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HomeMy WebLinkAbout1981-0689.Churney.82-10-23'IN THE 'MATTER OF:AN ARBITRATION 689/81 m-her THE 'CRQWN EMPLOYEES COLLECTIVE BARGAINING ACT .' Before 'THE GRIEVANCESETTLEMENT BOARD Between: OPSEU (Chris Churney) Grievor - and - Before: For the Grievor: For the Employer: Hearings: The Crown in Right of Ontario ' (Ministry of Correctional Services) Employer S. B. Linden, Q-.C. I. J. Thomson' W. A. Lobraico Vice Chairman Member Member M.-Mercer-DeSantis Grievance/Classification Officer Ontario~ Public.Service~Employees Union J. F. Benedict Manager,-Staff Relations Ministry of Correctional Services February 26, 1982 4 May 13 and 14, 1982 The grievor in this matter, Mr. Chris Churney grieves as follows: "I grieve the fact of my having been released from my duties at the Guelph Correctional Centre on the 11th of September, 1981, due to Superintendent Mr. William J. Taylor's opinion that my beard did not conform to Ministry policy." The settlement required is as follows: 1. Reinstatement to my former position df c-0. 2--C-3 Dorms, G.C.C. 2. Full compensation for loss of wages, credits, etc. 3. The right to wear a beard that conforms to the requirements of Ministry policy. Counsel for the union has puttbe Lasue,which this Board must decide as follows: 4 “Has the grievor been insubordinate and therefore guilty of a disciplinary offence for failure to comply with the Ministry policy on facial hair?" ..“-. y:. 1 -3- It is important to state at the outset that management's right to make rules has not been challenged in this case. Neither has the reasonableness of this particular rule been put in issue because that issue has already been decided in an earlier case. .,(See' the Grievance of Mr. Frank Thorn 82/78 and the Grievance of Mr. Gurnam Singh 240/79). The union position is that there are facts in this case which should have allowed the grievor~exemption from the Ministry's policy. regarding facial-hair. Further, the union submitted that although the policy itself may ". be reasonable, it is not being uniformly applied. Counsel for the.union submitted that there has been some confusion with regard to the application of the policy and that confusion justified the grievor's actions. The grievor had specifically asked for permission to grow a beard and he felt that,the facial hair policy had been relaxed. Counsel for the union also relied on a.medical issue. . A medical doctor was called as a witnes? but not with ~respect to Mr. Churney himself, because the doctor never examined him, but just with respect to the condi,tion that Mr. Churney was suffering from in a general way. 1 , . - -e--. The grievor had a skin condition known as folliculitis and he believed that it was necessary for him to grow a beard. The doctor did indicate that growing a beard was a legitimate way to treat folliculitis. The union has also submitted that there is a religious freedom issue involved. They submitted that the grievor belonged to a religious group which required the growing of a beard. Counsel for the union argued that management's attitude towards the grievor's health and religion appear to have been disregarded. Counsel submitted that the employer has gone to great lengths to accommodate other people, in particular, people with health problems. Counsel for the union concluded that the grievor was not being insubordinate when he refused to shave rather it was simply the final act in an orderly chain of events. Counsel submitted that the employer had been put on notice and the grievor provided a reason for his actions. Furthermore, Counsel submitted that the employer did not challenge this reason. Counsel's position is that situation became so bad that the grievor could no longer tolerate it. The Ministry's position regarding facial hair is contained in a Memorandum dated February lst, 1978 signed by Mr. Glenn Carter who at that time was the Executive Director of the Adult Division. This policy is as follows: *. ./. .,-1-, . “:. -5- I “Correctional officer ‘staff members may' grow moustache~s 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 a hand hold in. the event of a .scuffIe or impede tlie ef.fe&tive.fittlng of an air ,mask or a tear,gas mask.' Beards may also be gr'own, subject to the same-restrictions and conditions. . TO Prevent the misinterpretation that he is dn duty unshdven, 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 aw,a,re of the Hfnistry's policies with r,espect to this matter by the distribution and posting of a.memorandum and by incorporating these policies in t~heirstanding orders. In addition, Superintendents will ensure that . all prospec.tive employees for correctional offic~er positions within the Ministry are ,advised that these 'requirements ares condi- tions of empl0ynen.C.. /- .~.. _,. - .., . --.~~. During serious incidents such..as riots or fires correctional officer 'staff. in order. to protect themselves, their colleagues or those in their cart, may be required to weax a tear gas mask Or an. air mask- Therefore, its is absolutely essential. that' notching interfere with the proper fitting of these face masks. I : -6- The manufacturer of the air mask, which the tlinistry has adopted, has advised us that facial hair can prevent the face mask from sealing proPerly thereby causing 1eJkase and resulting in danger to the wearer. ,. In view of this, correctional officer staff 1 will ensure that, while on duty, their faces areshaven in such a fashibn that their facial hair'does not prevent the. face Piece on an air mask and tear gasp 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." ..,'. This memorandum goes on to state that "all correctional staff while on duty will be required to conform to Section A-6, Page 1, Manual of Standards and Procedures and to the Superintendent's requirements concerning hairstyles, beards, moustaches and sideburns. Failure to comply with those requirements may result in disciplinary action." The Standards and Procedures Manual was submitted as an Exhibit at the hearing and the facial hair policy contained therein is consistent with the directive of Mr. Glenn Carter. The circumstances in this case are that the griever wrote a letter dated September lst, 1981. This letter . states as follows: "Please be advised that as of Thursday, September 3rd, 1981, I shall be reporting for duty with facial hair. -J- Although a direct order from Sgt. J. Powis on the 14th of April, 1981, forced me to-be clean shaven, I remain convinced that according to Section A-6, Page 1 of the'tianual of Standards and Procedures, I.may in fact grow facial hair. -. I must reiterate, however, as I have, done in past letters concerning this issue, f that it is my hope that you will understand my action is based.on personal, philosophical, religious and medical foundation and has nothing to do with surquedy." As a result of that, Mr. Taylor, the Superintendent of Guelph asked that the shift supervisor meet with Mr. Churney and expla.in 'the policy regarding facial hair to him again. Mr. Taylor was advised that Mr. Churney believed that he was complying with the policy and that he had no intention of shaving off his facial hair. Accordingly, on September Eth, Mr. Taylor met with Mr. Churney. A union representative 4 attended that meeting at Mr. Churney's request. Mr. Taylor says the question of facial hair and Mr. Churney's refusal to comply was discussed. Mr. Churney felt that he tias getting a proper seal of the face mask even though he _e-. - 8 - had facial hair. Mr. Taylor replied that he was not concerned about that because the manufacturer would not guarantee the seal if Mr. Churney's facial.hair did not comply with the Ministry's policy. Mr. Taylor told Mr. Churney that he would have to shave his hair and that he could only leave a thin strip along the edge more than one-quarter of an inch away from the mask or else he would not be complying with the policy. Mr. Churney disagreed with Mr. Taylor's interpretation. This appears to have been the main problem in that Mr. Churney believed he was complying with the policy and Mr . Taylor made it very clear that he was not. Mr. Taylor.said that the side issues regarding Mr. Churney's religious, philosophical and medical reasons were mentioned at this time but not a great deal of reliance was placed on them. Supervisors Clough and Bolton met with Mr. Churney and Mr. Taylor at 10:00 o'clock on September 9th. At that time Mr. Taylor testified~that he gave a direct order to Mr. Churney to shave. Mr. Taylor testified, "I asked him to comply and he said," "NO". Mr. Taylor said that he advised Mr. Churney that he left him with-no alternative but to dismiss him. . The employer's position is essentially that Mr. Churney's medical reason which was advanced at the hearing was substantially an afterthought. It was not raised with ..-. .,:. -9- any degree of seriousness at the time. On thee contrary, Mr. Churney offered to shave if his beard interfered with the seal of, the mask. Accordingly, it is not a medical reason thatis-preventing Mr. Churney from shaving. It is Mr. Churney's own interpretation of the Ministry policy. The employer has submitted that it is not the religious freedom issue either that was preventing Mr. Churney from shaving. Mr. Churney simply believed that his beard did comply with the policy. All the employer's witnesses did not. The employer's witnesses testified that Mr. Churney never emphasized the fact that he had this medical condition at the time. Furthermore they .argue the evidence does not substantiate it even now. The employer's position is that the-Ministry policy regarding facial hair is clear, unambiguous and reasonable. It exists for a legitimate safety reason. Furthermore, the policy is enforced in a substantially consistent way at the Guelph Correctional Centre. The only evidence regarding a departure from enforcement of-the policy involved a tem- porary employee in a very special situation and it.was subsequently resolved. The Ministry pblicy has been explained to the grievor in hetail by senior management of the correctional centre on at least 2ix separate occasions prior to his dismissal over a six month period. On three occasions - 10 - prior to September, 1981, the qrievor was instructed to shave and he did so. This occurred three times over a four month period. For two and one half years the qrievar complied with the Ministry policy and there were no problems. The qricvor was fully aware of the consequences of his non-compliance. The qrievor's medical condition is not serious by any objective standard. The qrievor is not an active member of any recognized religious group that requires the growing of facial hair. The grievor's evidence regarding his affiliation with a religious group is tenuous at most. The employer submits that the qrievor's refusal to comply with the Ministry facial hair policy is due to his own personal preference. The legitimate and obvious interpretation placed'on this policy by the Ministry is simply not accepted by the grievor. He refuses to accept anyoneI's interpretation of the policy except his own. It appears to this Board that~the medical and religious reasons which were advanced at the time of the hearing seemed to have played a relatively insignificant part in the qrievor's decision not to shave. Throughout the course of this hearing it became clear that the qrievor believed that his interpretation of the Ministry policy was correct. He believed that because he was able to get a proper seal notwithstanding the existence of his beard, he was complying with the policy. Witnesses called on behalf of the employer testified on several occasions that that was not the issue. They made it clear that whether or not the qrievor received a proper seal was not relevant. They believed that the Ministry policy was clear and they explained it to the qrievor. I have already indicated the existence * and the reasonableness of this policy is not in issue. The grievor was given a direct order which he refused to comply with.' This Board agrees with the employer's position that the facts in this case amount to insubordination and' that ~the employer had no other alternative-in view of a defiant' employee except to dismiss him. A direct flaunting of the employer's authority cannot be tolerated by any employer. Accordingly, it is the decision of this Board that the griev- ante be dismissed. DATED at Toronto, Ontario this 23rd day of October; 1982.. i.w . . ., Vice Chairman "I dissent" (see attached) I. 3. Thomson, Member I: 3600 v W. A. Lobraico,~ Member “-.- . . .1~ 3ISSENT While I can agree with some of the conclusions reached by the majority in this matter I cannot agree with their decision for dismissal. On January 26, 1991 the grievor notified the Superintendent, Xr. Taylor that he would commence to grow a beard (Exhibit 17). This notice was given as required by the Ministry in the Manuai - Standards and Procedures (Exhibit 5). Permission was granted to him (Exhibit 18) by the Acting Senior Assistant Superintendent of Corrections, Mr. S. W. Richardson. In this memorandum to Xr. ?owens, Staff Training Officer,he was instructed to check the griever nonthly and issue a report to Mr. Richardson. On April l*th,l981 he was given a direct order by Mr. ?owers to shave off his beard and he compiied. In late April he saw a Dr. Labelle who advised him to grow a close cropped beard as the best method to cope with his skin problem. Retween April and June 8th he continued to be clean shaven but testified that he put up with a great deal cf discomfort. . On June 9th he again notified the Superintendent that he would commence to grow a beard for among other thi,lgs, mecical reasons (ELnibit 10). - 2 - On. June 10th Mr. Richardson spoke to the griever about his growing a beard.-and at this time, on his request, was given a copy of the medl'al certificate, which he forwarded to the . Deputy Superintendent, Mr. Watson, with a copy to ,Mr. Taylor (~Exhibit 14). On June 16th the grievor was again given an order to shave on instructions from Mr.Taylor, passed to him by Mr. Richardson (Exhibit 15). On June 19th he complied with this order (Exhibit 16). The grievor testified that he continued to be sufficiently clean shaven through the summer so as not to be subject to a reprimand by using vacation credits but these finally ran out,and he was .' developidg scars on his face and often had blood one his collar from shaving. On September 1, 1961 the grievor again wrote Mr. Taylor that he would commence growing a beard (Exhibit 7). As a result of refusing to shave his beard off again, he was dismissed from his job on September 10th after being suspended on September 6th. From the recital of the events set out it can be seen that the grievor always obeyed any direct order from his superiors to be clean shaven until the very last event on September 8th. At no time was he asked about his ‘medical condition and. no attempt was made by any of his superiors to try and understand the problem he was trying to cope with. 'It appears through the ,evidence he was really dealing with the Superintendent, Mr. Tayior - 3 - through s-&ordinates and Mr. Taylor was determined no one was going to have a beard at the Guelph Institution even if the Ministry policy allowed it within certain limits. No one attempted or tried to understand the grievor's problem even after the medical certificate was presented. f?x. Taylor testified he didn't ?ay any attention to it because he didn't think it was valid and the grievor was ";laying games". At no time did anyone instruct him to see a medical exaniner as Trovided for in the Collective Agreement. Surely, an attempt could have been made by someone in authority to try and understand the grievor's medical problem and discuss it with him. I cannot agree with the majority "that the medical reasons advanced at the Hearing played a relatively insignificant part in the grievor 's decision not to shave." In my opinion from June on it played a great Tart in the griever's conduct. Yes, he disobeyed a direct order but in my opinion with some justification. I would allow the grievance in part and reinstate the grievor. Untii such time as his condition improved I would have him assigned to some position where it is not necessary to wear ?l.S.A. equipment. I. ;. 3ocson