Change in qualifications done without notifying union
A specialty gas operator who had worked at Air Liquide in Edmonton since 2003 didn’t win a promotion to a CO2 operator position because he didn’t have the correct technical qualifications.
Paul Semeniuk lost out to Scott Geddie, who held a fourth-class power engineering certificate and was awarded the position posted on June 9, 2015.
The ad originally called for “post-secondary education in petroleum science or a related field” but the requirement was upgraded and the union, Unifor Local 777, was not advised.
Two of the three current incumbents on the job did not have the fourth-class designation.
Geddie was given the position after an interview process, when one of the CO2 operators retired.
The wording of the CO2 operator was changed so that another contender, Lance Campbell, could not be slotted into the position, even though he had experience and was the most senior of the four applicants.
A back-up operator, Campbell was not considered for the open position because “we were not happy with Campbell’s performance so we were not comfortable giving the position to him because he was lacking technical qualifications,” said Prakash Kadam, plant supervisor.
Because Geddie was the only one who had the fourth-class certificate, he was the only one interviewed on June 22 and the next day he was awarded the position.
Semeniuk wasn’t considered because “he did not have the necessary technical qualifications or experience operating in the petrochemical or process engineering fields. We did not have him take the test because he did not meet the technical qualifications,” said Kadam.
But Semeniuk applied for the job because he wasn’t aware of the changed requirements. He was part of the bargaining committee when the collective agreement was negotiated and was familiar with the previous qualifications written in the position description.
In grieving the decision, the union called the new wording a “red herring” that should have had no bearing on the posting. It also removed related experience from the posting, which Semeniuk had.
“The company must show a substantial, demonstrable difference in qualifications between Geddie and the grievor, which it has not. What the company introduced was not a qualification, but was a requirement used to disentitle the bargaining unit members from further consideration. An employer is not permitted to create an artificial requirement to deprive applicants of their rights,” said the union.
Arbitrator Alan Beattie said the employer’s action in changing the wording was “clearly unreasonable and unfair” and should not have been undertaken.
“There was a total disconnect between the job descriptions and job posting on the one hand, and the ‘baseline requirement’ which the company decided, belatedly and unilaterally, that it required, on the other hand. It would certainly have been much better if the company had consulted with, or at least advised, the union of the change in the job description which might have led to some discussion and resolution and avoided the protracted proceedings which have followed,” said Beattie.
Beattie ordered the CO2 operator job to be reopened for consideration.
“In compliance with the collective agreement, and having in mind the factors enunciated in this award, assess the relative qualifications of Geddie, the grievor (and
Lamouche, who was another candidate), providing the same pre-test materials to him as were provided to Geddie (with a reasonable period of time permitted before the test), administering the same test and engaging in the interview," said Beattie.
The company must also not “seize upon minor differences to defeat the application of seniority,” said Beattie, and demonstrate by a “substantial and demonstrable margin” that Geddie was the best candidate.
Reference: Air Liquide Canada and Unifor Local 777. Alan Beattie — arbitrator. Cristina Wendel for the employer. David Williams for the employee. Jan. 18, 2017.
