Worker 'able to perform job' as required in agreement: CUPE
A school custodian at the New Maryland Elementary School in New Maryland, N.B., had worked as a custodian 1 and a school bus driver when she applied for an open custodian 2 position.
Olivia Grass worked for the employer, the Department of Education and Early Childhood Development, since 2014 and submitted her name for consideration when the position came open at the Harvey Elementary School in April 2017.
The job classification specification listed three years’ experience under the heading of qualifications.
When Tammy Johnston, human resources officer, reviewed the resumés, Grass listed “years of experience” in custodial duties and she said she had worked a total of 199.71 days as a custodian 1 with the school district.
But Johnston said that although she was the most senior candidate, she did not possess enough experience as a custodian and she wasn’t given the custodian 2 position.
Grass argued that because her experience as a bus driver included 1.5 hours per day cleaning buses and doing such things as sweeping, mopping, garbage removal and cleaning graffiti, bodily fluids and fingerprints from the bus, that meant she had plenty of experience with custodial work.
As well, she said she had worked about two weeks in total as a custodian 2 during her time with the district. And she was well-acquainted with the school’s cleaning suppliers, which she accessed from the same area that the custodians did.
The union, the Canadian Union of Public Employees (CUPE), Local 1253, argued that the phrase “able to perform the job” in the job description meant that Grass was qualified, and because she was the most senior employee who applied, she should have been hired.
As well, because Grass was only 74 days short of having the required three years of experience, the employer should have exercised discretion and awarded the position to Grass.
Arbitrator John McEvoy disagreed and dismissed the grievance.
“The qualification expressed in terms of ‘three years’ experience in custodial and minor maintenance work’ is specific. Grass does not satisfy this qualification,” said McEvoy.
When the union argued that the experience was not listed under a required qualification, and it should have been given less weight, the arbitrator took exception to that characterization.
“The union’s argument grounded on the absence of the word ‘required’ in relation to the ‘three years’ experience’ qualification is not tenable. While the word ‘required’ is used in relation to some of the subsequently listed qualifications in the classification spec and the posting notice, it is implicit in relation to the three years’ experience qualification given its location of precedence as the first qualification listed and the use of the word ‘minimum.’ It must also be observed that the statement of ‘required’ in terms of qualifications is also expressed by use of the phrases ‘is a requisite’ and ‘must have.’”
And Grass’ stated experience as a custodian 2 was challenged by McEvoy.
“The union drew the conclusion in closing argument that the employer must have confidence in Grass’ ability to perform the job or it would not have placed her in a custodian 2 position. Yet, there is no evidence that the employer actually placed Grass in a custodian 2 position. There would surely be a record of such a placement yet none was given in evidence in relation to the ‘day or two’ or even the ‘one week,’” said McEvoy.
Reference: Department of Education and Early Childhood Development and Canadian Union of Public Employees, Local 1253. John McEvoy — arbitrator. Louis Leger for the employer. Amanda Atherton for the employee. May 18, 2018.
