Promotion, and the role of seniority in deciding who gets promoted, is an area of frequent disagreement between unions and management. Collective agreement clauses on job posting can be grouped along a continuum based on how much of the decision on promotion is governed by seniority and how much is the employer’s unfettered choice. The two extremes of seniority alone and management rights alone are prone to obvious abuses and are uncommon.
The majority of clauses fall under two headings: threshold clauses and competition clauses. In a threshold clause, applicants must demonstrate the ability to do the job. Of all the applicants who pass this threshold, the one with the greatest seniority is given the position. In a competition clause, seniority becomes a factor only if the two or more highest-scoring applicants are relatively equal in skill and ability.
There are several pitfalls to be aware of when posting a job.
First, the requirements in the posting must be a reasonable reflection of the demands of the job. An arbitrator will look badly on a set of qualifications crafted to narrow the field of applicants to a predetermined choice. Equally, stringent requirements intended to elicit the best-prepared candidate will not be acceptable if these extra demands are not necessary to function in the position.
Next, care needs to be given to the weighting of the various elements of the evaluation process. If a grievance is filed on “skill and ability,” this is likely to form the basis of the grievance. Factors such as experience, education and training, a practical test and an interview are commonly used to assess candidates. Each situation will demand a different weighting, but putting all the eggs in one basket is not going to satisfy an arbitrator. Examples of this are allowing a supervisor to choose the successful candidate based on his personal experience or overlooking 13 years of experience filling in at a position because another candidate had a great interview.
Equally, the scoring of the evaluations should be as objective as possible and the criteria should be established beforehand. Arbitrators will be loath to second-guess management’s decision unless they see evidence of arbitrariness, bias or manipulation. Answers need to be weighted and interviewers need to be coached on what responses to look for.
Finally, will the candidate be expected to perform immediately or will he or she be allowed a period of familiarization or even of training? Much depends on the language of the provision. In some cases, this delay can be used to demonstrate that one candidate is of relatively equal skill because it would be gained after a short time.
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