HomeMy WebLinkAbout1978-0082.Thom.79-03-19Between:
I Before:
For the Grievor:
iN THE MATTER~OF AN ARBITRATION
Under The
CROWN EMPLCYEES COLLECTIVE BARGAINI?lG ACT
8efore
THE GRIEVANCE'SETTiiEMENT BOARD
Mr. Frank Thorn
And
Ministry of Correctional Services
George Adams - Chairman
Andre Fortier - Member
Harry Simon - Member
Mr. George Richards, Grievance Officer
Ontario Pubiic Service Employees Union
1901 .Yonge Street,
Toronto, ,Ontario
For the Employer:
Mr. J. F. Benedict, Personnel Branch
Ministry of,.Correctional Services
2001 Eglinton Avenue.Etist
Toronto, Ontario
Hearing:
August 18th;:1978
October lOth, 197
Suite 2100
Toronto, Ontario
8
, 180 Dundas Street blest
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The grievor was emplpyed as a correctional officer at the
Ontario %orrectional Institute (hereinafter referred to as OIC) located
at Brampton. He was dismissed by the Ministry of Correctional ,
Services for failing to comply with its policy on facial hair. At
the time relevant to this grievance the grievor wore a neatly
trimmed beard and the Ministry's poli~cy was outlined in a memorandum
to all superintendants dated February 1, 1978, over the signature of
Glenn A. Carter, Executive Director - Adult Division. The memorandum
reads:
This memorandum will outline the Ministry's policies
concerning the growing and wearuq of facial hair by
correctibnal officer staff and supersedes all other
previous directives and memoranda on this subject,
effective ALarch lst, 1978.
The manual of Standards and Procedures, Section A-6,
Page 1, which refers to the wearing of beards,
aroustaches and sidesburns, will be revised to read
as followsr-
"Correctional officer staff members may qrov
moustaches and sideburns but they are to be
kept neat and tidy, at all times, while on
duty. For security reasons, they should not
be of such length as to provide a prisoner
with d hand hold in the event of d scuffle
or impede the effective fitting of an air
mask or a tear qas mask.
aeards may also be grown, subject to the
.same restrictions and conditions.
To prevent the misinterpretation that he is
on duty unshaven, the uniform ~~lrber who
intends to grow a beard must inform his
Superintendent of his intention to do so,
in writing and in sufficient time for senior
supervisors to be advised.-
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Superintendents will ensure that all staff
,in their institution a.?e made aware.of the
Ministry's p-olicies with respect to this
matter,.by the distribution.and posting of
a memorandum and by incorporating these
policies in their standing orders. In
addition, Superintendents will ensure that "
all prospective employees for correctipnal
Officer positions within the Ministry are
advised that these requirements are con&-
tions of employment.
During serious incidents such as riots or
fires correctional officer.staff, in order to
protect themselves, their colleagues or those
in their,care, may be required to wear a tear
gas mask or an air mask. Therefore, it is
absolutely essential thatnothing interfere
with the proper fitting of theze face masks.
The manufactuker of the air mask, which the
Ministry has adopted, has advised us that
facial hair can prevent the face mask from
sealing properly thereby causing leakage
and resulting in danger to the wearer.
In vi& of this, correctional officer staff
will ensure thdt, while on duty, their faces
are shaven in such a fashion that their
faciai hair does not prevent~the face piece
on an air mask and tear gas mask from being
properly sealed around their face and jaw
line. To accomplish this, staff must cut
or trim their hair to a point at least l/4"
back from the edge of the face mask, where
it is in contact with the face."
All correctional staff while on duty will be required to
conform to Section A-6., Page 1, Manuals of standards and
Procedures and to the Superintendents requirements concertin
hairstyles, beards, mustaches and sideburns. Failure, to
comply with these requirements, may result in disciplinary
action.
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This policy was connnunicated to all staff at OCI including
the grievor, by memorandum dated February 7, 1978. The grievor was
given full opportunity to comply with it and was advised that non-
compliance would result in his dismissal. The letter of dismissal ,
and the accompanying memorandum of Alfred I. Gregersen, Assistant
Superintendent;convey the Ministry's approach.in this regard.
Mr. Frank Thorn,
50 Xeech St.,
xtaI7pton, ant.
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May 1, 1978.
Cedr Mr. Thorn,
This will confirm the outcome of the
disciplinary meeting held in my office on Friday,
April 28, 1978 which you attended in the presence
of Mr. A. Cregersen, Assistant Superintendent
Corrections, and the undersigned.
During that meeting, the Ministry's
Policy of Facial Hair wds reviewed as well as the
consequences for not complying with that policy.
You advised that you did not wish to comply since
you felt the Ministry did not have the right to mke
that demzzd because, in your opinion, adequate
training had not been provided to make you e
competent rescuer in e smoke filled ared.
As d result of your decision of non
compliance, you were dismissed,from the service of
the Ministry of Correctional Services as of Friday,
April 28, 1978.
I wish you good luck in whatever future
pursuits you embark on.
Yours very truly,
3. J'. Doyle,
Superintendent.
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May 1, 1978.
MEMCkA#DUM
TO.:. Mr. B'.J: Doyle,
Superintendent.
FROM: Alfred I. Gregersen,
Assistant Superintendent ""
SUBJECT: Mr. F. Thorn, 'C.O. 2 - Failure to.Comply with
Ministries. Directive on Wearing'of Facial Hair ..'
Mr. Frank~Thom was informed by myself about the Ministries
directive on the wearing of facial hair on April 19, 1978.
It was pointed out at that time, that non-compliance with
this directive would result in disiirissal.
Mr. Thorn later came to my office (as hestated in your
presence in your office on April 27, 1978) to try on the
airmask fn'oker to know exactly rjhere he had to shave,
and he made the.remark that in that case he might as
well shave' the whole beard off. He was reluctant to do
so, but I received the impression, that he.was going'to
comply.
Mr'. Thorn was absent the next two days on ~Lieu Days, i.e.
April'20 and 21, and then on Regular Days,Off on April
22, 23, 24, 25. He called in sick on April 26th, and on
April 27th he called me to let me know that he,did not
intend to shave as directed. You were informed' about this,
and Mr. Thorn was instructed to report to you at regular
shift time that day. As he could notbe persuaded to
shave as directed, he was suspended and asked to report
for a disciplinary hearing at 16:OO hours the following
day, April 28th, 1978~. I was’present in your office while
you spoke to him.
He reported as instructed and after further persuasion, in
my presence, he still refused to comply. He was then given
notice in writing of his dismissal.
(Signature) ‘ Alfred I. Gregersen,
Assistant Superintendent
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The grievance form is dated May 3, 1978 and reads, in part:
STATEMENT OF GRIEVANCE:
Sir, I was ordered to shave and trim my beard and mustache
to meet the requirement of the M.C.S. policy on facial hair.
I did not agree that this policy and order was fair or
rxcessary and I did not comply with them. On Apr..27th
I was suspended and on Apr. 28th I was dismissed from my'
job. I would like to grieve this dismissal as being unjust.
SETTLEXENT REQUIRED:
I would like to be reinstated in my pcsition prior to my
dismissal, and to be fully paid retroactively from the date
of my dismissal to the date of my reinstatement.
(Signa tura) May 3, 1978
Signature of Grievor Date
Mr. B. Doyle, Superintendent of the Ontario Correctional
Institute (OCI), testified. OCI has 198 inmates or incarcerates.
The Institute serves as a 48 bed assessment unit for first incarcerates
in the Province of Ontario between 16 and 23 years of age where the
sentence is longer than nine months. The period of assessment is three
weeks and then the individuals are assigned to various institutions
throughout the Province. The Institute also provides a treatment
service and has 5 thirty bed treatment units for sex, drug, alcohol,
and arson offenders. Because of these two institutional roles (i.e. treat-
ment and assessment) and the related security problems that could potentially
arise, the Institute has, and requires a higher security level than that of
an essentially treatment oriented program.
Mr. Doyle advised that 18 of the 40 correctional officers
employed by the Institute were affected by the revised beard policy
and that all but 3 of the 18 employees complied with its requirements. One
of the three refused to comply on medical grounds in that he had a perfor-
ated ear drum and could not wear a mask in any event. He was
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relieved of his duties as a correctional officer and is currently
undergoing training.as a vocational officer. Another of the three
relied upon religious grounds and; as a result, is
now working as a storeskeeper: The third employee was Mr. Thorn;
the grievor in the instant case.
Doyle testified that he regretted having to dismiss the
grievor for refusing to trim his beard in conformity'with the
policy because.he was a very good officer. Doyle distinguished the
refusals of the other two men on the basis that their reluctance
was due to circumstances "beyond their control."
Doyle told the 8oard that all officers.were required to
be able to participate in fire and rescue situations. Staff are
rotated regularly between treatment and assessment units. This
rotation makes an emergency squad system impractical as does the
additional disruption of vacations and absences due to sickness.
The fire and rescue training at the Institute consists
of classroom and practical "smoke house" sessions and yearly refresher
courses. During the classroom or didactic session, the,air mask equip-
ment manufactured by Mine Safety Appliances Co. of Canada Ltd. (herein-
after M.S.A.) is explained to and tried on by the correctional officers. The
smoke house session involves the activation of an incendiary bomb which
produces dense smoke. Officers are.required %o enter the smoke filled
house wearing the air mask equipment andattempt to identify various
objects in the house. Doyle believed that Thom.participated in two
didactic sessions (each session being two hours) and one smoke-house session
(lasting half a day). We were advised that no.emergency has required
anyone to wear a mask at the Institute in the last five years and
a fire department station is located one mile away.
Fire drills are conducted monthly and fire exits are ,
checked and logged on a daily basis. Alarm systems are checked by '
the staff each week and twice yearly by the Ministry of Government
Services. Once yearly the premises are inspected by the fire depart-
ment and all new recruits of that department are given a tour through the
Institute. Doyle appreciated the nearness of the local fire department
but stressed that minutes would be vital in any major fire and that
incarcerated inmates must necessarily depend on the Institute's staff
to be able to rescue them on a moment's notice.
Bill Wing is a staff training officer at the Institute and
it is his job to teach and coordinate the fire and emergency training
sessions. He described these training sessions to the Board and reviewed
his slide display with us. He emphasized that the smoke in.the smoke
house session did not contain toxic gases and that an officer would
check his air mask seal only by way of holding his hand
over the end of,the air hose entering his mask and breathing in.
He advised the Board that the grievor received 10 to 12 hours
of training (fbur two hour classroom sessions and one smokehouse
session) and that he never objected to'or complained about the training he
received. In fact he said no one has complained about the training,
although some staff members have asked for and received additional
training.
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Mr. John Duggan, Executive Director of Institutional Programs
for the Ministry, testified on the Ministry's behalf. His evidence
related to the degree of fire risk in custodial institutions. He *: .~~
testified that a survey of institutions revealed,200 fires in 50
institutions over the previous two years. Thirty-three of these fires
were considered hazardous and 11 or 12 situations required, the wearing of
MSA equipment. There were 5 deaths and a number of.inmates required
smoke inhalation treatment in one major occurrence.
John Vanchuk, Product Manager of MSA, was called on behalf of
the Ministry. He.testified that MSA has 50% of the available market in
Canada for this kind of breathing apparatus and markets its equipment
worldwide. An impressive list of customers was reviewed for the Board.
He testified that there is absolutely no way one can get an effective
air mask seal if there is hair between the face and the facepiece
of the air mask. He advised the Board that research conducted at Chalk
River by the Atomic Energy Commission has established that a leak with a
diameter as:small as & of an inch causes a 2% concentration inside
the mask of what is outsije. With carbon monoxide, apparently such a.~:!;
concentration can affect an individual's judgment and similar concentrations
of other gases could kill. He testified that research done at Los Alamos
has demonstrated that 24 hours of beard growth can cause a "1% leak" and
told the Board that the "hand test" referred to by Mr. Wing is only
,valid when the individual conducting the test on himself is clean shaven.
Mr. Vanchuk filed a collect of technical pap&s in support of his company's
policy with respect to beards and confirmed that his company would not
guarantee the results of its equipment if the Ministry's policy was not
adopted and complied with. (Indeed, the four major manufacturers of air
mask equipment have adopted this position in concert.)
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Mr. C. N. Vine of the Fire Marshal's Office was also called
as a witness by the Ministry. His evidence related to the various
kinds of toxic gases encountered in emergency fire situations. He
emphasized that a great variety of gases are present in today’s fires
because of the synthetfcs used in the construction of buildings.
fixtures and furniture. A number of technical papers describing these
gases were filed with the Board and all stressed the importance of
breathing apparatus. On cross-examination Mr. Vine voiced the opinion
that an annual refresher course with smoke house experience was really
insufficient to insure staff completely in using the equipment. On the
other hand, Mr. Vanchuk testified that "one hour of instruction and
periodic training a couple of times a year was all that was necessary."
Mr. Vine also testified that leakage was less likely with the "pressure/
demand" type of air mask equipment than with the "demand" equipment
employed by the Ministry.
Or. Paul Humphries is employed by the Ministry as a Senior
Medical Consultant and testified about the physiological affects of
various toxic gases. He emphasized how quickly one can be overcome
and that an individual is likely to be quite oblivious to the fact
that he or she is being overcome by many of the odorless but highly
toxic gases generated by fires.
Mr. Dunbar, Superintendent of the Toronto East Detention
Center which opened April 26, 1976 testified%bout the details of a
recent fire experienced at that location during which it was necessary for
correctional officers to don air mask equipment. Evidence with respect
to this fire was also given by one of the correctional officers involved.
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While all staff reacted as quickly as possible, it was still necessary
to send two inmates to the hospital apparently because of smokes inhalation.
Mr. Thom.testified and told the Board that he has worked in one
of the residential units since May, 1976. Thus, h,e has not been rotated
as Mr. Doyle indicated most staff are. He said that air masks are kept
in the central control area of the Institution and not in the residential
units. He confirmed' the details of the fire and emergency training
attested to by Mr. Wing and told the Board that he had never failed
to get a proper seal when testing by the "hand test" method. He was
generally critical of the training he had received and advised the Board
that had he been properly trained he would have shaved his.beard to
comply with the Ministry directive. He was of the view that if the
Ministry was going to make thisdemand on everyone, it should be "backed
up" with proper training;
DECISION
We have carefully reviewed the evidence and the submissions
of the parties and have concluded.that the Ministry's policy is
reasonable in the circumstances. There is ample research to support
both its concern and that of M.S.A. Moreover, the environment in which
~the grievor works makes it imperative that this employer do all that '.
it possibly can to ensure the safety of inmates who have no way of
removing themselves from the dangers of a.fire except through the
assistance of correctional officers. This is, clearly a situation
where the interest of an employee in his physical appearance must give
way to the employer's concern for the welfare of incarcerated indivi-
duals. A recent tragedy at Stratford, Ontario and the near tragedy at
the Toronto East Detention Center only serve to underline the Ministry's
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interest in promulgating this policy directive and having it comjlied
with.
As for the adequacy of the training received by the
grievor, he cannot, on the evidence, conclude that it was inadequate
and, even if we could, the grievor's reaction is not the proper way
to redress such a situation. The trade union called no technical
evidence of its own in this regard and the evidence of Fir. Vine an
this issue is counterbalanced by Mr. Vanchuk's. Moreover, there
was no evidence that the trade union has taken any steps to bring
this concern to the attention of the Ministry and the grievor himself
had never complained until asked to modify his beard in the light of
the new directive.
However, if the grievor is now willing to conform to the
directive we are of the opinion that his dismissal is excessive.
Therefore, on condition that he comply with the beard directive, the
grievor is reinstated into the employ of the Ministry as a correctional
officer but without any compensation.
Dated at Toronto this 19th day of March 1979.
George Adams Chairman
I concur
Andre Fortier Member
I concur
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