Canadian Labour Reporter

performed the duties of a posted position for at least a year, and had performed those duties within the last six months, then the employ- ee would be "deemed qualified" for the position. Employees who weren't deemed qualified for a position under the collective agreement provision had to proceed through the normal screening process. In January 2014, the city posted the position of "early childcare educator 2." There were 26 po- sitions for that job description available. Two weeks later, the city closed the posting after receiving 196 applications, including that of Marisa Manini. Manini had worked as a part- time early childcare educator 2 from 2005 to February and had worked on a temporary full-time basis in the position since then. She went on maternity leave from September 2010 to September 2011 and again from May 2013 to May 14, 2014. It was while she was on this second maternity leave that she applied for the perma- nent full-time position. Though Manini had worked as a childcare educator for several years, she wasn't deemed qualified because she hadn't met the second criteria for such a determination, as she had been on maternity leave for seven months prior to the posting and hadn't worked. She was put through the nor- mal screening process, where she scored 81 per cent on the written assessment and 71 per cent on the interview assessment, making her a successful candidate. However, she was 47th on the eligibility list based on seniority, so she didn't get one of the 26 available posi- tions. Despite the fact Manini suc- cessfully completed the screening process, CUPE filed a grievance on her behalf arguing the "deemed qualified" provision requiring employees to have worked in the position for the past six months was unfair for female employees who took maternity leave, which constituted discrimination on the basis of sex or family status. CUPE requested that the col- lective agreement provision in question be "read down" to avoid such discrimination. The union pointed to other provisions in the collective agree- ment that required the city to con- sider applicants for posted posi- tions "on the basis of any or all of the following factors: seniority, education, training and work ex- perience, ability and appraisal of past performance." In addition, the collective agreement protected the senior- ity and service of employees away from work on pregnancy or parental leave and the Ontario Human Rights Code prohibited discrimination on the basis of sex and family status — defining fam- ily status as "being in a parent and child relationship" and stipulating "the right to equal treatment with- out discrimination because of sex includes the right to equal treat- ment without discrimination be- cause a woman is or may become pregnant." CUPE added that the "deemed qualified" provision adversely im- pacted women on pregnancy or maternal leave for longer than six months and these women con- stituted a group defined by sex or family status. The city argued that neither Manini nor other women on preg- nancy leave were being excluded from job competitions because of the "deemed qualified" provision, but rather they just failed to meet the criteria for bypassing the need to demonstrate qualifications through the usual assessment process for a position. Arbitrator weighs in Arbitrator Russell Goodfellow found that the purpose of the benefit provided by the collective agreement provision was to al- low certain employees to skip the assessment process for positions posted by the city. This right to be "deemed qualified" was not a status-related benefit, but rather a work-related benefit — in recog- nition of actual work performed, not "an incident of the employ- ment relationship or a product of employee status or the passage of time," said Goodfellow. He also found that though the benefit conferred in the "deemed qualified" provision excluded a group of people identified by a prohibited ground of discrimi- nation — as defined in the code — this exclusion was "reason- able and bona fide in the circum- stances" because it was related to employees doing the work of the position in question. In addition, both the city and CUPE agreed to the two criteria to allow employees to bypass the as- sessment process — one involving overall experience and one involv- ing recent experience. Goodfellow noted that to grant CUPE's request to "read down" the provision would take preg- nancy and parental leave out of the equation, resulting in "some lengthier period" for the recent experience criteria. This would involve "changing the otherwise legitimate work-related require- ment to achieve the work-related benefit." However, the city is "not re- quired to abandon the standard," he said, and treat employees on pregnancy or parental leave "ac- cording to some different stan- dard." Goodfellow also pointed out the city's emphasis on the fact that the "deemed qualification" provi- sion was an alternative to the as- sessment process for employees who met the criteria. Neither Ma- nini nor any other employees in her situation were excluded from the assessment process, they just couldn't bypass it because of their lack of recent experience. In fact, Manini was still a suc- cessful candidate when she passed the tests and would have gotten the position if she was higher on the seniority list. Goodfellow found the "deemed qualification" provision was not discriminatory against employees on pregnancy or parental leave for longer than six months and dis- missed the grievance. 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < City of Toronto pg. 1 Benefit work-related, not status-related: Arbitrator Photo: Adwo (Shutterstock) An employee was denied the position of early childcare educator not because she took maternity leave but because she failed to meet the criteria for bypassing the usual assessment, said the City of Toronto.

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