Periodic test using special equipment a resonable demand
A number of paramedics employed by a municipal ambulance service grieved when the employer instituted a new physical testing regime.
The union did not dispute that paramedics must be capable of performing their duties. However, the union argued that, in this case, the test was not reasonable because it was not rationally connected to the real-world situations that paramedics would face.
In 2006, the employer introduced a new model of stair chair — a mandatory piece of equipment designed to allow paramedics to carry patients in a seated position up and down stairs.
Paramedics are trained in the use of stair chairs. College training programs require pairs of prospective paramedics to use the stair chair to convey dummies weighing up to 210 pounds up and down stairs. And, during their probationary period, newly hired paramedics must demonstrate their ability to convey a 185-pound dummy up one flight of steps.
However, until the end of 2008, paramedics undergoing Continuing Medical Education (CME) either as part of ongoing training or to re-establish competency after an absence of more than 90 days were not required to physically demonstrate their competency with various pieces of equipment.
New training requirements
This changed after a work-related incident and injury to a paramedic. Following an incident where a folding stretcher collapsed and broke the leg of a paramedic, a Ministry of Labour Inspector recommended that the employer reassess its training regime.
The employer did so and introduced a three-year cycle that mandated new training requirements and a competence assessment on all conveyance equipment, including the stair chair. The requirement for a competence assessment would also now apply to workers returning from an absence of more than 90 days.
In November 2008, two workers returning from absences of more than 90 days were required to demonstrate their competency.
The new stair chair test — to be completed using a 185-pound dummy — required the workers to ascend and descend 22 stairs (two flights) six different times. The test required the workers to demonstrate their competency ascending and descending at the head of the chair; ascending and descending at the bottom of the chair; and, ascending and descending in both positions while using stair tracks in conjunction with the chair.
One worker successfully completed the test, while the other did not. Both workers grieved claiming the employer was improperly denying their right to return to work contrary to the Ontario Human Rights Code.
The union also filed a policy grievance.
In addition, regular CME training conducted under the new testing requirements revealed that many of the paramedics were employing the “leader forward” position when using the new stair chair that was introduced in 2006.
While some paramedics favoured this position, which orients the person at the head of the chair facing up the stairs, the employer objected and insisted that the workers complete the test using the leader backward position according to the employer’s standard training procedures.
Work refusal
A worker refused to perform the test in that manner claiming that it put him at risk of musculoskeletal injuries. A work refusal and a grievance followed. However, while that grievance was settled following an adjustment to training and testing procedures to allow the leader forward position, the union pursued the policy grievance.
The union asked for an order to ensure that any testing be designed to accurately reflect real-world conditions and that any worker who had passed probationary testing not have his or her livelihood threatened because of a failure to pass the test.
The parties were in agreement that paramedics must be competent in the use of all the conveyance equipment, the Arbitrator said. Also, the requirement that they retain and demonstrate their competence was not a new requirement. What had changed was that now a physical demonstration or test was required periodically whereas before, a review of the procedures and equipment sufficed.
The reasons for the new test were directly related to the employer’s statutory functions and responsibilities and consistent with its rights under the collective agreement to operate and manage its business in accord with those requirements, the Arbitrator said. There was nothing in the collective agreement to prevent the employer from instituting a more rigorous test.
Test must be fair
However, such a new test must meet the standard of reasonableness with respect to reliability, validity, relevancy and fairness.
The test was a reliable and valid method of demonstrating whether or not paramedics were able to operate the stair chair, the Arbitrator said.
The test was fair. Employees knew exactly what was expected and what the standard was. All employees received the same test under the same conditions administered by the same group of facilitators.
The test was also relevant to the conditions that paramedics might face in the field. It was true, the Arbitrator said, and as the union had suggested, that a paramedic was unlikely to face all the scenarios presented in the test at the same time. But certainly any one of them could come up and — given the infrequent use of the stair chair — the opportunity to demonstrate competency in the various scenarios was a reasonable requirement.
However, to ensure that the test was also conducted in a reasonable manner, the Arbitrator said that the employer was required to give consideration to individual circumstances. In the event that a paramedic was not able to complete all six scenarios one after the other, it was reasonable to schedule the testing over a number of sessions.
There was no violation of the collective agreement, the Arbitrator said.
The grievances were dismissed.
