The Regina Roman Catholic School Division must rehire a caretaker fired after 30 years over a lapsed certificate, an arbitrator has ruled — albeit in a different position.

According to arbitrator Allen Ponak's decision, delivered on July 25 following an arbitration hearing in April, the school division failed to properly accommodate the man, who suffers from a minor learning disability that affects his reading comprehension, and has memory retention issues.

The man, who was a caretaker at a Regina elementary school, was terminated in February 2017, when he was 55 years old, for not having a "fireman's certificate" — legally required for head caretakers in buildings with a boiler system, but not for buildings without a boiler system.

The school division, though, insists that all its head caretakers have the certification — regardless of whether the buildings where they work have a boiler system.

The school where the caretaker worked did not have a boiler system, according to the arbitrator's decision.

A grievance was filed on behalf of the caretaker by his union, the Canadian Union of Public Employees Local 1125, arguing that requiring a fireman's certificate for a school without a boiler was unreasonable, and that the division did not consider the caretaker's learning disability or attempt to accommodate him prior to terminating him.

The division argued he had been "properly dismissed for failing to obtain a fundamental job qualification," according to the ruling.

8 attempts to pass certification exam

The man had held a fireman's certificate, prior to being hired to work as a school caretaker in 1987.

According to arbitration ruling, the caretaker — who is not identified in the document — was involved in a car accident and off work for four years, returning sometime between 1996 and 1997. His fireman's certificate was due for renewal at that time and he failed to renew it.

In 2011, the school division sent the head caretaker a letter indicating it was aware that he lacked the certificate, and asked him to provide them with an updated certificate.

The head caretaker attempted to comply with that order, and attempted the exam for the certificate eight times between February 2009 and February 2017. He failed to meet the passing grade in each of those attempts.

"In fall of 2016, he brought the issue of disabilities to the employer's attention and he was referred to a psycho-educational assessment to the Learning Disabilities Association of Saskatchewan," the ruling said.

Upon completion of cognitive and psychological tests, the man was found to have a mild reading comprehension impairment and a mild impairment in accurate math reasoning.

He also demonstrated short-term memory problems, which he attributed to his motor vehicle accidents.

I have a great deal of difficulty accepting that it was reasonable, without considering alternatives, to terminate a 30-year employee with a good record because he was unable, despite repeated efforts, to renew a certification. - Arbitrator Allen Ponak

The person who assessed the head caretaker found he required additional time to complete the fireman's certificate exam and a memory sheet that didn't contain answers, but memory triggers like mnemonic devices.

Despite the recommendations, when the man took another exam in February of 2017, he wasn't given extra time or allowed to bring a memory-trigger device with him.

"[The man] scored 44 per cent on the Feb. 16, 2017 exam; he said that even with more time he would not have improved," the ruling said. "In contrast [he] believed he had scored over 80 per cent in the 1980s when he successfully wrote the [fireman's certificate] exam."

The head caretaker was fired the next day.

'Failure to consider alternative positions'

The arbitrator ruled the division was justified in removing the man from the head caretaker job — but said it failed to accommodate his learning disability by trying to find him other work in the division.

"It was not reasonable to terminate his employment entirely," Ponak wrote.

He agreed the division provided a "solid rationale" for requiring the certificate for all school head caretakers, even at schools without boiler systems, and said the division "acted reasonably" when it removed him from the head caretaker position.

But his decision also says "I have a great deal of difficulty accepting that it was reasonable, without considering alternatives, to terminate a 30-year employee with a good record because he was unable, despite repeated efforts, to renew a certification that he had once held."

Ponak ordered the Roman Catholic School Division to reinstate the man, but in a different role that doesn't require him to hold a fireman's certificate, saying "the failure to consider alternative positions was unreasonable and is one basis for setting aside the termination."

Both the union representing the man and the school division agreed to discuss a financial agreement in a separate conversation, according to the ruling.