Appeal court sides with union, rules firefighting fitness test could be discriminatory

A fitness test that sets out a “rigorous” standard to fight fires within the province could discriminate against women and older male employees, argued a provincial union, with the Saskatchewan Court of Appeal siding with the union against the government.

Union says test not representative of firefighting and not appropriate to determine minimal standards

Recruits in northern Saskatchewan receive training on how to fight wildfires. A fitness test, introduced in 2012, assesses Type 1 wildland firefighters, with firefighters tasked with finishing a set of physically demanding tasks in a set amount of time. (Don Somers/CBC)

A fitness test that sets out a "rigorous" standard for those wanting to fight fires in the province could discriminate against women and older male employees, according to a Saskatchewan Court of Appeal ruling which sided with a provincial union over the government.

In a June 15 decision, justices Georgina Jackson, Maurice Herauf and Peter Whitmore backed an arbitrator's finding that the WFX-Fit test's cutoff score, as it is set, "has a potential discriminatory adverse impact on females and older males," and that it is not a bona fide occupational requirement.

There was no evidence that showed women or older men had not been able to do the work of Type 1 wildland firefighting within the province, but because of the standards of the test, they could still find themselves in the category of the 20 per cent of people who could not pass it, the arbitrator had found.

"He found, instead, that the cut score was a means to discriminate against women and older men, albeit unintentionally, because such individuals do not have the aerobic capacity of younger men," stated the appeal decision.

In 2012, Saskatchewan implemented a fitness test called the WFX-Fit test, developed by the Canadian Interagency Forest Fire Centre. The test was developed to set a standard of firefighters of a recognized ability that could move and work between different jurisdictions. People are tested in their ability to complete a series of physical, strenuous tasks, within a set minimal time, called a "cut-score."

The Saskatchewan Government and General Employees' Union (SGEU) has argued that a fitness test introduced by the province is not really representative of firefighting operations, and is not appropriate to judge minimal standards. (Don Somers/CBC)

The implementation prompted the Saskatchewan Government and General Employees' Union to file grievances with the labour arbitration board, arguing on the basis of the Saskatchewan Human Rights Code and citing discrimination as a possible impact.

Women, older males testify

The arbitrator heard testimony from a number of people, including a  25-year-old female marathoner who testified that completing one part of the test, which involved reaching up to a rail that was high for her stature, caused "serious and possibly permanent injury."

A 47-year-old man, who had been employed as a firefighter for 26 years, testified he had met the provincial standards after training, but worried his test times were increasing and that he would eventually lose his employment as a firefighter.

Several others also testified about challenges in completing the test in the set time. Some mentioned getting injured after taking the test.

The union did not argue against the need for fitness testing for wildland firefighters, but said the WFX-Fit test was not representative of firefighting activity and argued it was not appropriate to determine minimal standards. The union also argued the test exposed people to the risk of injuries to tendons, knees and hips.

Following the government's request for a judicial review, a Court of Queen's Bench judge found the arbitrator's decision was "both incorrect and unreasonable" and quashed it.

But the Saskatchewan Court of Appeals decision found the arbitrator laid out "justified, transparent and understandable" reasoning and upheld the original decision.

The appeal court judges also noted that the arbitrator did not say that no standards should apply to wildland firefighters. The arbitrator did suggest the cut-score could be modified, or the employer could consider whether everyone had to meet a single standard.