Office politics sink contract worker’s bid for permanent job

After backing the wrong horse in an internal union turf war, a contract worker lost out on a permanent job with the national public service union — which was well within its rights to turn her down, an arbitrator has decided.

However, the union was partly at fault too, for placing the would-be staffer in an untenable web of reporting relationships.

Valerie Dugale was a well-regarded communications professional with more than 20 years’ experience in strategic planning and running communications campaigns when she was hired on a temporary basis by the Canadian Union of Public Employees (CUPE) in October 2006 to work as a communications representative.

Though Dugale was hired by CUPE’s national office and reported directly to the national communications director, Dugale’s assignment was to work for CUPE Ontario. Consequently, Dugale also worked for, and answered to, both CUPE Ontario president Sid Ryan and to the regional director of CUPE Ontario.

Dugale was warned by the Ontario regional director that her position was delicate. While it was acknowledged that she was working for CUPE Ontario, she was reminded that her loyalty to CUPE national was required.

Dugale got into trouble in 2007 when she became associated with CUPE Ontario’s "Agenda for Change" — a campaign that sought to mobilize member support for a proposal to reallocate a greater share of the union’s resources from CUPE national to CUPE Ontario.

Dugale was seen handing out "Agenda for Change" leaflets at the 2007 CUPE national convention. She also joined a walkout staged by Ontario members when the motion was defeated.

Dugale’s actions were viewed by her employer as inconsistent with her primary duty of fidelity to the national union.

Dugale was advised by CUPE national that her contract would be terminated when it ran out in February 2008. However, after a strong reaction from CUPE Ontario, she was reinstated to another temporary assignment one month later. Dugale’s contract was renewed a couple of times until December 2008 when she was informed that her contract was again terminated.

Meanwhile, in August 2008, CUPE national posted Dugale’s job as a permanent position.

After Dugale applied for the job, she was notified that she would not be considered for the position.

The Canadian Staff Union, CUPE’s internal staff union, filed a grievance on her behalf.

The union said Dugale’s accumulated seniority from her two years at CUPE made her the senior qualified candidate. Her union also argued she had been improperly bypassed as a candidate for the posted job.

There was no question that she was qualified "on paper," the union went on to say, and she had the confidence of the leadership of CUPE Ontario. Further complicating the matter is that CUPE had done no formal evaluation of Dugale’s work over her two years at the union, and she had received no orientation. As a result, Dugale had clearly been placed in a "dysfunctional reporting relationship."

However, the employer stressed Dugale had not been terminated — her temporary contract expired and the employer maintained that it was under no obligation to rehire her.

CUPE added a number of minor behavioural incidents called Dugale’s suitability into question. However, the overarching question was whether or not the national union had the right to make a determination about the qualifications of the applicants for a permanent position.

The employer also questioned whether "suitability" for a position could reasonably be counted as a qualification and, if so, was the employer then able to pre-screen applicants that it judged did not have the necessary qualifications because they were unsuitable?

The employer argued Dugale’s actions in associating herself with CUPE Ontario’s "Agenda for Change" campaign were clearly contrary to the interests of her employer. In the circumstances, Dugale knew, or should have known, that she owed a duty of fidelity to her employer. Her failure to recognize that obligation made her unsuitable for a permanent staff position with the national union, the employer said.

The arbitrator agreed. The employer was entitled to look beyond Dugale’s "paper qualifications" and make a judgment based on how she performed her job.

"I agree that beyond the bare bones job requirements, the notion of qualification can and must extend to an individual’s ability to understand and function within a given institutional framework, with due regard to lines of authority and accountability," Michel Picher said in his decision.

It was also reasonable for the employer to consider whether an employee’s actions served to undermine working relationships in a manner that would be inconsistent with ongoing employment, he ruled.

Canadian trade unions are democratic institutions and politics are part of the business.

"Persons who, like the grievor, are hired in a professional capacity to serve the interests of a union, particularly at the executive level, must appreciate the importance of navigating the political winds which buffet a trade union from time to time."

While the arbitrator agreed that Dugale’s actions demonstrated a lack of judgment that made her unsuitable for the posted job. However, the employer bore some responsibility too, the arbitrator said.

"I am compelled to come to the conclusion that while the employer was correct in its view that the grievor did not have the necessary qualifications for the position of permanent communications representative, and if it is necessary to determine it, that she was not suitable for future employment with the national union, that is an outcome contributed to in equal parts by the grievor’s errors in judgment as well as by the national union to work intimately at the highest levels of the Ontario division. In my view this is a case of shared responsibility," Picher said.

In the end, CUPE was ordered to compensate Dugale for one-half of the wages and benefits she lost out on.

Reference: Canadian Union of Public Employees and Canadian Staff Union. Michel G. Picher — Sole Arbitrator. Ronald A. Pink for the Employer. Raj Anand for the Union. August 6, 2013. 43pp.