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HomeMy WebLinkAbout1989-1349.Colquhoun et al.91-02-08 CROWN EMPLOYEES DE L 'ONTARIO ~.', ~ . ~ ~. .' ~ ~ 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG '~Z8 TELEPHONE/TE££PHONE (4 ~6) :~26- t.~O, RUE ,[~)UNOAS OUEST, BUREAU 2100, TORONTO IONTARtO). MSG 1Z8 FACSIMH-E/T~'L~-COPJE ; ('~ ?6) ,.126-~396 1349/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Colquhoun et al) Grievor ~ and - The Crown in Right of Ontario. (Ministry of Revenue) Employer BEFORE: N. Di'ssanayake ~ice-Chairperson J. C. Laniel Member D. Clark Member F_OR.THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Peterson EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: October 18, 1990 " DECISION These are individual grievances of Mr. G.W. Colquhoun, Mr. E. Didonato, Mr. W.F. Market and Mr. T. Stevenson, wherein they claim that they have been unjustly suspended for non- compliance with a dress code, ~which they claim is unreasonable. The dress code in question was first.issued on. February 28, 1986 by the Assessment Commissioner a~ the time, Mr. E.V. Moxley. Mr. Robert Speroni, was a manager at the Windsor Regional Assessment Office at the time. Subsequently he transferred to 'another location, and upon his return on'May 8, 1989, to the Windsor office as the Assessment Commissioner, he was advised .by the managers that the code had not been 'enforced in any consistent manner since it was-issued in 1986. After informing the Union of his intentions, on May 17, 1989, Mr. Speroni issued a memorandum to all staff. In essence, it announced that the dress code issued'in 1986 was still in effect and that it would be enforced. A copy of the dress code was posted on the bulletin board and copies were also made available to any employee who wanted one. The memorandum from Mr. Moxley promulgating the February 28, 1986, dress code reads as follows: During the past three days you have had the time to consider the information that your Manager has given 3 'to you and to consult with your union Representative regarding appropriate office dress. I believe that we must keep in mind that the Regional Assessment Office is a business office and part of the overall picture is appropriate.dress. The majority of the Regional Office Staff have always dressed in a proper manner and, therefore, this memorandum is not directed to those staff members. In Lorder that we have some consistency in proper dress, the following will be considered minimum proper dress: MALE FEMALE 1. shirt and tie (Properly 1. blouse, sweater wor~) 2. dress trousers 2. skirt, dress slacks The following will not be considered proper dress: 1. 'T-shirts, polo shirts, 2. running shoes, 3. when visiting properties: baseball and. hockey. jackets and the like, 4. jeans, 5. cords, cut from the same pattern as jeans. · The foregoing, I believe, will inform the majority of'staff and will be sufficient. For the remainder: If a member of the Regional office Staff does not adhere to the foregoing, that person.will be asked to return home for appropriate attire on their own time. Following the re-issuance of the dress code,·on different days each of the grievors reported to work without wearing a tie. Each was told by management that the dress code of the office required him to wear a tie and was given the \ opportunity to go home on the employer's time to get a tie. Each of the grievors declined the offer and was suspended for the balance of the shift. Grievors Colquhoun, Didonato and Market are employed as Property Assessors. GrieVOr Stevenson is ·employed as a drafte~.. Under the Commissioner, the Windsor office has 6 managers, 35 property assessors, 3'drafters and approximately another 15 clerical/technical employees. The~evidence is that the grievors' work hours are spent either in the office or "in the field". When in the office, they work on their own with only infrequent public contact. Members of the public report to the front counter. If an individual wished to speak to a particular·employee that employee may be required to·go to the front counter. According to Mr. Steven§~n this happened at most ·five times a week. since the office had an-"open ~concept,,, on rare occasions members of the public may also be able to observe the grievors, if they happen· to pass by on their way for a meeting with a manager. When the grievOrs are working "in the field", however, there is constant contact with members of the public. The dispute~essentially centres around the employer's insistence that all male employees wear ties when.'in the Office. The'employer has not required a tie when the grievors work "in the field" during the summer. Mr. Speroni.~estified that this concession was granted in consideration of the discomfort associated'with the summer heat. However, since the office was air-conditioned,, no exceptions were made with · regard to the.tie requirement during office hours. The evidence indeed establishes that Mr.' Speroni viewed the tie as an absolute requirement during office hours. Even where an employee wore a crew neck sweater, management ensured that he Was wearin~ a tie by checking for the bulge of the tie knot under the sweater, eventhough the tie itself was not visible. The evidence also indicates that the employer did not distinguish between different tyDes of tkes. All Mr. Sper°ni wanted~was any'tie. String or bolo ties, narrow ties or broad ties. were all acceptable. Grievor Stevenson was the winner of an ugly tie contest held in Windsor, Ontario in 1988. He wore the' ties that earned 'him that dubious honour 'to work. There was no objection from management. His p~ize- winning collection of ugly ties was produced at the hearing. Under Cross-examination, Mr. SperOni agreed that as long as 6 it is a tie, any of those ties were acceptable to him, because the beauty, or ugliness of 'a. tie is a matter of subjective taste, and not for him to decide. It is not disputed that until Mr. Speroni's arrival in May 1989 in Windsor as Com/nissioner, the requirement of a tie for males was not enforced. Indeed the evidence is that a prior dress code issued by the Commissioner in 1979, expressly authorized "leisure suits and dress shirts designed for wear without a tie." An even earlier memorandum issued to all assessors in I977 by a prior commissioner also expressly recognized "that styles of acceptable office wear have broadened over the years ..." and explicitly allows "leisure suits and dress shirts designed for wear without this." The employer adduced no evidence as to what, if anything, caused it to go from a dress code expressly, allowing no ties to a policy that·required a tie as an absolute requirement in 1986. Mr. Speroni conceded that no survey was conducted as to what the public wanted. Nor was there any evidence that any time prior to 1989 the employer received'any complaint from a member of the public because a male employee was not wearing a tie.-· Mr. Speroni'was asked under cross-examination what the purpose of the requirement was. His response was, "I feel that staff that meet the public must have an appropriate 7 office type dress. I like to see them give the perception of being professional. It gives more confidence you are dealing with a professional." CoUnsel for the employer submits that the grievors were all guilty of insubordination in that they refused to comply with a clear management direction to wear a tie. He maintains that the dress code requirement, in any event, was reasonable in that the employer-had a legitimate business interest in presenting a proper image of its employees to the public, and that non-compliance was just cause for discipline. Counsel emphasises that this rule is unlike a "no beard" or "no long- hair" rule, in that it does not impinge.on the employees' freedom to appear as they saw fit', outside work hours. Counsel for the union on the other hand argues that the requirement of a tie is unnecessary and unreasonable. Alternatively, he claims that it was not valid because it was not consistently enforced, it was not clear ~nd was discriminatory'between male and female employees. It must be noted at the outset that this is not a policy grievance challenging the dress code. The issue is one of just cause for the discipline. The "cause" relied upon by the employer is the. admitted non-compliance with a particular requirement in the dress code. There can be no doubt that the 8 grievors knew since .the May 17, 1989, memorandum from Mr. Speroni, that they Were required by the'dress code to wear a tie. It was therefore a clear rule. Also, since its re- issuance the. tie rule was consistently enforced. The non- enforcement between 1986 and May I989.is irrelevant, because ~n employer is entitled, by giving proper notice, to re-issue or resurrect a rule which had fallen into disuse. Turning to the merits of the case, we find that this is not a case of insubordination, As the Adjudicator in Treasury Boar'd and Al~eida and Capizzo, (1989) 3 L.A.C. (4th) 316 observed at'p. 324, ".oo it is generally considered that concepts such as "obey now and grieve later'' and insubordination do not lend themselves, but for exceptignal circumstances, to disputes relating to personal appearance". The reason is that the grievance and arbitration process may not provide adequat'e remedial relief to the .employee. [Re T.R.W. Seat Belt Division, (1987) 32 L.A.C. (34) 240 (Tacon) at 247]. Indeed, if the grievors had "compliednow'' with Mr. Speroni's direction to wear a tie, it is very questionable whether they would have been able to "grieve later". For example, in Re Burns, 292/82 the grievor was directed by his supervisor to remove a union pin. He promptly complied and grieved. The Board held 'that it had no jurisdiction to entertain his grievance. In determining these grievances therefore, the Board must measure the propriety of the discipline imposed'on the grievors against the reasonableness of the rule requiring ties fo~ male employees. There is now a body of arbitral jurisprudence on the. issue of when' an employer may properly enforce personal appearance rules. (See Re Dominion Stores, (1976) 11 L.A.C. (2d) '40i (Shime} ~or a' useful summary of the principles 'involved). One of the employer .interests that justify personal appearance'rules is, the one relied upon by this employer, namely, public image. While the Employer is not a' commercial enterprise and has no profit motive, it.still does have a legitimate interest in the appearance of its employees and the impact on its public image. In Re Dominion Stores, (su_~, at p. 404) the arbitrator states as follows in regard to an employer's interest in its image: Permeating all the cases is the suggestion that an 'employer must demonstrate that the grievor's appearance has resulted in a threat to its image and consequent financial loss or at the very least that on the balance of probabilities the employee's appearance .threatens its image and therefore threatens a loss in business to the company ..." We accept that the above is the proper test to apply in "image" cases. However, when applied to a non-commercial enterprise such as a government office, financial loss and loss in business are not proper considerations. .Adopting that 10 test to suit the .context of the case before us the question to be posed is - Has the Employer demonstrated that the grievors' failure to wear a tie has resulted'in a threat .to its image or at the very least that on the balance of probabilities, such failure threatens its image in the eyes 6f the public? As already noted, the concern of the employer is the public ~image of the Assessment office. The inevitable ass%lmption underlying the concern has to be that male ~mployees, if observed by the Dublic without ties, would present a poor image, or according to Mr. speroni, an "unprofessional".image. In Re Borough of ScarborOugh, (1972) 24 L.A.C. 78 (Shime), the Arbitrator discusses the employer's onus, where the claim is that'a certain dress or appearance rule is just and reasonable because of the need to project a proper image. The second exception involves the legitimate business interest of the employer. In that situation since an employer may be infringing on the basic individual rights and. liberties of the employee and may also be 'jeopardizing his employment, his work record and his compensation, then I am of the view that an employee should only be subjected to the imposition of such standards not on speculation, but on the basis of legitimate.and cogent business reasons · which objectively demonstrate that an employee's dress or appearance are affecting his work performance or are adversely affecting the employer's business. I do not think a few complaints are sufficient. As a legal matter testimony concerning complaints where the employee or his representative is unable to cross-examine the complainers is, if. admissible, of little weight~ A board of arbitration should not place great reliance on a store manager or other person who simplystates that he has received-complaints. If there is a real problem objective evidence, e.g., financial records demonstrating a loss of business or a probably loss of business resulting, from the dress or appearance should be adduced. There is not an iota of evidence before us 'to suggest that the failure by an assessor or a drafter Working in the office to wear a tie has resulted in any harm tothe image of the Windsor Assessment office or that there is such a threat. Up to May of 1989, the tie requirement was not enforced. There is no evidence of even one complaint during 'that time. We do not go so far as to state, as some arbitrators appear .to suggest, that evidence of specific complaints or surveys is 'absolutely necessary in every case to establish the reasonableness of a rule relating to attire or personal appearance. There may be certain dress fashions which are so obviously unsuited to an office setting that the Board may uphold a rule prohibiting such without proof of complaints or surveys. There may have.been a time, many decades ago, when a tie was a necessary part of a respectable office, dress for males. However, that is no longer so. Contemporary public standards are.very tolerant with respect to attire that it cannot be said at all that a male employee working in a government office without wearing a tie,. projects an. unprofessional image. We agree with the memorandum issued by the Assessment Commissioner in 1977, which permitted leisure 12 suits and dress shirts with no ties in recognition that "styles of office wear have broadened over the years." We would add that there hasbeen furtherbroadening of acceptable styles of office wear since 1977, particularly because of the greater emphasis placed today on the individual's freedom.~ The evidence adduced before us indicates that the tie requirement was unnecessary to maintain a professionalimage. The grievors had minimal contact with the public. Besides, the evidence does not suggest that the grievors were irresponsible and unconcerned about their work attire. These are professional adults, who have demonstrated that they'can. make responsible'decisions as to what to wear to suit a particular occasion. The evidence is that the grievors are required from time to time to appear before the Assessment Review Board and the Ontario Municipal Board and.that on those occasions all the employees,, including~ the grievors, wore suits.~ Also, if a member of senior management from headquarters in Oshawa was-visiting the windsor office, the grievors wore ties for the occasion. If- the Employer's concern was public image, we 'have serious doubts that'the tie rule and the way it was enforced would have done anything to enhance its image in the eyes of the public. For example, one wonders how an employee wearing a tie which is not visible because it is hidden underneath a crew. neck sweater, would project any better image than an 13 employee who wears the same attire wi~h no tie underneath. The employer's contention-that ,,a tie is a tie" also causes problems in thatregard. As a general rule the saying "beauty is in the eyes of the beholder" has validity. However, the Board had the opportunity to see some of Mr.. Stevenson's prize-winning "ugly ties", that th~ employer finds acceptable for office wear. We have serious doubts that an employee observed wearing those ties would present a better image to the public than one who wears no tie at all. It is also significant to note that~ the tie rule was enforced by the employer most rigorously in the office, where the employees in question had the least public contact. When they were in the field, where they had constant public contact, they were exempted from the tie rule for the whole of the summer. While the employer should not be blamed for giving consideration to the employees' comfort in the summer heat, what all of this evidence indicates to the Board is that the tie rule'has no real impact on the image of the emDioyer. Ail we are left with is the personal belief, and we believe it to be an honestly held belief, on the part of one member or a few members of management, that a male government office' worker cannot project a professional image unless he is wearing a tie. We have no other evidence other than M~. Speroni's testimony that he "feels" that a tie is required to present a professiona! image. We had evidence that a number of other 14 Ministries have their offices in the same building as the assessment office. None of' those offices enforced a dress code requiring male employees to.wear ties to work. ~While we agree with counsel for the Employer that a requirement to wear a tie is not as onerous or restrictive as a grooming rule such as "no beard or long hair", the tie rule still restricts the employee's freedom of choice, and will involve some expense 'too. The personal preference of a member of management alone, without any supporting evidence that the ~ailure to wear ties results in a loss of image, does not justify the imposition of any restriction on what an emploYee may wear to work. The grievors have not misused .the freedom they had and there is no evidence of any demonstrable problem with the way the employees dressed to work oyer the years. In the circumstances, they are entitled not be to forced to wear a tie merely because that is what is preferred by their superior. For all of those reasons, we find that the requirement in the employer's dress code that all male employees wear ties to work is unreasonable and that the Suspensions imposed for its non-compliance are therefore not just. In view of that finding, we do not-have to consider the union's further submission that the rule in.question is discriminatory as between the sexes. 1 15 The .Employer is directed to rescind the suspensions imposed on the grievors and to remove all reference to the same from all files. The grievors are entitled to be fully compensated for the losses that resulted from the suspensions. The'Board remains seized in the event the parties canno~ agree upon the remedial entitlement. Dated this- 8t~h day of February 1991, at LHamilton, Ontario N. Dissanayake ~Vice-Chairperson Member D. Clark Member