A firefighter’s human-rights complaint against the District of Mission was dismissed by the B.C. Human Rights Tribunal.
Kevin O’Beirne, a paid-on-call firefighter, claimed he was fired by his superiors in August, 2018, for a perceived medical disability stemming from a captain’s report made after a training exercise.
On Nov. 17, the tribunal said the firing was justified on grounds of insubordination, after he failed to produce a physician’s note clearing him for active duty, after months of requests and warnings.
“A nexus between [O’Beirne’s] perceived disability and his suspension and termination of employment is mere speculation in light of the district’s reasonable, non-discriminatory explanation of insubordination,” the tribunal found.
In March, 2018, O’Beirne was participating in a fully-geared search and rescue drill as part of the Mission Fire Rescue Service’s (MFRS) bi-annual training drills.
A captain noticed O’Beirne take off his mask, appear short of breath and look sweaty and pale – he subsequently reported the incident to the fire chief.
O’Beirne claimed he was not short of breath, but had the flu and did not want to vomit in the mask. He said after a rest, he completed the drill without medical aid.
At a meeting later that day, the district said they would provide him with a form for a physician to clear him for duty – O’Beirne denies this.
He claims his superiors agreed that if he completed the next training exercise in June, then “everyone would be satisfied that my health and fitness was not an issue and that would be the end of the matter” – the district denies this.
A few days later, the fire chief provided him an OG 5.24 form. This sets out MFRS policy on medical clearance, and had a physician’s form attached.
O’Beirne said the form was “suspicious” as the policy was updated two days after the March incident, and claimed it was created to target him for a perceived disability.
The district provided the 2013 and 2009 versions of the same document to show nothing new was added relating to medical clearance.
O’Beirne’s blood pressure was taken prior to the June training exercise, which showed levels over the acceptable limits, but he disputed the accuracy of testing.
He claimed he had another blood test afterwards, in the presence of a captain and said he was in the acceptable limits. The captain said he can’t recall any test.
By July 17 – after numerous meetings, warnings, and communications – O’Beirne was suspended from attending emergency incidents, pending the medical clearance forms.
The letter stated that if he wasn’t cleared by Aug. 14, they would assume he had chosen to resign.
In the following weeks, O’Beirne sent two letters that were “aggressive, inappropriate and insubordinate,” according to the district, disputing their authority to require him to get medical clearance.
He requested a copy of the original incident report, the minutes of the March meeting, investigation notes, and proof of the district’s authority.
The district provided the policies relating to the fire chief’s authority, the reason why a doctor’s note was necessary and extended the deadline to Aug. 17.
O’Beirne delivered a letter on Aug. 19 stating he had the note, but wouldn’t submit it until he received the previously requested documentation.
But by Aug. 20, the district had still not received anything clearing him for medical service, and he was fired the next day.
The day after he was fired, he provided a physician’s note dated Aug. 17 clearing him for duty, but the district did not reconsider his termination.
O’Beirne, who had served as an on-call firefighter for 27 years, said the district’s “draconian step” of firing him was unwarranted as he had been compliant throughout, he was already suspended and the deadlines were arbitrary.
He claimed his superiors ousted him under the guise of insubordination because they perceived him to have a disability.
“There is no reasonable prospect that Mr. O’Beirne will succeed in establishing that his suspension or termination of employment constitutes discrimination,” the tribunal found.
“The District repeatedly explained its need for him to provide medical information.”
The tribunal stated other claims, such as wrongful dismissal, are best suited for other courts.
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