Not notifying union not enough to repost: arbitrator
A long-serving employee at Memorial University in St. John’s suddenly found herself out of a job after her position was eliminated.
Shirley Ebsary had worked for a variety of food-service employers at the university since 1982 and had been employed by the current service provider Aramark Canada since 2013.
After Aramark had received various complaints about the food products coming out of the on-site bakery, it decided that changes had to be made to staffing. A new position, cook 2, was created and it was posted on Aug. 30, 2017.
As part of the new classification, the successful candidate had to hold a Red Seal certification.
Ebsary applied for the position but was not given the role. Instead, it went to Scott Power, a more junior employee. The union, the Newfoundland and Labrador Association of Public and Private Employees (NAPE), grieved the decision on Sept. 14 and argued the employer acted in an arbitrary manner when it eliminated Ebsary’s position and required the new candidate to have the Red Seal designation.
However, Aramark promised it would help Ebsary gain the designation if she wanted it.
After the competition, Ebsary was hired into a part-time position with 25 hours of work per week.
NAPE argued that Ebsary had spent many years working in the bakery, including a stint as lead-hand for one year when she supervised Power; this more than qualified her to be awarded the cook 2 position, it said.
But the cafeteria needed a more senior person who could also work in the catering department at times, according to Barbara Henshaw, food service director, and Ebsary never did work in any other departments, unlike Power.
Power’s work in the bakery was noticed by students, who provided much positive feedback, said the employer.
Arbitrator James Oakley dismissed the grievance.
“The employer exercised management rights in a manner that was not unreasonable, arbitrary or in bad faith when it created and posted the cook 2 position and eliminated the baker 1 position in the bakery. The employer did not violate the collective agreement when it posted for the position of cook 2 in the bakery and selected Scott Power for the position.”
NAPE also grieved that the posting was not given to the union in a timely manner, but that was rejected by the arbitrator.
“It was not established that the employer supplied a copy to the local secretary. However, this failure was not a flaw in the job competition that would justify the cancellation of the job competition, the reposting of the position and a new job competition. (Ebsary) was aware of the job posting and applied on the posting. It is not alleged that anyone failed to apply on the job posting because they did not have notice of the posting. Therefore, any violation of article 15.01 had no effect on (Ebsary’s) application for the position, would not be grounds to repost the position on the facts of the case, and would not justify the redress requested by the union to restore the baker 1 position or alternatively to repost the cook 2 position,” says Oakley.
Despite the contention by NAPE that the position was created specifically for Power, this allegation was also dismissed by Oakley.
“Power testified that the executive chef told him this was the employer’s intent. However, there was contradictory testimony from the food services director that the position was posted and open to any applicant and that employees senior to Power could have applied for the position. The position of cook 2 was posted and any member of the bargaining unit could have applied for the position. It was not demonstrated that the competition process was arbitrary or in bad faith. There were qualified persons with greater seniority than Power who could have applied for the position but did not apply.”
Reference: Aramark Canada at Memorial University and Newfoundland and Labrador Association of Public and Private Employees. James Oakley — arbitrator. Harold Smith for the employer. Christina Kennedy for the employee. March 19, 2019. 2019 CarswellNfld 177
