Reference no: EM133181516

Case Incident Bentley School Board

A collective agreement contained an article that provided as follows:

In making promotions, demotions and transfers, the required knowledge, ability and skills for the position as outlined within the appropriate class specification shall be the primary consideration; and where two or more applicants are capable of filling the position applied for, seniority shall be the determining factor. In all the instances, present qualified employees shall be given preference.

The employer posted a job vacancy for a labourer as follows:

Performs a variety of unskilled and semi-skilled grounds maintenance tasks, including raking, sweeping and cleaning grounds; cutting and trimming grass; removing snow; loading/unloading equipment, materials and tools. Operates and maintains manual and power-operated equipment. Applies fertilizers, pesticides, etc., as directed. Performs other related duties as assigned. Qualifications: Several years' grounds-related experience. Ability to perform repetitive manual tasks for an extended period; to lift heavy objects; to work in all weather conditions. Knowledge of and ability to perform minor repairs and maintenance on grounds-related small machinery, tools, and equipment. Possession of or willingness to obtain pesticide applicator ticket within a specified time. Training in practical horticulture is an asset. Knowledge of WHMIS. Safe work practices. Valid driver's licence and safe driving record.

The contract also provided that an employee who moved to a new position would have a trial period of three months to determine his or her suitability. There were two applicants, Franks and Martin. Franks had 10 years of seniority, had worked as a labourer and had been assigned to grounds duties approximately 40 percent of the time. Martin had five years of seniority, had worked as an assistant to the gardener and had filled in when the gardener was absent. Martin had also taken courses in horticulture and completed training in pesticide use. The foreman described the work done by grounds labourers as "simple, dirty, . . . shovelling, raking, levelling, . . . loading, moving and assisting the gardener." It was estimated that each of the tasks involved in the job could be mastered within a day or less of work. Martin was awarded the job.

Questions

• On what basis can Franks file a grievance?
• On what basis can the union file a grievance?
• If Franks and the union file grievances, what outcome do you expect at an arbitration hearing? Explain.