Large numbers of Collective Agreements have a "relative equality" clause in the postings or promotions language. A recent decision out of Alberta upheld the hiring of a significantly junior employee who only scored less than 5% more than the senior 26 year employee.
The case (Canadian Blood Services and HSAA, 185 LAC (4th) 69) decided by a Board of Arbitration chaired by Les Wallace involved three internal candidates at Canadian Blood Services who had each applied for a position of Laboratory Assistant. The senior applicant, Ms Camat, had 26 years seniority and scored 75.5 out of 125 on the interview. The initially succesful applicant, Ms Wichinsky (13 years), scored the highest (84.5) but declined the job. The other top applicant, Ms Berube (2 years) scored 81.5.
The Collective Agreement obliged the Employer to hire the most senior candidate if the candidates were relatively equal in the opinion of the Employer.
Normally, a differential of less than 5% would fall into the range of relative equality. Arbitrator Wallace held that since the CA specifically refers to the opinion of the Employer, that opinion must be given weight by an Arbitrator. Interestingly, in spite of the fact that the hiring manager felt that Ms Berube and Ms Camat were relatively equal, the decision was nonetheless allowed to stand since the Employer (in the person of the HR rep) had clearly determined they were not relatively equal.
What do you think this tells us about the importance of the wording in an agreement?
Do you think the Union really meant to give that wide a latitude to Employer discretion when it was drafting the agreement?
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