When a vacancy opens up in a unionized enterprise, managers should bear in mind that there are constraints on the type of process they use to fill the posted vacancy. Although such constraints may not be spelled out in so many words, provisions of the collective agreement may be used to overturn a staffing decision for which an interview was accorded too much weight. This is the message that emerges from two cases recently decided by Ontario arbitrators.
GREATER NIAGARA GENERAL HOSPITAL
In Re Greater Niagara General Hospital and Ontario Nurses’ Association (February 18, 1997), the grievor was an unsuccessful candidate for the position of Operating Room (O.R.) Charge Nurse. She had worked in the O.R. since 1972. Her accomplishments included taking a number of courses in nursing management and serving as acting Charge Nurse for periods as long as a week at a time. Her performance reviews were positive.
The selection process consisted solely of a written exam and a “behaviour based interview”, in which applicants were asked to respond to examples of effective and ineffective job performance by recounting anecdotes of how they had performed in similar circumstances. The interview alone counted for 85% of the score.
None of the three candidates achieved the required score and each was advised she was not qualified for the position. Management re-posted the position, and a new candidate with considerably less seniority was chosen.
The collective agreement provided that nurses were to be chosen for positions on the basis of “skill, ability, experience and qualifications.” If these factors were relatively equal among the candidates, seniority was to govern the selection.
At arbitration, the union argued that the Hospital had improperly relied solely on the results of the exam and interview to the exclusion of other relevant factors. As well, the interview was an inappropriate method for evaluating the factors set out in the collective agreement, as it relied entirely on the applicants’ ability to recall and recount anecdotes of past performance.
A majority of the board of arbitration agreed, holding that, while an interview may be a useful tool, the case law shows that it must not be used to the exclusion of other factors:
Based on these other factors, particularly the grievor’s satisfactory performance in the role of acting Charge Nurse, and because the other candidates in the first competition expressed no further interest in the position, the arbitrator concluded that the grievor was qualified and awarded her the position of Charge Nurse.
ACADIAN PLATERS COMPANY
An Assistant Maintenance position was at issue in Re Acadian Platers Company and U.S.W.A, Local 8059 (December 8, 1997). The collective agreement provided that, for promotions, “the Company shall select the senior employee provided such employee has the skill, ability, qualifications and physical capacity to perform the work.” In filling the position, the company relied solely on the results of a questionnaire and interview. When the position was awarded to the less senior candidate, the union grieved, arguing that the company had given too much weight to the questionnaire and interview in the selection process.
The grievance was allowed in part. The arbitrator noted that the clause in question was not competitive, and that the senior applicant did not have to show he was the best candidate, but only that he had sufficient ability to perform the job. The issue was whether the employer had erred in concluding that the grievor lacked this ability.
The arbitrator found that the employer had relied almost exclusively on the interview and questionnaire. Aside from the Plant Manager’s recollection of two instances of relevant work, the employer had considered nothing else. No records of the grievor’s work had been kept or consulted, and no effort was made to secure the views of mechanics the grievor had assisted.
Exclusive reliance on the interview process is very problematic, the arbitrator observed, particularly for the assessment of the type of skills involved here. Interviews are more useful for jobs requiring listening and communication skills, but this job required none of these. The skills needed by an Assistant Maintenance person were better assessed by methods which the employer had not chosen. However, because the evidence did not establish whether the grievor had the requisite skills, the arbitrator ordered that he be granted a short trial period in the Assistant Maintenance position.
In Our View
A provision such as the “relative equality” competitive clause in the first case gives an employer more latitude to select the best qualified candidate for a position regardless of seniority than a “sufficient ability” clause like the one in the second case. In both cases, however, the employer must assess candidates based on all the relevant factors. As noted in the Acadian Platers case, some types of position will permit greater reliance on interviews than others.
It is worth noting also that the scope of review by an arbitrator of an employer’s staffing decision may be narrowed by collective agreement language which provides that qualifications are to be determined by the judgment of the employer. In such cases, the arbitrator may be restricted to ruling on whether the employer acted reasonably in choosing the incumbent.
For further information, please contact Andrew Tremayne at (613) 563-7660, Extension 236, or J.D. Sharp at (613) 563-7660, Extension 233.
