Both sides found at fault in flawed job-application process
Even though he was the most senior candidate, an employee with the Public Schools Branch in Prince Edward Island wasn’t awarded a posting as a carpenter.
In 2017, the public school body published a job notice, with a closing date of Dec. 14, for a carpenter position. Donald McKenna held a Red Seal Carpentry 2A designation and had experience in commercial institutions, both of which were required in the posting.
The job notice stated the successful candidate “must have a provincial trade qualification (Red Seal) in carpentry with considerable experience in a commercial/institutional environment.”
When he wasn’t chosen, McKenna and the union, the Canadian Union of Public Employees (CUPE), Local 1775, grieved.
“I Donald McKenna, the most senior candidate feel I was not given the maintenance worker 1 (carpenter) position as per article 17 promotions and staff changes,” he wrote in the grievance.
As well, alleged the union, the posting was “arbitrary or discriminatory” and, therefore, it violated the collective agreement.
However, Wendy Bernier, director of human resources, said the employer couldn’t verify information provided by McKenna during the application process, so it was unable to offer him the job.
At one of the companies referenced by McKenna, the parties contacted barely remembered him working there, while another one failed to provide a good reference because it said McKenna only worked intermittently there.
During a Jan. 30, 2018, grievance hearing, the employer received three more names from McKenna. One reference had already been spoken to and the other two reference companies were not listed on his resumé.
Two further reference names were provided by McKenna, but one had already been contacted and another one was listed as a homeowner, which the employer said didn’t qualify it as a proper reference.
Arbitrator George Filliter felt the school branch violated the collective agreement and ordered the position to be reposted.
“The board is of the view the employer was within its rights to determine the requisite qualifications of this position but, in this case, it did so in an ambiguous manner. This ambiguity was likely a factor for the inadequate level of information found in the application of the grievor,” said Filliter.
“The board concludes the stated qualification ‘must have a provincial trade qualification (Red Seal) in carpentry with considerable experience in a commercial/institutional environment’ does not require a candidate to establish his/her experience was in the carpentry trade.”
As well, the use of the word “considerable” is arbitrary and it goes against the collective agreement, according to Filliter, and “the employer had an inconsistent interpretation of this word.”
Testimony from two managers contradicted what the school branch was looking for, said the arbitrator.
“When one compares the testimony of (HR officer Jennifer) Muncaster to the testimony of (property coordinator Fred)
Horrelt, there is an obvious inconsistency in expectations as to what ‘considerable’ experience means. Whereas Muncaster was looking at length of experience, Horrelt testified he focused on the nature of the work rather than the duration of the experience. Given the inconsistent and arbitrary definition of ‘considerable,’ the board finds it is inappropriate to expect (McKenna) to fully appreciate the meaning of the stated requirement of the employer.”
However, McKenna was also to blame for what happened during the posting process, said Filliter.
“The onus is on (McKenna) to prove his qualifications, and the employer is not required to do their own investigation. Even though the board concludes the stated qualification is both ambiguous and arbitrary, the grievor did not provide sufficient evidence to allow the board to conclude he possesses the qualifications.”
Reference: Public Schools Branch and the Canadian Union of Public Employees, Local 1775. George Filliter — arbitrator. Ryan McCarville, Sean Corcoran for the employer. Lori MacKay for the employee. Dec. 21, 2018. 2018 CarswellPEI 116
In 2017, the public school body published a job notice, with a closing date of Dec. 14, for a carpenter position. Donald McKenna held a Red Seal Carpentry 2A designation and had experience in commercial institutions, both of which were required in the posting.
The job notice stated the successful candidate “must have a provincial trade qualification (Red Seal) in carpentry with considerable experience in a commercial/institutional environment.”
When he wasn’t chosen, McKenna and the union, the Canadian Union of Public Employees (CUPE), Local 1775, grieved.
“I Donald McKenna, the most senior candidate feel I was not given the maintenance worker 1 (carpenter) position as per article 17 promotions and staff changes,” he wrote in the grievance.
As well, alleged the union, the posting was “arbitrary or discriminatory” and, therefore, it violated the collective agreement.
However, Wendy Bernier, director of human resources, said the employer couldn’t verify information provided by McKenna during the application process, so it was unable to offer him the job.
At one of the companies referenced by McKenna, the parties contacted barely remembered him working there, while another one failed to provide a good reference because it said McKenna only worked intermittently there.
During a Jan. 30, 2018, grievance hearing, the employer received three more names from McKenna. One reference had already been spoken to and the other two reference companies were not listed on his resumé.
Two further reference names were provided by McKenna, but one had already been contacted and another one was listed as a homeowner, which the employer said didn’t qualify it as a proper reference.
Arbitrator George Filliter felt the school branch violated the collective agreement and ordered the position to be reposted.
“The board is of the view the employer was within its rights to determine the requisite qualifications of this position but, in this case, it did so in an ambiguous manner. This ambiguity was likely a factor for the inadequate level of information found in the application of the grievor,” said Filliter.
“The board concludes the stated qualification ‘must have a provincial trade qualification (Red Seal) in carpentry with considerable experience in a commercial/institutional environment’ does not require a candidate to establish his/her experience was in the carpentry trade.”
As well, the use of the word “considerable” is arbitrary and it goes against the collective agreement, according to Filliter, and “the employer had an inconsistent interpretation of this word.”
Testimony from two managers contradicted what the school branch was looking for, said the arbitrator.
“When one compares the testimony of (HR officer Jennifer) Muncaster to the testimony of (property coordinator Fred)
Horrelt, there is an obvious inconsistency in expectations as to what ‘considerable’ experience means. Whereas Muncaster was looking at length of experience, Horrelt testified he focused on the nature of the work rather than the duration of the experience. Given the inconsistent and arbitrary definition of ‘considerable,’ the board finds it is inappropriate to expect (McKenna) to fully appreciate the meaning of the stated requirement of the employer.”
However, McKenna was also to blame for what happened during the posting process, said Filliter.
“The onus is on (McKenna) to prove his qualifications, and the employer is not required to do their own investigation. Even though the board concludes the stated qualification is both ambiguous and arbitrary, the grievor did not provide sufficient evidence to allow the board to conclude he possesses the qualifications.”
Reference: Public Schools Branch and the Canadian Union of Public Employees, Local 1775. George Filliter — arbitrator. Ryan McCarville, Sean Corcoran for the employer. Lori MacKay for the employee. Dec. 21, 2018. 2018 CarswellPEI 116
