Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 August 24, 2015 ARBITRATION AWARDS specifically through the appraisal process. Atienza's evaluation was not good, and she disagreed with many of her new manager's con- cerns. As such, she left work ear- ly, immediately after the meet- ing, on account of stress. She claimed she was not given an opportunity to discuss per- sonal goals or objectives, nor was she given any guidance or coach- ing on how to fill out the self- evaluation part of the process to begin with, while her co-workers were given ample time. As her union — the Nunavut Employees Union — saw it, the employer violated the clause in the collective agreement that deals with the employer's perfor- mance management by failing to allow the grievor the opportunity to state her career goals, failing to properly explain the review process and failing to provide the reviewer's proper forms and in- structions. The grievance did not dispute the contents of the review, but rather the method in which it was conducted. As such, the evaluation should be "expunged" from Atienza's personnel file. "It is unfair and absurd for the employer to publish directives to supervisors that can be ignored without consequence," counsel for the union argued, adding that the evidence established that the supervisor failed to follow sev- eral of the procedural aspects of the performance review system with respect to Atienza. Despite the fact that Atienza's review did not follow all the steps to a T, the government argued it did not violate the collective agreement. According to the employer, the full extent of its obligation was that management had the right to assess performance, unrestricted. Further, it was es- tablished that supervisors are instructed to follow their own human resources manual, as opposed to the collective agree- ment, and "do their best" to com- ply when evaluating employees. Arbitrator decides Arbitrator Paula Knopf sided with the employer — but with the caveat that there were indeed procedural violations. Knopf said the employer's hu- man resources manual had not been incorporated into the col- lective agreement, and though there were procedural violations in particular, no prejudice re- sulted. Nor had any substantive breach of the collective agree- ment been proven. As such, no further remedy would be appropriate under the circumstances, Knopf said. Reference: Government of Nunavut and the Nunavut Employees Union. Paul Knopf — arbitrator. Trisha Paradis for the employer, Jonathan Park for the union. Aug. 4, 2015. Qualifications, ability outweigh nurse's seniority CATHY ROONEY was passed over for a teaching position with the Eastern Regional Integrated Health Authority in Newfound- land and Labrador in favour of an applicant with less seniority. Following the employer's fail- ure to appoint Rooney to the position of nursing instructor II, her union filed a grievance on her behalf. The Registered Nurses' Union of Newfoundland and Labrador requested Rooney be awarded the position in accordance with the parties' collective agreement and receive full retroactivity and full redress. Rooney was not chosen for the position following a rigorous application process. Applicants were interviewed by three indi- viduals, with the interviews last- ing as long as one hour. The employer then reviewed each of the candidate's resumes, taking into account their educa- tion and experience as well as the evaluation of the interviewers. At the end of the interview process, each applicant was as- signed a score, with the highest possible score being 75. Rooney's resulting score was calculated to be 31. The successful applicant was given 69. The employer argued the suc- cessful candidate demonstrated a far greater capacity for teach- ing, as illustrated by her signifi- cantly higher score. While the employer agreed se- niority was a factor in the hiring process, it concluded there was a dramatic difference between the qualifications and ability of Rooney and the successful ap- plicant. Had the two candidates been close in qualification and abil- ity, the employer said, the senior candidate would have been se- lected. But, in this case, one ap- plicant was significantly more qualified. The relevant provision of the parties' collective agreement states that "in making all other staff changes, primary consider- ation shall be given to qualifica- tions, ability and fitness to per- form the required duties. "Where qualifications, ability and fitness are equal, seniority as defined in Article 24 shall pre- vail." The union, however, argued both Rooney and the successful applicant had equal qualifica- tions, ability and fitness to per- form the job. Because Rooney was the senior applicant, the union said, she should have been awarded the position. The union detailed what it be- lieved Rooney was entitled to by way of compensation as a result of the employer's failure to hire her for the position, calculated to be in the tens of thousands of dollars based on the hours she had lost and the differential rate of pay. Arbitrator Wayne Thistle sided with the employer, finding Rooney and the successful appli- cant were not equals in qualifica- tions, ability and fitness. "I have concluded the em- ployer established appropriate qualifications for the position, it completed a fair evaluation of the candidates and reached an appropriate conclusion based on this evaluation," Thistle said. "There are no grounds on which an arbitrator should inter- fere with the decision made by the employer." The grievance was dismissed. Reference: Eastern Regional Integrated Health Authority and the Registered Nurses' Union of Newfoundland and Labra- dor. Wayne Thistle — arbitrator. Rebekah Coffin for the employer, Dave Conway for the union. June 3, 2015. "Primary consideration shall be given to qualifications, ability and fitness to perform the required duties." "It is unfair and absurd for the employer to publish directives... that can be ignored without consequence."

• Cover