HomeMy WebLinkAboutPaquette 02-06-04
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IN THE MATTER OF AN ARBITRATION
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BETWEEN:
SUDBURY REGIONAL HOSPITAL
("Employer")
AND:
ONTARIO PUBLIC SERVICES EMPLOYEES UNION LOCAL 659
("Union")
AND IN THE MATTER OF:
SYLVIE PAQUETTE GRIEVANCE - REMEDY
OPSEU FILE NO. 00-659-109
ARBITRA TOR:
! Kevin M. Burkett
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APPEARANCE FOR THE EMPLOYER:
Geoff Jeffrey - Counsel
APPEARANCE FOR THE UNION:
Jim Gilbert - District Grievance Officer
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AWARD
In an award dated January 31, 2002, I found that the selection process in respect of
the Senior Therapist - Pulmonary Function Lab position that was posted on August 25,
2000 was flawed. More specifically, I found that "the use of so-called internal references
to break a tie in qualification as determined, by the selection committee breached article
( 13 .06 of the collective agreement; a classic competition clause under which the most
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qualified applicant is entitled to the position with seniority used as a tie breaker should the
qualification of two or more candidates be 'relatively equal'." I found that once the
selection committee, using all of the information at its disposal, including test and
interview results, determined that these two candidates were relatively equal in
qualification, the collective agreement required that the senior candidate be awarded the
position.
In this case, using a uniform grading system, the successful candidate scored 145.5
points whereas the grievor, who was senior, scored 144.5 points. A third candidate, who
was also junior to the grievor, scored 155.7 points. She chose not to grieve. The selection
éommittee found that these three candidates were relatively equal in qualification and,
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therefore, turned to internal references to break the tie. For the reasons articulated in the
award, the collective agreement does not contemplate that internal references will then be
relied upon to break a tie but rather that seniority will be used for this purpose.
The issue now before me relates to remedy. The Union, relying on the fIDding of
the selection committee that the three candidates were relatively equal in qualification, asks
me to award the position to the grievor, as the senior applicant. The Employer, on the
other hand, relying on authority which supports arbitral deference to employer decision
making, especially where there is a third applicant, asks me to direct that the competition
be rerun.
The Employer relies on Brown and Beatty, at para. 6:4100, as support for the
general proposition that an arbitrator lacks authority to remedy a successful job posting
challenge by awarding the disputed position to the grievor(s). The passage relied upon by
the Employer states that "where there are tWo or more applicants for a job, even though
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only one of the unsuccessful candidates grieves, the Ontario Court of Appeal has asserted
that unless the collective agreement specifically empowers the arbitrator to do otherwise,
where it is found that the employer's decision was unreasonable or discriminatory, the
matter must be remitted back to the employer for a new determination." However, as
relied upon by the Union, Brown and Beatty goes. on at para. 6:4100 as follows:
Notwithstanding this general reluctance to actually award a job to a
successful Grievor, there are some occasions, even where more than two
employees applied for ajob, in which arbitrators have considered it proper
to determine the merits of the competing claims on the evidence (despite no
competing claims in the instant case). In the fIrst place, where it is
established. from the nature of the irregularity, that there is nothing left for
the Employer to determine on a reconsideration, an arbitrator may make the
appointment directly.. ..
... Similarly, even under a "relative ability" test, if the senior employee is able
to prove his equality with the successful applicant, an arbitrator would not
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be transgressing any management prerogative in ordering the employer to
make the job available to the Grievor ....
Furthermore, other arbitrators have said that if the agreement does not
specifically provide that the assessment of an employee's skill or ability is
to be based on "management's judgment or opinion" the governing principles
articulated by the Ontario Court of Appeal may not be operative.
In all of these circumstances, it has been asserted that it would be within his
competence for the arbitrator to actually award the job to the successful
Grievor.
I start by confIrming that this collective agreement does not expressly reserve the
assessment of an employee's skill or ability to management's judgement or opinion, as was
the case in the collective agreement considered by the Ontario Court of Appeal in re:
Falconbridge Nickel Mines Ltd. and USW (1973) 1 OR 136. According to Zuibrycki v.
Crown in Right of Ontario GSB File #100/76 (Pritchard), upheld by Divisional Court in
R. v. OPSEU et al (1982) 35 OR (2d) 670, OPSEU {Frisken} and Crown in Right of
Ontario (June 5, 1997) unreported (Grey), St. Catharines General Hospital and Service
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Employees Union Local 204 (1975) 10 LAC (2d) 258 (Adams), Lever Bros. and Teamsters
(1994) 39 LAC (4th) 299 (Knopf) and Toronto and CUPE Local 79 (May 29, 1991)
unreported (Mitchnick), the absence of express language providing that the determination
of an employee's relative skill and ability is to be based on management's judgement or
opinion means that it is open to an arbitrator to make that determination based on the
evidence. This approach is consistent with the statutory scheme under which any dispute
as to meaning or application of any collective agreement term is to be remitted to
arbitration for fIDal and binding determination. It follows that express language would be
required to, in effect, remove the assessment of a grievor' s relative qualifications from the
ambit of arbitral review. Accordingly, while I am prepared to concede that considerable
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deference should be given to an employer's assessment of an employee's qualifications,
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as scrutinized under cross examination, I am not prepared to concede that an arbitrator,
duly appointed to interpret and apply ajob posting provision that does not contain express
language requiring deference to the judgement or opinion of management, is somehow
deprived of the jurisdiction that would otherwise exist to make a determination as to
relative qualification based on the evidence.
The existence of the third applicant who scored higher than both the successful
applicant and the grievor is a complicating factor here. However, in re: Frisken vs. Crown
in Right of Ontario GSB File #2034/94 (Grey), reference is made to Zuibrycki v. Crown
in Right of Ontario GSB File #100/76 (Pritchard) wherein it was held that unsuccessful
candidates to a job posting who have not grieved, "have forfeited any claim they may
otherwise have had to those positions." The arbitrator concluded that "by not grieving the
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other candidates are now foreclosed from claiming (or having claimed for them by the
employer) any rights in this arbitration." ' I adopt this conclusion here. The third
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candidate's failure to grieve, therefore, removes her from consideration.
The difficulty for an arbitrator in awarding a contested position to a grievor is the
reluctance to substitute his/her judgement for that of the employer. However, that would
not be the case here. This Employer, through its selection committee, determined, prior
to improperly turning to "internal references," that the third candidate, even though she
scored 155.7 points (10.2 points higher than the successful candidate and 11.2 points
higher than the grievor) was relatively equal in qualification to both the successful
candidate and the grievor. I know this is so because rather than simply selecting the third
candidate, it turned to "internal references" to break the tie. Accordingly, the selection
committee having determined that the grievor was relatively equal to the other two and the
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evidence being that the grievor's performance appraisals were excellent, any decision to
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award the position to the grievor, as the senior applicant, would constitute a confIrmation
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of rather than a substitution for management's assessment of her relative qualification.
Furthermore, on a practical level, the passage of some 19 months since the position
was filled by the successful candidate mitigates against a decision to direct that the
competition be rerun. The successful candidate has acted in the position for this period
and as a result has gained considerable hands-on experience that would give her an unfair
advantage over the grievor should the competition be rerun. Arbitrator Mitchnick, in
deciding not to rerun a competition in re: City of Toronto and Local 79 (supra), spoke of
the "experience that the (successful candidate) has gained in the job on the basis of the
Employer's unsubstantiated selection of him initially" and of the "hollow remedy" that a
rerunning of the competition would be in these circumstances. Similarly, arbitrator Knopf
in Lever Bros. and Teamsters (supra) spoke of "the virtual impossibility of discounting the
( on-the-job experience gained by (the successful candidate) no matter how hard one tried
to design a process to eliminate such a consideration." The same unfairness would be
present here if I was to direct that the competition be rerun.
In circumstances where the Employer has determined the three applicants to be
relatively equal in qualification, where the collective agreement stipulates that where two
or more candidates are relatively equal seniority shall govern, where the third candidate
has chosen not to grieve and where, in any event, the third candidate is junior to the
grievor, I have no hesitation in directing that the grievor, as the senior applicant of the
three applicants judged relatively equal, be appointed to the position forthwith and
compensated for the losses that she has incurred as a result of not being appointed in the
fIfst place.
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I will remain seized in the event of any difficulty with the implementation of my
award.
Dated this 4th day of June, 2002 in the City of Toront .
KEVIN BURKETT
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