Arbitration decision determines that age 60 mandatory retirement for firefighters does not apply to training role
In a recent case, GP’s Christine Davies and Erin Sobat successfully advocated for a firefighter to be accommodated in a training role beyond his mandatory retirement age.
Background
Section 53.1 of the Fire Protection and Prevention Act (FPPA) establishes mandatory retirement at age 60 for firefighters who are “regularly assigned to fire suppression duties”. Fire suppression generally refers to fighting fires. Unless an employer and union agree to a higher mandatory retirement age, the FPPA deems the collective agreement to require retirement at age 60. The Human Rights Tribunal of Ontario has previously upheld age 60 mandatory retirement for suppression firefighters as a bona fide occupational requirement under the Human Rights Code due to the physical and psychological stressors of the role.
In this case, a suppression firefighter in the City of Vaughan requested accommodation in a Training Officer role past age 60. He also applied to a job posting for the position. The collective agreement between the employer and the Vaughan Professional Firefighters Association did not contain a specific mandatory retirement provision, so this issue was governed by the FPPA. The employer argued that the grievor was ineligible for the position because mandatory retirement applied to Training Officers. The employer instead accommodated him past age 60 in a Communications Operator (Dispatcher) role and later in a Fire Prevention Inspector role.
The Association disagreed with the employer’s interpretation and filed a series of grievances under the collective agreement and the Human Rights Code. These grievances did not challenge mandatory retirement for suppression firefighters at age 60.
The Decision
Arbitrator Sheehan issued a decision reflecting that Training Officers in Vaughan are not regularly assigned to fire suppression duties and therefore mandatory retirement under the FPPA does not apply:
There is little factual basis to suggest that Training Officers are regularly assigned fire suppression duties. At the highest, the evidence suggests that, on occasion, a Training Officer may assist at a significant fire incident and may be present for live-fire scenarios as part of training exercises. Such activity does not equate to being “regularly assigned to fire suppression duties”. A review of the job description for the Training Officer position further supports the conclusion that Training Officers are not “regularly assigned fire suppression duties” within the meaning of section 53.1 (3.1) of the FPPA.
The Arbitrator’s decision also holds that mandatory retirement at age 60 is not a bona fide occupational requirement for Training Officers in Vaughan. He referred to an expert report filed by the Association which found that the physical and psychological stressors of this role are not equivalent to suppression firefighting and therefore did not justify a strict cut-off at age 60.
Finally, the Arbitrator provided an order for the employer to run a job posting and promotional process for the grievor and other interested employees to be considered for the Training Officer role post-age 60.
Takeaways
While this decision is specific to the firefighter training role in one municipality, it confirms that not all training roles are regularly assigned to suppression duties within the meaning of the FPPA. Where they are not, a mandatory retirement age of 60 is unlikely to be justified for such roles under the Human Rights Code.
You can read the decision here.