Alberta worker with black mark on his record wasn’t evaluated on equal terms with other candidate for internal posting
David Pope had been a permanent road grader-operator for three of his 10 years with the County of Lethbridge in Alberta when he applied for a job doing the same work at a location closer to his home.
While he met all the criteria listed for the job, and had the most seniority of the five internal applicants, he also had a black mark on his record — a year-old reprimand for pushing dirt into a ditch while grading. However, when it was brought to his attention this was unacceptable, he corrected his method of grading and later received a written commendation for his work. His application was placed in the pile for acceptable candidates.
During his brief interview with Duane Charlesworth, superintendent of municipal service, Pope was not asked any questions about his resumé, his application or his driving ability.
When another, less senior, seasonal employee was given the job, the union launched a grievance, arguing Pope was as qualified as the winning candidate and management had violated a long-standing custom of lateral transfers to appoint the most senior applicant.
Since the job was a lateral transfer, management said it did not require consideration of seniority, only the most suitable candidate. It pointed to the management’s rights clause in the collective agreement, not the job posting clause, as the basis for its reasoning. It also said the successful candidate was more qualified as he could also work as a finishing blade operator and had no reprimand on his file.
Both union and management representatives said there were no provisions in the current or previous collective agreements to cover lateral transfers. In the past, the most senior applicant had almost always been the most qualified and, save for one instance, the issue had never come up, said Charlesworth.
In the one case where a lateral transfer had not been awarded to the most senior person, the county had agreed to reverse its decision, pointed out the union. The county should be prevented from changing the practice, it said.
The evidence also showed both Pope and the winning candidates were equally qualified based on the criteria in the job posting, said the union. However, should the result of the competition show the other candidate was more qualified, argued the union, the result should be set aside as the process itself was flawed: Pope was interviewed for just five minutes and the winning candidate for half an hour. There was no objective information, such as notes, evaluations or comparisons, showing how exactly the candidates were compared.
The evidence also showed the only problem with Pope’s work in the past had been corrected.
The collective agreement was not overly helpful. It only said when two candidates were equally qualified for promotion, the one with the most seniority would be awarded the position.
The selection process was flawed, agreed the arbitrator, but the collective agreement was “silent with respect to selection procedures and criteria for lateral transfers under a job posting.”
Because the job involved neither a pure promotion nor a pure lateral transfer but a mix of promotions, demotions and transfers depending on who was successful, past practice was no help.
But in the job selection process, management had implicitly used the article in the collective agreement about promotions when it evaluated the candidates on their qualifications, skills and abilities, found the arbitrator. While the employer’s intentions were good, its execution was mishandled. Any assessment of candidates must be conducted in a systematic and objective fashion and management has to be able to explain why and how it reached its results, said the arbitrator.
The problem was the eight interview questions bore little relationship to the five criteria in the job posting. Since the interview notes were not kept, there was no way to see how the interviewees’ answers were used to compare their attributes against the job-posting requirements. Most troubling was the lack of objective evidence around the candidates’ ability to operate road grading equipment. There was no description of how to measure good versus poor work, no written performance review or field evaluation of any of the applicants and no comparisons of their work. Pope’s past reprimand was significant but there was no evidence of how much weight it was given in the selection process nor if he was the only candidate with a reprimand on file.
Given the lack of a systematic comparison of the candidates, the arbitrator set aside the selection. However, he did not award the job to Pope because the process was so flawed as to make it impossible to choose which candidate should be awarded the job. The arbitrator ordered the employer to “address the deficiencies and re-run the competition.”
For more information see:
•County of Lethbridge and Canadian Union of Public Employees, Local 2800 (Apr. 30, 2009), Allen Ponak – Sole Arbitrator (Alta. Arb. Bd.).
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information, visit www.hrreporter.com/clv.
