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HomeMy WebLinkAboutSpence 06-03-13 1}~IJ:I' 2£1135 11: 15 4154530977 K BURKETT N JESIN PAGE 02/05 IN THE MATTER OF AN ARBITRATION BETWEEN: CORNWALL HOTEL DIED HOSPITAL (the "Employer") AND: THE aNT ARIa PUBLIC SERVICE EMPLOYEES UNION T ,D-CAL469 --- --.- -. (the 'Vnion") RE: GRIEVANCES OF UNION & SPENCE # 2005-0469-0001 & 2005-0469-0003 SOLE ARBITRATOR: Kevin M. Burkett FOR THE EMPLOYER: L. G. Foreman - Counsel FOR THE UNION: Kristen Eliot - Counsel Eric O'Brien - Grievance Officer Hearing in this matter held in Cornwall, Ontario on March 2, 2006 K BURKETT N JESIN PAGE 03/05 03,11'1,/20115 11: 15 4154530977 1 AWARD I have both an individual grievance and a policy grievance before me challenging the April 2005 deëisÍon of the Hospital to award a full-time RPN position. to an applicant who is junior to the grievor. The successful applicant and current incumbent was served with notice and participated in the hearing. There is no dispute with respect to my authority to hear and determine this matter. The Hospital serves an area with a significant French speaking population. Accordingly, it seeks to maintain a French speaking capability within the ranks of its service providers. The Hospital posted a full-time RPN position in April 2005. This position had as a requirement advanced level fluency (oral) in the French language. The posting was carried out under article 9.17 of the fun-time col1ective agreement. Article 9.17 provides as follows: In fiIH.llg posted vacancies, both full-time and part-time applicants wilJ be given 'equal consideration. 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. For the purposes of this article only, bargaining unit seniority shaH be earned in either the full-time or the part-time collective agreement. Seniority governs, therefore, only where qualifications are "relatively equal". In this case the grievor, Debbie Spence, who was employed as a part-time RPN, had some 5953 hours of credited service at the time of the posting. The K BURKETT N JESIN PAGE B4/05 133/17/2005 11: 15 4154530977 2 successful applicant, Rita 81. Denis-Leduc, on the other hand, who was also a part- time RPN, had only 4019 hours of credited service. The grievor, therefore, was the senior applicant. However, at the time Ms. 81. Denis-Leduc was considered to have advanced level fluency in the French language while Ms. Spence was considered to have only intermediate level fluency in the French language. Given the requirement for advanced level fluency in the French language the Hospital detennined. . that even though both were competent RPNs, Ms. Spence's qualifications for the posted position were not "relatively equal" to those of Ms. St. Denis-Leduc such. that Ms. Spence could not rely on her seniority. The Hospital awarded the position to Ms. Denis-Leduc thereby precipitating the grievance before me. The evidence reveals that in the course of preparing for this arbitration the Hospital discovered that when her French fluency was tested Ms. St. Denis-Leduc was found to be at the intermediate level; the same level as the grievor. Accordingly, there was no longer any basis upon which to find that Ms. St. Denis- Leduc's qualifications were superior to the grjevor's qualifications for the posted position. Having regard to the foregoing and to the submissions of counsel I am satisfied that at the time of the posting, the qualifications of both Ms. Spence and Ms. St. Denis-Leduc for the posted position were, in fact, relatively equal. Accordingly, pursuant to article 9.17 of the collective agreement Ms. Spence was entitled to rely upon her seniority to claim the posted position. and I hereby so find. 4154530977 K BURKETT N JESIN PAGE 05/05 133.1l7l2~05 11: 15 3 There is no more important employee ,right under a col1ective agreement than seniority. It follows that where an individual's seniority rights have not been recognized in. circumstances where the collective agreement stipulates that seniority governs, as here, a ful1 and effective remedy is required. Having regard to the foregoing and to the submissions of counseJ, I hereby make the following remedial order: - The grievor is hereby ordered into the posted position of full-time RPN effective March 26, 2006. - The griever is to be paid $3000, less statutory deductions, for lost pay. , The payment is to be made to her by March 17, 2006. - The grievor is to accept the training necessary to achieve advanced French language fluency (oral) as soon as possible and is to aclúeve such fluency in no more than two years. - The Hospital wi~J facilitate the grievor's application for government funding to cover her tuition; wi11 be flexibJe in scheduJing the grievor's work in. order to accommodate her attendance at this training; and will pay an outside agency to test Ms. Spence's fluency at the completion of her training. - The incumbent is to return to part-tim.e status, into the grievor's part- time rotation effective March 26, 2006. 4154530977 K BURKETT N JESIN PAGE 05/05 03/17/2~05 11: 15 4 I remain seized in the event of any diftj,culty arising from the implementation of my award in this matter. DATED at Toronto, Ontario this 13m .