Digest: Saskatchewan General Employees' Union v Saskatchewan (Environment), 2018 SKCA 48

• Date: June 18, 2018

Reported as: 2018 SKCA 48

Docket Number: CA17159 , CACV 2995

Court: Court of Appeal

Date: 2018-06-18

Judges:

• Jackson
• Herauf
• Whitmore

Subjects:

• Administrative Law � Arbitration � Judicial Review � Appeal
• Labour Law � Arbitration � Judicial Review � Appeal

Digest: The appellant, the Saskatchewan Government and General Employees Union, appealed the decision of a Queen�s Bench chambers judge to quash an arbitrator�s decision. The appellant had grieved the use of a new fitness test, �WFX-Fit� (test), instituted by the respondent, the Government of Saskatchewan�s Ministry of the Environment, on the ground that it contravened The Saskatchewan Human Rights Code and the collective agreement. The test was used to assess all existing and new Type 1 wildland firefighters in 2012. The respondent imposed a cut score of 17:15 on all of its firefighters. The score represented a minimum time within which prospective and present employees would have to complete a series of physical tests designed to simulate wildland firefighting tasks. An inability to complete it within that time determined whether a person could work as a Type 1 firefighter. The Canadian Interagency Forest Fire Centre determined that if the pass rate for a protected group was 80 percent or more of the majority, the test was not considered to be discriminatory. The appellant grieved the test as being discriminatory against female and older male employees. The arbitrator did not find any actual adverse effect discrimination on the basis of the female or older male witnesses who testified before him but found that the use of the 80 percent rule alone could not avert a finding of adverse effect discrimination. He concluded that the test was prima facie discriminatory because of its potential impact on females and older males and that although it was a bona fide occupational requirement the test itself contained an arbitrary element by using the 80 percent rule to set the cut score rate for females and older males which meant that there would be a future issue where, if an employee did not succeed in the test, it could be attributed to their status as a female or older male employee. The chambers judge interpreted the arbitrator�s decision as finding prima facie discrimination on the basis that the test was potentially discriminatory relying on the added requirement of arbitrariness and that the decision was unreasonable. Regarding that the fixing of the cut...