Qualifications deemed more important than seniority for bumping purposes

Collective agreement clause didn't include training program

Qualifications deemed more important than seniority for bumping purposes

A worker for a federally regulated company was not entitled to bump an employee with less seniority because he didn’t have the full qualifications for junior employee’s position.

Nordion is a company that processed radioactive material from nuclear reactors for use in the health-care sector with locations in Ottawa and Laval, Que. It hired Steven Muldoon in 2009 to work in the medical isotopes area of the company.

In the summer of 2016, Nordion laid off 26 employees. One of the laid-off employees had more seniority than Muldoon and chose to displace him under the collective agreement’s bumping clause. The clause stated that an employee being laid off “will have the alternative of being laid off or displacing an employee with less seniority, in an alternate classification in the same or lower salary range, provided the employee designated for layoff has the skill, experience, and capacity to perform the required work. In these circumstances a reasonable period of familiarization will be provided.” The period of familiarization was generally about four weeks.

The same clause allowed Muldoon the option of bumping another employee with less seniority. He selected six jobs that he felt qualified for — five in the medical isotope area where he had worked for all of his seven years with Nordion and one was the position of junior source production technician (JSPT), an entry-level job in the gamma technologies area.

Nordion found Muldoon didn’t have enough seniority to move into any of the medical isotope jobs. As for the JSPT position, it found he didn’t have the skill or experience to move into the gamma technologies area and refused to bump him into that job at the expense of employees who had less seniority but were more qualified. The JSPT position required working with different equipment than the medical isotope area and electromechanical experience. In addition, safety was a priority with the position and the Canadian Nuclear Safety Commission required a full training program that would take longer than the familiarization period allowed by the collective agreement.

Muldoon’s last day with Nordion was Oct. 31. Not long after his layoff, he found another job with higher pay than what he had earned with Nordion. As a result, he rejected multiple offers of recall from Nordion. However, he grieved the company’s decision not to bump him into the JSPT position.

Muldoon argued much of the training involved skills he had from his medical isotopes work and he could get up to speed within the four-week period of familiarization. He demanded compensation for losses incurred until he began his new job.

The arbitrator noted that the collective agreement allowed displaced employees to bump into a new job if they had “the skill, experience, and capacity to perform the required work.” While a certain level of disruption should be expected, employees bumping into new positions didn’t have the right to full training under the collective agreement. Therefore, employees looking to take over another position due to seniority would have to have “at least the present ability to perform all the major components of the job at a minimum level of competence.”

“Familiarization differs from training: it is the difference between learning new skills and abilities (training) and learning the details and environment of a new job in which the employee will use existing skills (familiarization),” the arbitrator said.

The arbitrator determined that, although Muldoon “was a valued employee, motivated to learn new tasks, with the ability to adapt quickly to new situations,” it was reasonable for Nordion to take the position that any employee who had never worked in the gamma technologies area would be unable to perform the JSPT position without extensive training — due to safety concerns, Muldoon’s lack of qualifications, and regulatory training requirements.

 

Reference: Nordion (Canada) and Public Service Alliance of Canada, Local 70367 (Union of National Employees). 
Lorne Slotnick — arbitrator. Jacques Emond for employer. Aaron Lemkow for employee. Feb. 25, 2019. 2019 CanLII 14457 (Can. Arb.)

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