When employee changed her mind about new position, employer raised union hackles when it hired next candidate without re-posting
Two hopeful job candidates, Bill Cartwright and Jayne Warren, were disappointed and annoyed their employer, Molson Breweries, cancelled the job posting they had responded to. The position of engineering clerk had opened at the Etobicoke, Ont., plant when the incumbent Andra Law was awarded another job.
Unfortunately, when Law began job shadowing in the new position of transactional data coordinator (TDC), she found it was too much for her. Her pre-school children were frequently ill, and so was she. In fact, she was absent on nine occasions over the three months she was being trained. The fact she was often up all night to care for the youngsters made it impossible, she said, for her to concentrate on learning the new job. After 10 hours’ training, she told her union rep and management she wanted her old job back.
The problem was, Cartwright had already interviewed for that job and Warren’s was subsequently cancelled and not rescheduled. A third applicant’s interview was pending. Complicating things was not only had this third candidate, Kevin Spinney, applied for the job Law had left, he had also applied for the job she was hired into. Molson decided to let Law go back to her old job and gave the TDC position she vacated to Spinney.
Union demanded re-posting of job
The union launched two grievances on behalf of Cartwright and Warren. One accused the company, when it offered Spinney the TDC job, of filling a position it had not posted again as a declared vacancy after Law decided to leave it. Also, the union said the company had failed to notify the union of Spinney’s acceptance. The second grievance argued once the company had awarded Law the TDC job, it was prevented by the terms of the collective agreement from giving her her old job back. It agreed that accommodation on the basis of family status was appropriate but argued the way management proceeded was unfair. Law’s needs were temporary and could have been accommodated by a temporary solution –– one which would not have impinged on the rights of the other bargaining unit members to apply for her old job. And one which, under the Human Rights Code, should have been the subject of “meaningful discussion” between Law, the union and the company.
For its part, Molson asserted Law never left her old position. She certainly won the competition for the job but had declined it before she actually occupied it. Giving Law her old job back was the most suitable and appropriate accommodation of the family status issue. Forcing someone to accept a job they didn’t want would have been a “recipe for failure.” The company was within its rights to cancel the posting for her old job once she turned down the new one.
The company then assumed its posting process for the TDC job was ongoing and therefore did not re-run the competition. It felt it was within its rights to simply award the TDC job to runner-up Spinney who was “relatively equal to her in skill and second in seniority.”
Posted position was never officially filled: Arbitrator
The arbitrator said it was appropriate to allow an employee a brief familiarization with a new position; it was a question of common sense and fairness. She asked what employee “would summon the ambition and courage” to compete for a more demanding job if they could not return to their previous position if they couldn’t handle the new one? In this situation, the employer and the union had agreed to a one-month grace period. Although Law was taking training in her new job, she was also still working in her old one. Without a reasonable period of familiarization with the new position, the deal was not binding on her or the company.
The arbitrator found Molson might have been expected to take the request for tripartite discussion around accommodation more seriously except for the fact the rights of the other employees had not yet been affected.
“The company’s unilateral decision to accommodate a family status issue did not generate conflict between the individual’s right to accommodation and the union’s need to defend its members’ seniority rights and its collective agreement,” said the arbitrator.
Because Law was entitled to a reasonable period of familiarization before accepting the new position, the rights of the other employees “had not yet vested,” the arbitrator said. Both grievances were dismissed.
For more information see:
•Molson Breweries (Etobicoke Plant) and the United Food and Commercial Workers, Local 175 (Oct. 20, 2009), Elaine Newman –– Sole Arbitrator (Ont. Arb. Bd.).
