Canadian Employment Law Today

October 23, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. School caretaker cleaned out after qualification lapses THIS INSTALMENT of You Make the Call features a caretaker who was dismissed after his fireman's certificate (FC) lapsed. e 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 consid- ered 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 mat- tered — 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. e 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. e 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. e worker was fine with it as he liked the school and his job there. e worker continued as head caretaker of the school for years, receiving recogni- tion 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 certifi- cate by June 30. e 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. e worker wrote the FC exam multiple times but failed. In the fall of 2016, he in- formed the school board that he suffered from learning and cognitive disabilities. A psycho-educational assessment deter- mined the worker had mild reading and comprehension impairment and mild math reasoning impairment. e 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. e 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. e worker didn't ac- cept any of these offers, although he attend- ed a boiler learning service and tour. e worker was allowed to take a special FC exam tutorial, but he still failed the exam. e school board extended the deadline mul- tiple 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 termi- nated the worker's employment. e 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. e union filed a grievance claim- ing discrimination based on a disability and a failure to accommodate. Emplo y ment Law Today Canadian 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. e 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 hav- ing "the knowledge and authority to deter- mine what skills employees must possess to perform their work safely and efficiently." e arbitrator also noted that while an FC is only legally required at schools with boilers, the certificate also includes safe building opera- tions. e 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. e ar- bitrator found that he had performed his du- ties without any issues since 1988 and had received recognition for keeping the school clean and safe. e school board gave no consideration to finding another caretaker position, the arbitrator said. e 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 condi- tions. Since the worker had passed the exam before, it was likely he would have passed again were it not for his disabilities. e 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 ac- commodate him. e school board was or- dered to reinstate the worker and try to ac- commodate 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.).

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