Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER COLLECTIVE AGREEMENTS From said that Romard's per- formance was good during that time and he even sent a few con- gratulatory emails for her service. However, the job description had changed slightly as the project had moved further along. Romard and three other em- ployees applied for the position and because she was the most se- nior candidate, her resume was placed on top, said From. On Aug. 17, Romard was the first candidate to be interviewed. A series of 13 questions was pre- pared by From to assess the candi- dates and to give them some idea of what the job entailed. The an- swers provided formed the basis of the hiring decision, he said. After a review of Romard's an- swers, only 10 of 27 were rated as qualified criteria, said From. "Interviewee was tentative with answers to questions. Answers to relevant questions lacked speak- ing to collaboration, single source of truth and security as a key ob- jective and benefits of the project." As well the "interviewee also missed speaking to being a team player, positive working relation- ships and motivated and capable in helping breakdown barriers to acceptance and silos of work with- in CUPE," he wrote. The Canadian Office and Professional Employees Union (COPE), Local 491 grieved the decision. It argued that Romard's seniority was not given enough weight during the hiring process. As well, said COPE, some of the questions asked were vague and could not have possibly been answered to the interviewer's satisfaction, which was unfair to Romard. However, CUPE countered and said that Romard lacked in com- munication experience, which was a major factor in the decision to deny her the position. Arbitrator John McNamee said the employer acted fairly in mak- ing its decision. "There is no allegation or evi- dence that discrimination or bad faith tainted CUPE's decision not to award the temporary po- sition to (Romard). Further, I do not believe that the decision can be described as arbitrary, despite the fact that the interview process was, in some respects, imper- fect. While I agree with the CSU (Canadian Staff Union) that (Ro- mard) appears to have been a re- markably good candidate for the job for which she applied, and that some of the interview questions might have been better phrased in order to elicit the answers which From sought, the phraseology of those few questions does not rise to the level of arbitrariness," said McNamee. "The language of article 11.04 is broad enough to grant the em- ployer considerable leeway in its evaluation of (Romard's) qualifi- cations, and I find that the CUPE did not exceed that leeway in its assessment of the factors set out in the relevant article." As well, Romard's service time was fully considered, according to the arbitrator. "From did give sufficient at- tention to seniority as a factor. He interviewed (Romard) first because she was the most senior applicant and testified that, if she had passed the interview and been found to be qualified, she would have been offered the job. Her se- niority therefore was fully taken into account," said McNamee. Reference: Canadian Union of Public Employees and Canadian Office and Professional Employees Union, Local 491. John McNamee — arbitrator. Kevin MacNeill for the employer. John McLuckie for the employee. May 6, 2019. vice with the company as of Dec. 31 of each year. To be eligible, an employee must have one full year of service with the company as of Dec. 31, and it is not prorated." For each year of service, eligible employees received $1,000 plus CPI. The maximum bonus for longer term employees was $9,000. In the past, Cancrew had paid a prorated bonus to workers who worked a portion of the year. But because neither Brown nor Gosse worked at all in 2017, the employ- er denied them the bonus pay for the year. They were paid under the company's LTD benefits plan while off the job. "Both received bonus in 2016. During 2017 neither employee worked and therefore bonus was not paid. When they return to work bonus will resume. This has been practice since 1998 when bonus was implemented," read Cancrew's denial of the bonus payment. On Jan. 12, 2018, the union, the International Union of Operat- ing Engineers (IUOE), Local 904, grieved the denial. It argued that what qualified an employee to re- ceive the bonus was the fact they the person was employed, not whether or not the worker actu- ally worked. In Brown and Gosse's case, they would have been entitled to receive the maximum amount of $9,000, due to their service time. The employer also infringed on both worker's human rights, ar- gued the IUOE, on the basis of dis- ability due to their being off work. However, the seniority bonus should be considered a work-re- lated benefit and not a function of status, said the company. It should only be given to those who worked during the calendar year, it ar- gued. Arbitrator James Oakley dis- agreed and upheld the grievance. "The grievors are entitled to be paid a seniority bonus under article 16.01 for the calendar year 2017 based on their status as em- ployees with seniority and hav- ing at least one full year of service with the company, as of Dec. 31, 2017." "In summary, the eligibil- ity requirements for the senior- ity bonus in article 16.01 are that a person have the status of an em- ployee with seniority as of Dec. 31 and have at least one full year of service as of Dec. 31. I find that the grievors met the eligibility re- quirements and are entitled to be paid a seniority bonus for the cal- endar year 2017, in an amount to be calculated," said Oakley. For the employer to succeed in future to deny payments based on LTD status, it would have to write that into the collective agreement, according to the arbitrator. "The payment of the seniority bonus is based on the fact that the grievors have the status of employees with seniority with the company as of Dec. 31, 2017, and have accumu- lated at least one full year of ser- vice." The claim for human rights discrimination was denied by Oakley. "It is unnecessary to con- sider the submissions made by the union with respect to alleged violation of the Canadian Human Rights Act." Reference: Cancrew Enterprises and International Union of Operating Engineers, Local 904. James Oakley — arbitrator. Denis Mahoney for the employer. Ronald Pink for the employee. Feb. 28, 2019. 2019 CarswellNfld 239 $9,000 payment given to long-term employees at top of scale < Bonus denied pg. 1 < Senior candidate pg. 1 Questions could have been better phrased: Arbitrator "(Romard's) seniority therefore was fully taken into account."

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