FPSLREB Decisions

Heard at Saskatoon, Saskatchewan,
November 26 and 27, 2015.

REASONS FOR DECISION

I. Group grievance referred to adjudication

1        The Public Service Alliance of Canada (“the bargaining agent”), on behalf of the civilian firefighters employed by the Department of National Defence at Detachment Dundurn (“Dundurn”), approximately 30 km south of Saskatoon, Saskatchewan, grieve that they are not being paid the high-angle rescue allowance (“the allowance”) and claim that this responsibility is part of their emergency response duties.

2        This case considers the relevant collective agreement article, dealing with the allowance, and applies it to the evidence. The interpretation of the agreement between the Treasury Board (“the employer”) and the bargaining agent for the Operational Services Group bargaining unit (expiring on August 4, 2011) is not at issue.

3        The collective agreement states that employees who obtain and maintain certification in technical rescue operations and are assigned high angle rescue responsibilities shall receive a $75 monthly allowance. The parties agree that the firefighters have obtained and maintained technical rescue certification.

4        However, the employer submits that an assignment of such duties never occurred, thus disqualifying the firefighters from the allowance. The bargaining agent submits that the firefighters are trained and certified and that they are ready to respond to a high-angle rescue, thus triggering an “implied” assignment.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Evidence, issues and analysis

A. Collective agreement

6        This case will be decided by applying the facts presented in evidence to clause 7.01 of Appendix “A” of the collective agreement.

7        Clause 7.01 states:

High Angle Rescue Allowance

7.01 Employees who obtain and maintain certification in technical rescue operations and are assigned high angle rescue responsibilities in situations/incidents, other than rescue operations conducted at fires or crashes, specifically involving the rescue of individuals trapped beyond the reach of aerial ladder truck capabilities, on cranes, in Dry Docks or buildings, shall receive a monthly allowance of seventy-five dollars ($75).

8        The evidence of both parties indicates that the only possible structure at Dundurn that is beyond the reach of the fire department’s aerial ladder truck is the water tower. Neither party submitted an argument that the water tower does not come within the meaning of a “building” under clause 7.01. Therefore, I accept that for the purposes of this hearing, the water tower is a “building” under clause 7.01.

B. Job descriptions

9        Written work descriptions for the positions classified FR-01, FR-02, FR-03, and combined FR-04 and FR-05 were submitted as exhibits.

10         The bargaining agent submits that the wording of the work descriptions supports its claim that high-angle rescue is part of the firefighters’ normal work. The employer replies by pointing out that the work descriptions not only refer to “high angle/rope rescue” but also include the phrase, “depending on the respective base mandate.”

11         The employer also submits that the work description for employees classified FR-04 or FR-05 do not explicitly state responsibility for high-angle rescue. This classification includes the deputy fire chief position, held by the witness James Paulson. The employer argues that in addition to the positions not being “assigned” high-angle rescue duties, this particular position lacks such duties in its work description and therefore should not qualify for the allowance for that additional reason.

12         The bargaining agent argues in reply and I accept that the work descriptions for the deputy fire chief position and all senior positions within the fire department are sufficiently broad to include all responsibility for overseeing emergency preparedness and response and in doing so are necessarily involved in technical high-angle rescue duties when the firefighters under their command are so assigned.

13         I expect that few, if any, civilian work groups rely upon each other in a team approach more than firefighters for their safety and for the successful discharge of their duties under hazardous and potentially life-threatening conditions.

14         I find no consequence then of the particular work descriptions or the classifications of the firefighters in this group grievance. The question remains as to whether each firefighter who was qualified remained so and whether each was assigned technical high-angle rescue duties.

C. Base mandate

15         The employer submits that the need for and assignment of technical high-angle rescue duties is largely determined by the mandate and activities at Dundurn.

16         The employer calls Colonel Yvan Boilard as a witness to describe management decisions made at Dundurn about assigning duties to firefighters. At the relevant times, Colonel Boilard was the commanding officer at 17 Wing CFB Winnipeg, of which Dundurn is a detachment. Colonel Boilard gives credible testimony when explaining how base mandates vary across the country. He cites examples of the Halifax, Nova Scotia, and Esquimalt, British Columbia, shipyards and dry docks, where large cranes operate; they require assigning high-angle rescue duties. He contrasts them with Dundurn and gives a lengthy description of his analysis of the Dundurn activities and structures related to risk management and the respective plans to mitigate those risks. He indicates that being located on relatively flat prairie, Dundurn’s emergency risks are more related to confined space rescue due to the trenches that are dug and used in military exercises.

D. The risk of a high-angle rescue

17         The uncontested evidence at the hearing is that the only structure high enough at Dundurn that could ever require high-angle rescue is the water tower. It is approximately 150 feet above grade. The uncontested evidence is that the water tower normally has people on it only once a year, for annual maintenance and repairs. No evidence is received and I make no finding of fact as to how many people and how many hours or days this maintenance and repair work requires.

18         Photos that both parties submit as exhibits show and the testimony confirms that the water tower is surrounded by a fence that appears to be approximately two or three metres in height. The fence is fortified with razor or barbed wire at the top. The uncontested testimony also states that the fence is locked at all times. No evidence is presented to me as to whether the water tower was fenced with barbed or razor wire and was locked at all times during the period in question. I accept the employer’s evidence that normally, nobody is on the water tower such that he or she could cause a need for a high-angle rescue, other than those carrying out the annual planned maintenance and repair. However, witnesses from both parties confirm that on one occasion, a person climbed on the water tower to commit suicide.

19         While both parties lead evidence and argue their views of the level of risk of a high-angle rescue, I find the question irrelevant. There is undeniably some level of risk for an emergency rescue on the water tower.

E. Technical rescue (including high angle) training and recertification

20         Evidence is presented and the parties agree that as of the times documented, each firefighter was certified in technical rescue and high-angle operations. The parties further present in evidence and agree that each firefighter maintained this certification, as was documented.

21         The bargaining agent presents evidence from two members of the bargaining unit. Orlando Hamm is currently the deputy platoon chief. He first joined the fire department in 2001. Mr. Paulson is the retired deputy fire chief of Dundurn. He enjoyed 28 years of service with the fire department.

22         Both witnesses give credible testimony to the effect that their fire department trained members on the Dundurn water tower. While they state that they did not ascend the tower to its peak of approximately 150 feet, they testify as to technical high-angle training they took on the tower involving climbing a ladder at some elevation above grade. The training included necessary elements of rescuing an ill, injured, or trapped person high above the ground. The witnesses explain that their training was firstly to ensure the firefighters’ safety and secondly to ensure a safe and timely rescue of the person in need of assistance.

23         The employer leads uncontradicted evidence through Colonel Boilard and Major Robert Barrett that the technical rescue training conducted for the fire department was not solely focused upon high-angle rescue. Rather, the technical rescue training had several segments, of which one part was high-angle rescue. Both witnesses provide helpful testimony, explaining how trenches are dug and used for military training exercises at Dundurn, and the confined-space risk it poses makes technical rescue capacity for the fire department necessary.

24         While this evidence is important for an accurate understanding of the firefighter training, I find that it does not detract from the fact documented in a chain of emails presented by the bargaining agent (Exhibit BA-8) and agreed to by the parties that those firefighters who obtained and maintained their technical rescue certification were also properly certified for high-angle rescue.

F. The bargaining agent’s efforts to clarify the assignment of high-angle rescue duty

25         The bargaining agent leads evidence, and I accept the proposition, that it is likely that its persistent effort to question safety preparedness for potential high-angle rescue was the catalyst for the employer to take action. The bargaining agent further submits that what in its view was otherwise the lack of high-angle emergency planning or response capacity throughout the term of the collective agreement should trigger my finding that in fact the fire department was by default on duty for such a rescue.

26         I disagree. The employer submits and I agree that in the circumstances of this grievance, it is not within my jurisdiction to judge the adequacy of its emergency response planning or response capacity.

27         Despite my finding on that point, it remains helpful to my determination of whether high-angle rescue duty was assigned to the firefighters that for most of the year 2009, the fire department awaited a response from the employer to answer its query on this point.

28         After completing the training and certification in technical rescue in 2008, Deputy Chief Paulson wrote an email to the Dundurn fire chief on December 23, 2008 (Exhibit BA-9), stating a case that firefighters were owed the allowance. The chief forwarded the email to the commanding officer, Major Barret, on January 9, 2009, with the recommendation that the allowance be approved. The bargaining agent’s uncontradicted evidence is that the chief received no reply and that she emailed the commanding officer again on December 4, 2009, stating:

…

Below is the original email in regards to the fire department receiving this allowance. To date there has been no decision made one way or the other. The issue is brought up repeatedly from the fire department members and all I have been able to tell then [sic] is it is being investigated.

I believe enough time and enough information has been passed on for someone to make a decision on this matter.

Would you please provide me with a decision on this if it is within your authority to do so or submit the request up the chain to someone who does have the authority.

…

29         The employer addressed the issue in a reply dated December 11, 2009 (Exhibit E-2), in which the commanding officer states: “I have spent considerable time looking at the requirement for this capability at the Det. [sic] … Based upon a risk management assessment I do not believe that the assignment of these duties is necessary at this point in time [sic]”

30         In the context of all the evidence received at the hearing, I find that those communications between the fire chief and commanding officer leave no doubt that the fire department had implied assignment of duties until being informed otherwise in the December 11, 2009, memo.

31         Given the absence of evidence to the contrary before me, I find that the firefighters provided high-angle rescue services starting from when they obtained technical rescue certification until their certification expired or until the employer notified them in writing on December 11, 2009 that they were not assigned such duty, whichever occurred earlier. In fact, it is only on December 11, 2009 that they learned of the employer’s decision not to assign them high-angle rescue duties and not to pay them the allowance.

G. Employer’s plans for high-angle rescue

32         Colonel Boilard testifies that after a thorough review, including a personal inspection by himself, the decision was made not to assign emergency technical high-angle rescue duties to the Dundurn fire department.

33         The employer provides details of the contract tendering process to show the many safety requirements it places on its contractors, who are retained to work on the water tower. I am also told that the employer would require a contractor to make use of a high-reach crane to assist with work and to be available to assist with any required emergency response. A work order for maintenance on the water tower (Exhibit E-6) has an attached letter from a contractor dated July 5, 2012, which states:

…

… All employees of Landmark Municipal Services have been trained and certified in Fall Arrest and Rescue, Confined Space Work and Rescue, WHMIS Worker Training, St. John Ambulance Safety Oriented First Aid and Cardiopulmonary Resuscitation. In addition, all activities conducted at heights by staff of Landmark Municipal are fulfilled under strict guidelines based on involvement with the Ontario Ministry of Labour and the requirements outlined in the current Ontario Occupation Health & Safety Act, R.R.O. 1990, Regulation 851 amended … .

34         That is the employer’s prerogative. In the circumstances of this case, it is not the Board’s role to second-guess or pass judgement upon the sufficiency or inherent risk associated in a management decision to assign tasks and deploy resources.                                          

35         While Major James Sharp gives credible testimony about matters related to contract requirements and safety and emergency planning, he does so without the benefit of having been at Dundurn during the time of the events that led to the grievance before me. Major Sharp began his duties as commanding officer at Dundurn only in August 2014. Therefore, I find his testimony of little help, as he could not speak to exactly what happened in the events that are at issue. I took his evidence as either more prospective or alternately more theoretical as to what could have been in place before he assumed command. Neither is helpful in my determination of what actually happened during the time in question.

36         While the risk, however small, persists that a mishap will occur on the water tower, I heard no evidence that would restrict management’s authority to decide, as was submitted in evidence that the City of Saskatoon fire department would be dispatched to respond to a high-angle rescue in Dundurn.

37         The bargaining agent submits that if in fact that is the case, a written service agreement must exist and should have been tendered as evidence. I do not agree. I find on the oral evidence presented that it is more likely than not that had a high-angle emergency occurred on the Dundurn water tower after December 2011, Dundurn would have called the City of Saskatoon fire department to dispatch emergency responders.

38         The bargaining agent leads evidence indicating its efforts to highlight that a formal high-angle rescue plan for the water tower is required by the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”). Exhibit BA-12, consisting of a January 7, 2010, email from Deputy Chief Paulson, outlined four different Code sections, which deal with matters ranging from training-record keeping to testing safety equipment, fall protection and written rescue procedures. The same email also relates to a “Fall protection plan”, as required by s. 116.1 of the Saskatchewan The Occupational Health and Safety Regulations, 1996, Chapter O-1.1 Reg 1.

39         Counsel for the bargaining agent suggests in argument that the Code requires that a high-angle emergency response be assigned to a fire department. However, no sections of the Code beyond what I have noted from Deputy Chief Paulson’s email are cited to support this argument. Counsel for the bargaining agent chose not to explore those Code sections, my jurisdiction to hear them, or the relevance of the noted Saskatchewan occupational health and safety regulations vis-à-vis federal military operations on federal land. Such a vague assertion made in argument has no value in a hearing.

40         For all of the above reasons, the Board makes the following order:

III. Order

41         The grievance is upheld for those Dundurn firefighters from the date of their technical and high-angle rescue training certification under the terms of clause 7.01 of the collective agreement up to and including December 11, 2009, or until their certification lapsed, whichever is earlier.

42         I will remain seized of this matter for 60 days from this decision should the parties encounter difficulties in implementing this order.

April 28, 2016.

Bryan R. Gray,
a panel of the Public Service Labour Relations
and Employment Board

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