Loading...
HomeMy WebLinkAbout1993-0225.Stockwood.94-07-04 - ':1 - ~ , ONTARld ( EMPLOYES DE LA COURONNE . CROWJV EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE . 11111 SETILEMENT REGLEMENT .. BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-138, 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (4/6) 326-139' 225/93 IN THE MATTER OF AN ARBITRATIO~ Under THE PROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Stockwood) Grievor - and - The Crown in Right of ontario (Ministry of Co~rectiona1 Services) ( Employer BEFORE: J. Roberts Vice-Chairperson I Thomson Member M Milich Member \ FOR THE M. Bevan UNION Grievance Officer ontario Public Service Employees Union Hamilton Office FOR THE K. Pitre EMPLOYER Counsel Genest Murray Desbrisay Lamek Barristers & Solicitors HEARING February 18, 1994 May 4, 19, 1994 -,-- ~ ~. , ( I " \ - AWARD I l I On January 26, 1993, the gnevor, Mr D Stockwood, was gIven a ten-day suspenSIOn l wIthout pay for gross InsubordInatIOn 10 disobeying at least two dIrect orders to go home and , shave off a sufficIent amount of his facIal hair to comply with the Mimstry's faCial harr polIcy This policy had to do with ensuring that the masks of respIrators that correctional officers were required to put on 10 the case of a fire or sm0ke emergency would make a tight seal WIth the skin of the face, WIth no nsk of ~eakage due to the presence of faCIal hair beneath the seal At the hearing, It was submItted on behalf of the gnevor that there was no gross 1Osubordination on the grievor's part because 10 response to each of the dIrect orders that he received, the grievor shaved off increasing amounts of his facial hair 10 an effort to meet the requirements of the faCIal harr polIcy, bur each time he returned to duty management determ10ed that he had nbt shaved off a sufficient amount. For reasons WhICh follow, we find that the gnevor's conduct, though IndIrectl ychalleng1Og, dId not fall to the level of gross Insubord1Oation At the same time, however, the gnevor's course of conduct seemed suffiCIently WIllful to attract some dISCIplIne In the result, the gnevance IS allowed 10 part and the ten-day suspension IS reduced to a suspensIOn of two days 10 duratIOn II The events lead10g to this arbitration occurred at the Toronto East DetentIon Centre I Among the duties of the correctIOnal staff at thIS faCIlIty IS the duty to be prepared to evacuate, ----- ,I ( l { '>', \ inter alia, mmates safely m the event of a fire or smoke emergency I In order to assIst the correctional officers m the performance of this duty, the faCIlIty mamtains a stock of respIrators and associated eqUipment such as Jackets, aIr tanks, backpacks and the lIke Once each year, every correctIOnal officer on staff is required to undergo refresher trammg m the use of thIS equipment. As part of thIS training, correctIOnal officers are reqUired to reVIew a document entitled "Mimstry PolIcy on FacIal Halr" ThIS document states, m pertment part. -. From Manual of Standards and Procedures Sec A Page 1 revised on or around June 1, 1982 j Staff must cut or tnm theIr haIr to a point 1/4" back from edge of the face mask where It IS in contact wIth the face Accordmg to this policy, the haIr on a correctional officer's face must be cut or tnmmed to a pomt 1/4" back from the seal between the face mask and the skm of the face There seems to be little doubt that until January, 1992, there was some confusion in the ranks of management regarding the mterpretatIOn of thIS policy The mask bemg used at the facility had only one sealmg stnp, about 1/2" WIde, around the perimeter of that part of the mask that was adapted to meet the face. It seemed to be relatively common, however, for both management and correctional officers to regard the mask as havin~ two seals, one at the mner edge of the sealing strip and the other at the outer edge. On this baSIS, some indIVIduals mterpreted the policy as permItting the existence of faCial haIr beneath the sealing strip, so long as there was no faCial haIr wlthm 1/4" of the outer edge of the seal ( ( ." /' , I J I Enter the grievor, who was the ChIef Steward of the Local UOlon The grievor preferred to wear a beard In fact, he had a full beard when he commenced employment at the detentIon centre 10 October, 1980 In January, 1983, however, he was advIsed that hIS beard dId not meet the requirements of the Ministry's facIal haIr polIcy and he was dIrected to shave it In order to conform to thIS policy The gnevor apparently then shaved off hIS beard and more instead a "Pu Man ChI" style mustache extend10g to the base of hIS Jaw on eIther sIde of his ch1O, and \ elongated sideburns. The hairs in the sideburns and moustache were very short, perhaps no more than 1/4" 10 length When the gnevor returned to work with hIS faCial haIr 10 thIS condItIon, he was tested by the Staff TraIning Officer to determ10e whether he could, 1Odeed, achIeve a seal between the mask and the skin of hIS face. He did so That was the end of the matter It seems lIkely that the gnevor kept his facIal hair 10 the above condition untIl October, 1991 On September 27, 1991, the grievor requested permIssIon from his SupervIsor, Mr Steven Small, to grow a beard Mr Small approved, as long as the grievor's facial hair "conform[ed] to the Ministry's faCial halT polIcy WIth respect to MA breathing apparatus (05/90) " r By November 4, 1991, the gnevor's beard had grown to such an extent that It was noticed by the then Staff Tra1010g Officer, Mr Duncan He adVIsed the grievor that he would -- ( ( , I ; I ~ be tested regardIng complIance with the facial haIr polIcy The test was ongInally scheduled for November S, 1991 but was not actually conducted until November 27 In the course of thIS test, the gnevor managed to get a seal between his face and the mask, even though the seal took place through his sideburns and beard. Mr Duncan noted that the hair of the grievor's SIdeburns and beard was so long as to protrude from the SIde of the mask. He failed the gnevor, even though the grievor protested that he could get a seal When Mr Duncan replied that regardless of the fact that the gnevor obtaIned a seal, he was not in complIance with the facial haIr policy, the gnevor suggested that he would take hIS chances The grievor was then tested a second time in the presence of Mrs DIane Doherty, the Superintendent of the Detention Centre. Like Mr Duncan, she concluded that it was clear that the grievor did not comply WIth the Ministry's facial hair policy Mrs Doherty ordered the '\ grievor to shave. ThIS order was confirmed In a wntten memorandum to the gnevor dated December 2, 1991 The memorandum stated, In pertment part, "For your own safety and the safety of the InstItution I ordered you to shave FaIlure to comply WIth my order could lead to dISCIplInary actIOn " Apparently, Mr Duncan permitted the grievor to take a mask home WIth him to use as a guide in shaving hIS beard to conform to the MInIstry's polIcy When the gnevor returned to work, his beard had been shaved to a short "Fu Man Chu" style with a strip of beard extendIng r ( ( o. r I ~ from each sideburn and on to the chin On December 5, 1991, the gnevor was re-tested wIth hIS beard in this condition Just as 10 January, 1983, the gnevor was passed i The problem was, the gnevor was passed upon what turned out to be an erroneous Interpretation of the MInIstry's facIal haIF polIcy According to thIS interpretatIon, a person could pass even though the hair of his beard partIally extended under the sealing stnp, so long as It did not come within 1/4" of the outer edge of the seal The gnevor had shaved hIS beard so as to "just" meet thIS cntenon It was ObVIOUS that what ultImately turned out to be the correct mterpretatlOn of the policy had been applIed, I e., that no hair at all was permItted beneath the seal nor WIthIn 1/4" of ItS inner-edge, the gnevor would once agaIn have failed the test. In January, 1992, Mr Duncan was replaced as Staff Traming Officer by Mr D Hill After consulting with the manufacturers of the breathmg eqUIpment, Mr Hill adopted the correct , InterpretatIon of the pollc'y He determmed that no correctional officer would be permItted to have facial haIr extendmg WIthin 1/4" of the Inner-edge of the seal This re-interpretatIOn became CruCIal to what probably turned out to be a frustrating senes of events Involv1Og, 10ter alia, the .gnevor and commencing in October, 1992 I On October 8, 1992, the Acting Semor ASSIstant Supenntendent, Mr Mikel, referred five correctIonal officers, Including the gnevor, to Mr Hill for determmatIOn of whether they were 10 compliance WIth the Mimstry's facIal haIr polIcy Mr Hill told each of these employees ( ( ~ that they dId not comply wIth hIS 10terpretatlqn of the facial haIr polIcy He expla10ed to them, using a rough sketch of the way the mask fit to a face, that they had to be shaved so that there l was no facIal half between the seal and theIr sk10 and, 10 fact, there could be no facial hair within 1/4" of the inner-edge of the seal ~ Once they received thIS explanatlon, all of the employees except the gnevor agreed to comply wIth Mr Hill's 1Oterpretation of the p0licy The gnevor, undoubtedly frustrated at bemg presented wIth a stricter interpretation of the policy than he had prevIously expenenced, requested to be tested wIth the face mask. The test took place on October 9, 1992 In attendance were Mr HIll, the gnevor, Mr Dumbrowski, a Union Representative and Mr Boyle, a Union Health'and Safety Representative. When the grievor tried on the mask, he did obta1O a seal Mr Hill advised him that nevertheless, he was still not in compliance wIth the polley A short time after that, Mrs Doherty was asked to come ~nto the staff tra1010g area, where the test had been conducted Mr Hill advIsed her that, 10 his opinion, the gnevor dId not comply with the policy Mrs. Doherty thereupon ordered the grievor to report for hIS next ShIft clean shaven, meamng, accord1Og to Mr Hill, that the grievor was to remove that part of hIS "Fu Man ChI" - style beard that extended across the jaw and chin areas. Apparently, it was in thIS area of the gnevor's face that the hair of hIS beard could not help but make contact WIth the seal ~- -- ( ( 1 There was no immediate compliance by the grievor After the test on October 9, he was I off work untlUanufu-Y 11, 1993 Soon after the grievor reported for duty, Mr Hill noted, that he dId not look substantIally dIfferent from the way he looked on October 9, particularly because the grievor had retained that part of his beard that extended across hIS chin area. The gnevor 10dIcated 10 hIS testImony that he dId not recall being expressly 10structed to remove that part , of hIS beard that extended across his chin He saId that 10 order to bnng himself mto complIance with the faCIal haIr polIcy, he had tnmmed his beard to a very short length and I narrowed hIS sIdeburns so that he looked very much as he dId when he passed the test for complIance with the facial haIr polIcy 10 December, 1991 Mr Hill once again adVIsed the grievor that he had faIled the test for comphance WIth the policy Thereafter, the gnevor was sent h0me by hIS Act10g Ie, Mr Duncan The grievor was adVIsed when he was sent home that he had to see the supenntendent upon hIS return to work. Accord1Og to the grievor, he was not ordered by Mr HIll to shave before thIS meet10g The meeting WIth Mrs. Doheny took place on January 12, 1993 In attendance were ,) Mrs Doherty, the gnevor, Mr Mikal and Mr Dernck Miller There was consIderable discussion of what was reqUIred 10 order to meet the Mimstry's faCIal haIr polIcy The grievor testified that when he left the meet1Og, he understood that Mrs Doherty would not allow him to have what was normally understood to be a beard, with hair extend10g across the ch10 area. There also was no doubt in hIS mind that he had been ordered by Mr Doherty to shave suffiCIently to be 10 comphance WIth the pohcy ---- ( ( \, ft The grievor dId not return to work after thIS meetIng untIl Jan~ary 21, 1993 By thIS I time, the grievor was clean-shaven in the chIn area, but had retaIned hIS "Fu Man Chu" - style mustache, WIth the ends extendmg downward on either side of the chIn to meet the base of the Jaw He also had shaved off his sideburns so that they dId not extend below the base of each ear In all, it appeared that the gnevor had shaved off about 60 to 70% of the beard he had prevIously worn Once again, the gnevor was taken by his shift I C to Mr HIll, the Staff TramIng Officer Once again, Mr Hill faIled the gnevor and sent him home Once again, the gnevor was notIfied that when he returned to work on the following day, he was to meet WIth Mrs Doherty The grievor testified that he was surprised by this turn of events. There was no doubt "- in hIS mind, he said, that he complied WIth the MiOlstry's faCIal haIr polley AccordIng to the grievor, the moustache and sideburns ~hat he then wore were precIsely the same as the moustach~ and SIdeburns that he had worn for years pnor to hIS 1991 request for permIssIon to grow a beard If that look had not been challenged as In VIOlatIOn of the polley for all that tIme, the grievor reasoned., how could It now run afoul of the policy ? On January 22, 1993, the gnevor once again met WIth Mrs Doherty Also In attendance were the Deputy Superintendent, Mr COWIe, and a UOlon Representative, Ms Dumbrowski Apparently the meetmg turned mto a WIde-rangIng dIScussion, WIth Mrs Doherty InSIsting to ) ( { 2 the grievor that because hIS moustache extended on eIther sIde of the ch10 to the Jaw lIne, It dId not comply wIth the facIal hair policy She advIsed the gnevor that that area had to be completely clean-shaven Mrs Doherty then asked the gnevor several tImes whether he would comply wIth her direct order to shave. On each occasion, the gnevor satd that he would Mrs. Doherty then indicated that she was gIv10g the gnevor a ten-day suspensIon for refus10g at least three direct orders to shave sufficiently to comply with the Ministry's facial hair polIcy ThIs was followed by a formal letter of disclpl10e dated January 26, 1~93, suspend10g the gnevor for gross insubordinatIon Thereafter, the gnevor filed the gnevance lead10g to the present proceeding ! At the heanng, Mr David Yarwood, the Product Manager, Commercial Safety Products, "- Mine Safety Appliances (MSA) Canada Inc , was called to testify regarding the questIon whether the interpretation of the Mimstry's faCIal hair pollcy that had been adopted by Mr Duncan or the more stnngent interpretatIOn adopted by Mr Hill conformed to the safety standards reqUired by the manufacturer of the respirators Mr Yarwood uneqUivocally testified that Mr HiIrs 1Oterpretation was 10 accordance WIth the manufacturer's safety standards. He 10dicated that if I a customer of MSA were to permIt a wearer to make a potentIally unsafe seal over the faCial hatr of a beard or sIdeburns, the customer wO\:1ld be liable If the seal were to fatl He added that when customers purchased MSA respirators, they were trained by MSA and in thIS training they were cautioned that permltt10g any faCIal haIr beneath the seal would potentIally break the seal or cause leakage. I ------ - -------; -- ( ( ~ " 10 III In their submissions at the conclusIOn of the eVIdence, both counsel acknowledged that because the proper use of respirators IS a crucial health and safety concern for the Employer, the Union and indIvidual employees, gross 1Osubord1OatIOn 10 refus10g a direct order to comply with the Ministry's facial hair polIcy has been held to warrant imposItion of severe dIscIpline up and including discharge. For example, in Re Churney and Mimstry of Correctional Services (1982), G S B No 689/71 (Linden), the grievor, a correctIOnal officer, overtly refused a dIrect I order from the superintendent of the Guelph Correctional Centre to shave off his beard to conform to the Ministry's faCIal hair polIcy The gnevor followed up thIS refusal WIth a letter stating that despite be10g directly ordered by hIS Sergeant to shave, he would report for duty with facial hair because, 10 hIS view, the Mimstry's pollcy permItted hIm to do so The Board concluded that these and other acts amounted to "insubordination and that the employer had no other alternative in VIew of a defiant employee except to dIsmIss hIm A dIrect flaunt10g of the employer's authority cannot be tolerated by any employer Accord1Ogly, It IS the decision of thIS - l Board that the gnevance be dismissed " Id. at 11 Similarly, in Re Thorn and Mimstry of Correctional Services (1978), G S B No 81/78 I ~ (Adams), a correctional officer was dIscharged for overtly dIsobeying a dIrect order to shave his beard to conform to the Ministry's facial haIr polIcy Some 11 months after the discharge, the I board reinstated the grievor WIthout any compensatIOn in lIght of eVIdence that he was then , WIlling to comply WIth the Ministry's polIcy Id. at 12 / ( / ") ( ( \ - II In a case most sImilar on the facts to the one at hand, Re Sponagle and Mimstry of Correctional ServIces (1994), G S B No 54/89 (Wilson), the gnevor only receIved a wntten repnmand In that case, the gnevor, a correctional officer, had a Fu Man Chu mustache extending to the base of hIS Jaw and a goatee. As here, there was confusion between the grievor and the employer regarding the meaning of the Mimstry's facIal hair pol~cy The employer, the " Toronto West Detention Centre, took the pOSItion through ItS staff traImng officer that the polIcy reqUIred the skin beneath the entIre seal to be clean shaven, with no hair WIthin 1/4" of the Inner-edge of the seal The grievor took the pOSItIOn that the polIcy permitted faCial hair to eXIst beneath the seal, so long as It stopped 1/4" from the outer edge of the seal As In the present case, there were a series of tests and faIlures, and In response to one of these, the grievor shaved off his goatee that left the Fu Man Chu style mustache. As In the present case, the grievor was capable of attaining a seal despite the presence beneath it of some of his facial hair The only SIgnificant difference between the facts in Sponagle and the present case appears to be that In the former, the superintendent did not become involved The only management representatIve was the Staff Training Officer who tested the grievor Indeed, the response of the grievor to I orders from the Staff Traming Officer to shave consistently appeared to be to request to meet WIth the supenntendent. ThIS was construed as refusal to obey a lawful order and the gnevor was given a wntten repnmand by the employer " The wntten repnmand was the only lawful dISCIplIne to be revIewed by the Gnevance Settlement Board. In its award, the Board IndICated that because the gnevor's actions amounted I ---- ( ( \ 12 to insubordination, there might have been Just cause for more serious dIscIpline, however, imposing more senous discIpline was beyond the scope of reVIew of the Board Id at 12 IV This brings us to the dIscIpline In the present case Perhaps even more than In Sponagle, supra, there was a reason for confusiOn and frustratIon on the part of the gnevor It seems undemable that for some tIme, the employer had Interpreted the Mimstry's policy on facial haIr 10 a way that made the weanng of a Fu Man Chu - style mustache, wIth assocIated sIdeburns and beard across the chin, acceptable. For a number of years, from 1983 until late 1991, the grievor was permitted to wear long sideburns and a Fu Man ChI - style mustache. In late 1991, he was given written permission to grow a beard, so long as it conformed to the Ministry's facIal hair policy To the gnevor, this must reasonably have meant that some form of beard was permissible. ArbItral notice IS taken that In ordinary usage, the word "beard" Imports the "- growth of hair along the lower Jaw, IncludIng the chIn area. Indeed, In December, 1991, the gnevor was found to be in complIance wIth the Employer's then InterpretatiOn of the MInIstry's facial hair policy while wearing such a beard In conjunctiOn wIth his Fu Man Chi - style mustache. It was not until October, 1992 that the gnevor was confronted wIth Mr Hill's stricter - -- and as it turned out, correct -- InterpretatIOn of the MInIstry's faCIal half policy There was some confusIOn 10 the eVIdence as to whether the gnevor generally understood that, accordmg ( \ 13 t9 Mr Hill's interpretation, beards, Ie., hair growth along the lower Jaw lIne and ch1O, were out. We conclude that 10 light of the gnevor's prevIous 1Ovolvement WIth the Mimstry's facIal haIr policy and his lengthy h!story of weanng a Fu Man Chu mustache without challen~e, It IS highly unlIkely that the gnevor "got" thIS message It seems reasonable to conclude that at thIS po1Ot, the gnevor probably retained a good faIth belIef that It was permISSIble to have a closely cropped beard across the ch10 area. Accord1Ogly, we cannot conclude that when the gnevor returned to work on January 11, 1993 with hIS beard trimmed to this degree he deliberately 10tended to .flaunt the order that Mrs. Doherty gave hIm to shave on October 9, 1992 It is more dIfficult to draw the above 10ference from the CIrcumstances of the gnevor's return to work on January 21, 1993, after be10g advised that hIS beard was not in complIance with the polIcy and once again being ordered by Mrs Doherty to shave The 10ference IS strong that at this po1Ot, the grievor must have understood that accord~ng to the Employer's interpretation of the pohcy, facIal haIr was not permItted anywhere along the Jaw line where the seahng strip of the mask would come 10 contact wIth the fact. Yet the gnevor returned to work WIth the "beard" portIOn of his facIal halT removed, but WIth the Fu Man Chu - style mustache ( stIll intact, and extending down to the base of hIS Jaw hne It must haye been apparent to the gnevor that the haIrs on the two ends of thIS mustache would extend beneath the seal of the mask and, therefore, would not satisfy the Employer's stnct 1OterpretatIOn of the polIcy ) . While this action may have been an attempt by the gnevor to determine whether the Employer might be inclined to overlook a de minimIS amount of haIr beneath the seal, It was, . ( ( \ 14 to the grievor's knowledge as Chief Steward, an improper response The" obey now and gnevor / later" maJom was well known to the gnevor, and this is the course that he should have followed ( If he believed that the Employer's new stncter mterpretation of the MmIstry's polIcy was incorrect. When the grievor entered upon thIS course of conduct, he became vulnerable to the impositIon of correctIve dIscIplme. We find, however, that hIS conduct'was more m the nature of an mdIrect challenge rather than a dIrect confrontatIon stich as would be charactenstIc of an act of gross msubordmatIOn In light of thIS, we declme to conclude that there was Just cause for Imposition of severe disCIpline in the form of a ten-day suSpenSIQn In our view, a two-day suspension would have been more appropnate in the CIrcumstances Accordingly, the grievance is allowed m part. The discipline Imposed upon the grievor IS reduced to a two-day suspenSIOn, and It IS dIrected that the gnevor be made whole for any period of suspension served beyond thIS We wIll retam JunsdIctIOn pendmg ImplementatIOn of ( the terms of this award ) ( . . - ~ ( I ~ - 15 DATED at London, Ontario, this 4tWay of July, 1994 ,'" .---- ; J Roberts, ChaIrperson \ ~~><U I Thomson, Umon Member ~ ;) ~y L bv{~LLt M MilIch, Employer Member