Employer Was Permitted to Require Experience for Job

Written by Christina-Catenacci, BA, LL.B., LLM, PhD Editor, First Reference Inc.

In August 2024, a New Brunswick labour arbitrator denied the union’s grievance that argued that an employee should have been awarded a job. The union took issue with the employer’s job requirement to have 1,000 hours of experience and stated that it was unreasonable. The arbitrator agreed with the employer that the employer was allowed to stipulate that job applicants for the position of truck driver had 1,000 hours of experience.

What happened?

The employee, a truck driver, had worked with the municipal employer since 2008. In fact, the employer was the only employer that the employee had since high school.

The employee responded to a job ad with the employer as a labourer (a fields and truck driver) with the employer’s parks and grounds and the public work department. The work involved fields and grounds labour, operation of landscape equipment, and supervision of crews.

In the job description, applicants were expected to have graduated from grade 12, have a valid driver’s licence, and understand English. But the other requirements were that applicants have at least 1,000 hours of experience operating the equipment and vehicles. According to the evidence, 1,000 hours amounted to a season of work.

The employee applied to the ad, but he was unsuccessful. The employer explained that he did not have the hours of experience. He had the licence, but he had no experience driving the truck in question. In fact, he felt that it was practically impossible to acquire this kind of experience.

The union commenced a grievance and said that the Collective Agreement was violated. It argued that the need to have 1,000 hours of experience was unreasonable, and the job could be learned during a 40-day trial period on the job. The Collective Agreement already referred to this trial period as an opportunity to acquire the necessary job-related skills.

Moreover, the union asserted that, if the training could be done within the trial period, the candidate with the most seniority should be awarded the position. In this situation, the employee was the one who had the most seniority, so he should be awarded the job.

On the other hand, the employer argued that the Collective Agreement did not prevent the employer from asking for 1,000 hours of experience to do a job. The employer was permitted to have and use its exclusive management right.

The arbitrator confirmed that the employer had the right to require experience for a job:

“There is nothing in the Collective Agreement that prevents the Employer from adding in a posting a requirement for “experience.” The power to impose such a requirement emanates from the Employer’s management right, which is recognized at Article 4.01 of the Collective Agreement. The only limit to this right is that this requirement must be reasonable and have a reasonable relationship to the basic requirements of the posting in question. This standard was acknowledged in two decisions issued in 2022 that opposed these same parties.”

The arbitrator reviewed the relevant cases and concluded without hesitation that it was within the employer’s management right to impose “experience requirements” within a posting as long as these requirements were reasonable, had a reasonable relationship to the basic requirements of the posting in question, and that in assessing the reasonableness of these requirements the employer took into consideration the trial period set out in the Collective Agreement.

The arbitrator explained that the union had to show that the employee met the requirements, or the requirements were unreasonable. The arbitrator went through the evidence submitted by the employer:

• The employer determined that the competency required for this job could not be acquired during the 40-day trial period
• The employer defined the position as a “safety-sensitive position” and added that it would be dangerous to allow someone with no experience in the operation of a “truck with three or more axles” to do so considering the added difficulty of operating a snowplow
• The employer produced a document that indicated that other municipalities also required prior experience ranging from one to two years for the operation of a similar piece of equipment

In response, the union did not challenge this. Its only evidence was from the president of the local, who testified that he had never trained anyone for this position, but that he thought that five days of training would be sufficient to learn how to operate a snowplow and that this could be obtained during the 40-day trial period. He did not give any factual basis for his conclusion.

The arbitrator was not convinced by the union’s submissions and added that arbitrators have been reluctant to interfere with managerial decisions of this kind unless there was evidence of arbitrariness, discrimination, bias, bad faith, or some other indication of unreasonableness. In this case, there were no indications of this.

Therefore, the arbitrator denied the union’s grievance.

What can we take from this case?

As can be seen in the above case, unionized cases are very dependent on the specific governing Collective Agreement. Generally speaking, employers enjoy management rights to exclusively operate the company and make management decisions such as job requirements for a new position. Arbitrators are typically reluctant to interfere with these decisions unless they are in bad faith, biased, or unreasonable in some other way.

When a union wants to start a grievance to argue that an employee should have been awarded a job, the union would have to show with evidence that the employer’s decision to include a job requirement was arbitrary, discriminatory, biased, in bad faith, or unreasonable in some other way.