HomeMy WebLinkAbout1984-0652.Cox.86-01-31IN THE McCC'ER OF AN ARBITRATION
rmie?c
Between: OPSEU @.F. COX>
and
The CrominRightof Chtsrio
@finis= of Correctional Services>
Grievor
M.R. Gorsky Vice-Qlairman
J.McMsnus Member
A.M. HcCuaig Member
For the Grievm: M. Wysocki Grimce Officer
For the biphyer: J. Zaruhy Crcm Law Office Civil
.+$&&try of the Attorney General
Rearinq: August 2%-d, 1985
.:..
:.:
” : ‘?.
,;:;:
.:~.
!? DECISIOlI
The Grievor, D. F. Cox, who was a.t all material times,
classified as an Industrial Officer I in the Woodworking Section
at the Guelph Correctional Centre, and who has a seniority date of
June 2, 1980, filed a grievance (Exhibit 2)' on Juno 12, 1964 as
follows:
#I . . . I am being discriminated against by not being
allowed to grow a beard."
The settlement required was:
"To be allowed to grow a beard."
The parties filed an agreed Statement of Facts which
is summarized as follows:
The Ministry policy with respect to facial hair, which
in particular. dealt with the use of air-demand masks, was first
established on February 1, 1978.
In Thom'and the Ministry of Correctional Services, 82/7‘8
(Adams), the Employer's facial hair policy was found to be reasonable.
The Thorn award is dated March 19, 1979.
In Singh and the Ministry of Correctional Services, 240/79
(Eberts), which award is dated November 6, 1980, the findings in the
Thom award, concerning the reasonablenessof the policy, were followed.
On April 13, 1981,the Ministry issued a further policy
statement concerning facial hair which superceded the February
1, 1978 statement in a form that was more "clearly stated".
On May 28, 1982 the Ministry issued a third policy statement
concerning facial hair which extended the policy to Industrial
Officers, such as the Grievor.
On June 8, 1982 the Ministry's policy was mailed to
all staff.
,i: li,
In Churnev and the Ministrv of Correctional Services,
689/81 (S.
of the Min
B. Linden), dated October 23,. 1982, the reasonableness
istry's policy was upheld. '
In February of 1984 the Grievor commenced work as an
Industrial Officer at the Guelph Correctional Centre. The agreed
statement indicates that, at that time, he "was a Correctional
Officer". It was acknowledged that the Griever was aware of the
Ministry's policy and that he had complied with the policy "from
1980 onwards".
It was also .acknowledged that the Grievor was aware
of the discipline that had been imposed on the three Grievors in
the Thorn, Singh and Churney cases, above referred to, however,
he had not be'en told by anyone that "he would in fact. be disciplined."
(emphasis in the original).
In June 1984, the Grievor asked C. Rykes, his Supervisor,
if he could grow a beard, the Grievor not having a beard at that
time. Mr. Rykes told him, orally, that he could not do so but
did not order him not to do so, nor was discipline threatened at
that time should the Grievor grow a beard.
It was acknowledged that the Grievor was not requesting
authorization to enable him to grow a beard for religious, philosophical
or medical reasons.
Mr. Rykes, when he told the Grievor that he could not grow
a beard, did not intend to have that communication serve as a basis for
justifying any future discipline, should the Grievor later grow a beard.
I ,took this agreement to mean that the communication represented Mr.
Rykes' view that growing a beard would infringe the facial hair policy
and that, should the Grievor choose to grow a beard, any issue would
be decided on its facts, with those ~facts being tested in the light
of the policy.
r; 3
The communication from Mr. Rykes, to the Grievor, was never
documented. Since Mr. Rykes informed the Grievor that he was not
entitled to grow a beard, as above referred to, the ~Grievor "has not -
been penalized in any way." (emphasis in the original)
During the hearing, certain other statements ,were made by
counsel, which, I took, in the absence of objection, to represent agree-
ment. No evidence was given by witnesses:
Ry way of clarification it was stated that the Grievor
was a Correctional Officer in June of 1980 at the Guelph Correction
Centre and was seconded as an Industrial Officer. The official recogn-
ition of the secondment occurred in. February of 1984, although the
Grievor had actually been seconded some six months prior to that time.
It was on June 11, 1984, that the Grievor asked Mr. Rykes
if he would be permitted to grow a beard. The denial of the request
was based on the Ministerial policy concerning facial hair. The Grievor
did not then have a beard and did not grow a beard, as he was aware of
the disciplinary penalty that had been imposed on others at the Guelph
Correction Cent& who .had grown beards and who refused to shave them off,
the penalty being that of dismissal. The Grievor chose to grieve
instead~of growing a beard. The position taken on behalf of the Grievor
was that the facial hair policy discriminated against him as an Industrial
Officer and was unreasonable in the circumstances. The Union argued
~that the facts to be adduced justified exempting the Grievor from the
policy.~ It also argued that the action of the Employer was disciplinary
"in substance" as the refusal to permit the Grievor to grow a beard
was evidence "of impending discipline".
The parties acknowledged that this case represents ,the fourth
time that a dispute involving the Ministry's facial hair policy has
4
come before a board of arbitration. Although the Ministry's policy
was declared to ,be reasonable in all of the three prior cases brought
before the Board, there was exemption from the policy in one case
(Singh), based on religious reasons.
The policy, which was amended from time to time, was
first stated in Exhibit 3 which is assfollows:
“Correctional officer staff members may grow umustaches
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
withahandholdinthe event of a scuffle or impede
the effective fitting of an air mask or a tear gas
mask.
Beards may also be m, subject to the same restricticna
andconditions.
To prevent the misinterpretation that he is on duty
unshaven, the mifommemberh&o irk& to grow a
beardrmmtinformhis Superintendentofhis intention
to do so, in writing and in sufficient tima for senior
supervisors to be advised.
Superintendent; 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 xmarmranti 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 empLoysent.
During serious incidents such as riots or fires
correctional officer staff, in order to protect them-
selves, 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
,interfere’tith the proper 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 fact 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 &my, their faces are shaven in such a
fashion that their facial hair Qes not prevent the
face piece on an air, mask and tear gas mask from being
pmperly sealed around their faoeand jaw line. To
acccqlish this, staff must cut or trim their hair to
a point at lease l/4” back from the edge of the face
mask, where it is in contact with the face.”
The amended statement of, $981 is found in Exhibit 4
which is as follows:
“For health and safety reasons, correcticmal officer
staff while on duty, are not permitted to have facial
hair, i.e. side burns, urriataches, beards, that interfere
with the cclnplete and proper fitting of an air mask or
tear gas mask, or be of such length as to prwide an
inmate with a hand hold in the event of a stifle.
To accomplish this staff h.st not have s facial hair
between the sealing surfaces of the face mask and their
face and they must not have z~y facial hair within Y’
of the edges of the sealing surfaces of the face mask
where they comin cant&t with the face.
Superintendents are responsible for ensuring that:.
(a) all correctional officer staff in their institutions
are made mt;re of and conply, while On duty, with the
Ministry’s policy with respect to the’wearing of
facial hair;
5
.6
(b) the Ministry's facial hair policy is incorpo-
rated into their institution's standing orders;
(c) all correctional officer staff in their
institution, both those who are presently
employed and prospective new staff, are advised
that their carpliance with this policy is a
condition of their employment as a correctional
'officer staff.
Ministry Inspectors are responsible for ensuring that:
(a) The Ministry's policy cm facial hair is ccqlied
with and for reporting, as part of their normal
institution inspection resports, all instances
of non-caqliance.
Management representatives on institution health and
safety cmdttees are responsible for ensuring that:
(a) The ?+inistry's policy on facial hair is camplied
with and for reporting non-compliance to the
ccomittees and to the Superintendent."
The material portion of the third amended policy
statement of 1982, found in Exhibit 5, is as follows:
'For health and safety reasons, correctional officer
' staff while on duty, are not permitted to have facial
hair, i.e. side burns, umust&hes, goatees, beards, that
interfere with the canplete end proper fitting of an air
mask or tear gas mask."
It is in the third statement, on p.2, that Industrial
Officers, such as the Grievor were included as being covered by the
.policy.
The Grievor, as an Industrial Officer, provides
certain training in Industrial Shops for inmates in his supervision,
custody and control.
The Employer made's preliminary objection to
arbitrability arguing that there was no difference between the,
nzar+i 09.
i, 1,
7
11
. . . arising from the interpretation,
application, administration or alleged
contravention of the agreement...,"
~within the meaning of s.19(1) of the Crown Employees Collective
Bargaining Act, R.S.O., 1980, cap.108.
19 .--(l) Every collective agreement
shall be deemed to provide that in the
event the parties are unable, to effect a
settlement of any differences between them
arising from the interpretation, application,
administration or alleged contravention of
the ,agreement, including any question as to
whether a matter is arbitrable, such matter
may be referred for arbitration to the
Grievance Settlement Board and the Board
after giving full opportunity to the parties
to present their evidence and to make their
submissions, shall decide. the matter ‘and its
decisionis final and binding upon the parties
and the employees covered by the agreement.
In developing the Employer's argument, counsel noted that there
was agreement that there had-been no violation of the Collective
Agreement. Counsel for the Employer also argued that there was no
allegation with respect to a violation of any of the items
contained in s.18(2) of the latter Act, which is~ as follows:
::,
(2) In addition to any other rights of
grievance under a collective agreement, an
employee,claiming,
(a). that his position has been improperly
classified;
(b) that he has been appraised contrary
to the governing principles and
standards; or
(c) that he has-been disciplined or dismissed
P,.~. ~-..~..nv.lp~ F"nm his emnl,ovment without
ri
8
just cause,
may process such matter in accordance with
the grievance procedures provided in the coll-
ective agreement, and failing final
determination under such procedure, the matter
may be processed'in accordance with the
procedure for final determination applicable
under section 19. R.S.O. 1980, c. 108, s. 18.
It was argued that the only section which might be applicable
was (c) and, in particular, the portion thereof relating to an
employee being "disciplined". It was submitted, on behalf of the
Employer, that the Grievor, in this case, had not been disciplined.
Counsel for the Employer argued that the issue presented by the
Grievor was tantamount to a challenge to the assignment of duties
covered by s.18(1) of the Act, which is as follows: -~.
f
18 .--(l).Every collective agreement shall
be deemed to provide that it is the exclusive
function of the employer to manage, which
function, without limiting' the generality of
the foregoing, includes the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods
and procedures, kinds and locations
of equipment and classification of
positions; and
(b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are
subject to review by the employer with
the bargaining agent,
9 ‘1
Counsel for the Employer therefore argued that there,were only two
ways for the Grievor to be properly before this Board. One was
by way of raising a question involving the interpretation, etc.
of the Collective Agreement, which it was claimed was not.the case,
and, the other, by means of a grievance alleging violation of one of the
items in s.18(2) of the Act, which it was claimed was not supportable
in this case.
The second argument as to arbitrabi.lity, made by the
Empioyer, was that the matter was inarbitrable because of the lengthy
dila} in filing a~ grievance and the doctrine of. lathes was argued.
The Employer argued that there could be no discipline
imposed under s.18(2) unless tke Grievor had taken a position that
he had a right to grow a beard and the Employer had responded by
imposing some penalty on the,Grievor because of the "stand" that
he took - in this case with respect to his right to grow a beard.
Counsel forthe Employer relied on the case of Cloutier
and Minstry of Revenue, (20/76) (Beattyl,where a similar objection
was made at p.3 of that award. In that case, the grievor, who was
employed as a Property Assessor III, grieved that he had been, by letter
dated January~ 21, 1976, unjustly accused, by his Valuation Manager, of.
not.performing certain duties. The grievor requested that the letter
and all the documentation referred to in it be removed from his file.
Referring to what are now s.18(2) and 19(l) .of the s,
Mr. Beatty stated (p.3):
"From those sections it is, to this Board, clear that for a grievance to properly come before us,
it must either fall within the terms of the collective
agreement or, alternatively, within one of the lettered
paragraphs of [s.18(2)1.
Further ,at p.5 of the award, the arbitrator stated:
. . . it is clear that for a grievance to be arbitrable
under the agreement it must, at the very least, allege
that there is a difference between the parties 'arising from the.interpretation, application, administration or
alleged contravention of this agreement'."
"In the present case,~ on the facts before this Board, it is
manifested that Mr. Cloutier's qrievance does not raise such a difference. Accordingly and if it is to be arbitrable before this Board it must follow from'what
we have said above, that Mr. Cloutier's grievance would have to fall within the terms of one of the lettered
paragraphs [s.18(2) of the Act]. More specifically, and there being no allegation that he has been improperly
classified, to be arbitrable before this Board, Mr. Cloutier musty satisfy us that the letter of January
21, 1976 about which he complained, raises an allegation either that he has been improperly appraised under
[s.18(2) (b)] or that he has been unjustly disciplined
under [s.18(2) (c)l of the Act."
After dealing with the question as to whether the letter
amounted to an improper appraisal, and rejecting that contention, the
arbitrator dealt with the application of s.18(2) of the Act. In
dealing with what is now s.l8(2)(c), the arbitrator concluded
.that where: "the letter was not intended to have a prejudicial
effect on the Griever's position in future grievance proceedings"
it could not be characterized- as "being disciplinary in nature."
Reference was made to Re Hiram Walker & Sons Ltd. (1973), 4 L.A.C.
(2d
44
(2d
~(Adams): Re Rimberley-Clark of Canada Ltd. (1972),1 L.A.C. (2d)
Lysyk): Re Corporation of the County of Norfolk (19721,l L.A.C.
108 (Palmer).
Further, at p.9, of the Cloutier award,the arbitrator found
that even if the letter contained an implicit warning that disciplinary
action might be.taken on the future, there was implicit,in such warning.
an "admission that disciplinary action [was] not being invoked at that
time." For that reason, the board did not "believe such a notation
could properly be characterized as being disciplinary in nature" relying
cn Re DeHe:rilland Aircraft of Canada Limited (1971), 22 L.A.C. 159
c -4
,11
.(Weatherill) . Reference was also made to Re Stratford General Rospitai
Corporation (1973) unreported, (Weatherill), where it was stated, with
respect to a 1ette.r directed to an employee by her employer, in which
the latter complained that unless the employee altered her conduct it
would have "no alternative but to take whatever disciplinary action
is deemed necessary";
"A letter such as that of October 26, however,
serves not as a record of any improper conduct
on the grievor's part, but rather simply as an
expression of the Employer's concern. At most,
it 'puts the employee on notice' with respect
to certain conduct. It is not, however, the
imposition of a penalty for any particular offence.".
Further, at pp.9-10 of the Cloutier case, the arbitrator,
while acknowledging that: "[Iln certain circumstances certain memor-
anda may, even to the e,xtent that they only forewarn of future action
that may be taken by the employer, be properly regarded as being dis-
ciplinary in nature, whereas here, it was expressly stipulated that
the letter was only intended to induce conformity to acceptable
conduct, and was not t0 be regarded as part of a record being built-up
against .the griever, we do not think that the letter of January 21, 3.
may properly be characterized as being a disciplinary notation."
Further,at p.10 of the Cloutier award,reference was made to
the distinction made in the private sector and quoted from the Kimberly-
Clark of Canada Ltd. case, above referred to:
"At the hearing in .this matter, counsel for the
company took the position that the card merely
do,cumented a discussion with the grievor, that is
was intended to'drati the grievor's attention to the
company's concern over his job performance and thereby
provide him wfth,incentive to improve that performance,
and that the card was ,not drawn up for the purpose of
"building a recordj' against the grievor.
12
To the extent that any "warning" is disciplinary,
of course, the sanction inflicted upon the
employee so disciplined is not immediate, but
potentia_l. The employee concerned will have in
mind that if a disciplinary warning is not made
the subject of a successful grievance, the
warning will go to "build a record" that may
be used against him at a later time should he
subsequently be dismissed or suspended or
subjected to,some other form of discipline. A
warning can fairly be characterized as a
disciplinary warning, that is to say, when it
may have a prejudicial effect upon the employees'
position in future grievance proceedings to
contest a dismissal or suspension.or other
disciplinary action.
On the other hand, company personnel records might
well incLude a memorandum of some sort containing
unflattering remarks about an employee, but ,which
could not be viewed as a disciplinary warning in
the sense of laying the basis for, or supporting,
other dfsciplfnary measures at a later date - either
because of the nature of the document, or because
the "warning" was not brought to the attention of
the employee in such a way as to afford him the
opportunity of challenging it through the grievance
procedure, or because it is clear for some other
reason that the employee would not be prejudiced in
any future proceedings by having failed to grieve
the "warning" immediately following its issuance.....
On the basic issue;however - that is, whether
or not the card of January 7, 1972, can be taken
to constitute a dfsciplinary measure -.we are not
confined to the face of the document. As suggested
above, in our view the critical feature distinguishing
a warning which can properly be characterized as
disciplinary from other (non-grievable)
expressions of employer disapproval is that
in the.case of the former an employee who fails
to bring a grievance may be prejudiced in
future proceedings of a disciplinary nature. In
the case~at hand, as we understand it, the
company has clearly taken the position that
the card of January 7, 1972,.was not. intended
to be disciplinary in this sense of establishing a
basis for further, action. By so characterizing,
the card, and unequivocally representing it as
a non-disciplinary communication, we are of the
opinion that the company would.be estopYp.edfrom
subsequently tendering it in any future proceedings
of a disciplinary~nature that might be taken
against the griever".
In the case before us it was acknowledged that "there was
no intention by the employer that communication would be used,
i.e.: future discipline." I am satisfied that the Employer would
be estopped from subsequently tendering it in a~ny future proceedings
of a disciplinary nature that might be taken against the Grievor.
On the agreed to facts I could only find that the Grievor's supervisor
had informed him of the Employer's view of the facial hair policy,
which he took to preclude his growing a beard..
The Employer also relied on the case of Naik (now Taharally)
and The Ministry of the 'Attorney-General, 108/77 (Swinton). In that
case the Grievor had been send a written memorandum, dated June 22,1977,
by her supervisor'which stated, inpart "I wish to advise you that any
further outbursts of this natl?re will not be tolerated in this office
and I can assure you that if it.does the necessary action will be taken
against you."' (emphasis in original) At the end of the memorandum it
was stated: "I wish to remind you that while you are a member of th.e
staff you must abide by the rules and regulations of this office. I
feel that your conduct in my ,office on the dated mentioned was most
uncalled for. "Please be guided accordingly." (emphasis in original)
At p.4 of the latter award it was stated: "The warning is not
disciplinary in nature, however, for its purpose is only to provide
guidance to the employee as t,o the scope of acceptable conduct, as the
reference to future action and .guidance demonstrate. Furthermore (the
supervisor) for the employer, stated at the hearing that the letter was
only intended as criticism of the Griever and not intended as discipline."
____
‘f, (r . 14
Further,at p.4 of the latter award, it is stated: "As the
Cloutier case and the cases cited therein made clear, one cannot char-
acterize every communication from an employer to an employee as dis-
ciplinary action. Only if the warning ,will have prejudicial effect
on the employee's position in future grievance proceedings, in the sense
that it is being used to~build up a record against the employee,
can it be characterized as disciplinary action. To conclude otherwise
would be to allow an employee to grieve any communication which he
believed to be unfounded, with'unfortunate results for the gievance
procedure and for the employer trying to get guidance to an employee
without engaging in formal disciplinary action."
Further at pp.4-5.of the latter award, it was stated,as
Professor Beatty stated in Cloutier, with resard to criticisms that
might have adverse effects on the ~futuie:
That is to say if this Board were.to accept anyother,
construction of [s.l8(2)(b)'], it would ensure'that
every letter or memorandum sent by an employer to
an employee, which commented critically on the latter's
work performance, could be made the subject of grievance
to be brought before this Board. As a consequence,
such a construction, by bringing anticipated but not
yet realized decisions of the employer before this
Board, could well result in the grievance procedure
being clogged with, and this Board's attention being
diverted to matters which are at most of marginal
significance and which may, in the final analysis, be only of hypothetical interest to the parties.
While Professor Beatty,was discussing [s.l8(21(bll of the Act,
the same comments are applicable with regard to [s.18(2)(~)1.
The Union relied on the case of McMurter and The Ministrv
of Conmnrnitv and Sociam (745/84), (Samuels). In that case,
'the grievor, who was a Systems Analyst at the Huronia Regional Centre,
was appointed in July 1984 to be the campaign manager for the Simcoe
North NDP riding association,.in the then up-coming federal election.
Immediately after his appointment, he consulted with manacjement when
IJ ‘5 ’ y.
it became apparent that he risked dismissal or serious discipline if
he continued as campaign manager because of the provincial policy
concerning poiitical activities of civil servants. Fearing such a
penalty, he resigned as campaign manager and then grieved. The union,
while acknowledging that the grievor would have violated the policy~,
intended to argue that, insofar as it touched his intended activities
as campaign manager, it was not in accord with the Public Service Act,
R.S.O. 1980, Ch.418: or if the policy was valid under the~Act, that
the Act was contrary to the Canadian Charter of Richts and Freedoms.
As in this case, the Ministry raised a pre~liminary objection that there
had been no discipline meted out and that the Board had no jurisdiction
to hear the matt,er.
In the McMurter case, the.communication to the grievor
was in the form of a brief memorandum:
"I have to advise you that being campaign manager
for a candidate in the. up-coming federal election
would clearly violate the Ministry and province's
policy on politic~al activity. A civil servant except
during a leave of absence, shall not 'actively support
a federal candidate or party' and managing a campaign would certainly be active~support."
After receiving the memorandum the grievor resigned
as campaign manager and sent a memorandum to management which read:
"In compliance with your memo of July 25, 1984
regarding 'political activity', please find enclosed
a copy.of my resignation as campaign manager of the
Simcoe North Riding Association for the up-coming
federal election.
'I intend to grieve this directive because I believe
the interpretation of the policy is unreasonable or
the policy is unreasonable or contrary to law."
The arbitrator in the McMurter case noted at p.5:
"There does appear to be no relevant source of juris-
diction other than s.l8(2)(c) of the Crown Employees
_Collective Barqaininq Act, and the Union pointed to
no other source."
Professor Samuels referred at p.6,.to Haladay, 94/78
Samue
,I .s. our jurisdiction is statutory only . . . . We
have no other authority to intercede between the
parties: we do not have any inherent jurisdiction
to do justice -- or what we may conceive to be justice
-- or to provide remedies, no matter how desperate
a particular case may cry out for relief. The Board
is a creature of the statute, and derives its juris-
diction solely from the statute. The only exception
to that rule is that the parties may provide for
certain matters in a collective agreement, and our
jurisdiction is thus broadened to the extent that
they have done so."
In referring to the Cloutier and Naik cases, Professor
ls, in the McMurter case, stated at, p.6:
(at pp.3-4):
I, . . . the Board held that not every adverse com-
munication to an employee was disciplinary. To
be' 'disciplinary' there had to be a.prejudicial
effect on the employees' position in future grievance
proceedings, in the sense that the communication
was being used to build up a record against then
employee. Generally, ,we agree with these earlier
decisions."
The arbitrator in the McMurter c,ase noted the difference between the
case before him and the Cloutier and. Naik cases, at p.6:
If . . . the case before us raises a different point.
Here it is clear that the grievor and [the management
representative] realized they were caught in the web
of, a cleariy expressed policy, which trumpeted out
that the grievor's position as campaign manager 'will be considered as sufficient cause for dismissal'.
There is really no-doubt that the gr,ievor ran a
terrible risk in remaining as campaign manager. He
was in the horns of a dilemma. Did he have to wait
for the sack before grieving? Or if he resigned as campaign manager, did he lose his right to grieve
and to challenge the policy because the axe had not
yet fallen?"
At pp.7-8 of the McMurt_erI case it is stated:
In Re McKay and the Crown in Right of Ontario (Ministry of
Northern Affairs) (19811, 28 L.A.C. (2d) 441, this Board '
decided that a'grievor in a similar situation to our griever
could proceed with his grievance, and that the Union coulil
Continue with the matter.after the griever had quit his
position with the Crown. In that case, the grievor had
‘.
;;
., :-
.:-
., :<
received an order to resign as president of his riding association
or be fired. He resigned under protest. The Board dismissed a
preliminary objection to its jurisdiction and proceeded to decide
the matter in substance, though it refused.to determine that the
matter was disciplinary. The Board held that it could "determine the
real issue between the parties", and that it had jurisdiction on the
basis, that the Union had a legitimate interest in questioning the
propriety of the order given to the grievor (at page 445). In other
words, the,Board did not found its,jurisdiction on the s,tatutory
powers of the Board or on any particular provision in the collective
agreement . In this respect, in our view, the Board in McKay erred.
This point has been made earlier in Sullivan, 578181, wherein the
Board expressed the view that the McKay award "may have put the
matter too broadly in basing its jurisdiction on the ground stated".
However, in Sullivan, the Board was of.the view that the issue in
McKay "was in substance a disciplinary question" (at page 12).
owe agree.
In our view, where the'reality of the situation is that,
pursuant to a clearly expressed policy, the grievor obviously faces
serious distiiplinary action or dismissal, the issue is in substance
a disciplinary question, though the grievor has now changed his
position so as not to contravene the policy. The grievor need not
put his head on the block and have it severed before gaining the'right
to question the just cause of the discipline. As the axe is about to
fall, he may recant, abut challenge the election to which he was put.
In effect, the grievor knew that he had to resign as 'campaign manager
or face serious disciplinary consequences.
This is not the same situation as the Board faced in Sullivan,
where the Union filed a policy grievance against the Liquor Control Board
of Ontario's policy prohibiting the wearing of blue jeans. There had
been an individual grievance over an order not to wear blue jeans at work
under threat of discipline, but it had been settled. The Grievence '
Settlement Board decided that it had no jurisdiction to hear such a
grievance because it was simply a general challenge to a rule established
as an exercise of management rights.
The reasonableness of such rules may be put
in issue where discipline is based'on them,
but it would,~we think be beyond the juris-
diction of this Board to enter into an enquiry
as to their reasonableness as a "policy" matter,
.;
‘-,
;
;j
..: .r
,:“.
18
however genuine the union's interest in such
question might be.
In our case, however, the grievor was already
the campaign manager. Though neither
Mr. Livesey nor Mr. Comish had expressly
threatened discipline, the policy was clear.
There was no doubt that the grievor would face
serious discipline, or dismissal. It is the
apparent inevitability o.f the impending
discipline, combined with the gravity of the
impending penalty, which turns this situation
into one which is "disciplinary in substance".
The special circumstances of the case before us, based
on the agreed facts, diclose that in Mr. Rykes' view the Grievor
would not be perm$tte~d to grow a beard. I agree with the distinction
made by Professor Samuels in the McMurter case between the case
before him and the Cloutier and Naik cases. The McMurter case was
said to trumpet out that an employee's position, should he offend
the policy, would be cause for dismissal."
This is not a policy grievance and I am not assisted
in deciding the issue by the case also relied on by the Union,
Ontario Nurses' Association (85/561) (Beatty).
Using Professor Rayner's test in the Mackay case
(supra) (at p.8), is this one of the "odd" cases, referred to:
"When the Union does have's legitimate interest
in pursuing the matter"?
‘2<Ji 19
Unlike the Macliay case, where it was found that the Union hada legitima~te
interest in pursuing the grievance in order to settle the question of
whether an employee had to cho& between office in a political riding
association or his or her job, the issue here only deals with the ,
special.application 6f the facial hair policy to the Grievor. The
agreed to facts indicated that:
"The reasonableness of the polidy is not in
dispute (generally)."
ay that I take it the policy is treated as being unreasonable and
iqapplicable to this Grievor on the special facts of his case. I
agree wirh Professor Samuels that being "caught in the web of the
clearly expressed policy, which trumpeted out that Ia breach thereof]
will be considered sufficient cause' for dismissal", an employee
ought not to "have to wait for the sack before grieving . . . or
loose his right to grieve and to challenge the policy . ..'I by complying
with it.
The parties understood each other. The agreed statement
-‘.; discloses that the Grievor was in a position where he could disobey an
implicit order "you cannot grow a beard" or obey it, and grieve the.
,inapplicability,of the,order to him. To deny him the right to grieve
is to require him, in order to do SO, to incur a disciplinary penalty:
in this case dismissal. The means of the order being given,here,differ
from the way it was given in the McMurter case. Otherwise the principle \
is the satie. In both cases, the fundamental principle is that an ..y,
.;i employee need not breach a policy and incur discipline in order to
challenge that policy. Here, the Grievor is not challenggng the
general reasc.nableness of the policy. He challenges it only as
it appears tu affect his case as an Industrial Officer.
As to the objection based on lathes, the Grievor need not
have challenged the policy until it affected his ,desire to grow a
beard. The only evidence as to his intention is in the agreed
statement, which indicates that he asked the question of Mr. Rykes
on June 11, 1984 and grieved on June 12, 1984. The facts do not
support the Employer's submission.
Accordingly, and for the above reason, the preliminary
objections are denied and the.grievance is held to be arbitrable.
DATED AT London, Ontario
this 31st day of JanuaTy, 19.86. -
M. R. Gorsky Vice-Chairman I
/y.,, ,- T/ /;?? y&l,, )! , .,*
‘4 w'-,J icManis "
Member
'A. bu\%
Member