Nova Scotia worker had more seniority than winner of job post
A Nova Scotia health care worker lost her bid for another position to someone with less seniority because the worker was on an attendance management program.
The worker was a pharmacy assistant/technician for the Nova Scotia Health Authority (NSHA) at the Halifax Infirmary. She was initially hired in 2010 on a casual basis and then she was moved to a full-time position in 2014.
In 2013, the worker’s mother passed away and she took it hard. She felt that managers and colleagues at the hospital weren’t supporting her and she began missing a lot of work by early 2014. In November 2014, she was entered into the NSHA attendance support program (ASP) — a program that featured steps towards improving attendance and discipline up to dismissal if there was no improvement.
After six months, the worker’s absences were one-and-one-half times the average of comparable employees, so she was progressed to the second step of the ASP with a written caution that if she didn’t improve significantly it “may affect your continued employment.”
The worker was evaluated every six months and her absences remained high. She was moved through the ASP over the next couple of years, so by June 2017 her absences were still about double the average, she was in the fifth step of the ASP, and her status had been reduced to 0.8 of full-time.
In 2018, the NSHA changed the ASP so reviews were triggered if an employee’s absences exceed four per cent of worked hours. The worker’s absences over a six-month period in 2017 were 11.4 per cent of worked hours, so her designation was further reduced to 0.5 of full time.
The worker applied for a job posting as a pharmacy practice assistant at the provincial bio depot in Dartmouth, N.S. — a facility that handled and distributed vaccines and other immunization agents. She was rated the highest scoring applicant in the interview process, but the NSHA determined that her attendance issues could be a problem. The posted job was fast-paced and required “good attendance in current and past employment” because there were no casual employees to fill in during absences.
An employee with less seniority was awarded the pharmacy practice assistant position and The worker filed a grievance. The union argued that the NSHA applied a “vague and imprecise standard” when it used the worker’s attendance record against her for the purpose of hiring for the position and the collective agreement required the NSHA to award a position to the applicant with the most seniority when applicants “are of equal merit.”
The arbitrator noted that the collective agreement allowed for seniority to come into play only when candidates were of equal merit. Since the agreement didn’t specifically define “merit,” the NSHA was entitled to use “reasonable considerations pertaining to the candidates’ suitability for the job.”
For the pharmacy practice assistant position, the NSHA relied on the individual to show good, “even superior attendance” because there were few others who could fill in. This was different from The worker’s position in the Halifax Infirmary pharmacy, where there was a pool of employees who could fill in. Therefore, it was reasonable for the NSHA to consider good attendance a requirement for the pharmacy practice assistant job, said the arbitrator.
The arbitrator also found that “past attendance is a valid predictor of future attendance” so The worker’s history of absenteeism was a reasonable factor in determining her merit and suitability for the posted position.
In addition, the arbitrator noted that the worker had been reduced to part-time status because of her progression through the ASP and wasn’t eligible to work full-time until she successfully completed the ASP. This made her ineligible to accept any full-time position within the NSHA and there was no way of predicting when she might become eligible.
The grievance was dismissed.
Reference: Nova Scotia Government and General Employees Union and Nova Scotia Health Authority. Erik Slone – arbitrator. Patrick Saulnier for employer. Andy Nielsen for employee. Oct. 28, 2019. 2019 CanLii 113317 (N.S. Arb.).