Worker's return-to-work changed multiple times
After an accounting clerk at the City of Miramichi, N.B., went on sick leave in spring 2017, a vacancy was created after the clerk’s job was filled by someone from the finance department.
A finance-clerk posting was opened on June 16, and it was closed on June 22.
“The temporary vacancy for the finance clerk (collections) that was posted will not be filled at this time. The successful candidate declined the position,” read a letter from the city’s director of human resources, identified as “MS,” to the union.
Shandel Saunders, Canadian Union of Public Employees (CUPE), Local 3863 president, asked the employer if any temporary employees had applied or were considered for the position. The posting was noted by the union because the return-to-work (RTW) date for the original accounting clerk had been changed from Aug. 14, to Jan. 18, 2018.
After a meeting, the employer agreed to repost for a finance-clerk position.
But a qualified candidate didn’t appear and the posting was closed. Instead, Miramichi advised CUPE that the employer “currently has an open competition for temporary clerical staff which closes on Friday, Sept. 22, 2017, which may identify a qualified candidate.”
Three persons were hired into temporary positions on Oct. 30.
On Dec. 5, during a labour-management meeting, the union expressed displeasure because “an employee with 22 years municipal experience expressed interest in the position however, (employee ) was not being considered.”
On Dec. 21, MS emailed the union and said one of the new temporary hires would cover the open position and be paid 80 per cent of the wages until the new RTW date of May 1.
CUPE countered and said the new RTW should have been included in the posting because about 45 current employees may have applied if they knew that the position would last for that long.
On Feb. 1, 2018, CUPE filed a grievance and argued the city violated the collective agreement by not reposting the position (with updated information) when it was unfilled for 20 days.
The employer argued that reposting would have been too costly, especially considering the training costs. According to article 14:10, said the city, temporary employees may be hired to fill positions.
As well, the city was within its rights to end the posting process after the first candidate identified turned down the offer in June 2017, it argued.
Arbitrator Guy Couturier disagreed.
“I am of the view that the city did not respect its obligations under article 14 of the collective agreement and the grievance is thus allowed. I do, as a result, declare the finance clerk job posting process a nullity and order and direct the city to repost the position of finance clerk, using the same form but adding to it the expected duration of the term and the wage rate associated with the job, provided always, and only if, the RTW date of the accounting clerk is extended beyond May 1, 2018. Otherwise the repost becomes academic and of no useful arbitral or labour relations purpose.”
The employer “was not fair and reasonable in the manner in which it conducted the job posting of the finance clerk” and as a result, it didn’t “substantively comply” with the posting requirements of the collective agreement, said Couturier.
And the city’s actions harmed the hiring process, according to the arbitrator.
“It is the incremental omissions by the employer in failing to disclose and provide legitimate information to the union that had a cumulative effect, when considered as a whole, on limiting the ability of the union, and its members, to access information that affected decisions on whether to apply for the position and a possible corresponding reduction in the pool of otherwise skilled and qualified applicants available to the employer,” said Couturier.
“That is, it illustrates the lack of fairness exhibited in this dispute by management.”
Reference: The City of Miramichi and the Canadian Union of Public Employees, Local 3863. Guy Couturier — arbitrator. Clarence Bennett for the employer. Robert Le Moignan for the employee. April 28, 2018. 2018 CarswellNB 162
