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Printable version
Over-reliance on job interview to fill vacancy may violate collective agreement
When a vacancy opens up in a unionized enterprise, managers should bear in mind that there are constraints on the type of process they use to fill the posted vacancy. Although such constraints may not be spelled out in so many words, provisions of the collective agreement may be used to overturn a staffing decision for which an interview was accorded too much weight. This is the message that emerges from two cases recently decided by Ontario arbitrators.
GREATER NIAGARA GENERAL HOSPITAL
In Re Greater Niagara General Hospital and Ontario Nurses’ Association
(February 18, 1997), the grievor was an unsuccessful candidate for the position of
Operating Room (O.R.) Charge Nurse. She had worked in the O.R. since 1972. Her
accomplishments included taking a number of courses in nursing management and
serving as acting Charge Nurse for periods as long as a week at a time. Her
performance reviews were positive.
The selection process consisted solely of a written exam and
a "behaviour based interview", in which applicants were asked to respond to examples
of effective and ineffective job performance by recounting anecdotes of how they had
performed in similar circumstances. The interview alone counted for 85% of the score.
None of the three candidates achieved the required score and each was advised she
was not qualified for the position. Management re-posted the position, and a new
candidate with considerably less seniority was chosen.
The collective agreement provided that nurses were to be chosen for positions on
the basis of "skill, ability, experience and qualifications." If these factors were
relatively equal among the candidates, seniority was to govern the selection.
At arbitration, the union argued that the Hospital had improperly relied solely on
the results of the exam and interview to the exclusion of other relevant factors.
As well, the interview was an inappropriate method for evaluating the factors set
out in the collective agreement, as it relied entirely on the applicants’ ability
to recall and recount anecdotes of past performance.
A majority of the board of arbitration agreed, holding that, while an interview
may be a useful tool, the case law shows that it must not be used to the exclusion
of other factors:
"[T]here are a number of awards in which it has been held that it is
inappropriate for an employer to rely solely on test scores or interview
results. Instead, it has been determined that a balanced assessment requires
a consideration of all relevant factors, including test and interview results,
on-the-job performance, related courses and performance appraisals."
Based on these other factors, particularly the grievor’s satisfactory
performance in the role of acting Charge Nurse, and because the other candidates in
the first competition expressed no further interest in the position, the arbitrator
concluded that the grievor was qualified and awarded her the position of Charge Nurse.
ACADIAN PLATERS COMPANY
An Assistant Maintenance position was at issue in Re Acadian Platers
Company and U.S.W.A, Local 8059 (December 8, 1997). The collective agreement
provided that, for promotions, "the Company shall select the senior employee provided
such employee has the skill, ability, qualifications and physical capacity to perform
the work." In filling the position, the company relied solely on the results of a
questionnaire and interview. When the position was awarded to the less senior candidate,
the union grieved, arguing that the company had given too much weight to the questionnaire
and interview in the selection process.
The grievance was allowed in part. The arbitrator noted that the clause in question
was not competitive, and that the senior applicant did not have to show he was the
best candidate, but only that he had sufficient ability to perform the job. The
issue was whether the employer had erred in concluding that the grievor lacked this ability.
The arbitrator found that the employer had relied almost exclusively on the
interview and questionnaire. Aside from the Plant Manager’s recollection of two
instances of relevant work, the employer had considered nothing else. No records
of the grievor’s work had been kept or consulted, and no effort was made to secure
the views of mechanics the grievor had assisted.
Exclusive reliance on the interview process is very problematic, the arbitrator
observed, particularly for the assessment of the type of skills involved here.
Interviews are more useful for jobs requiring listening and communication skills,
but this job required none of these. The skills needed by an Assistant Maintenance
person were better assessed by methods which the employer had not chosen. However,
because the evidence did not establish whether the grievor had the requisite skills,
the arbitrator ordered that he be granted a short trial period in the
Assistant Maintenance position.
In Our View
A provision such as the "relative equality" competitive clause in the first case
gives an employer more latitude to select the best qualified candidate for a position
regardless of seniority than a "sufficient ability" clause like the one in the second
case. In both cases, however, the employer must assess candidates based on all the
relevant factors. As noted in the Acadian Platers case, some types of position
will permit greater reliance on interviews than others.
It is worth noting also that the scope of review by an arbitrator of an employer’s
staffing decision may be narrowed by collective agreement language which provides
that qualifications are to be determined by the judgment of the employer. In such cases,
the arbitrator may be restricted to ruling on whether the employer acted reasonably in
choosing the incumbent.
For further information, please contact Andrew Tremayne
at (613) 563-7660, Extension 236, or
J.D. Sharp at (613) 563-7660, Extension 233.
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