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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 I ..-- ’ r.. - -2- 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.- ,’ ; , .,-v.. .I’. -3- 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. -4- 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. L6V lV3 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. .I’. - 5 -, ,’ .* 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 I. -6- 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 .,-. .I’. -7- 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. .,:. -9- 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.) - 10 - 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. a I I ~7 ,,I:. - 11 - 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 _-.. .; - 12 - 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 ll__l.. ci--- ^--_-