Is worker entitled to promotion?

If an employee has been publicly recognized, and compensated, for functioning as acting manager of a department for five years, does that employee then have an overriding right to said position when the organization decides to hire for that position?

Tim Mitchell
Question: This is a unionized environment, which requires that all positions be posted internally, and that all qualified internal candidates be interviewed. On a number of occasions, these conditions have been waived when warranted (for example, when no internal candidates have the required qualifications) and candidates have been granted positions without having to compete or be interviewed.

If an employee has been publicly recognized, and compensated, for functioning as acting manager of a department for five years, does that employee then have an overriding right to said position when the organization decides to hire for that position?

Can the employee argue that since management has clearly been satisfied with his performance in the role (having left him in that position for five years), he should not be required to apply and interview for the position?

Answer: Under the collective agreement you describe, each qualified member of the bargaining unit has the right to be considered for an available in-scope position. An employee’s lengthy service in an acting role would undoubtedly be an important consideration in the selection process, particularly if “relevant experience” was expressly included in the selection criteria. However, it would not give that employee the right to demand the position in preference to other qualified employees.

In a unionized environment, the union negotiates the collective agreement on behalf of all of the employees in the unit. The procedures set out in the collective agreement are intended to insure that employees are evaluated in accordance with the terms negotiated between the employer and the union. No individual employee has the right to demand preferential treatment through what is effectively a private arrangement between employer and employee.

The fact that the posting and job selection provisions have been by-passed on prior occasions does not alter this situation. The examples given suggest that it would have been pointless or impossible to follow the procedure stipulated in the agreement in the circumstances. However, even if the agreement had been breached at an earlier time, the employee in the acting role would not have a right to claim the posted position if there were other internal applicants entitled to be considered according to the terms of the agreement.

An employee might not disqualify himself from consideration for the position by a refusal to apply or be interviewed. This would definitely be a dangerous course to follow, however, especially for someone seeking a management position.

As noted above, the employees in the unit have a right to expect that every applicant will be subject to the same procedures. This expectation would ordinarily encompass a right to be assessed against other applicants on the basis of information gleaned through the application and interview process contemplated by the collective agreement. An interested applicant who refused to apply for the position or to submit to an interview would do so at his own risk.

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.

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