Qualifications, ability outweigh nurse's seniority

Rigorous application process

Cathy Rooney was passed over for a teaching position with the Eastern Regional Integrated Health Authority in Newfoundland and Labrador in favour of an applicant with less seniority.

Following the employer’s failure to appoint Rooney to the position of nursing instructor II, her union filed a grievance on her behalf.

The Registered Nurses’ Union of Newfoundland and Labrador requested Rooney be awarded the position in accordance with the parties’ collective agreement and receive full retroactivity and full redress.

Rooney was not chosen for the position following a rigorous application process. Applicants were interviewed by three individuals, with the interviews lasting as long as one hour.

The employer then reviewed each of the candidate’s resumes, taking into account their education and experience as well as the evaluation of the interviewers.

At the end of the interview process, each applicant was assigned a score, with the highest possible score being 75. Rooney’s resulting score was calculated to be 31. The successful applicant was given 69.

The employer argued the successful candidate demonstrated a far greater capacity for teaching, as illustrated by her significantly higher score.

While the employer agreed seniority was a factor in the hiring process, it concluded there was a dramatic difference between the qualifications and ability of Rooney and the successful applicant.

Had the two candidates been close in qualification and ability, the employer said, the senior candidate would have been selected. But, in this case, one applicant was significantly more qualified.

The relevant provision of the parties’ collective agreement states that "in making all other staff changes, primary consideration shall be given to qualifications, ability and fitness to perform the required duties.

"Where qualifications, ability and fitness are equal, seniority as defined in Article 24 shall prevail."

The union, however, argued both Rooney and the successful applicant had equal qualifications, ability and fitness to perform the job. Because Rooney was the senior applicant, the union said, she should have been awarded the position.

The union detailed what it believed Rooney was entitled to by way of compensation as a result of the employer’s failure to hire her for the position, calculated to be in the tens of thousands of dollars based on the hours she had lost and the differential rate of pay.

Arbitrator Wayne Thistle sided with the employer, finding Rooney and the successful applicant were not equals in qualifications, ability and fitness.

"I have concluded the employer established appropriate qualifications for the position, it completed a fair evaluation of the candidates and reached an appropriate conclusion based on this evaluation," Thistle said.

"There are no grounds on which an arbitrator should interfere with the decision made by the employer."

The grievance was dismissed.

Reference: Eastern Regional Integrated Health Authority and the Registered Nurses’ Union of Newfoundland and Labrador. Wayne Thistle — arbitrator. Rebekah Coffin for the employer, Dave Conway for the union. June 3, 2015.

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