Arbitrator decries 'incongruity' in hiring
A labourer who worked for the city in Summerside, P.E.I., was not offered a promotion to equipment operator after he applied as the most senior employee.
Owen Sonier had worked for the City of Summerside since 2008 in various capacities. In 2012, he was hired as a semi-skilled labourer with the municipal works department.
On July 14, 2015, a position of equipment operator was posted and under necessary qualifications, it said the winning candidate “must have experience and show ability to properly operate all types of heavy equipment owned by the City of Summerside Municipal Works Section of the Municipal Services Department.”
Sonier and a more junior coworker in the same department both applied for the position. The other worker was promoted so Sonier filed a grievance on Aug. 15 through the Canadian Union of Public Employees (CUPE), Local 804.
“The competition for this position was unfair to Sonier as the other applicant, who is also a senior skilled labourer, was already placed in the equipment on a regular basis all winter and summer while equipment op did the labour work,” said the grievance.
During the testing process, both workers were asked to demonstrate competence on a backhoe and a frontend loader with a bucket. Owen MacDonald, operations supervisor, oversaw the tests.
When he operated the backhoe, Sonier did not engage stabilizing bars, which was deemed unsafe, said MacDonald. Sonier was given a passing grade nonetheless.
In the frontend loader test, Sonier testified, “I had difficulty so I stopped. I could not do the task.”
The other candidate was able to demonstrate competency in both tests, said MacDonald.
On Sept. 18, the city posted a temporary position as equipment operator and Sonier was awarded the position.
In the grievance, the union argued Sonier did indeed pass all the tests except for one (operating the loader with a snow plow) and as the senior candidate, he was entitled to be offered the permanent position.
And because the necessary qualifications section was the same for both permanent and temporary equipment operator positions, the fact Sonier was hired in the temporary slot meant he was qualified to be hired into the permanent operator position.
Arbitrator George Filliter, chair, and board members Bob Crockett and Wayne Carew, concurred.
“The grievance is partially upheld and the employer is ordered to appoint (Sonier) to the permanent equipment operator position posted in July 2015 and to pay (him) the difference between the rate of pay for an equipment operator to the rate of pay he received during a part of this period as a semi-skilled labourer in the municipal works department.”
However, Sonier was ordered to be given on-the-job training, as specified in the collective agreement, for six months and he had to serve a six-month trial period.
Sonier didn’t perform as well as he should have during the testing process, but MacDonald did award him a passing grade.
“(Sonier) acknowledged he was not able to perform the work on the frontend loader with the plow. This, in and of itself, is sufficient to the board to conclude (Sonier) did not meet the ‘necessary qualifications,’” said Filliter
But by then hiring Sonier in the temporary worker slot, the City of Summerside in effect displayed confidence in his abilities despite “an incongruity,” said the arbitrator.
“The actions of the employer in appointing (Sonier) to the equipment operator position on a temporary basis is significant. The evidence was the temporary equipment operator position was posted in accordance with the terms of the collective agreement and in the posting, the ‘necessary qualifications’ were identical to the ‘necessary qualifications’ found in the permanent equipment operator’s position as posted approximately two months earlier,” said Filliter.
Reference: City of Summerside and Canadian Union of Public Employees (CUPE), Local 804. George Filliter — arbitrator. Matt MacFarlane for the employer. Bill McKinnon for the employee. June 26, 2017. 2017 CarswellPEI 38
