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Employer failed to justify exclusion of certain PSWs from job competitions

January 22, 2016

Employees with private career college certificates cannot be excluded from a job competition

An arbitrator has held that Toronto Scarborough Hospital cannot exclude employees who obtained their PSW certificates from a private career college from job competitions.

Background

CUPE, Local 1487 represents personal support workers employed by Toronto Scarborough Hospital. When the Hospital decided that, for job posting purposes, it would recognize Personal Support Worker (PSW) certificates only from community colleges, the union grieved. The Hospital’s decision meant that employees who had earned their PSW certificates at private career colleges could not compete in PSW job competitions.

The arbitrator’s decision

Arbitrator Hayes allowed the grievance.

The arbitrator noted that the public policy in Ontario is that PSW training can be offered at both community and private career colleges. He also noted that the provincial legislative scheme contemplates PSW certification by both types of colleges. In light of these facts, he held that the Hospital’s general apprehension of risk and its “comfort” with community college training was not a sufficient justification for its decision:

Where the provincial legislative scheme specifically contemplates PSW certification by both private and public colleges, in my opinion the Hospital was required to do more than provide the conclusory explanation that supplementary “accreditation” was the sole means of establishing satisfactory threshold certification. In my opinion it was not sufficient for the Hospital to rely entirely on Ms. Seidman-Carlson’s singular assessment as to the potential ‘risk’ attendant upon acceptance of private college certifications. Without more detailed explanation it was not reasonable to disqualify even PSW certificates obtained from publicly funded Colleges of Applied Arts and Technology on the grounds that they provided insufficient “comfort” unless they were affiliated with accredited nursing programs.

He therefore concluded that excluding employees with private career college certificates from job competitions was arbitrary and unreasonable.

Lawyers

Mark Wright, Nadine Blum

Practice Areas

Labour Law