Hiring process found to be in violation of collective agreement
Experience may not be everything to the Regional Municipality of Peel in Ontario, but it was ruled to be an integral part of the employer’s hiring process.
Teresa Borrelli — represented by the Canadian Union of Public Employees (CUPE) Local 966 — filed a grievance against the municipality after the Peel Region’s human services Department passed her over for a position that ultimately went to an employee with less seniority.
The full-time business analyst position was awarded to an employee with less than one year of experience as an acting analyst. The incumbent had significantly less seniority than Borrelli, who had been an acting business analyst with the employer for almost four years and who had 11 years of seniority.
Candidates' qualifications, experience, skills and ability were assessed through a written assignment and an interview.
The union contested that the selection process, arguing the employer did not consider all relevant information — including performance appraisals and references — in the assessment.
The union submitted the employer evaluated the applicants’ performance in the selection process rather than evaluating their performance in the workplace.
The collective agreement, the union argued, required the employer take experience into account during the hiring process.
While the employer agreed that experience is one of the factors the collective agreement requires to be assessed during the hiring process — along with qualifications, skills and ability — it argued it's at the employer’s discretion to determine the process by which experience is assessed and how it is weighted.
Qualifications and experience were sufficiently assessed by the written assignment and interview, management said.
Furthermore, the employer’s standard competition process provides that employees are considered equal if the differential in marks is five per cent or less. If the differential in marks between two candidates is five per cent or less, the position is awarded on the basis of seniority.
In Borrelli’s case, however, the difference between her final results and those of the employee ultimately chosen for the position was 11.33 per cent.
Borrelli and the employee were not judged relatively equal as a result, and therefore the position was awarded to the incumbent despite Borrelli’s wealth of experience.
Arbitrator Kelly Waddingham disagreed that the employer properly assessed experience as required by the collective agreement.
"It is not proper for an employer to rely upon, or place over-reliance upon, an interview and/or written test where other sources of information regarding the specific factors are available to it," Waddingham said.
"In my view, the assessment process used by Peel Region… did not facilitate a proper assessment of applicants’ experience."
However, Waddingham also found that the written assignment and interview were conducted fairly and the grading process for each was reasonable.
"The evidence shows that the incumbent’s answers on these questions were superior to those of the grievor," Waddingham said.
"The evidence with respect to the interview indicates that the incumbent provided more complete answers, and scored higher in critical areas related to the position."
Waddingham ruled, therefore, that the appropriate remedy was to allow the incumbent to remain in the position of business analyst and to declare that the employer violated the collective agreement by not engaging in a more thorough assessment of applicants’ experience.
Reference: The Regional Municipality of Peel and the Canadian Union of Public Employees (CUPE) Local 966. Kelly Waddingham — arbitrator. Gurjit Brar for the employer, Melvin I. Rotman for the union. Feb. 26, 2015.
