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FEATURE
“Is it appropriate that management use a rather vague clause in an employer-generated job description to exercise discretionary authority and thereby not only circumvent fundamental collective agreement principles but further disadvantage an already adversely affected employee as well?” Arbitrator Tom Hodges, regarding Interior Health Authority’s level one qualification requirements.
CAPABLE CANDIDATE An arbitrator ruled that Kamloops RN Chantal McFadden was fully capable of performing the duties of the position she had applied for despite the wording of the Interior Health Authority’s job description.
“I didn’t believe them when they said I was not qualified – it didn’t make sense to me at all,” says McFadden, whose grievance was successful after the Interior Health Authority – BCNU Tom Hodges Alternative Dispute Resolution process ruled last November that Interior Health unfairly denied her the CH1 public health position. In his analysis of the case, the arbitrator noted that a nurse’s lack of a specific qualification as worded in a job description does not mean they are then unqualified for the position. Rather, the question is one of capability: if a nurse is capable of performing the duties of the job description by the end of the qualifying period (90 days in
McFadden’s case) then they are entitled to bump into those jobs or fill appropriate vacancies. And given the fact that McFadden had applied for a level one position, the arbitrator ruled that there was little doubt that, with her qualifications, experience and demonstrated capability, she could fully rise to the demands of the level one public health position within a reasonable qualifying period. In his decision, the arbitrator was critical of what he called the “alarmingly vague” job requirements that Interior Health had created which, unwittingly or not, contained elements that circumvented important collective agreement provisions that require employers to show fair and reasonable consideration before depriving a nurse of the qualifying period during which they could become proficient in the job.
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he issue of employers denying nurses’ access to available vacancies or suitable positions was identified as significant enough of a problem that it reached the NBA provincial bargaining table last year. Dhillon recalls the evening in August
2012 when she spoke directly to provincial health employers. She had filed her grievance and BCNU’s provincial bargaining committee was meeting withprovincial health employers in Vancouver. Job security was on the agenda and her steward suggested that it would be a good opportunity to tell her story and let employers hear first hand from a nurse who had been deemed not qualified and how it affected her. “I went to the meeting,” says Dhillon. “I was so upset with them saying I was unqualified and I told them I had to do this for myself – I’ve worked for 15 years and said that they just can’t do this to nurses.” “Three days later I got a call from my steward and she told me I got the PCC position I had applied for.” The result of Dhillon’s and others’ experience has been the negotiated “Memorandum of Understanding—Job Security: Dispute resolution process regarding displacement options” that is now part of NBA provincial contract. This MOU places a priority on reaching a conclusion to a nurse’s disagreement if their employer deems them “not qualified” for a position. The process is intended to elevate and resolve the issue quickly and require
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I was so upset with them saying I was unqualified and I told them I had to do this for myself – I’ve worked for 15 years and said that they just can’t do this to nurses.
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Surrey Memorial Hospital RN Swaranjit Dhillon