Ontario worker's seniority should have meant new role over successful candidate: arbitrator

An Ontario worker who was as qualified for a new job as the successful candidate should have been awarded the position based on her seniority, an arbitrator has ruled.

Central West Specialized Developmental Services operates group homes and a short-term assessment centre in Oakville, Ont. In January 2018, it posted a vacancy for a community nurse specialist, featuring work with an inter-disciplinary team delivering care to “individuals having developmental disabilities, challenging behaviours and mental health issues.” The position involved mostly independent work in the community.

Two full-time nurses applied for the position, with one of them having a seniority date about 17 months earlier than the other. The more senior applicant, Michelle Caetano, had been a registered nurse since 2006 and had been employed with Central West since 2012. The other applicant had been a registered nurse since 2012.

Each applicant was interviewed by the director of clinical services and an HR generalist. They conducted an oral interview with 13 questions and required written answers to three scenarios. The panel graded their answers, education, experience, and attendance to achieve an overall rating out of 100.

Caetano scored slightly higher in education and experience while both applicants scored the same for attendance and manager’s rating. The interview questions were scored separately by the two panellists and then averaged.

The collective agreement stipulated that when internal applicants for any jobs within the bargaining unit had qualifications relating to “performance, ability and experience” that were “relatively equal,” seniority should be the deciding factor.

Caetano ended up with a score of 74.125 and the other applicant scored 83.5, for a difference of 9.375 — a greater difference than the seven points that Central West had been using to define “relatively equal” since a 1999 arbitration award with a different union that it subsequently incorporated into its hiring policy.

Central West awarded the position to the other applicant. Caetano filed a grievance alleging that the company violated the collective agreement because the two candidates were relatively equal and she had more seniority.

The arbitrator noted that both candidates were well qualified for the position and the seven-point threshold that Central West used came from an arbitration award involving a different union.

The arbitrator also noted that the hiring policy also called for sample answers and benchmarks for the interview process, but these were rarely used and weren’t in this case. Allocating points without a standard for scoring answers “puts a veneer of false objectivity on what essentially becomes a purely subjective exercise,” the arbitrator said.

The evidence showed that both applicants had similar answers for many of the questions in which Caetano scored lower and the interviewers focused some of their comments on writing style, saying that Caetano’s answers were harder to follow. However, the arbitrator found that wasn’t the case on an objective reading.

“The difference in scoring on the written scenarios was not reasonable and illustrates the problem of the panel not being guided by sample answers or benchmarks,” said the arbitrator.

The other applicant scored four points better on the written scenarios, which meant that had they been scored equally, the total difference would have been 5.375 points.

The arbitrator also found that while Caetano scored higher on experience, it was only by one point — although the other applicant had about half of her experience.

In the oral interview, the evidence indicated that sometimes the interviewers failed to follow up by asking for details. It was unfair to score lower because of a lack of detail and made it more of a test of interview skills rather than skills related to the job, the arbitrator found.

The arbitrator determined that the other candidate was not demonstrably better in performance, ability, and experience and Caetano should be placed in the community nurse specialist position based on her seniority.