Regina school caretaker terminated for not holding valid firefighter certificate

Firefighter exam failed 8 times by employee over 8 years

Regina school caretaker terminated for not holding valid firefighter certificate
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Despite more than 30 years of experience with the Regina Catholic school division, a head caretaker was dismissed after numerous failed attempts at gaining his boiler operator certification.

The employee had worked for the Regina Roman Catholic School Division since 1985. When he was first hired as a custodian, the caretaker (who wasn’t identified by name) held the proper certification, which allowed him to work at a facility that had a boiler.

In 1987, the caretaker successfully bid into a head caretaker position at an elementary school, where he continued to work until his termination in 2017.

Sometime in the 1990s, the certification lapsed as the caretaker failed to renew it. During that decade, the caretaker was off work for about four years due to back surgery and other injuries from an automobile crash.

Because he wasn’t able to keep up with the certification (or “fireman’s certificate” as it was known colloquially), the caretaker was effectively “stuck” working at the same school, he testified. However, the caretaker enjoyed his time at the school, and he was happy to remain there, he said. The school operated a furnace for heat instead of boiler.

In March 2011, the caretaker was advised by Rodd Hoffart, superintendent of facilities, that as a “condition of your employment, I ask that you provide an up-to-date certificate by June 30, 2011.”

All head caretakers were required to hold the proper certification, even if they did not work with boilers, testified Hoffart.

However, two other caretakers in the system lacked the certification, said the caretaker. But neither were head caretakers, said Hoffart, and, as such, were grandfathered into their current employment arrangements.

And two other caretakers who were unable to maintain their certification were terminated, testified Hoffart.

Between 2009 and 2017, the caretaker wrote the exam eight times and failed to achieve the required 65 per cent (53 per cent was his highest score).

The caretaker had been assessed with a mild learning disability and this was disclosed to the employer in late 2016. The condition was most likely caused by the head injuries and a heart attack about 10 years earlier, said the caretaker.

The caretaker was given special accommodations to pass the test, said Hoffart, that included extra tutoring and the use of a memory sheet that wasn’t provided to others.

On Feb. 17, 2017, the caretaker was terminated. “Offers of test/answer review, hands-on boiler instruction and time off to write were provided, some of which you chose not to take advantage of,” said the letter.

The Canadian Union of Public Employees (CUPE), Local 1125, grieved the decision.

Arbitrator Allen Ponak upheld the grievance. “The employer is directed to reinstate the grievor as an employee and seek to accommodate him in a position that he is capable of performing that does not require a fireman’s certificate.”

However, the board was not found fully at fault, said Ponak. “The employer was justified in removing the grievor from his position as a head caretaker but it was not reasonable to terminate his employment entirely.”

“While much of the fireman’s certificate is focused on boiler operation and maintenance, anywhere from half to one-third of the syllabus and examination questions address building operations apart from boiler systems and cover specific topics relevant for safe building operations. I conclude that it is a legitimate expectation that head caretakers of buildings filled with children have good knowledge of the subjects covered by the FC,” said Ponak.

However, “the employer failed to balance the interests of the grievor, a 30-year employee with a strong record, in maintaining his employment with the school board after it determined that he was no longer eligible to continue as a head caretaker. The failure to consider alternative positions was unreasonable and is one basis for setting aside the termination,” he said.

But the board’s decision to require the certification was reasonable, said the arbitrator. “The fact that the grievor was unable to renew his FC despite multiple attempts gives reasonable pause about the grievor’s capacity to meet the expected standard for head caretakers. One does not have to wait for something to go wrong to remove an employee who is unable to obtain a legitimate qualification for the position he holds.”

Reference: Board of Education of the Regina Roman Catholic School Division No. 81 and Canadian Union of Public Employees (CUPE), Local 1125. Allen Ponak — arbitrator. Brittnee Holliday for the employer. Sachia Longo for the employee. July 25, 2019. 2019 CarswellSask 347.

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