Should have ‘formal educational qualification considered’: Arbitrator
After she was awarded a promotion, which was then promptly cancelled after the employer realized her qualifications were lacking, a Vancouver social worker grieved the decision.
Salimah Damji, who worked at the Vancouver General Hospital, responded to a job posting on March 11, 2016, for a social-worker position in the T11 acute care elderly ward at the facility.
The posting called for candidates to possess a “master of social work (MSW) from an accredited school of social work.” However, on April 11, the post was changed and it requested candidates hold a “bachelor of social work (BSW)” instead.
Leighanne MacKenzie, operations director for medicine at the hospital, sent an email to the HR department on April 15, just as she was about to leave for vacation. “I am fine if you leave the posting for BSW up. I will be away next week. Please award it to Salimah Damji with a start date of six weeks.”
After that, MacKenzie also emailed Damji: “I think we will have you move to T11 in six weeks. That will allow me time to post, possibly interview and fill before we move you. You can certainly tell people about your new position. My plan was to send a memo when I return from a one-week vacation next week.”
Meanwhile, management decided that the posting did require candidates to hold the master of social work and it again changed the posting on May 2.
Damji again applied but she was unsuccessful and another person won the job.
She filed two grievances against the decision: one for the employer awarding then rejecting her, and another for not interviewing her for the third posting.
Damji argued the employer should have considered her past record, which included work as a social worker on the T11 ward between 2004 to 2008, when she was bumped by a more-senior worker.
As well, Damji worked as a social worker for six years on another floor (CP8) that also provided acute care for elderly patients.
The employer argued that it required the master’s designation due to the complex care required for its elderly patients.
Arbitrator John Kinzie disagreed and upheld the second grievance about the employer not considering her qualifications, but dismissed the first one which contested the cancelled posting.
“By way of remedy, the second social worker position on T11 is declared vacant and a re-run of the posting for that social worker 1 MSW position is directed,” said Kinzie.
“Should (Damji) apply for that vacancy, she will be entitled to have her claim of equivalent qualifications to the required master’s degree considered by the employer in a fair and reasonable way as a part of the process for the selection of the successful applicant for that vacancy.”
During the hearing, Damji showed she had performed some of the tasks that an MSW worker had done, such as psycho-social assessments, which proved she should be considered as having master’s equivalency, said Kinzie.
“If after hearing from (Damji) regarding that claim, the selection panel rejects her claim of equivalency, that rejection may be the subject of a further grievance and that is where that evidence might be relevant,” said Kinzie.
“I will say that given (Damji’s)bachelor’s degree and her 10 years of satisfactory work experience on T11 and CP8, it seems to me the panel would have to have clear and persuasive reasons for rejecting the grievor’s claim of equivalency,” said Kinzie.
“(Damji) was entitled to have her claim of equivalent qualifications to that formal educational qualification considered,” said Kinzie.
“The employer refused to do so and thereby violated the provincial agreement.”
Reference: Vancouver Coastal Health Authority and Health Sciences Association of British Columbia. John Kinzie — arbitrator. Andres Barker for the employer. Randy Noonan for the employee. Sept. 19, 2018. 2018 CarswellBC 2520
Salimah Damji, who worked at the Vancouver General Hospital, responded to a job posting on March 11, 2016, for a social-worker position in the T11 acute care elderly ward at the facility.
The posting called for candidates to possess a “master of social work (MSW) from an accredited school of social work.” However, on April 11, the post was changed and it requested candidates hold a “bachelor of social work (BSW)” instead.
Leighanne MacKenzie, operations director for medicine at the hospital, sent an email to the HR department on April 15, just as she was about to leave for vacation. “I am fine if you leave the posting for BSW up. I will be away next week. Please award it to Salimah Damji with a start date of six weeks.”
After that, MacKenzie also emailed Damji: “I think we will have you move to T11 in six weeks. That will allow me time to post, possibly interview and fill before we move you. You can certainly tell people about your new position. My plan was to send a memo when I return from a one-week vacation next week.”
Meanwhile, management decided that the posting did require candidates to hold the master of social work and it again changed the posting on May 2.
Damji again applied but she was unsuccessful and another person won the job.
She filed two grievances against the decision: one for the employer awarding then rejecting her, and another for not interviewing her for the third posting.
Damji argued the employer should have considered her past record, which included work as a social worker on the T11 ward between 2004 to 2008, when she was bumped by a more-senior worker.
As well, Damji worked as a social worker for six years on another floor (CP8) that also provided acute care for elderly patients.
The employer argued that it required the master’s designation due to the complex care required for its elderly patients.
Arbitrator John Kinzie disagreed and upheld the second grievance about the employer not considering her qualifications, but dismissed the first one which contested the cancelled posting.
“By way of remedy, the second social worker position on T11 is declared vacant and a re-run of the posting for that social worker 1 MSW position is directed,” said Kinzie.
“Should (Damji) apply for that vacancy, she will be entitled to have her claim of equivalent qualifications to the required master’s degree considered by the employer in a fair and reasonable way as a part of the process for the selection of the successful applicant for that vacancy.”
During the hearing, Damji showed she had performed some of the tasks that an MSW worker had done, such as psycho-social assessments, which proved she should be considered as having master’s equivalency, said Kinzie.
“If after hearing from (Damji) regarding that claim, the selection panel rejects her claim of equivalency, that rejection may be the subject of a further grievance and that is where that evidence might be relevant,” said Kinzie.
“I will say that given (Damji’s)bachelor’s degree and her 10 years of satisfactory work experience on T11 and CP8, it seems to me the panel would have to have clear and persuasive reasons for rejecting the grievor’s claim of equivalency,” said Kinzie.
“(Damji) was entitled to have her claim of equivalent qualifications to that formal educational qualification considered,” said Kinzie.
“The employer refused to do so and thereby violated the provincial agreement.”
Reference: Vancouver Coastal Health Authority and Health Sciences Association of British Columbia. John Kinzie — arbitrator. Andres Barker for the employer. Randy Noonan for the employee. Sept. 19, 2018. 2018 CarswellBC 2520
