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HomeMy WebLinkAboutJohnson 19-09-19 1 IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT, S.O. 2008, Chapter 15 ~ BETWEEN ~ THE HUMBER INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING (“EMPLOYER or COLLEGE”) ~ AND ~ THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL 562) (“UNION”) AND IN THE MATTER OF THE GRIEVANCE OF P. JOHNSON BOARD OF ARBITRATION: Deborah Leighton, Chair Carla Zabek, Employer Nominee Pam Munt-Madill, Union Nominee APPEARANCES: For the Employer William J. Hayter, Counsel For the Union Lesley Gilchrist, OPSEU For the Incumbent Jeff Dutton, Counsel Hearing held in Toronto on March 7, 2017 and January 24 and 25, 2018 2 Introduction 1) The union on behalf of the grievor, Ms. Pam Johnson, a partial-load professor at Humber College, alleges that the college contravened Article 27.11 A and B of the collective agreement, the college’s hiring policy, and the Memorandum of Settlement, (MOS) dated June 23, 2009, by not giving appropriate consideration to her as an internal applicant for a full time position, Professor, Theatre Performance (academic posting #2016-098). Further, the college used a flawed hiring process and therefore denied her right to be awarded the posted position. The grievor seeks to be awarded the position and to be made whole. 2) The union takes the position that the college failed to consider the grievor’s application as Article 27.11 A and B provides before moving on to assess external candidates. In the alternative, the union stated that the employer must exercise its discretion fairly before moving on to consider external candidates. Only relevant factors should be considered in assessing an internal applicant. In a second alternative position the union stated that the employer must review an internal candidate in good faith: the right to a review is substanti ve, if made under the management rights clause of the collective agreement. The union noted at the outset of the hearing that the 2009 MOS added nothing to Article 27.11 A and B. 3) The college takes the position that the grievor’s application was given appropriate consideration as required by Article 27.11 A and B of the collective agreement. Having considered the grievor’s application, the college decided it was not prepared to offer her the full- time position and went on to consider external candidates. Although not required under the collective agreement, the college allowed the grievor to participate in that job competition. The college maintained that it had considered the grievor’s internal application in good faith, relying 3 only on relevant factors, and thus it denies that there has been any breach of the collective agreement. There is nothing in the article that gives a preference to internal candidates. 4) The incumbent, Ms. Sharon Moore, who was represented by counsel throughout the hearing, agreed substantially with the college’s position. Evidence 5) The college argued at the outset of the hearing that the only evidence we needed to hear was on the issue of whether the college considered the grievor’s application before going on to consider the external candidates. Since the union argued the grievor’s evidence on her credentials and experience was essential to the arguments that they were advancing, we allow ed the union to present this evidence. The union also argued we should not hear evidence from the incumbent as it was not relevant. Counsel for the incumbent submitted that the evidence was essential to his argument on remedy, and we allowed this evidence to be tendered. We will refer to additional evidence as needed in our reasons for the decision but a brief summary here will be helpful. 6) Most of the evidence before us is not contested. What is disputed is whether the grievor’s application was considered before the college assessed the external candidates. 7) The union provided evidence that Ms. Johnson has an MA from York University and had taught for 17 years in the Theatre Performance Program at Humber as a partial-load professor at the time of the job competition. She also taught at various times at George Brown College, York University, Sheridan College, Ryerson University, and Toronto School of Dance. She works as an artist, choreographer and producer of shows within and outside the college. Most of her work outside the college is in independent, not commercial productions. Commercial pro ductions include work, for example, at Stratford and Soulpepper. As a teacher, Ms. Johnson has 4 developed curriculum on dance and movement. Her specialty is on “contact improv”, a subset of modern dance. Ms. Johnson and at least one other internal candidate applied for the posting. 8) The grievor was not questioned or consulted about her credentials and experience before being advised that she had an interview with external applicants. Nor was the grievor advised that she had been considered for the position, before she competed with external applicants for the job. 9) The college provided evidence through Dean Bellamy that the employer wanted to hire a professor that would change the emphasis of the program to include more on dance and choreography. The college also hoped to attract a candidate with renown and ongoing professional contacts in the entertainment industry. The posting noted under qualifications that the college was seeking a candidate that “will maintain ongoing professional engagement”. The college was seeking someone with cachet, preferably, a leading practitioner in the industry to assist students in promoting their careers. 10) The Dean testified that he and the Associate Dean considered the internal applications first, before meeting with the bargaining unit members on the hiring team. They reviewed Ms. Johnson’s application and assessed her professional experience from her resume. It was not at the level needed to draw in more students in their view. The grievor’s resume did not reflect a focus on dance and choreography. They googled one of the productions noted on the grievor’s resume and concluded it was not reflective of what they were looking for in a candidat e. They were not prepared to give her the position. They wanted to see if one of the external applicants would be a stronger candidate. When the two members of the bargaining unit team joined the meeting, they were informed that the Deans had decided to include one of the internal applicants, 5 Ms. Johnson, in the interview process with external applicants. The committee then reviewed and shortlisted the external applicants. 11) The college proceeded with the interview process and decided the incumbent was a better fit for the program. She had tremendous experience and the cachet the college was looking for that would both attract students and assist them in launching their careers. Decision 12) The parties before us agreed that the case law on this article requires a sequence for considering applicants. Internal candidates are to be considered first. Surplussed candidates from other colleges and external candidates may be considered for the posit ion, if no internal candidate is selected. However, the parties disagreed on the standard of review for internal candidates. The union acknowledged that the college has wide powers to set the requirements for the job but maintains there is no evidence that the college considered the grievor’s application appropriately before interviewing her with the external applicants . 13) Thus, the first issue before us is what standard of review is required for internal candidates under Article 27:11 A and B. The next question is whether the evidence establishes that the college considered Ms. Johnson’s application before the external candidates as required by Article 27.11 A and B. The last is whether the college considered the grievor’s application using relevant criteria, in a fair and reasonable manner. 14) The parties relied on the following cases in support of the submissions before us: George Brown College and OPSEU (1993) 37 L.A.C. (4th) 107 (Burkett); OPSEU and Loyalist College, unreported, May 27, 1997 (Mitchnick); OPSEU and St. Lawrence College, unreported, October 30, 2003 (Starkman); Capital Regional District and CUPE (1989) 8 L.A.C. (4th) 307 (Munroe); 6 Beverage Services Limited and BWA (1988) 8 C.L.A.S. 80 (Freedman); Toronto Star Limited and Toronto Newspaper Guild (1976) 12 L. A. C. (2d) 148 (Arthurs); Loyalist College and OPSEU (1990) 9 L.A.C. (4th) 166 (Gallivan); Ontario Ministry of Transportation and OPSEU (2015) 123 C.L.A.S 22 (GSB); St. Lawrence College and OPSEU, (2006) 80 6 C.L.A.S. 323 (Maclaren); OPSEU and St. Lawrence College, unreported, November 8, 1989 (Brent); OPSEU and Fanshawe College [2008] O.L.A.A. No. 64 (Tacon); Ministry of Transportation and Communications and OPSEU, GSB 513/84; Ed Mirvish Enterprises Limited and the International Alliance of Theatrical Stage Employees et al, 2012 CanLII 102093 (ON LA) (Harris). We have reviewed these cases carefully. The first three cited in this list were the most helpful to us, as these decisions interpreted and applied Article 27.11 A and B. What is the standard of review for internal applicants under the article? 15) Our analysis must be guided by Article 27.11 A and B, and the caselaw that has interpreted it. Article 27.11 A and B provide as follows: 27. 11 A Notice will be posted in the college of all vacancies of full -time positions in the bargaining unit. Such notice will be posted for at least five working days. At the same time, notice of these vacancies will be sent to the union local president and shall be forwarded to the electronic Central Registry, maintained by the Council, where the notice shall remain posted for at least five working days. 27.11 B Where a vacancy of a full-time position in the bargaining unit occurs and is not filled internally, the college will give consideration to applications received from academic employees laid off at other colleges before giving consideration to other external applicants. For the purposes of this article, full - time and current partial load employees or persons who have been partial load employees within four months prior to the posting shall be considered internal applicants. Such consideration shall be given f or up to and including 10 working days from the date of posting as described in 27.11 A. Consideration will include review of the competence, skill and experience of the applicants in relation to the requirements of the vacant position. 7 This article was interpreted in 1993 in George Brown College, supra. The board found that there is no explicit standard for consideration of internal candidates in the article. The language included in Article 27.11 B, “that consideration will include a review of competence, skill and experience of the applicants in relation to the vacant position,” did not apply to internal candidates. 16) However, the arbitration board held that, given the college’s duty under the article to post full-time vacancies in the bargaining unit, there is an inherent obligation to consider those applications. This analysis was supported by the language in Article 27.11 B which states, “where a vacancy of a full-time position in the bargaining unit occurs and is not filled internally, the college will give consideration to laid off academic employees from other colleges ” and then external applicants. Thus, the parties established a sequence in Article 27.11 A and B for considering applications: internal applications must be considered first, then applications from laid off academic employees from other colleges, and finally, external applicants may be considered. 17) The issue before the board in George Brown was whether an internal candidate ’s grievance, alleging that she should have been awarded the position, was arbitrable. The board held that, while there was no express standard in the collective agreement to consider applications from internal candidates, it could not conclude that the language of the article was intended to give t he college an unfettered or absolute discretion “that is beyond the scope of arbitrable review.” Thus, the board concluded: … In the face of our finding that there is an implied restriction, albeit one that gives the College a broad discretion, it is open to the grievor to allege that 8 his/her application under article 8.12 (a) [now Article 27.11 A] was not given the consideration required under the clause. Absent an express standard for considering applicants, the board held that the college had broad discretion in considering applicants. 18) In Loyalist, supra, the board agreed with the reasoning in George Brown, that there was no express standard of review required by the article to consider internal applicants. However, the board said that there must be some standard of consideration: … There must be some standard that the College can be held to in executing its implicit undertakings in Article 27.11 A, and it is the proper application of that standard that stands as a precursor to the further processing stages agreed to by the parties under Article 27.11 B. The critical question therefore becomes: what is that standard? The board went on to state that: … It is worth noting that the “restriction” that the parties agreed upon to go into Article 27.11 B is not really much of a standard at all: the test is still one of “consideration ”only, and the clause states that such consideration shall simply include review of the factors enumerated; it does not exclude consideration of any other relevant factors in the College’s discretion, nor does it prescribe any particular weighting to be applied to such open ended list of factors. Further, the board found that the standard only applied to academic applicants from other colleges and not to external candidates ‘off the street .’ Given its placement in Article 27.11 B the board agreed with the decision in George Brown that it did not apply to internal candidates. 19) However, the board in Loyalist, also agreed with the union’s submission that it would be patently nonsensical to conclude that the parties intended that internal candidates get a lesser 9 standard of consideration, than candidates from other colleges. Thus, the board concluded as follows: it is reasonable to take the express “standard” articulated by the parties in 27.11 B as the minimum standard, at least, that could have been contemplated by the parties to be applied by the College in 27.11 A. The board in Loyalist concluded that without an express test in the article, it was difficult to review a college’s consideration of an internal applicant. However, noting that it was important to be practical, the board outlined criteria for assessing internal candidates as f ollows: 1) The College has an obligation to consider all applications at stage one, the internal bargaining unit stage, prior to turning to and taking into account applications that might be before it at stage two (consideration of external College applicants). 2) If the College, acting in good faith and on the basis of relevant considerations, does not make a selection for the posting from among the internal applicants presented, it may then go on to consider the applications that have come before it from other colleges… prior to moving on to consider any applications from other external sources. 3) As long as the College follows the steps here set out, properly and sequentially, and the posting nonetheless remains unfilled, it is open to it to go back and give further consideration to any and all applications that have been placed before it, and to make a final decision if it chooses from that entire “pool”. The board concluded given the above criteria that the obligation on the college under Article 27.11 A and B “is more a matter of proper ‘process’ than of detailed substance.” 20) The union argued using the test articulated in Loyalist and relied on the reasoning that the express standard in Article 27.11 B is a minimum standard for the review of internal candidates. The college maintained that even if this analysis is applicable to the facts before us, the college has satisfied the obligations under this test. 10 21) We agree with and adopt the reasoning of the board in Loyalist. The test noted above is helpful in assessing whether the college has satisfied its obligations under Article 27.11 A and B. If the standard in Article 27.11 B, while not applicable to internal applicants, is nevertheless, a minimum standard, then the college is obliged to consider an internal applicant’s competence, skill and experience as it applies to the requirements of the vacant position. Given the article states that consideration will include these factors, o ther relevant factors may also be considered and the weighting of these is up to the college. The boards in George Brown and Loyalist found that colleges have a broad discretion to decide on the appropriate applicant. 22) Consideration requires “a conscious effort on the part of the College to make at least a preliminary judgment on each of the internal applicants first” before assessing applicants from other colleges and then external candidates. There is nothing in the Article 27.11 A and B that requires the college to give the internal applicant the job, even if the person is qualified. Further, as the Loyalist test indicates, as long as the college follows the sequence required by the article, acts in good faith, using relevant factors, if the posting is not filled, it may give “further consideration to any and all applications that have been placed before it……” 23) In Loyalist, the board reviewed the evidence on whether the college had considered internal applicants first, before moving on to consider laid off candidates from other colleges and externals. The college scheduled internal candidates on the first day of interviews, and external applicants on the second day. There was no evidence that the college considered the internal candidates, before moving on to the external. The board found that, essentially, the entire pool of applicants was considered at the same time. This was inconsistent wit h the language of the article. The board held that the article and the decision in George Brown “require a conscious effort on the part of the College to make at least a preliminary judgment on each of the internal 11 applicants first… prior to turning its mind to the external applications that may have come in as well.” In the case before it, the board found that the college had not turned its mind consciously to assessing the internal applicants before considering the external candidates. Did the College consider the grievor’s application first? 24) In applying the Loyalist test to the case before us, the first question is whether the college considered the grievor’s application before the external candidates. This is an evidentiary question. The parties disagree as to whether the evidence establishes that the college considered Ms. Johnson’s application before assessing external candidates. The union asks us not to be persuaded by the college’s evidence that the grievor’s application was considered first, by the Deans before moving on to the external candidates. Union counsel argued that it was not until step two of the grievance procedure that the college claimed that the grievor had been considered before external candidates. The grievor was not advised of this consideration when she was scheduled for an interview with the external candidates, nor when she was told that she did not get the position. 25) Counsel emphasized that there was no documentary evidence to support prior consideration. There were no notes or any record of the meeting. The union urged us not to find that the employer considered the grievor’s application before they moved on to assess external applicants. The simple explanation for the lack of any record, in counsel’s view, is that the college failed to consider the grievor in advance of external applicants: instead the college wanted to see how the grievor compared to the external applicants. 26) Moreover, counsel for the union noted that Dean Bellamy testified that he had a conversation with the Associate Dean about the grievor’s application at the same time as reviewing 12 applications for the short list of external applicants. Counsel argued that this conversation was inadequate. Further, counsel submitted that it was a fatal error to exclude bargaining unit members from the consideration of the grievor’s application, but not from the formal interview process which followed. Therefore, the college breached Article 27.11 A and B, which gives the grievor the right to be considered first. 27) Counsel for the college argued that the grievor’s application was considered before the external candidates. The evidence of Dean Bellamy was credible, forthright in cross - examination, and should be accepted by the board as so. The Dean testified that the college wanted a candidate with more experience in dance and movement. The college also wanted someone with renown and ongoing professional connections to the industry – someone with cachet. 28) Counsel submitted that Dean Bellamy testified that he and the associate Dean considered the internal applications first and then the external candidates. They concluded that the grievor’s level of professional experience was not what they were looking for. It was not at the level needed to attract more students into the program. In response to the union’s argument that the Deans should not have done this without the full hiring committee, counsel argued that it is a management right to decide who makes the decision on the internal candidates. 29) Further, counsel submitted that the evidence is clear that when the two bargaining unit people on the hiring committee came into the meeting, Dean Bellamy advised them that one of the internal applicants had been shortlisted for an interview with the external candidates and one was not included. Then the four individuals reviewed the external applicants and made a short 13 list for the interviews. Thus, in counsel’s submission there was a conscious consideration of the internal applicants before the college moved on to assess external applica nts. 30) Counsel argued that the only evidence before us is that the internal applicants were assessed before the external candidates. In response to the union’s suggestion that there are no documents or emails that support consideration of the internal ap plicants, counsel argued that the college has satisfied the onus to show that the grievor’s application was considered before the external candidates. The Dean told the bargaining unit members of the hiring committee that they were going to put one of the two internal applicants on the shortlist to be interviewed with the externals. The college was not prepared to give her the job at this point but was not prepared to reject her application either. This evidence is uncontested. The bargaining unit people we re not called to refute this evidence and the Dean was not cross-examined on this point. Therefore, counsel urged us to find that there is positive evidence that consideration was given to the grievor before the college moved on to assess the external applicants. 31) Having carefully considered the evidence and the submissions here, we accept the evidence of Dean Bellamy as credible and forthright that the college consciously considered the grievor’s application before moving on to the external candidates. There is no evidence before us that contradicts Dean Bellamy’s testimony. The union members who joined the meeting and went on to assess the external applicants were not called. Thus, we find that the college turned its mind to the grievor’s application and decided, that while, grievor was a good candidate, she did not have all the qualities that they were hoping for in the successful candidate. It does not signify that the decision was made shortly before the union members joined the Deans to consider the external applicants. The union’s argument that the Deans’ conversation was not adequate consideration is better addressed under the second part of the Loyalist test, which addresses the quality of the 14 consideration. Further, we agree with the college’s submission that it is a management right to decide who evaluates the internal applicants. To conclude here, the evidence is clear that the college considered the grievor’s application before the external candidates and thus satisfied the sequencing requirement of Article 27.11 A and B. Did the college act in good faith and assess the grievor’s application using relevant factors? 32) The first part of the Loyalist test requires evidence that the internal candidate was considered before the applicants from other colleges and then externals. The second part of the test states that if that consideration was done in good faith, using relevant factors then, if the internal candidate is not selected the college may go on to consider applicants in the sequence listed in Article 27.11 B. To some extent there was overlap in the arguments presented to us using the Loyalist test. The second part of the test focuses on the quality of the consideration, as opposed to the temporal requirement of the article. 33) The union is not alleging that the college acted in bad faith in considering the grievor’s application but submits that the process was unreasonable and unfair. Counsel submitted that the consideration must be genuine. In order to be genuine, counsel argued that the grievor should have been interviewed before externals were considered. While there is no obligation generally for the college to interview every internal applicant, where a candidate’s qualifications are extensive, an interview is required. The consideration of the grievor’s application was a fraction of what was given to the external candidates, given that the interview process for external applicants was extensive. Moreover, the Deans did not talk to the grievor before making their decision. Therefore, she did not have the opportunity to fully show her suitability for the 15 position. Interviewing the grievor with the external candidates, did not cure the college’s obligation to interview her before the externals, in the union’s submission. 34) Further, appropriate consideration should have been to assess the grievor’s qualifications against the posting. Factors such as cachet or star power should not have been included in the consideration of her application. 35) Essentially, the union argued that the grievor was fully qualified for the position and had been doing it for years. Thus, she should have been given the position. The article gives an advantage to internal applicants and the grievor should not have had to compete for the position against the incumbent. Counsel argued that we had the power to order that the grievor into the position. 36) Counsel for the college argued that the process to consider the grievor’s application was reasonable and the college applied relevant factors in considering her application. Counsel argued that the college is entitled to set the criteria for the position and the union agreed with this. The college is not restricted to the criteria listed in the job posting in assessing applicants and can apply any relevant factors in considering applicants. 37) Counsel argued that having reviewed the grievor’s resume, the Deans concluded that she was a good candidate but lacked the kind of experience in dance and choreography that they sought for the position. She also lacked connections to the professional/commercial side of the entertainment industry that they needed to attract students to the college. These are relevant factors, given the college’s decision to change the focus of the unit. Therefore, in counsel’s submission the question here is really whether the Deans were unreasonable in concluding that the grievor’s qualifications did not meet what they were looking for in an ideal candidate. 16 38) However, it is not the grievor’s judgment on her ability that matters: the college has the discretion to decide how to fill a vacancy, provided that an internal candidate is considered first. Further, the deans are in the business of assessing job applicants and have the expertise that the board does not have. Therefore, the college’s decision on who to hire deserves deference. 39) Counsel for the college also argued that the college is not obliged to interview internal candidates before moving on to consider applicants in the sequence established by the articl e. The college has the discretion as to whether to interview internal candidates as part of the consideration process. Therefore, the process of considering the grievor’s application was reasonable and fair, applied only relevant factors and the grievance should be dismissed. 40) Finally, if the board was to find that there had not been appropriate consideration of the grievor before external’s were assessed, this would be a procedural defect. A procedural breach should not lead to the board ordering the grievor into the position. At most the board should order a declaration as to the breach of the collective agreement. 41) Counsel for the incumbent argued that Article 27.11 A and B gives the college discretion to hire. There is no preference for internal applicants in Article 27.11 A and B or in the case law which interprets it. Counsel argued further that boards are reluctant to interfere with an employer’s decision in cases like this. So, the only question is whether the college considered the grievor before moving on to the external applicants. If the griev or was considered, then the grievance must fail. If the grievor was not considered and there were significant flaws in the process the only remedy is a declaration that the competition was flawed. 42) Counsel for the incumbent emphasized that the collective agreement does not give us the power to appoint the grievor to the job. If we were to find that there was a flaw in the process of 17 considering the grievor’s application, a declaration would be appropriate or at the most an order to rerun the competition with both the incumbent and the grievor. 43) In summary, both the counsel for the college and the incumbent submitted that the evidence establishes that the grievor was considered first and the consideration was reasonable and fair. Therefore, the grievance should be dismissed. 44) Having carefully considered these submissions, a majority of the board has decided that the college acted reasonably and applied relevant factors in assessing the grievor’s application for the full-time position. As we found earlier in this decision, the college has broad discretion in hiring here. Article 27.11 A and B gives internal applicants the ri ght to be considered first, but there is nothing in the article that requires that an internal candidate get the position, no matter how qualified. 45) Moreover, the college has broad power as to how it considers an internal applicant. As both George Brown and Loyalist held the college is required to make a preliminary judgment on each of the internal applicants first, before assessing the external applicants in the sequence of the article. There is nothing in this standard that requires that the internal applicant must be interviewed, formally or informally, to be genuine. 46) In the case before us we have found that the evidence establishes that the college made a conscious decision on the grievor’s application. Dean Bellamy’s evidence shows that the college genuinely considered the grievor’s application. The college decided that the grievor did not have all the qualities that they were seeking in the ideal candidate. And although they were not prepared to give her the position, they chose to allow her to compete in the pool of applicants, as the third criteria of the Loyalist test provides. Having been considered first as an internal 18 candidate, it was appropriate for the college to give the grievor a further opportunity to be considered with the external applicants. Thus, the union’s arguments that the grievor should have been interviewed before the externals and should not have had to compete against them must fail. 47) Further, we find that the evidence proves that the factors such as experience in dance and choreography, and professional connection to theatre and ‘star power’ or cachet are relevant considerations. Dean Bellamy testified that the college was changing the focus of the unit. The college sought to hire someone with established, ongoing connections to professional theatre and the job posting included this factor under qualifications. We heard evidence that professional theatre here meant commercially successful productions. The grievor acknowledged in cross - examination that she lacked this kind of professional experience. Given the college’s goals of attracting more students, it was relevant to seek out a candidate with ‘star power’. 48) The crucial point here is that the college gets to set relevant factors for assessing candidates, and to judge whether an internal candidate meets the se factors for the posted position. Counsels for the college and incumbent argued the decision on the relevant qualities that an employer seeks in a candidate and the assessment of those factors must be given deference by this board. We agree. As the board in St. Lawrence, (2003) supra, stated: Boards of Arbitration are reluctant to interfere in the job posting process, unless it can be demonstrated that there is something significantly wrong with the selection criteria or the selection process followed by an employer, or that the decision to exclude a qualified candidate is demonstrably wrong or made in bad faith. In sum, there is nothing in the evidence before us to support a finding that there was anything wrong with the selection criteria or the process. On the facts before us, the college considered 19 factors relevant to the goals of hiring for this position. The process used by the college to assess the grievor was reasonable and fair, and met the requirements of considerati on under Article 27.11 A. The decision deserves our deference. 49) Consequently, for the reasons given above, a majority of the board finds that the college did not breach Article 27.11 A and B and the grievance is hereby dismissed. Dated at Toronto this 19th day of September, 2019 Deborah Leighton Deborah J. Leighton, Chair “Pamela Munt-Madill” Pamela Munt-Madill, Union Nominee, dissenting “Carla Zabec” Carla Zabek, Employer Nominee, concurring Dissent by Pamela Munt-Madill The Majority of the Board has found that the consideration given to the G rievor’s application prior to the pooled competition was sufficient under the terms of the Collective Agreement. With all due respect, I disagree. The terms of the Collective Agreement require the College to give appropriate consideration to internal applicants prior to moving on to consideration of other applicants. The College has discretion to decide on the composition and procedure of the hiring committee which make these determinations. The College in this case decided on a hiring committee composed of the Dean of the Faculty, the Associate Dean and two bargaining unit employees. However, when the decision was made regarding the internal applicants, the full committee was not present. The absence of the full committee ensured that no internal applicant could have been successful. The absence of the full committee disregarded the procedure set up by the College to hire into the position. The failure to comply with the College’s own established procedure cannot be said to constitute legitimate consideration of the internal applicants as required by the Collective Agreement. Furthermore, the content of the College’s consideration is fatally flawed because of the College’s failure to inform the Grievor, during the internal application process, of the substantive changes to the job position. The Grievor had taught in the posted position on a contract basis for a significant period of time prior to her application. The position which was posted, and for which the Grievor prepared her application, purported to be this same position. However, the Dean’s evidence established that it was the College’s intention to take the program in a significantly different direction and that the individual who would be hired into the position would need to demonstrate different qualities and strengths than had previously been the case. The Dean’s evidence also established that there was no indication of this change in the job posting information. The job posting was the only information available to the Grievor prior to her application for internal consideration. The failure of the College t o inform the Grievor of this significant change prior to her application being considered deprived her of the opportunity to fully demonstrate her qualifications for the new position during the internal applic ation process. This failure violates the duty of consideration owed to the Grievor and any other internal applicant. For these reasons I would find that both of these flaws result in the interna l application process being insufficient under the terms of the Collective Agreement and would send the matter back to the Board for a decision on remedy.