Canadian Labour Reporter

March 16, 2015 8 Canadian HR Reporter, a Thomson Reuters business 2015 the conductor's case. The first hearing found that CP Rail had restricted the con- ductor's duties following an outdated directive from the chief medical officer. The conductor's duties were restricted in July of 2012, de- spite the medical officer lifting the concern. At the time, the company cited safety concerns. So Schmidt ruled the com- pany conduct an on-track evalu- ation — after which this second grievance was filed. After he completed the two- week assessment, the conduc- tor was informed that there had not been a sufficient number of tours for the supervisor to reach a conclusion. Making matters worse is that the testing process was faulty it- self. After sifting through details of the assessment, Schmidt de- termined CP Rail had focused too narrowly on an "unremark- able" event, which would not have affected his ability to do his job. "The company's position on this unremarkable event, which posed absolutely no risk what- soever, was that somehow (the) conductor could put a train at risk since it could not stop at that speed were the signal 'stop' instead of 'clear.' That is mis- leading," Schmidt explained in her ruling. The Teamsters Canada Rail Conference union contended that the railway failed to pro- vide a "fair assessment," which was conducted or implemented unfairly. Schmidt agreed and dismissed the grievance. She ordered any restrictions on the conductor be lifted and, going forward, that any conduc- tors or locomotive engineers with the same condition be par- doned in the same manner. The grievor was also given a chance to decide which position he prefers to operate under, lo- comotive engineer, or conduc- tor. reference: Canadian Pacific Railway Company and the Teamsters Canada Rail Conference. Christine Schmidt — arbi- trator. R. Hampel for the employer, M. Church for the union. Feb. 3, 2015. employer fails to properly assess experience exPerieNce mAy not be everything to the Regional Mu- nicipality of Peel in Ontario, but it was ruled to be an integral part of the employer's hiring process. Teresa Borrelli — repre- sented by the Canadian Union of Public Employees (CUPE) Local 966 — filed a grievance against the municipality after the Peel Region's human servic- es Department passed her over for a position that ultimately went to an employee with less seniority. The full-time business analyst position was awarded to an em- ployee with less than one year of experience as an acting analyst. The incumbent had significantly less seniority than Borrelli, who had been an acting business ana- lyst with the employer for almost four years and who had 11 years of seniority. Candidates' qualifications, ex- perience, skills and ability were assessed through a written as- signment and an interview. The union contested that the selection process, arguing the employer did not consider all relevant information — includ- ing performance appraisals and references — in the assessment. The union submitted the em- ployer evaluated the applicants' performance in the selection process rather than evaluating their performance in the work- place. The collective agreement, the union argued, required the em- ployer take experience into ac- count during the hiring process. While the employer agreed that experience is one of the factors the collective agree- ment requires to be assessed during the hiring process — along with qualifications, skills and ability — it argued it's at the employer's discretion to deter- mine the process by which ex- perience is assessed and how it is weighted. Qualifications and experience were sufficiently assessed by the written assignment and inter- view, management said. Furthermore, the employer's standard competition process provides that employees are con- sidered equal if the differential in marks is five per cent or less. If the differential in marks between two candidates is five per cent or less, the position is awarded on the basis of seniority. In Borrelli's case, however, the difference between her final re- sults and those of the employee ultimately chosen for the posi- tion was 11.33 per cent. Borrelli and the employee were not judged relatively equal as a result, and therefore the position was awarded to the incumbent despite Borrelli's wealth of experience. Arbitrator Kelly Wadding- ham disagreed that the employer properly assessed experience as required by the collective agree- ment. "It is not proper for an em- ployer to rely upon, or place over-reliance upon, an interview and/or written test where other sources of information regarding the specific factors are available to it," Waddingham said. "In my view, the assessment process used by Peel Region… did not facilitate a proper assess- ment of applicants' experience." However, Waddingham also found that the written assign- ment and interview were con- ducted fairly and the grading process for each was reason- able. "The evidence shows that the incumbent's answers on these questions were superior to those of the grievor," Waddingham said. "The evidence with respect to the interview indicates that the incumbent provided more com- plete answers, and scored higher in critical areas related to the po- sition." Waddingham ruled, therefore, that the appropriate remedy was to allow the incumbent to re- main in the position of business analyst and to declare that the employer violated the collective agreement by not engaging in a more thorough assessment of applicants' experience. reference: The Regional Municipality of Peel and the Canadian Union of Public Employees (CUPE) Local 966. Kelly Waddingham — arbitrator. Gurjit Brar for the employer, Melvin I. Rotman for the union. Feb. 26, 2015. ArbitrAtion AwArds < from pg. 1 incumbent allowed to remain in position despite employer's violation of the collective agreement. testing process to assess vision impairment found to be faulty.

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