|
|
|
|
Skill, Ability and Seniority: Factors Considered in Job Competitions and Lay-offs As can be attested by the numerous arbitrations on the
subject the issue of how an employee’s skill, ability and seniority are
considered during a lay-off or job competition is a very contentious one.
Employers generally view seniority clauses in collective agreements as
restricting their right to keep, hire or promote their best employees (see
Calgary Herald strike). Employees on the other hand view seniority as one of the
key benefits provided under a collective agreement, one that ideally provides
them with a measure of job security and recognition for service to the employer. However, not all employees agree on how much emphasis should be placed on seniority versus the skill and ability to do the job. It is not unusual for younger, perhaps better educated employees to find themselves at odds with more senior experienced employees in situations of lay-off or job competitions. Generally speaking a collective agreement will
address the issue of skill, ability and seniority with regards to a lay-off or
job posting in one of three ways. A collective agreement may state in one way or
another that under the circumstances of a lay-off or job posting the senior
employee will be awarded a job with the only stipulation that he or she
demonstrates the ability to perform the core functions of the position. This is
commonly referred to as a required ability clause. Another collective agreement
may stipulate that seniority will only be a considering factor where two or more
employees are deemed to be equal or nearly equal in their skill and ability.
Where a junior employee shows greater skill and ability they shall be awarded
the position. This is often referred to as a relative skill and ability clause
or a competition clause. A third type is somewhat of a hybrid where skill,
ability, and seniority are all considered with different weight or emphasis
placed on any one of the criteria depending on the circumstances. “The authorities submitted in relation to disputes
which involve seniority clearly demonstrate that there are various approaches
that have been utilized by arbitrators. One approach is that a senior person who
is capable of doing the job is entitled to the position even though there may be
a junior applicant who can do it better, often referred to as the
"sufficient ability" clause. Another approach is that between
competing individuals, seniority governs only where their competence and ability
are relatively equal, often referred to as the "relative ability
clause". A third approach is a combination of the above two approaches in
that seniority must be considered as one factor along with the other factors of
skill and ability, often referred to as the "hybrid clause".(*) When ruling on a grievance where the collective agreement
contains a required or sufficient ability clause the arbitrators task, given
there is no dispute about which employee has more seniority, is limited to
answering two questions. Is the standard and requirements of the job set by the
employer a fair and reasonable one and does the grieving employee have the
necessary skill, ability and qualifications to perform the basic functions of
the position. More than not arbitrators are reluctant to interfere with an
employers determination of the appropriate requirements of a job unless it can
be demonstrated that such requirements are unreasonable, discriminatory, biased
or established in bad faith. “The great majority of arbitrators have agreed that,
in the ordinary exercise of management's rights and absent anything to the
contrary in the collective agreement, the employer in the first instance may
determine the specific qualifications needed for a particular job position. The
line of awards stretches back to before the early 1960s.”(*) " it has been said that unless there is evidence of
discrimination, arbitrariness, bad faith (as for example, bias in the selection
committee), or the employer exercised its judgment unreasonably, arbitrators
should be loath to interfere with management's decision. In the usual case ...
the issue is not viewed as whether the grievor in fact possesses the requisite
skill and ability but rather whether the employer's decision as to those matters
is reasonable in the circumstances. From the earliest awards it was said that
the primary function of the arbitral review in these circumstances is to ensure
that the judgment of the company must be honest, and unbiased, and not actuated
by any malice or ill will directed at the particular employee, and second, the
managerial decision must be reasonable, one which a reasonable employer could
have reached in the light of the facts available. The underlying purpose of this
interpretation is to prevent the arbitration board taking over the function of
management, a position which it is said they are manifestly incapable of
filling.”(*) "In this and every like case where there is room for honest difference of opinion, if it appears -- as here admitted to be a fact -- that the employer has acted honestly, we do not feel that the Board of Arbitrators would be justified in interfering by reversing the employer's decision, for the reason that to do so would result in management by arbitrators rather than management by the employer ... where there is evidence on which a reasonable employer, acting reasonably, could have reached the decision such as is here challenged by the Union, no Board of Arbitrators should interfere."(*) The employers right to establish the qualifications of a job is however not completely without challenge. “But the employer's power here is not absolute.
Arbitrators have long limited it by the need, among others, for the employer's
good faith and the reasonable relation of the chosen qualifications to the
specific work to be done.”(*) In assessing whether an employee has the required ability
or sufficient ability to perform the job arbitrators consider a number of
factors. Among those are the employees work history, performance evaluations,
previous training, evidence from the employee as to their skill level, as well
as evidence from co-workers and the employer. In some cases testimony from
expert witnesses may be considered. These are then measured against the duties
of the job. “In essence, the Employer's evidence to dismiss the Grievor's application rests mainly on his alleged lack of ability to fill the position without some training as compared to the Incumbent. As mentioned earlier, no interview were conducted, nor were any other means used to actually measure the Grievor's alleged inability. The Employer totally relied on its records, and on the supervisor's personal knowledge of the applicants…. The evidence adduced did not establish that any job requirements were ever specified in the job posting, that any such requirements had ever been clearly identified for the selection process, that no actual assessment of the Grievor's actual ability vis-à-vis any such requirement was ever conducted. These factors suffice to find that the Employer's decision was unreasonable and arbitrary. The fact that some familiarization may be required cannot suffice to disqualify the most senior applicant. The Company should have first identified what its requirements were and then asserted through some objective assessment whether the previous experience of the Grievor in performing the duties involved in the new qualification, plus his general qualifications, brought him within the realm of the requirements of the position.” (*) “It is very important that the rights of the parties,
and the claim of the grievor, be considered in relation to the job. There may be
a dichotomy between the job as it actually exists, and the job as it is
described in the posting bulletin. Sometimes when that occurs the differences
are more superficial than significant. But it is clear that the skills and
abilities of the applicants must be considered in relation to the duties of the
particular job in question and that only those factors which are relevant to the
duties of that job are taken into account.”(*) “In the board's view, what one must do in this kind of
case is to determine the core pattern of duties and responsibilities performed
by an incumbent during the course of her employment. It is this core pattern of
duties that forms the content of the position against which the competence,
skill and experience of a displacing employee must be measured. If it can be
established that a displacing employee is capable of performing the core pattern
of duties and responsibilities being performed by an incumbent with less
seniority, then under the terms of art. 8.05 the incumbent would be
displaced.”(*) Where there are significant differences in the employees
current job and the job denied arbitrators also consider what, if any, training
period the employee is entitled to. Unless specifically encompassed in the
collective agreement arbitrators have consistently ruled that an employer is not
obligated to provide a training period but have stated that a
“familiarization” period is appropriate.
“As a
general rule an employee is not entitled to a training period, or even to a
trial period during which she can demonstrate her "subjective beliefs"
as to her abilities . Generally an employee is required to possess the present
and immediate ability to do the job. As well, there is some arbitral authority
that an employee is not entitled to be interviewed for a position, again subject
to any provision in the collective agreement.”(*) “In the authorities, the distinction between
"training" and "orientation" has been described as the
difference between learning new skills and abilities ("training") and
learning the details and environment of a new job, in which one will simply
employ existing skills and competence ("familiarization" or
"orientation").”(*) There is no dispute that there is no obligation on the
Employer to provide training except to spare operators pursuant to section 8.12,
which is of no application here. Hence, one criterion that may be used to
eliminate a more senior applicant relates to the fact that he likely required
training before becoming operational.”(*) Generally where a required ability clause exists and the
senior employee is denied the job it is incumbent on the employer to show why
they did not feel the employee had the necessary skills and ability. “The Grievor's greater seniority is not in dispute.
Since the Employer opted for an applicant with less seniority, this leaves the
opening sentence, i.e. on the ground that in "his judgment [the most senior
applicant did] not have the required skill and ability", as the only basis
for its action. Consequently, the onus falls on the Employer to show that its
judgment was well founded, that it was not arbitrary nor discriminatory.”(*) Where a collective agreement contains a “relatively
equal” skills and ability clause the grieving employee, or employees, must
show that not only do they possess the required skills but their skills are of
an equal value to the employee who was awarded the position. The task of the
arbitrator in these cases is to review not only the grievors skill and ability
but also that of the incumbent employee. Should the arbitrator rule that the
grieving employee(s) are in fact equal or relatively equal in their skills and
ability the job would be awarded to the most senior employee. The measured
skills and abilities of the employees must be relevant to the actual position in
question. An employee should not be given preference for one position based on
their potential for advancement to higher positions. “In other words, the most senior employee who meets
the minimum qualifications will not automatically be awarded the position. There
must be a competition and selection made after consideration of individual
employee's qualifications, ability and performance in addition to
seniority.”(*) "It is common ground that in assessing the
applicants the company considered that all of the employees were
qualified...", but the winner was chosen because he was considered a
superior student, notwithstanding that he was the least senior of the three
qualified employees. In that context, the Arbitrator held that as all of the
applicants were qualified within the meaning of the collective agreement and the
job description, and as there were no significant differences between them, the
job ought to have gone to the most senior employee.”(*) “By way of contrast, if the operative clause in the
agreement is of the "competitive" or "relative ability"
variety, and provides that seniority will govern only where the abilities of two
or more of the competing employees are relatively equal, generally the burden of
proof to be borne by the grievor is more onerous.
By these provisions, the grievor's qualifications are evaluated against
those of the successful candidate. If
the grievor was the senior applicant for the job, arbitrators have said that he
must prove not only that he has the minimum qualifications and abilities for the
posted job, but as well, that he was relatively equal in these respects to the
other applicants who were junior to him. If
the employee were able to establish a prima facie case by showing either that
she possessed the greatest seniority and that her ability was relatively, viz.,
approximately, equal to the successful employee, or that the employer's assessment of the competing applicants was
perfunctory, incomplete, based on irrelevant or improper grounds, or defective
in some other way, such as improper consideration of non-bargaining unit
employees, the onus would then shift to the employer to substantiate that its
selection was not arbitrary, discriminatory or unreasonable.”(*) “One must look at the job and what it requires and the
qualifications and ability to perform the job . . . While management may have considered [the successful
applicant] a marginally better employee, that is not the test. The test is
whether the qualifications and ability of both employees are equal in so far as
they relate to the particular job .”(*) “Long experience has shown that a requirement for
absolute equality before resorting to seniority is simply unattainable. This
experience is reflected in the parties' use in their agreement of the
well-understood term "relatively equal". The jurisprudence tells us that, absent controlling language
in the agreement, "relatively equal" means "approximately
equal". There is no such
language in our agreement, so I will interpret "relatively equal" in
that sense. As well, it is for the
union to establish that the grievor was the "relatively equal" of the
successful candidate. It is
recognized that this is a heavy burden.”(*) As previously mentioned the third type of clause commonly
found in collective agreements relating to skill, ability and seniority
considers all factors concurrently but not necessarily equally. Subject to the
test of reasonableness, and without clear language in the collective agreement
to the contrary, the employer is free to establish how much emphasis should be
placed on the different factors to be considered. “In the present case, seniority must be considered at
the same time as the other three factors when ranking employees. The employer
need not give equal weight to the four factors. Following this initial ranking
there may be situations where employees are relatively equal. In this event
ability rather than seniority will be the deciding factor.”(*) “Hybrid clauses require a consideration of a number of
factors one of which is invariably seniority. In that context the arbitrator
gave to seniority a deciding weight where the other factors were relatively
equal among the applicants. I agree with that interpretation; and he further
held that the employer should bear the burden of showing why the ability factor
was given greater weight than the seniority factor in bypassing the senior
employee. In short, if a factor other than seniority is to govern, the employer
should offer cogent evidence as to why that is so.”(*) In this writers view the research on this issue highlights
a number of key concerns.
N Sones - Business Agent CWA Local 30248 (*) References provided at our discretion |
|
Communications
Workers of America, Local 30248
|