HomeMy WebLinkAboutUnion 15-08-31In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
KINGSTON GENERAL HOSPITAL
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
Union Grievance – Dress Code
OPSEU File 2014-0444-0010
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Jessica Greenwood Counsel
For the Employer: Kathryn Bird Counsel
Hearing: April 8, 2015 and conference call on August 20, 2015
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PRELIMINARY AWARD
On July 22, 2014, the Union filed a policy grievance contesting the Hospital’s
new dress code prohibition on staff wearing shorts. The grievance asserts that the policy
is “overly restrictive and discriminatory in nature” in violation of Article 3 of the parties’
collective agreement. It also raises a health and safety concern because of “[t]he heat
levels in the workplace during the summer months…” In its particulars, dated April 28,
2015, the Union raised the issue of inconsistent enforcement.
Two issues arose at the first day of hearing in this matter, and a conference call
was arranged for the parties to argue their respective positions. Prior to that conference
call, both parties supplied the case authorities upon which they were relying. The first
issue concerns the appropriate onus; the second concerns the order of proceeding.
1. The Onus
The parties agree that the onus rests with the Hospital to establish that the new dress
code, which prohibits shorts, is reasonable under the standard set out in Re Lumber &
Sawmill Workers’ Union, Local 2537 and KVP Co. (1965), 16 L.A.C. 73 (Robinson).
This decision provides that a rule unilaterally imposed by management, which is not
accepted by the union, is subject to the following requisites:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
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4. It must be brought to the attention of the employee affected before the company
can act on it.
5. The employee concerned must have been notified that a breach of such rule could
result in discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it
was introduced.
Although the case law is clear that the onus is on the Hospital to establish, on the balance
of probabilities, that the rule is reasonable, what that means, exactly, is the subject of
debate between the parties, and debate in the case law.
There is no dispute between the parties, however, that this case is a personal “attire”,
or “clothing” case. It involves whether or not staff may wear shorts to work. There is no
impact, at all, on employees’ freedom to dress or express themselves outside of work.
Nor is there an impact financially on an employee, as in Re Pacific Western Airlines Ltd.
and Canadian Airline Employees’ Association (1981), 29 L.A.C. (2d) 1 (Christie), where
the employer required employees to wear black shoes and black belts . This case involves
a prohibition on shorts, not a requirement to purchase and wear certain attire. This means
that the onus on the Employer is at the lower end of the sliding scale of arbitral scrutiny
recognized in the case law. Re Ontario Provincial Police and O.P.P.A., 2011
CarswellOnt 1571 (Abramsky), at pars. 24-25.
Even so, there is a debate in the jurisprudence concerning the type of evidence that
the Hospital must adduce to establish that the rule is “reasonable”. The Hospital contends
that because this is an “attire” case and there is no impact on the employees’ off-duty
lives, there is a relatively light onus on the employer. Re Canadian Newspaper Co. and
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Victoria Newspaper Guild Local 223 [1991] B.C.C.A.A.A. No. 147 (Klassen) at par. 56.
It submits that there should be substantial deference given to management’s judgment on
the question of the effect of appearance on the employer’s image. In support the Hospital
cites to Re Pacific Western Airlines Ltd., supra; Re Canadian Newspaper Co. and
Victoria Newspaper Guild, Local 223, supra; Re Real Canadian Superstores and
U.F.C.W., Local 410 (2006), 151 L.A.C. (4th) 338 (Jones). The Hospital contends that it
need not establish necessity, or that, in the absence of the rule, harm such as loss of
business will ensue, but need only establish, on some objective evidence, that the rule is
logically connected to the employer’s business needs, citing Re Calgary Co-Operative
Ltd. and Union of Calgary Co-Op Employees (2006), 145 L.A.C. (4th) 296 (Ponak).
The Union also relies on Re Calgary Co-Operative Ltd., supra at par. 53. It asserts
that the Hospital must establish, through objective evidence, that “the rule is logically
connected to the company’s overall business approach” and that there is “a clear link
between the impugned rule and company business needs.” It asserts that in assessing the
reasonableness of the Hospital’s prohibition on shorts, there should be a “balance of
interest” approach, assessing the “impact of a rule on employees and the objective
evidence for its necessity provided by the company…” The Union further submits that
the Hospital must also show that the absence of the rule creates some threat of harm to
the employer’s interests. It asserts that Re Calgary Co-Operative Ltd., supra, resolved the
conflict in the case law recognized in Re Canadian Freightways Ltd., supra, in regard to
the requirement for objective evidence, establishing that some objective evidence is
required.
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In Re Canadian Freightways, supra, Arbitrator Korbin rejected the “company knows
best” approach as inconsistent with the requirement of establishing “reasonableness”
under the KVP standard. At par. 73, she states: “Surely ‘reasonableness’ must have some
objective standard to be meaningful and this objective evidence must be present in
addition to the Employer’s rationale, however important that might be.” The same
conclusion was reached in Re Pacific Western Airlines, supra at par. 26, where the
arbitrator agreed that uncritical acceptance of the employer’s rationale “overstates the
employer’s position to a point where ‘reasonableness’ has disappeared.” Similarly, in Re
Wardair Canada Inc. and Canadian Air Line Flight Attendants’ Association (1987), 28
L.A.C. (3d) 142 (Beatty) at par. 20, the arbitrator ruled that there must be some objective
basis to support the employer’s claim of adverse consequences and the employer must
adduce more than mere “impressionistic” evidence that its legitimate business interests
will be adversely affected in the manner it predicts.
In Re Canadian Freightways, the arbitrator went on to hold at par. 74 that the
Employer “need not wait for complaints to initiate a dress code to protect its reputation
and business image” but once the rule is challenged, it “must provide objective evidence
that the rule is reasonable, and in particular that in absence of the rule, there is a real
threat to its image.” She concluded at par. 76, that “[i]n these circumstances, customer
surveys and their interpretation are critical to the Employer’s case.”
In Re Calgary Co-Operative Ltd., supra, the arbitrator followed the “balance of
interests” approach taken in Re Canadian Freightways. He concluded, at par 53:
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In applying a balance of interest test, both the impact of a rule on employees and
the objective evidence for its necessity provided by the company need to be
examined. The greater the impact of the rule on employees, the stronger the
justification that will be required. In practical terms, in situations in which there is
no impact of a dress code rule on off-duty attire or appearance, it is unnecessary for
an employer to establish that the rule is required to avoid a financial loss or a loss
of business, only that the rule is logically connected to the company’s overall
business approach. This still requires objective evidence of some kind, whether
through a survey or through management testimony, that can draw a clear link
between the impugned rule and company business needs.
Stated somewhat differently, “a rule which includes situations in which it serves no
useful purpose” is not reasonable. Re Pacific Western Airlines, Ltd., supra at par. 28. Or,
as stated in Re Canadian Freightways Ltd., supra at par. 86, “there needs to be a rational
connection between the means and the goal.”
Having reviewed the case law cited and the positions of the parties, I conclude
that the test set out in Re Calgary Co-Operative Ltd., supra, is the appropriate standard to
follow in this case - an “attire” case which does not impact employees outside of work. It
holds the employer to a lesser standard of proof yet still demands objective evidence, not
just impressionistic evidence, to establish a “clear link between the impugned rule and
company business needs.” There must be an objective evidentiary link between the rule
and the Hospital’s presentation and image. Re Calgary Co-Operative, supra at pars. 57 –
61, 64.
2. The Order of Proceeding
The parties dispute who must proceed first in terms of leading evidence, with each
party claiming that the other side should go first. Even though this is a union grievance,
the onus of establishing that the rule meets the KVP standards rests with the Hospital. The
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Union also cites to Re Public Service Alliance of Canada and Serco Facilities
Management Inc. (2010), 195 L.A.C. (4th) 429 (Oakley) at par. 13, for the proposition
that the Hospital should proceed first: “The general principle of fairness, in the order of
proceeding, is that the party in possession of the information ought to present it first.” In
addition, the arbitrator stated at par. 11 that “it is appropriate for an arbitrator to consider
the best way to conduct a hearing so that it is fair, practical and expeditious.” That case
involved a paid suspension, and the arbitrator determined that the employer should
proceed first as the employer had knowledge of the facts on which it made the decisi on to
suspend the grievor with pay. The Union asserts that here, likewise, the Hospital knows
why it determined that the dress code policy should preclude shorts and should be
compelled to lead its evidence first. It contends that it would be placed at a disadvantage
by having to lead its evidence first.
The Union also notes that in Re Calgary Co-Operative, supra at par. 4, the employer
had accepted the onus of showing that its dress code policy was reasonable and called its
witnesses first.
The Hospital argues that the issues in this case go beyond the reasonable ness of the
policy under KVP, and involve a claim of discrimination, health and safety as well as
inconsistent enforcement, all of which involve claims over which the Hospital has no
knowledge. It contends that these claims make this a “different kind” of attire case and
that it would be impractical and unfair for it to have to lead its evidence first, then address
all of the concerns raised by the Union in reply, which it believes would be splitting its
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case. It contends that the Union will have an ample opportunity to challenge the
Hospital’s evidence in reply. It submits that it is entitled to know the case it has to meet.
Having considered the parties’ submissions and the case law, and under the specific
facts of this case, I conclude that “the best way to conduct [this] hearing so that it is fair,
practical and expeditious” is for the Hospital to proceed first. The Hospital bears the
onus in this matter and has the knowledge of why it promulgated its new dress code. As
stated in Re Canadian Freightways, supra at par. 60: “The real dispute is whether or not
the Employer’s rule is reasonable. Its reasonableness can only be assessed in light of the
justification which the Employer advances for the rule, such as its concern for its
business image. As only the Employer can provide this justification, the onus is on the
Employer to prove the reasonableness of a rule it imposes.”
Once the Hospital sets out its justification for the dress code, the Union must respond
as well as lead its evidence concerning the impact of the rule on individual employees.
Again, as stated in Re Canadian Freightways, supra at par. 70, “any review of the
reasonableness of a Company rule requires a balancing between the Employer’s
legitimate business interests and the interests of individual employees…” Only the Union
can provide evidence concerning the interests of the employees. Similarly, the Union is
alleging discrimination, health and safety concerns (which allegedly violate the collective
agreement) as well as inconsistent enforcement. All of these assertions are included in a
KVP analysis, and the evidence for them must be led by the Union. I do not find that
these assertions make this a truly different attire case. Claims of discrimination were
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raised in Re Calgary Co-Operative, supra, Re Wardair Canada Inc., supra, and Re
Canadian Freightways Ltd., supra.
In its reply evidence, the Hospital may address the issues raised by the Union. I do
not see that as splitting the Hospital’s case. Nor would the Hospital be required to
address those issues in its evidence before the Union presents its case. To the extent,
however, that it would assist and expedite matters (so there are no surprises at the
hearing), the Union is directed to provide the Hospital with more detailed particulars
concerning its claims of discrimination, health and safety and inconsistent enforcement
by October 1, 2015.
This ruling certainly does not mean that in every KVP-dress code case that the
employer must lead its evidence first. In this case, for the reasons outlined above, I
conclude that the Hospital proceeding first would be the most practical, expeditious and
fair way to proceed.
Conclusion
For the reasons set out above, I conclude as follows:
1. The onus is on the Hospital to show, on a balance of probabilities, that the rule
is reasonable under the KVP standard. That means, as set out in Re Calgary
Co-Operative, supra, that a “balance of interest” test is to be applied,
considering both the impact of the rule on employees and the objective
evidence provided by the Hospital that there is a “clear link between the
impugned rule and company business needs.” This requires an objective
evidentiary link, not just impressionistic evidence, between the rule and the
Hospital’s business goal.
2. In terms of order of proceeding, the Hospital is to proceed first.
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3. To ensure efficiency, the Union is to provide particulars to the Hospital in
terms of its claims of discrimination, health and safety issues and inconsistent
enforcement by October 1, 2015.
Issued this 31st day of August, 2015.
/s/ Randi H. Abramsky
_____________________________
Randi H. Abramsky, Arbitrator