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Not "relatively equal": Arbitrator rules that, for senior positions, a little means a lot

In Ottawa Hospital v. Ontario Public Service Employees' Union (June 14, 2002), an Ontario arbitrator has ruled that, in job competitions for senior positions, a relatively small scoring advantage on the part of a junior applicant can trump seniority.

The grievor was the unsuccessful candidate in a competition at the Ottawa Hospital for Charge Technologist, the most senior position in the bargaining unit. She was a long-service employee who was acting as Charge Technologist when the position was posted. The incumbent, who had served as back-up to the Charge Technologist for over a year, won the position after scoring 73 per cent, as against 67 per cent for the grievor.

The relevant clause in the collective agreement provided:

"In all cases of promotion … the following factors shall be considered:

a) Ability, experience, performance, and academic qualifications
b) Seniority

Where the qualifications of factor a) are relatively equal, factor b) shall govern."

While the grievor scored higher in terms of "experience", the incumbent scored higher under "ability", particularly in terms of questions designed to determine the candidates' initiative, leadership and responsibility. The employer asserted that a difference of more than five per cent meant that the candidates were not "relatively equal" and awarded the position to the less senior candidate, the incumbent. The unsuccessful senior employee grieved the decision.

MARGIN OF ALLOWABLE DIFFERENCE

On the merits of the grievance, the arbitrator held that there was no evidence of bad faith or discriminatory treatment of the grievor by the employer. He found that the questions put to the candidates related to the requirements of the position, and that both candidates were evaluated according to criteria relevant to the position. He expressed the view that the grievor had given basic answers to some of the crucial interview questions, but had not demonstrated the degree of initiative and leadership being sought by the employer.

On the issue of the narrowness of the score differential between the two candidates, the arbitrator held that what may constitute "relative equality" for some positions may be inequality for more senior jobs:

"It is true enough that the difference between the two candidates seems small, and for some positions a difference of 6 per cent (or even much greater) would not be sufficient to support a conclusion that two candidates were not relatively equal. In my view, for more complex, responsible and highly skilled positions, a narrower difference between two candidates may be justifiable. Put another way, for more senior and skilled positions, the margin of allowable difference justifying the conclusion that the two candidates are not relatively equal may be narrower than for less senior, less demanding positions."

The arbitrator also rejected the union's argument that the hiring process was flawed due to the employer's failure to take into account the grievor's demonstrated leadership outside the workplace. The employer had decided that it could not accurately assess the activities of either candidate outside the workplace, and that it would be impractical and burdensome to impose an obligation to do so on the employer.

Finally, the arbitrator did not accept the union's position that the employer had placed too much reliance on interview performance. He noted that, while this argument may have merit in some cases, it was not persuasive here:

"This job requires a person to perform under pressure, demonstrate initiative and take action. I cannot conclude in these circumstances that questions that ask the applicants how they would respond to particular situations - the very situations they can expect to face when doing the job - fail, given their obvious connection to the job to be done, to assess the ability of the applicants to perform the position."

Accordingly, the grievance was dismissed.

In Our View

Although the arbitrator noted that the hiring process used by the employer in this case was not perfect, he did recognize that perfection was not the required standard. If candidates are treated and assessed equally, based on relevant criteria, the employer's decision should withstand challenge. In this case, as both candidates possessed the necessary technical skills, the key factors, given the nature of the position, were intangible, such as leadership and initiative.

The decision leaves open the question of when, in terms of score differences, relative equality becomes inequality. On this point, the arbitrator stated that, rather than settling on a particular numerical difference to determine the outcome, one must consider the skills and abilities required for the position, in order to come up with a rational and principled basis for determining the range within which "relative equality" may be situated.

For further information, please contact André Champagne, who argued the case, at (613) 940-2735.