You make the call
This instalment of You Make the Call features a caretaker who was dismissed after his fireman’s certificate (FC) lapsed.
The 57-year-old worker was hired as an afternoon custodian by the Regina Roman Catholic School Board in 1985. At the time had an FC, which the school board considered in offering him a job. Two years later, he became head caretaker at an elementary school, which was heated by a furnaces, not a boiler, so the worker didn’t think his FC mattered — even though it was a job requirement for head caretakers and a legal requirement for caretakers in buildings with boilers. His only responsibilities regarding the furnaces were changing the filters and reporting any trouble to maintenance.
The FC required renewal every five years. If not renewed, it would lapse and require passing the exam again. In the 1990s, the worker was off work for four years due to back surgery and during this time his FC lapsed. He returned to work around 1996.
The school board superintendent told the worker that, since his FC elapsed, he would be stuck in his current job and unable to transfer to another school. The worker was fine with it as he liked the school and his job there.
The worker continued as head caretaker of the school for years, receiving recognition from the school board for “crafting an outstandingly clean, safe and welcoming environment.”
In March 2011, the superintendent of facilities informed the worker that the FC was a condition of his employment, so the worker needed to get an up-to-date certificate by June 30. The superintendent felt that, even in schools without boilers, the head caretaker needed to know enough to check and maintain furnaces, as well as recognize when outside help was needed. In addition, FCs covered mechanical functions, fire risks and building safety.
The worker wrote the FC exam multiple times but failed. In the fall of 2016, he informed the school board that he suffered from learning and cognitive disabilities. A psycho-educational assessment determined the worker had mild reading and comprehension impairment and mild math reasoning impairment.
The worker also was taking prescription medications for various medical conditions that could potentially impair cognition. He requested a note from his doctor about the possible link between his medications and memory issues, but his doctor declined.
The school board offered assistance from supervisors, consideration of any medical evidence, discussion of any conditions that might require accommodation, time off to study and a tutorial. The worker didn’t accept any of these offers, although he attended a boiler learning service and tour.
The worker was allowed to take a special FC exam tutorial, but he still failed the exam. The school board extended the deadline multiple times, but a final letter in 2016 stated that the matter must be resolved by Sept. 1 with “no further extensions” and a failure to meet this deadline would mean “your employment could no longer be accommodated.”
On Feb. 17, 2017, the school board terminated the worker’s employment. The school board believed the worker hadn’t taken full advantage of the offered assistance and wasn’t putting in enough effort to pass the FC exam. The union filed a grievance claiming discrimination based on a disability and a failure to accommodate.
You Make the Call
Was termination of the worker’s employment justified? OR Was termination not justified?
IF YOU SAID termination of the worker’s employment wasn’t justified, you’re correct. The arbitrator noted that the school board considered a valid FC certificate a mandatory requirement for the head caretaker position — management must be given credit for having “the knowledge and authority to determine what skills employees must possess to perform their work safely and efficiently.” The arbitrator also noted that while an FC is only legally required at schools with boilers, the certificate also includes safe building operations.
The FC was a qualification for the job that the worker possessed when he was hired, and just because “nothing bad happened” when he continued to work after his lapsed didn’t mean he should be exempted from the requirement, said the arbitrator.
However, although the worker’s failure to regain his FC disqualified him from the position of head caretaker, that didn’t mean the only option was to dismiss him. The arbitrator found that he had performed his duties without any issues since 1988 and had received recognition for keeping the school clean and safe. The school board gave no consideration to finding another caretaker position, the arbitrator said.
The arbitrator acknowledged that the worker could have been more diligent in preparing and obtaining help, but it was clear his ability to pass the exam was affected by his learning disability and medical conditions. Since the worker had passed the exam before, it was likely he would have passed again were it not for his disabilities.
The arbitrator determined that the school board terminated the worker because of a requirement the worker was unable to meet due to a disability and made no effort to accommodate him. The school board was ordered to reinstate the worker and try to accommodate him in a job that didn’t require an FC. See Board of Education of the Regina Roman Catholic School Division No. 81 and CUPE, Local 1125, Re (July 25, 2019), A. Ponak – Arbitrator (Sask Arb.).
