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HomeMy WebLinkAbout1989-0054.Sponagle.94-03-16.-v ~. ' '...-'~'. ~ ',. '; ONTARIO EMPLOYES DE LA COURONNE .* '.CROWN EMPLOYEE$ DEL'ONTARIO · GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT · BOARD DES GRIEFS ~$0 DUNDA.S STREET WEST, SU/TE £]O0, TOP, ONTO, ONTARIO. MSG fZ$ TE/,.EPHONE/T£LEPHOIVE: (476) 326-~3E~8 ~80, RUE. DUNDAS OUEST, BUREAU 2~00, TORONTO /.ONTARIO) MSG 1['8 FAC$1MILE/T/'-'LECOPIE'; (475) 326-~3~6 54/89 IN THE I~TTER OF AN~'~.BITI~TION THE CROWN E~PLOYEE8 COLLECTIVE BAI~G~NING ~CT' Before THE GRIEV~,~CE SETTLEMENT BOi%RD BETREEN OPSEU (Sponagle) GrieVor - and - The Crown in Right of. Ontario (Ministry of Correctional Services) Employer BEFORE T. Wilson Vice-Chairperson M. Vorster Member E. Orsini Member FOR THE N. Roland ~RIEVOR Barristers & Solicitors FOR THE D. Daniels EMPLOYER Counsel Mathews, Dinsdale & Clark Barristes & Solicitors HE]%RING November 10, 1989 June 15, '1990 August 13, 1990 September 4, 1990 DECIStON Floyd Sponagle is a Correctional Officer 2 at the Toronto West Detention Centre. He grieves.that he was unjustly disciplined. Counsel for the Ministry characterized the discipline as a written reprimand for refusing a supervisor's order. There was also what she characterized as a non-disciplinary suspension of one and two-thirds days. Essentially this is a dispute over facial hair and whether the Grievor was in compliance with a policy on facial hair related to the wearing of a gas mask. Ivan Erb is an Institutional Training Officer at the Metropolitan Toronto West Detention Centre. He' is an O.M. 16. His duties include ensuring that staff are trained, that new recruits receive phase training at the Aylmer Police College and ensure the external .train!rig of staff by coordinating the training with Superintendents and Deputy Superintendents to bring the institutions into equipment~ when there are fires, smoke or toxic fumes and a tear gas mask in the event that tear gas or mace is used in case of disturbance or 'insurrection by inmates. There are fire drills once a week and at that time the staff wear the MSA equipment. The policy on facia~ hair forms part of the instruction. There is a slide presentation on it. Also they hand out a document from the manufacturer that warns that they cannot guarantee safety of the equipment in case of facial hair. The witness produced al Memorandum from the Office of the Assistant Deputy Minister Operations Division (MCS) dated December t6, 1986, in which the Facial Hair Policy is set out; see:' Appendix A (Exhib!t 3). He also produced an excerpt from the Standards and Procedures manual setting out staff conduct and ' ~ MSA is a trade name for the type of gas mask used by MCS staff: it means Mine & Safety Association Manufacturing. breathing Apparatus.. 3 deportment; see: Appendix B, and a Memorandum dated May 28, 1982 from the Executive Director, Institutions Divisions to Regional Directors and Superintendents; see: Appendix C. Erb testified that to be in compliance, the Correctional Officer's facial hair must be 1/, inch from the seal of an MSA mask or Tear Gas Mask. No hair is to come in contact with the seal. The witness then gave the panel a demonstration of putting on the MSA mask. The seal is a sponge rubber inside the rim of the mask. There is one standard size: see the diagram on Appendix C. The tear gas mask secures more tig'htly and does not allow as much leeway.. Staff have access to the directives which are in Standards & Procedures Manuals which-are kept under lock and key but which staff may ask to see. In October, 1988, because the Grievor had facial hair, Erb had him into his office and showed him the directive. He had the Grievor put on the MSA mask and told him where his faciat hair was not in compliance with the policy at that time. There-followed a meeting with the Superintendent which is discussed more fully below. On December 5, 1988, this witness wrote an Occurrence Report to the Superintendent with respect to the Grievor when on that date he encountered the Grievor going through the sally doors and considered his facial hair not in compliance. He advised him he would be telling his shift I.C. and Supervisor and have him relieved. The shift I.C. O'Brien relieved him and had him report to the staff room at the training area. Erb testified that he had the Grievor try on the MSA mask and observed that the facial hair stuck .out from the mask itself. He asked the Grievor Jf he wanted .to read the policies again. He then had the Grievor try on the tear gas mask. He testified that the Gdevor was not in compliance for that mask either. Facial hairs protruded past the seal of the mask. The Grievor was informed that if he did not comply he would have to be relieved and sent home. The Grievor asked to see the Superintendent before complying with the order. The witness replied that he was 4 the supervisor giving the order and the Grievor could not refuse to complyJ He could then go to the Superintendent. The Grievor refused to comply. He was suspended. The witness then contacted Mr. Huxtable, the C.C. 3 informing him of his actions and asking him to have the Grievor report to him after changing his ciothes. The Grievor reported in his civilian clothing. He was advised of the consequences of not comply!ng. He refused to comply. The witness described the Grievor's facial hair as a goatee with a break in the chin and with a mustache that came down to the chin or jaw line. The chin was shaved. The Witness called it a Fu Man Chu, In the case of the gas mask, you coutd see the bottom of the mustache and in the case of the MCA mask the hair did not protrude out as far. However, if the Grievor were to exert himself or bend over, the seal would break according to'the instructions from the manufacturer. The Grievor.argued that' it did not matter if the facial hair was inside as long as it was 1/, inch either inside or outside. The witness testified that they did.not test to see if there, was a seat. He stated that even if the Gievor got a seal it would not hold. The Grievor explained to the witness at the time that in October 'the Superintendent had given him ~ , permission to wear a mustache and that is why he wanted to see the Superintendent. The witness testified that other employees had been tested (seven staff and a supervisor) and were not in compliance. He advised them of the policy and they then complied. The Gdevor was suspended without pay. There was a grievance meeting with the Deputy Superintendent on December 7, 1988. In cross-examination, the witness explained that he was not the Grievor's direct suPervisor, The Grievor's own supervisor was Mr. O'Brien. A muster is held prior to shift in the cafeteria.' Part of the responsibility of the Grievor's own supervisor is to pick up on any non-compliance, He admitted that beyond the incident in October and this December incident, there had been no. other reported incidents and that there may be some inconsistency in applying the policy. There 5 is a security officer and an assistant security officer who are responsible for enforcing security policies, He also agreed with Counsel that his duties are training responsibilities. As well all supervisors are responsible for security policies and the security officer should report any infractions by staff to the staff's supervisors. In the October incident, the Grievor had a full beard. He was suspended 24 hours with pay to shave it off. There was a meeting with the Superintendent and when the grievor asked about the policy, the Superintendent went through.the policies and the directives. The Grievor agreed to comply with the policy. 'Erb's position was that the hair must not touch the seal. The Picture on the policy is in his view a poor picture and the Grievor may · have been mislead as to the policy. Also the written policy does not mention the seal, but the manufacturer's material and the slide shown in training sessions do. He considers these as the directions from the manufacturer. It requires more space than just ¼ inch from the edge of the mask. He believed the Grievor's mustache was not safe because he could see hair coming out; the only other way would be to look in through the front. He denied that he pulled hair by puIfin9 the-mask away and reaching under the mask. The Grievor asked to see the Superintendent but Erb felt that the Superintendent would resent it if every time an employee disagreed with a superVisor's order, he could run to the Superintendent to challenge it. Erb believes that the manufacturer's instructions are part of the policy. There should not be any danger to the user. He agreed that in the October meeting, the Grievor had indicated that he r~eeded some special kind of shaving cream or electric razor, tn the December incident, the Grievor said nothing about that issue. Robert Phillipson testified for the Ministry. He is the Superintendent at. Toronto West Detention Centre. Erb, he testified, reported orally that he had tested the Grievor and found him in violation of the facial hair policy. He had a recollection 6 of a similar incident in October. At a meeting 'with him, the Grievoi had appeared with the early stages of a beard. Philiipson went .through the hair policy with him referring to the Manual of Standards and procedures dated APril 1979 (Exhibit 4) and then the Policy of May 28, 1982, in ,Exhibit 9 plus .a directive from the ADM of 1986 (Exhibit 9A). He explained that the faciaJ seal area has an inner and outer edge: it has a width where the mask touches the face and it varies predicated on the shape of the person's face, bone structure and how the wearer fits the mask to the face through the use of the chin, temple and front straps. The facial hair inside and outside the mask has to be 1/, inch back'from the edge of the mask. The Grievor had explained he was allergic to shaving cream and used an electric razor. After the meeting he dictated a memorandum to the Grievor (Exhibit 9A) and indicated to his secretary what documents to attach to it. He testified that with the oral report on December 5 and his own recollection of the October incident, he decided to change the suspension pending investigation to one without pay. He denied that a report relating to an incident in which the Grievor was wearing a "Goofy''2 hat did affected his decision to suspend without pay and he did not see the memo dealing with it until later. in cross-examination, he testified that the terms edge and seal are being used interchangeably in the procedure and conceded that could cause confusion. The seal is like a flange while the edge would mean the outer edge. It is the seal that offers the protection. The letter suspending the Grievor without pay pending a disciplinary meeting stated .that because the Grievor had the materials subsequent to the October meeting "strongly suggests you are acting in a deliberately insubordinate manner in an issue Which you have full knowledge." In I ~ GO0~ refers to the Walt Disney dog character "Goofy" i.e, a' hat that looked like the cartoon character with floppy ears. He had been ordered to remove it and had done so.' 7 response 'to the question if management directs someone beyond the policy and the person refuses to comply until clarification is that insubordination, Phillipson replied: "depending on the circumstances probably not". He considered that the Grievor was refusing to comply with Ministry policy and was refusing the supervisor's order to shave. The Grievor did not make any effort to his knowledge to contact him before the disciplinary meeting. He also stated that he would have difficulty believing the Grievor betieved that he had given permission in October for such a mustache. Floyd Sponagle testified that when he had his orientation, he was told he had to shave his facial hair but was not given the policy. Due to an automobile accident, he was off work in August, 1988, and when he returned to work he had a beard, what he described as a sculptured beard with a thick mustache. He had been looking for written materials in his first two years and had heard' different things from other CO2s. He had seen Exhibit 4. He understood from his discussions with Mr. Pickering that as long as he could get a seal with the masks, he was in compliance.3 He told Picketing that according to the policy, he did not need permission to have facial hair. On the next shift, the supervisor told him that they wanted to see him: the meeting consisted of the Supervisor, Kuhns and Erb. He believes that Kuhns was a Senior Assistant Superintendent in one of the other buildings. They showed him several policies and said he did not comply and that the hair had to be shaved to lA inch away from the edge of the mask: When the Grievor asked where that would be on his face, it was indicated that it would mean all the facial hair except the mustache to the lip. The Griev°r explained that 'he had had a Fu Man Chu mustache all the way to'the chin in the past for four to six. 3 Gary Pickering, Senior Assistant Superintendent at Toronto West Detention Centre at the time of the incident, testified in chief ab°ut headng part of a discussion between Erb and the Gfievor as welt as testifying on the "Goofy" hat incident on December 5.. 8 'months, but no one had complained. Earlier Pickering had questioned him and had sent him to the staff training office to be testedl but he passed the te~t. The Grievor testified that he shaved his facia~ hair off for the summer of 1988. ~n the October 4 meeting, Wijuiesekere told him that he had to comply with the policy. The Grievor asked him the same questions again. Sometimes the Y4 inch requirement would be mentioned; sometime the seal issue would be raised. The Grievor asked to see the Superintendent,. The reason given was that they were switching back and forth on the requirements. He was told he had 24 hours to think about it, but shortly afterwards was paged and told he had to shave. When the Grievor said he wished to see Phillips0n, he was sUspended with. pay. On October 6, he had a meeting with Superintendent Phillipson, Erb and Scott Miller, the Union Steward. The policy was discussed. Erb produced all the materials: Ex-hibit 5. Discussion went back and forth. The Grievor explained that he had to use an electric razor, tt was decided that he would shave off the "beard. When the Grievor explained to Phillipson that he had had a Fu Man Chu-mustache, Phillipson said he did not worry about mustaches, but about beards. The Grievor further testified that he then went to the locker room and shaved the beard bUt left the mustache. He testified that he left his mustache to the jaw and reported to his unit. Up to December 5, he had no comments about it. He was never challenged about it when reporting for morning shifts and performing normal duties, however he added that he was never' actually ordered to go on parade.4 It was on a morning shift of December 9 at 11;30 that Erb stopped him at the sally doors and ordered him to report to Lieutenant O'Brien. The Grievor testified that Erb indicated that Erb stated that he did not think that the Grievor was "AlthOugh no evidence was given on this point, 1 take notice that this is a military term meaning to line up in parade ground close order and be subject to inspection. 9 in compliance. A meeting took place in. the staff training room with the GrieVor, F_.rb and Lt. O'Brien present. Erb put on his mask and said that the hair stuck oUt. The Grievor ran his finger along the edge of the mask and said that he did r~ot fee~ any hair. Erb lifted up the mask and pulled hair down and said "there". The Grievor testified that he replied: "only if you pull the hair out"~ Erb said that there was hair sticking out and the Grievor would have to shave. The Grievor could not remember whether he said to Erb that he was pulling the hair. He told Erb about the October meeting when he had discussed a Fu Man Chu with him and Phillipson, but said that Erb could not remember that discussion. Erb ordered him to shave. What the Grievor challenges.is where the interpretation of seal comes from, Erb told him that he was giving him a direct order. He said' he told Erb he wanted to be clear and wanted to speak to Phillipson. He did not say to Erb that he would not comply with the facial policy. Erb again told him to shave and added or he wOuld be suspended. Again the Grievor asked to see Philiipson. Erb then told him'he was suspended. The Grievor then changed into his street clothes and as he was leaving was told to see Erb again. This time, he encountered Pickering and Foulds and Picketing told him to remove his hats. Once at Erb's office, he was again instructed by Erb to shave. Again, the Grievor ~equested to see the Superintendent first. The Grievor then left. Once he got home, he telephoned Picketing and requested a meeting with the Superintendent. When he arrived next day, he was given not/ce of a disciplinary meeting for the following day and was suspended until then. The Grievor returned home and shaved. At the disciplinary meeting, he was told he had been insubordinate. 5 This was the "Goofy" hat incident. Pickering directed the Grievor to remove the hat. The Grievor complied. Picketing wrote a memo to the Superintendent on both incidents. There was no discipline for the Goofy hat episode since the Grievo~ complied with Pickering's direction on the hat. 1.0 In cross-examination, the Grievor agreed that generally the rule is intended to prevent hair under the seal and that a proper seal is the issue. He also admitted that Erb is an expert on the matter. He also stated that he did-not meet with the Superintendent often. He admitted that he could pull the hair So that on replacing the mask, the hair would be under the seal. In the October meeting when it was said that there was no concern about mustaches, nothing specifically was said about Fu Man Chu mustaches, but he understood it to mean all mustaches. However, it was his position that the mustache could not contribute to breaking the seal of the mask as long as there is a seal on the outside of the mask. At the meeting there was a mention that there was Ministry or M'SA documents that stated that a seal could be broken by facial hair. The Grievor however did not think that risk was correct. But he believed that management at the West Detention Centre believed .it. He was not sure whether perspiration would create the possibility of the mask's moving. Phillipson had so testifed but then in the Grievor's i' .view he 'was not an expert on it, He testified that at the time of the order-from Erb, he did not perceive that Erb was saying to him that he could not attach conditions to the order he was giving. He could however now see that was what Erb meant. There were two basic issues in this case: t. the written reprimand for not obeying Erb's order on December 5; and 2. the suspension without pay before the disciplinary meeting. The first issue is the easier of the two to'answer. The Grievor refused to obey an order from a supervisor. He argues that the supervisor issued an order that was erroneous in ,terms of the interpretation*of the written policy of the Ministry. There are ambiguities in the language of the various policies. Erb was himself an instructor on the use of the masks and was basically rely~ing on his knowledge from the manufacturer's instructions. His judgment on the actual safe use of the masks is more dependable than that of any other witnesses. It is a safety matter and could be a matter of life and death. It may very weft be that the 11 Ministry instructions should be rewritten so as to be clear and accurate. Even if Erb had not had the expert knowledge and had issued the order on the basis of ambiguous Ministry policies, the Grievor should have obeyed unless there were extraordinary circumstances. There is no issue here of "not my sergeant"; the Grievor does not rely on such an argument. The issue of the Grievor's sensitivity to shaving cream was not argued as a grounds for disobedience: that wOuld have required stronger evidence than was place before us and in any event had not be raised by the Grievor on December 5. There also is no issue of an illegal order.6 What the Grievor argued was that because he understood that he had permission from the Superintendent to wear a mustache and therefore to get his.interpretation as to whether his mustache violated policy, he did not have to comply immediately with Erb's order. There are cases dealing with hair where it is said that the Grievor does not have to cut his/her hair because ordered to do so. It can be grieved without immediate compliance. However, in this case, the safety issue raises it out of that category. The Union did not argue that point in any event. The 'issue of an immediate appeal to the Superintendent.for clarification does not convince me, There was no right to require the opinion or approval of the Superintendent before obeying the order on the grounds that Erb might be wrong a. bout the policy, Nor do the events of October justify an argument that the Grievor had gain some permission to go over Erb's head before obeying. The Grievor would still have retained his right after obeying the order to approach the Superin~.endent or to grieve if he believed the order was wrong, if he should later be vindicated in such a grievance, he could grow his mustache back. Management was justified in giving the Gdevor a written reprimand for refusing to' obey a lawful order. 6 Illegal in that context of course does not mean simply he got the policy wrong, but gave some order which wou~d involve dearly criminal or other cleady unlawful., activity. The Grievor acknowledges that distinction. 12 The suspension without pay is more contentious. The testimony of the Superintendent demonstrates that the decision was disciplinary in nature. He clearly stated that the Grievor had been given the policies, and in his letter of suspension wrote that "... your behaviour strongly suggests you are acting in a deliberately insubordinate manner in an issue which you have full knowledge.". It is clear to me that the decision to suspend without pay was disciplinary, I agree that the Grievor was insubordinate in not obeying Erb's order, although I am not so sure the policies were so clear, but the final penalty given bythe employer was only a written reprimand. The authority being exercised although argued as an exercise of s. 22 (1) was in fact'an exercise of s. 22 (2) i.e. a suspension for cause. The decision Brown v. Ministry of Natural Resour(;¢s, (GSB 706/83 and 747/83, Roberts) was argued before the Board, We do not ha~/e to ansWer the question of scope of review of just cause involved because the Ministry itself decided on a reprimand only. Since, as we have found, the suspension without pay was disciplinary, it would be irrational for us to find it justified when the Ministry itself only gave the Grievor a reprimand. ' Under those circumstances, it is my opinion within those narrow confines, .the Grievor's lost pay must now be paid to him. This decision does not restrict the ability of management under s. 22 (1) of 13 the Public ,~eryice Act, R.S.O. 1990 c.P.47 to suspend pending investigation. This panel will remain seised pending the implementation of this decision. Dated at Toronto this 16 of March, 1994 T. ~'~.~"~ '~SOn/)/~ ':~hairperson M. V~;~i~i" Member E. Ors~'~i Member Onlar~o , Office of lhe. '--~"\ Reference No, I : Assistant Deputy Minisler "-- · '" 34/86/S t' Ooerations Division . Datelssued December 16, 1986 EffeCti~e Immediately Subiect FACIAL HAIR POLICY Superintendents POLICY For health and safety reasons, while on duty all.. classified and unclassified correctional officer staff, operational managers (up. to but excluding the level of assistant superintendents), industrial officers, recreation officers and trade instructors, are not permitted to have facial hair, .i.e. goatees, beards, sideburns or moustaches that .interfere with the complete and proper fitting of an air mask or tear gas mask. The application of this policy to employees receiving CRA will be at the discretion of the chief administrator. PURPOSE The ministry's policy on facial hair has been upheld by two separate arbitration boards who found .that: "There is ample research to-support Doth the Ministry's concern and that of MSA. Moreover', the environment in which the grievor works makes it imperative that-this employer do all that i'~ possibly can to ensure the safety of inmates who have no way of. covering themselves from the dangers of 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 individuals." . ./2 075-016 109t8,4 t Directive 33/86/S Superintendents December 16, 1986 Page two PROCEDURE in order to apply t~is policy, staff must cut or trim their facial hair to a point at-least 7~m (1/4") back from the edge of the face mask where the mask is in contact with the fa6e, as. illustrated in the attached diagram. In addition, superintendents are responsible for ensuring that: (a) all correctional officers, industrial officers, trade instructors, recreation officers, OM 14s ~and 15s in their institutions are made aware of and comply while on duty, with the ministry.'s policy with respect to the wearing of facial hair; (b) the~ministr¥'s facial hair policy is incorporated into their institutions' standing orders; (c) all Staff to whom this policy applies in their institutions, both those' who are presently employed and prospective new staff, are advised that their compliance with the policy is a condition of their employment. Any ministry employee receiving CRA who is not in a position where he will be required to wear an MSA mask is exempt from the-current policy. The decision as to which employees receiving CRA will be required to wear MSA masks is left to the discretion of the..~hief administrator of a Given facility. Once a decision is made that an employee's duties require the employee to wear an MSA mask, it is necessary that this person is afforded the' necessary training in the proper use of MSA equipment, and that the necessary equipment is .reasonably available. M. J. Assistant De~Minister Operations Division cc Mr. T. McCarron Ms D. Clark ReEional Directors Mr. W. GasteiEer Mr. D. A. PaEe Mr. C. Aspler Mr. P. Hundeck ONTARIO EMPL OYeS DE LA COURONNE CROWN EMPLOYEES DE L 'ON TA RtO GRIEVANCE C,OMMISSION DE SETTLEMENT ' REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG tZ8 TELEPHONE/TL~L~PHONE: (416'/ 326-1388 I80, RUE DUNDAS OUEST, BUREAU 2;'00, TORONTO (ONTARIO}. MSG 1Z8 FACSIMILE/TEL~COP~E : (4 ;6J 326-~396 April 6, 1994 ~,MENDNENT RE: 54/89 OPSEU (Sponagle) and The Crown in Right of Ontario (Ministry of Correctional Services) Please. attach Appendix B, C and D, to your copy of the above noted decision. Yours truly, Joan shirlow Registrar JS/dbg Encl. STANDARDS AND PROCEDURES April, 1979 STAFF CONDUCT AND DEPORTMENT PERSONAL APPEARANCE: WEARING OF UNIFORMS The neatly dressed staff member presents a good example to inmates in the matter of personal grooming and appearance. Ail staff who are required t~ wear uniforms should ensure that they 'are kept neatly pressed and in good repair. Uniforms.are to be worn at all times while on duty unless otherwise specified-by the Superintendent. Uniforms may be worn when travelling to and from duty.· The uniform as a whole or items of the uniform may not be worn o~herwise than above without the permission of the Superintendent. Correctional officer staff members may grow beards, 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 impede the effective fitting of an air mask or a tear gas mask. To prevent the misinterpretation that he is on duty unshaven, the uniform member 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. Superintendents will ensure that all staff in their institution are made aware of the Ministry's policies 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 correctional officer positions, within the Ministry are advised that these requirements are conditions 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 that nothing interfer with the propers.. fitting of these face masks. The Manufacturer 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 view of this, correctional officer staff·will ensure that, while on duty, their faces are shaven in such a fashion that their facial hair does not prevent the face piece on an air mask and tear gas mask from being properly sealed around Form t Ministry of .~ L.) / ~ / t ~ ·" 2001 ~g~t. in~on Ave. Sca¢~orough. Ontan ' Correctional MIL 4P~ Se~ices Ontario May 28, 1982 MEMORANDUM TO: Regional Directors Superintendents Regional Personnel Administrators FROM: Executive~Director, Institutions Division RE: MINISTRY POLICY ON FACIAL HAIR The Ministry's policy concerning the wearing of facial hair by correctional staff, both bargaining ~nit and management, was established in the former Executive Director, ~. G. H. Carter's memorandum dated February l, 1978. Since that time, the policy has been formally challenged and adjudicated on two occasions. On both of these occasions, which represented challen- ges on two extremes, non-compliance, and non-compliance for religious reasons, the Ministry's policy was successfully upheld. The arbitration boards have individually concluded: There is ample research to support both the Ministry's concern and that of M.S.A. More- over, the environment in Qhich 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 covering themselves fr~m the dangers of 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 individuals. Despite successful arbitration in this issue, we have attempted to accommodate the interests of all parties by investigating several ·alternative safety masks in an effort to find one which would least interfere with the personal grooming of staff as well as perhaps resulting in the least administrative difficulty. The Director, Inspections and Investigations, in cooper- ation with the Fire·Marshall's office, has reviewed the test results performed on several alternative smoke masks, and they have failed to meet our requirements since they~ were not designed or intended for rescue purposes. Our present policy concerning facial hair is endorsed by alt manufacturers of air masks and is also a requirement of the C.S.A. (Canadian Standards Association) on the "Selection, Use and Care of Respirators." In view of this and the Ministry'~ important responsi- bilities for the health and safety of correctional officer staff~and inmates under its care, the admini- stration of the Ministry's policy on the wearing of facial.hair is being more clearly stated. The. Manual of Standards and Procedures, Section A6, page 1, is hereby revised to state: "For health and safety reasons, correctional officer staff while on duty, are not permitted to have facial hair, i.e. side burns, moustaches, goatees,~ beards, ~hat interfere with the complete and proper fitting of an air mask or tear gas mask." To accomplish this, staff must cut or trim their hair to a point at least 1/4" back from the edge of the face mask where it is'in contact with the face, as illustrated in the attached diagram. The issue is q.uite clearly the application and admini- stration of our policy as previously stated. To facili- tate this, Superintendents are responsible for ensuring that: (a) all correctional officer staff in their institutions are made aware of and comply, while on duty, with the Ministry's policy with respect to the wearing of facial hair; (b) the Ministry's facial hair policy .is incor- porated into their institutions' standing orders; (c) all'correctional officer Staff in their institutions, both those who are presently employed andprospective new staff, are advised that their compliance with the policy is a condition of'their employment as a correctional officer. NOTE: Correctional staff includes all staff classi- ~i~ in the Correctional officer, Recreation Officer and Industrial Officer series, all staff in the Correctional Operational Management module,'and ail staff'in receipt of Custodial Responsibility Allowance, as well as all unclassified staff whose rates of pay are based on these classes or who receive C.R.A.; Ministry Inspectors are responsible for ensuring that: (a) Superintendents have, in written directive, made all correctional staff aware of Ministry policy with respect to the facial hair policy; (b) Superintendents have advised all correctional' staff that their compliance with the policy is a condition of employment; (c) There is a policy to inform prospective new employees that their compliance with the facial hair policy is a condition of their employment; (d) The Ministry's facial hair policy is incor- porated in the institution's standing orders; and a copy of such order will be obtained and attached to the Inspector's report~ (e)· There is a record maintained of all non- compliances; (f) Any non-compliances have been dealt with by reporting the circumstances and action taken by the Superintendent and including same in the annual inspection report; · (g) They report to the Superintendent any employee of the institution that appears to be-in con- travention of the Ministry's facial hair policy during their inspection or visit to the institution. It is anticipated.that the Ministry's facial hair policy,. .together with a clear statement respecting the responsi- bilities of Ministry management, will promote the uniform enforcement of this important health and safe%y policy in the Ministry_.. M. J. Duggan MJD/jm - Att. cc Mr. A. G. CampbeLl Mr. V. Crew Mr. S. Teggart Mr. Fi Murphy Dr. J. J. Hug Records ~lanagement APPENDIX "9" :..' ...... PUBLIC SERVICE ACT R.S.O. !990, c. P47 22,--(1) A deputy rn~ui.~ter may, pending an investigation, suspend from employment any public servant in. Eis or her ministry for such period as the regulations prescribe,, and during any such period of suspension may withhold the salary of the public servant. (2) A deputy minister' may for cause remove from employment without _~!~ry any · ' public servant in his or her ministry for a period not exceeding one month or such (3) A deputy '"int~ter may for caus~ dis- m/ss from employment in accor0_~_n_ce with the regulatiom any public servant in his or (4) A deputy miimter may release from tions any public servant wher~ he or she con- side,s it n _ee_~___~_ry by reason of sh0rtag~ of wo~ or funds or th~ abolition o! a position or other mater/al change in organization.