External circumstances affect employment

Pina Ghandi filed a grievance against the Canadian Blood Services after the employer failed to consider her for a full-time position.

Ghandi, with the Ontario Public Service Employees Union (OPSEU) Local 5101, filed a job competition grievance when she was not awarded a full-time technical specialist position at the employer’s Brampton site. Ghandi was denied the position after being classified as an external applicant.

Ghandi started working for the employer in 2006 at its Toronto location. Because she did not work at the Brampton location, where the technical specialist position was located, she was considered an external applicant. Internal employees — working at the Brampton location — were given precedence.

The employer operates sites in Toronto, Hamilton and Brampton. All employees are included in a single bargaining unit covered by a single collective agreement, through each site is represented by a different local.

The union said she was in fact an internal candidate and should have been included in the competition for the position, arguing "internal" — as described in the parties’ collective agreement — meant internal to the bargaining unit as a whole.

In fact, the collective agreement specifically indicated that "bargaining unit seniority" was to be taken into account in cases of relative equality in job postings, with no reference made to "site" seniority. The union called for a re-run of the competition that would include Ghandi.

The employer, however, submitted the word "internal" can easily be understood as referring to one of its three sites. In fact, a clause in the parties’ collective agreement required that separate seniority lists were maintained for each site, the employer argued. This clause proved that the use of seniority was site-specific unless the collective agreement expressly states otherwise.

According to arbitrator Russell Goodfellow, a job-posting provision that distinguishes between internal and external applicants is one that distinguishes between bargaining unit members and those external to the bargaining unit.

"That," Goodfellow said, "in my view, is the normal and natural reading of such a clause, regardless of whether the employer’s operations are conducted at more than one location and regardless of whether, for reasons of history, employees at the different locations have separate local affiliations."

Goodfellow submitted that the presence of separate, site-specific seniority lists does not mean seniority rights only have meaning within the site unless expressly stated otherwise by the parties’ collective agreement.