- May 25, 2021
- Collective Agreement Interpretation
Labour Arbitration (Daniel A. Harris)
May 14, 2012
Facts:
The Union alleged that the Employer breached Article 5.2 of the collective agreement, which states that “for new or open jobs the Employer has the right to select Department Head(s) and Assistant(s),” but that “first consideration will be given to incumbents.” The collective agreement defines “incumbents” as “the longest serving person that has not resigned or otherwise been let go for just cause.”
In filling the department head and assistant positions for the musical Billy Elliot, the Employer’s Head of Production, Scot Whitham made a call out for anyone interested in the position instead of just those already holding positions. He then reviewed the submitted resumés passed them on to the Billy Elliot staff for review. Whitham claimed to make his selections based on the requirements of the show, the experience of the candidates, what the incumbents were doing, and the needs of the Employer’s other shows. He claims to have given consideration to all applicants but ended up passing on qualified longer-service employees in filling the head and assistant head of wardrobe and hair/make-up.
Decision:
Grievance Dismissed
Reasoning:
The Board felt that “seniority” does not come into play here and the Employer maintains its express right to make the selection as it sees fit as long as it gives first consideration to the longest serving employees. The Arbitrator held that the meaning of the phrase “first consideration” does not provide the type of job security the Union sought, which was that the “incumbent” be given the first right of refusal for all new positions provided they did not lack specific qualifications.
Cases the Union sited in argument referred to collective agreements that explicitly favoured internal candidates or contained a requirement for a two-step process that the Employer first examine internal applicants prior to external ones. No such restrictions or requirements exist in this collective agreement since the language at issue is “first consideration” not “first consideration over.” In addition, the collective agreement does not provide a detailed “threshold of suitability” that directs how the Employer must make its choice.
The Board felt that Whitham made his decision in a non-arbitrary fashion, considering the incumbents first within the context of available work, what the incumbents were doing, the upcoming shows at the four Employer theatres and the requirements of Billy Elliot. He sent all the resumés to the show staff, advised them who were employees and who were not and he made his final decision only after giving the required first consideration to incumbents. Having done so, Whitham did not violate the collective agreement by choosing a non-incumbent to fill the positions in question.