Collective agreement complicates hiring process
finding the best person for the job can often prove a daunting task — one that can have a profound effect not only on day-to-day operations, but on the overall health of an organization.
When hiring practices are outlined specifically in a collective agreement, that process has the potential to become bogged down in the particulars.
Cecilia Johnson, a long-term employee with the City of Regina, found this out the hard way.
Johnson filed a grievance against the city through her union — the Canadian Union of Public Employees (CUPE) Local 21 — after she was turned down for the position of supervisor at the city-run leisure centres.
Instead, the position was awarded to an external applicant.
Muddling the situation was the collective agreement between CUPE and the City of Regina. According to the contract’s hiring provisions, the most qualified applicant possessing the necessary qualifications would be selected for the position, provided that, if the applicants are "relatively equal," seniority would prevail.
As her union representatives saw it, Johnson was the most qualified candidate for the job. Not only was she a long-term employee with the Leisure Centres, but she was in good standing and had previously held similar positions. That included field health specialist and, more recently, community program consultant.
At the bare minimum, CUPE argued Johnson was relatively equal with the successful jobseeker, and as the collective agreement dictated, should have been awarded the position based on seniority. Seniority being the cornerstone for filling work positions, it should prevail above all else.
What is more is that the interview process was deeply flawed, according to the union.
The City of Regina which, after an extensive interview process, hired a supervisor whom they believed to be the best person suited for the job, submitted that its candidate was more qualified than Johnson by a "clear and demonstrable" margin.
As the city viewed it, the best person for the job should be the one performing the job.
The collective agreement was a means of compromise: the provision recognizes and gives weight to seniority, but depending on the nature of the position, backs ability as well.
As for the interview process itself, the city used a ranking system that consists of rating scales. That meant the hiring manager did not look at Johnson’s personnel file.
Despite this, the manager said he had a very "high opinion" of her, yet this did not warrant hiring her on.
In his decision, William Hood, who presided over the case, ruled that the city did not violate the collective agreement and followed due process in its hiring tactics.
The issue in front of him, he explained, was whether both candidates were "relatively equal" as well as whether the selection technique was flawed.
In both cases, the employer came out on top.
Because most "relative ability" clauses leave a wide berth for interpretation, reasonableness and correctness, employers might be limited by the scope of review. However in Johnson’s particular case, this was not the situation, Hood said.
"(With) ‘relative ability,’ the ability to perform the work is not good enough. The employee needs to prove that he or she can perform the work as well as other candidates for the job," he explained, adding that, in this case, she did not do so successfully.
Of concern not only for Hood, but for most arbitrators in these types of grievances, is that judges tend to show deference to the employer’s judgment and are hesitant to substitute their own judgment for that of the employer’s.
Therefore, Hood based his decision "on the grounds on which the employer made its selection, rather than the merits of decision."
Seldom is the selection process perfect, Hood continued, but the process the city established was both fair and reasonable, and hardly arbitrary, capricious or discriminatory. As a result, the grievance was dismissed.
Reference: The City of Regina and the Canadian Union of Public Employees Local 21. William Hood — arbitrator. Katrina Swan for the employer, Guy Marsden for the union. Nov. 14, 2013.
