" (for which there is no agreed- upon standard or definition) through the successful performance of the duties of the position over the course of some 23,000 hours and 16 years. An employer's obligation to eXamIne the realities of the job and to consider equivalent qualifications to those posted is recognized in a number of authorities that were refeITed to by the Hospital. For example, in Sunbeam Home and London and District Service Workers Union, Local 220 (1983), 13 LA.C. (2d) 183 at 187, Arbitrator Rayner stated: There is no doubt that the employer may demand formal qualifications so long as those qualifications are consistent with the collective agreement and are reasonable in relation to the work to be done: see Re Oil, Chemical & Atomic Wor/œrs, Local 9-14 and Cabot Carbon of Canada Ltd (1970), 20 LA.C. 97 (Weatherill). No problem arises in this regard in the instant case Although there is little authority directly on point, several decisions have indicated a willingness by arbitrators to look at equivalent qualifications in order to determine if the grievor has,met the substance of the formal qualifications imposed by the employer: see Re Oil, Chemical & Atomic Workers, Local 9-14, and Cabot Carbon, supra, and Re Montreal Children's Hospital and Federation of United Nurses (1974), 8 LA.C. (2d) 17 (Bairstow). Indeed in an early case, Re Oil, Chemical & Atomic Wor/œrs, Local 9-639 and Union Gas Co. of Canada Ltd (1966), 17 LA.C. 398 (Thomas), the board accepted equivalent academic qualifications. In a case, similar to the present case, Re Borough of Scarborough and Scarborough Civic Employees Union, Local 368 (1977), 14 LA.C. (2d) 350 (Andrews), the board concluded that a grievor had equivalent qualifications. ' In that case, 'the posting required grade 10 or approved equivalent. The employer had established a course so employees could gain an equivalent. The grievor had neither formal grade 10 education nor completion of the course to his credit but direct evidence of conclusion a board of education examiner established educational equivalency to grade 10 which the board accepted. These authorities support a conclusion that a board of arbitration may examine equivalency in terms of formal educational requirements. This conclusion is also supported by common sense. Formal requirements relate to the job. To conclude that a person who lacks the . " 6 precise stated qualifications, when that person can clearly establish true equivalent qualifications would not only turn a blind eye to the realities of the situation but would also defeat legitimate expectations of employees without advancing any legitimate interest of the employer. To similar effect are the comments of Arbitrator Burkett in Toronto Public Library and Canadian Union of Public Employees, Local 1996 (1989), 5 LA.C. (4th) 192 at 200: '^' Equivalent qualifications are those that although not stipulated have equal significance or value in relation to the job at issue. The object of any job posting (whether or not under a competition clause) is to identify the applicants who have the "ability" or are qualified to perform the job that has been posted. Accepting that the employer (unless the collective agreement provides otherwise) has the right to establish relevant qualifications it would be a strange result, indeed, ,given the overriding purpose of any job posting procedure, if an individual who possesses equivalent qualifications is nevertheless declared unqualified. It is forthis reason that we hold to the view that in the absence of express language rendering the stated qualifications as absolutes, with no room for consideration of whether an applicant possesses equivalent qualifications, we ought not to infer that the parties would have intended such a result. "- ..0.., After referring to the Sunbeam case and an award of Arbitrator Adams, Arbitrator Burkett continued: 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. Apart altogether ITom our reliance on the absence of express language casting the qualifications set by the employer as absolutes we rely as well on art. 3.01 and, in addition, on the agreement between the parties in respect of the manner in which library assistant equivalencies are to be determined under this collective agreement. Article 3.01 stipulates that the board agreed to administer the agreement in a manner that is "fair and reasonable". It would, in our view, be both unfair and unreasonable, to treat the qualifications established under art. 13.01(a) as absolutes where there is no language making them so. The requirements of fairness and reasonableness dictate that the employer put its mind to each individual's qualifications with a view to determining if the individual is qualified by reason of having qualifications equivalent to those stipulated. To deny an applicant who possesses equivalent v' 7 qualifications from consideration on the basis of a mechanistic application of the stated qualifications, where such an approach does nothillg to further the busilless illterests of the employer, is the antithesis of a fair and reasonable exercise of managerial discretion. Perhaps even more germane to the present case, and whether viewed as support for the first or second argument of the Hospital, is the award in City of Edmonton and Civic Service Union No. 52 (1991), 20 LA.C. (4th) 445 (power). In that case, the arbitrator dismissed a grievance alleging that the employer had improperly considered equivalent experience and ability to do the job over the educational requirement set out in the job posting. At pages 447-448, the arbitrator stated: Except to the extent that the language of a collective agreement illdicates to the contrary, the jUrisprudential trend is towards the view that the decision as to who is qualified must relate to the abilities neCessary to do the job, because only those factors are relevant. To make a determination otherwise w.ould, be to make a, decision which was unreasonable, arbitrary, discriminatory, or otherwise lacked bonafides. Particularly bearing ill mind the jurisprudence which focuses its attention on the relevance of the factors considered by the selection panel ill relation to the abilities which a suitable candidate must possess to do the job, we find that a requirement specified ill a City of Edmonton job posting under this collective agreement may be deemed to have been met if it is obvious that the candidate possesses the requisite skills. Indeed, the city may have found itself ill hot water if it did not reach such a conclusion and could not demonstrate why the formal education was required ill addition to the skills which such a requirement was meant to manifest. The "requirement" is not one set by law, such as the need to hold a journeyman's ticket, or to be a member of the Law Society of Alberta, or to possess a valid driver's licence. It is a requirement set by the city itself, and the uncontradicted evidence before us illdicated that the reason for it was an attempt to ensure that applicants would possess a certain level of communications skills. Mr. Giesbrecht, possessed those skills, and the two people who did the evaluating decided on that basis that he was one of the applicants qualified to fulfill the duties of the position ill question. I cannot fault them ill law or fact for havillg reached that conclusion. Havillg made that determillation, they then correctly applied the balance of art. 10.01 by awardillg the position to Mr. Giesbrecht because he was the most senior qualified applicant. ," .. . '. , ' c .' ~ 8 The third of the foregoing paragraphs has particular meaning here. In my view, on the basis of the collective agreement language and the evidence before me, the Hospital would have been in considerable difficulty had it sought to introduce a requirement of "certification" - which is nowhere required by law - for the first time in the posting and, thereby, had precluded the candidacy of the most senior part-time incumbent who had been performing the duties of the job for many years. As I see it, the Hospital was not only entitled but 'required by Article 15.06 to consider the real qualifications required to perform the real duties of the real job and not to impose a qualification, not otherwise required by law, that would have the effect of precluding such an individual from consideration. In coming to this conclusion, I do not wish to be understood as minimi7.ing the ~ignificance of the job-posting. As noted by Union counsel, the posting docwnent is an 'essential element in the vacancies process and it must be respected. However, in circumstances in which, through an oversight, the posting does not accurately reflect the essential requirements of thejob and in which there is no evidence or allegation of any manipulation on the part of the employer or any attempt to include or exclude inappropriate or appropriate candidates, respectively, the precise terms of the posting must give way to the reality of the situation. On that basis, I find that Ms. Spicer was properly entitled to be considered for the position. Since, as I understand it, all four candidates were otherwise relatively equal within the meaning of Article 15.06 and Ms. Spicer was the most senior, it follows that the grievances must be dismissed. DATED at Oakville this 9th day of February, 2004. Bi}-',..".., \ 'l ,/ Russell Goodfellow - Sole Arbitrator