Re The Crown in right of Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union

[Indexed as: Ontario (Ministry of Correctional Services) and O.P.S.E.U., Re] File No. 2078/90 Ontario, Crown Employees Grievance Settlement Board, N. Dissanayake, Vice-Chairperson, T. Browes-Bugden, A. Stapleton. January 29,1996. *

INDIVIDUAL GRIEVANCE concerning facial hair policy. Grievance dismissed.

I. Anderson, for the union. D. MacLeod, for the employer.

DECISION

This is a grievance dated October 26, 1990, filed by Mr. Gurnam Singh.

Background

The grievor commenced employment with the Ministry of Correctional Services in 1973 as a correctional officer (CO 2) at the Guelph Correctional Centre. Effective March 1, 1978, the ministry instituted a facial hair policy, the relevant portions of which read:

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.

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 interfere with 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 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 their face and jaw line. 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.

* Received March 27, 1996.

The grievor took the position that as a member of the Sikh religion he was obligated not to shave his beard and that, therefore, he was unable to comply with the facial hair policy. Shortly thereafter, the grievor was relieved of his correctional officer duties and placed in a grounds maintenance position, but was paid at the CO 2 level. In April, 1978, the grievor was transferred to the position of Clerk 2 Supply, which resulted in a

reduction in pay and a demotion. The grievor launched a grievance, alleging that the facial hair policy discriminated against him on the basis of creed contrary to the Ontario Human Rights Code. The grievance ultimately went before the Grievance Settlement Board, which released its deci­sion on November 6, 1980 (the Eberts decision [reported 27 L.A.C.

(2d) 295]). The board found that the employer had established that permitting the grievor to carry out his correctional officer duties,

when his beard prevented a proper seal for the protective mask would cause undue hardship to the employer but directed the employer [at p. 309] to "make appropriate efforts to find him a proper position at the Correctional Officer II level or equivalent", which would accommodate his religious beliefs without causing undue hardship to the employer. The employer sought judicial review of the Eberts decision in January, 1981, but without success. In April, 1982, the Court of Appeal upheld the Divisional Court's decision dismissing the employer's application for judicial review. In the meantime, the grievor continued in the position of Clerk 2 Supply until January, 1982, at which time he took a two-year leave of absence to pursue studies. Effective May 1, 1984, he returned to

his position of Clerk 2 Supply, but took the position that by keeping him in that position the employer had failed to comply with the direction in the Eberts decision. In July, 1986, the grievor commenced contempt proceedings in the Supreme Court of Ontario claiming that the employer was in contempt of court by its non-compliance with the board order which had been filed in the court pursuant to s. 19(6) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108. In a judgment dated Septem­ber 3, 1986, the court dismissed the grievor's action. As noted, the present grievance was filed on October 26, 1990. The board has issued two preliminary awards with respect to this grievance dated June 17, 1991 and March 26, 1992, respec-

tively. In the decision dated March 26, 1992, at p. 4 the board set out the allegations in the grievance as follows: "... the present grievance encompasses two allegations. First, that the employer's facial hair policy itself is discriminatory on the basis of creed, and

secondly, that there was discriminatory enforcement in that while the policy was strictly enforced against the grievor, it was not

similarly enforced against certain other employees." For reasons set out in that decision, the majority of the board held that the first of the two allegations, i.e., that the employer's facial hair policy itself was discriminatory on the basis of creed, was res judicata, having been the subject of a prior decision of this

board (Re Singh, No. 240/79 (Eberts)). However, at p. 13 the board observed: "The parties agreed that the motion based on res judicata did not bar the grievor from raising the second aspect of his grievance, namely, that he was subjected to discriminatory enforcement of the no-beard policy." Also outstanding was an objection by the employer to the timeliness of this grievance. This

decision deals with those outstanding issues. The union made a two-pronged argument on the discriminatory enforcement issue. The first argument (hereinafter "Management rights argument") was to the effect that the employer had strictly applied the policy against the grievor, while not enforcing the policy on a number of other employees in the same way, and that the policy must be held to be unenforceable as a result of the inconsistent enforcement. The second argument was that the employer, while accommodating one protected group (i.e., the

handicapped) failed to accommodate the grievor as a member of another protected group (i.e., creed) and that by discriminating between two protected groups, was in contravention of art. A.1 of the collective agreement.

Res judicata

The employer argued that the board's decision of March 26, 1992, had held that the union's second argument was res judicata. On a review of the board's decision, we cannot agree. It is clear that what the board held in that decision to be res judicata was only the issue of whether the policy itself was discriminatory. The

Eberts decision did not deal with any allegation by the grievor of a discriminatory application of the facial hair policy and this panel

did not, in its decision of March 26, 1992, rule that issue to be res judicata. On the contrary, as the passage quoted above from p. 13 of that decision indicates, the parties had expressly agreed that the issue of discriminatory enforcement was not barred by res judicata.

Timeliness

The allegation of discriminatory enforcement includes an allega­tion that the grievor has been singled out for strict application of

the policy, whereas generally the policy was not enforced in that manner against other employees. In order to establish that allegation the union led evidence of various alleged instances of

other employees being allowed to wear beards. However, the grievor is not grieving these incidents themselves. They are merely evidence of the alleged discriminatory application of the policy. The grievor claims that the employer continues its discrimi­natory practice. Thus, the fact that the specific incidents about which evidence was led occurred prior to 20 days from the date of the grievance does not make the grievance itself untimely under art. 27.2.1. The grievor's difference or complaint itself, i.e., that he is being subjected to a stricter enforcement of the policy is a continuing one and is timely. The result of art. 27.2.1, as union counsel conceded, is that if the grievance is successful the grievor would be precluded from seeking redress with regard to any incidents which occurred prior to the time-limit specified in the collective agreement.

Particulars

The employer claims that it agreed to an adjournment of a scheduled hearing date on condition that the union provides

particulars of its allegations. The employer submits that the union must, therefore, be limited to evidence relating to those incidents about which particulars were provided pursuant to the agreement. While a review of the correspondence which resulted in the

agreement to adjourn indicates that the union did agree to provide particulars, there is nothing there to suggest that the union intended to restrict itself to the particulars provided at that time. The agreement was to provide the information available at that time. If the employer's position is accepted, the union would be

even precluded from relying on the information as to bearded employees which were revealed during the testimony of the

employer's own witnesses. In the absence of specific and clear language indicating an undertaking by the union to restrict its ability to lead evidence in the usual manner, the board declines to put a restriction on the union. If the lack of particulars caused any prejudice to the employer, it was open to it to seek relief from the board. There was no suggestion that any prejudice was caused.

The management rights argument

Employer counsel submitted that the right to make reasonable rules and policies is an exclusive management function under s. 18(1) of the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50 (rep. & sub. 1993, c. 38, s. 62(1)], and that,

therefore, even if such a rule or policy was applied and enforced in a discriminatory manner, this board had no jurisdiction to review that. We categorically reject that argument. We disagree that merely because making of rules and policies is an exclusive management function, the employer can with impunity enforce those rules and policies in a discriminatory way. This board has held in numerous decisions that the board has jurisdiction to review the employer's exercise of the management functions for bad faith: see, generally, Re Bousquet, No. 541/90 (Gorsky); Re Lumley, No. 1257/91 (Gorsky). See also Re McIntosh, No. 3027/92 (Dissanayake); Re Merson, No. 16/93 (Gray), and Re Dunlop, No. 3164/92 (Dissanayake). Discrimination is a species of bad faith and the board possesses the authority to hear a grievance alleging that an employee has been denied the job security he would otherwise have enjoyed, because of the discriminatory application of a policy. While the employer has the exclusive authority to establish and enforce rules and policies by virtue of s. 18(1) of the Crown Employees Collective Bargaining Act, that authority is neither absolute nor without limitation. The effect of s. 18(1) is to

statutorily deem the stipulated management rights clause in the collective agreement. The existence of that clause in the collective agreement does not provide the employer with an unrestricted licence to create and/or enforce rules at its whim. For example, it is hardly conceivable that the legislature, by imposing a manage­ment rights clause in the collective agreement, intended to license managers in the O.P.S. to create personal appearance rules as they wish, even though the rules have no relevance to the employer's interests: see, Re Colquhoun, No. 1349/89 (Dissanayake). In our view this employer's right to make rules and policies is equally

subject to the limitations and conditions that have been imposed upon employers in the private sector. In the absence of specific language, there is no rationale for inferring that this employer was intended to have an unrestricted authority to create any rule as it wished and to enforce those rules in any manner it wished. The union's argument in this case is that the employer had violated one of the principles enunciated by arbitrators as consti­tuting limits on the employer's authority to make rules. These principles were summarized in Re Lumber & Sawmill Workers' Union, Loc. 2537 and KVP Co. (1965), 16L.A.C.73(Robinson) at p. 85, and are reproduced in Brown and Beatty, Canadian Labour Arbitration, 3rd ed., loose-leaf (Aurora: Canada Law Book Inc.), para. 4:1500, at p. 4-14 (December, 1995):

A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:

1. It must not be inconsistent with the collective agreement.

2. It must not be unreasonable.

3. It must be clear and unequivocal.

4. It must be brought to the attention of the employee affected before the company can act on it.

The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.

Such rule should have been consistently enforced by the company from the time it was introduced.

The principle in issue in this case is No. 6 above. Having carefully reviewed the evidence and the submissions of union counsel, we can glean the following aspects, which the union relies on in support of its contention that the facial hair policy was inconsistently enforced. First, the union points to the evidence that prior to 1991, the employer only provided medium-size masks, and suggests that two female correctional officers with small faces and a particularly large male officer were forced to wear those, even though the masks did not properly fit. It is the union's argument that these three employees were allowed to perform as correctional officers despite not being able to get a proper seal with the medium-size masks, whereas with the grievor the employer was insisting on a proper seal. However, a careful review of the testimony of Mr. Duffield, who held the position of staff training officer, does not

establish that the employees were unable to obtain a proper seal. What Mr. Duffield stated was merely that these employees had "discomfort wearing the medium size". That does not establish that the employer knowingly exempted the three employees from the requirement of being able to obtain a proper seal. Secondly, the union led evidence to the effect that although the employer's own procedure called for testing of employees for compliance with the policy (MSA testing) at three-month inter-

vals, from early summer to October, 1989, little testing was done. Mr. Duffield testified that in this period contract negotiations were ongoing and that correctional officers refused to perform

overtime as part of a bargaining tactic. As a result, it was not possible to free up officers who were scheduled for MSA testing. A riot by inmates in July, 1989, also contributed to the departure from the three-month testing procedure during this period. Thirdly, the evidence is clear that the superintendent of the institution, Mr. Gregory Simmons, expected all supervisors to be

responsible for the enforcement of the facial hair policy. The union pointed to the evidence that except on two occasions, supervisors had not referred any employees, with beards suspected of not meeting the requirements, for testing. The enforcement was for the most part carried out by Mr. Duffield. Finally, the union elicited evidence that a number of employees who could not shave their beards to the required specifications due to medical reasons, were permitted to perform as correctional

officers. Relying on the foregoing evidence, union counsel submits that the employer's enforcement of the facial hair policy was sporadic

and raised questions as to how serious the employer was about the need for correctional officers to be able to obtain a proper fit for the MSA masks. Having reviewed the evidence in the total context, it cannot be

concluded that any of the instances of non-enforcement or inade­quate enforcement was intended to be, or could reasonably have been seen by the grievor or any other employee, as an indication that the employer did not treat the facial hair policy seriously. As Brown and Beatty, supra, para. 4:1500, at p. 4-16 (December, 1995) points out, the rationale behind the principle that a company rule must be consistently enforced is that by not doing so, management may "lull its employees into a false sense of security": see, Re United Packinghouse Workers, Loc. 489 and Robson Lang (Lon-

don) Ltd. (1965), 16 L.A.C.145(Reville); Re Lear Seating Canada Inc. and A.C.T.W. U., Loc. 753 (1993), 33 L.A.C.(4th)307(Craven). The evidence before us establishes that the facial hair policy was enforced, although not 100% or perfectly, in a substantially consistent way at the Guelph Correctional Centre. The departures relied upon by the union were isolated abberations in very unique and special circumstances. The non-enforcement during a period of

less than six months in 1989 was due to job action by the employees and an inmate riot which interrupted the normal routine at the workplace. It is quite conceivable that supervisors

may not have been as vigilant as the superintendent expected about employee compliance with the facial hair policy. However, a beard is a very personal and private matter to the individual. The evidence indicates that compliance could not be tested by visual observation alone. Supervisors were aware that Mr. Duffield had a special responsibility for enforcing that policy in his position as staff training officer, that he was actively seeking out possible offenders of the policy, and that a routine procedure was in place for periodic testing of beards. In the circumstances it is under­standable that supervisors would be reluctant on the basis of

visual observation to challenge individuals on a day-to-day basis. In any event, the supervisors' failure to do so could not have lulled anyone into a belief that the policy itself was not being enforced, when a procedure for periodic testing for compliance was in place. Similarly, the evidence is that the accommodation afforded to some employees who could not comply with the policy due to medical reasons was a temporary arrangement made in specific circumstances. It is not indicative of an abandonment of the policy by the employer. Despite the departure from the policy in these special situations and the employer's failure to enforce the policy perfectly all of the time, the board is satisfied that the policy was enforced in a substantially consistent way: see, Re Churney, No. 689/81 (Lin-den).

Article A.1 argument

The board now turns to the union's second submission that the employer by failing to accommodate the grievor's non-compliance with the facial hair policy because of his religious beliefs, while accommodating the health considerations of certain other em-ployees, contravened art. A.1 of the collective agreement which reads:

A.1 There shall be no discrimination practised by reasons of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual

orientation, age, marital status, family status, or handicap, as defined in section 9 of the Ontario Human Rights Code (OHRC).

Specifically, union counsel submits that the employer has engaged in discrimination contrary to art. A.1 by accommodating certain employees who belonged to one protected group (i.e.,

health, and hence belonging to the protected group of handicap-ped), while not accommodating the grievor, who belonged to another protected group (i.e., religious belief, and hence protected under creed). Reliance was placed on Brooks v. Canada Safeway Ltd. (1989), 59D.L.R.(4th)321, [1989] 1 S.C.R. 1219, 89 C.L.L.C. ¶ 17,012. In that case the employer maintained a disability plan for its employees providing benefits during periods they were unable to work because of sickness or accident. The plan excluded from coverage pregnant women during a 17-week period commencing 10 weeks before the expected week of birth and ending six weeks after the week of birth. During that 17-week period pregnant women were unable to claim benefits even when the reason for their inability to work was unrelated to the pregnancy. The Supreme Court of Canada held that the disability plan singled out pregnancy for disadvantageous treatment in comparison with any

other health reason which may prevent an employee from report­ing to work. The court held that while pregnancy is not properly characterized as a sickness or accident, it was a valid health-related reason for absence from work and that its exclusion from

the plan was discriminatory. The court went on to hold that while not expressly prohibited by the Manitoba Human Rights Code, discrimination on the basis of pregnancy was a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant. The union particularly relies on the court's treatment of the employer's argument in that case that the disability plan was "not discriminatory but merely underinclusive of the potential risks it could conceivably insure". The court at pp. 336-7 rejected this argument as follows:

In Canada, as I have noted, discrimination does not depend on a finding of invidious intent. A further consideration militating against the application of the concept of underinclusiveness in this context stems, in my view, from the effects of so-called "underinclusion". Underinclusion may be simply a backhanded way of permitting discrimination. Increasingly, employee bene­fits plans have become part of the terms and conditions of employment. Once an employer decides to provide an employee benefit package, exclusions from such schemes may not be made in a discriminatory fashion. Selective compensation of this nature would clearly amount to sex discrimination. Benefits available through employment must be disbursed in a non-discriminatory manner.

The court held that once the employer decides to provide a benefit package to employees, exclusion of pregnant women from coverage of that benefit package constituted discrimination on the basis of sex, which was contrary to the legislation. The board does not see how that judgment of the court supports the union's argument. Unlike in Brooks, here the employer has not offered a general benefit to all employees that their inability to comply with the facial hair policy would be accommodated. Rather what it did was to temporarily accommodate three or four employees on an ad hoc basis for short periods of illness during which they could not comply. In contrast the accommodation sought by the grievor is not temporary. He is seeking a permanent exemption. The employer, through superintendent Simmons, led evidence that while it was able to accommodate exemptions for temporarily ill officers, it was not willing to exempt any correc­tional officer permanently because he was unable to comply due to his religious beliefs. Evidence was not led by the employer specifically to advance a theory of "undue hardship". This is understandable because the employer was not put on notice that this unique argument based on art. A.1 would be made. However,

the Eberts panel has already held that undue hardship would be caused to the employer if it were to accommodate the grievor from the policy permanently. It was implicit in the evidence that similar undue hardship would not be caused by temporarily accommodat­ing employees who were unable to comply with the policy because of health reasons. The board cannot conclude that the employer contravened art. A.1 by treating the two situations differently. In summary, the board finds that the employer enforced the facial hair policy in a substantially consistent manner and that the deviations relied on by the union did not render the policy unenforceable. The board further concludes that the employer did

not contravene art. A.1 by accommodating employees who were temporarily unable to comply with the facial hair policy due to health reasons and refusing to permanently accommodate the grievor because of his religious beliefs.

Accordingly, this grievance is hereby dismissed.

DISSENT (Browes-Bugden)

I have read the award of the majority, and find I must respectfully dissent. The grievor, Mr. Singh, should be admired for his fortitude, as he has been dealing with issues resulting from the facial hair policy for the last 18 years. Mr. Singh testified he maintained a diary and documented employees, whom he witnessed at the workplace, with beards. The documenting covered a period of three years and seven employees. Further witnesses testified to a

possible 12 employees with facial hair. In Re Lumber & Sawmill Workers' Union, Loc. 2537 and KVP Co. (1965), 16L.A.C.73(Robinson), and reproduced in Brown and Beatty, Canadian Labour Arbitration, 3rd ed., loose-leaf (Aurora: Canada Law Book Inc.), para. 4:1500, at p. 4-16 (December, 1995),

the principle that management not consistently enforcing a rule may, "lull its employees into a false sense of security". There is no question Mr. Singh has had the policy consistently applied to him. However, not surprising, while witnessing a number of other employees with beards at the workplace, he would be lulled into a false sense of security. The majority, at p. 295, finds the employer has enforced the facial hair policy, while not 100% or perfectly, in a substantially consistent way. The union argues the principle from No. 6 in Brown and Beatty, supra, para. 4:1500, at p. 4-14 (December, 1995):

"6. Such rule should have been consistently enforced by the company from the time it was introduced."

In this case, I submit the employer has not consistently enforced the facial hair policy to all employees. In fact, there is clear evidence that for a significant period of time in 1989, there was no periodic testing and non-enforcement of the policy. The application of the policy was clearly inconsistent. Regarding art. A.1 of the collective agreement, the evidence is unequivocal that a difference is present in the application of the article, where the employer exempts employees from the policy for reasons of handicap and not creed. The facial hair policy itself states, in part:

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 interfere with the proper fitting of these face masks.

The policy and safety rules do not allow for exemptions and, as certain exemptions have been made, I conclude the rule to be

inconsistent. Therefore, I submit the employer was inconsistent in the application of the facial hair policy and this renders the policy unenforceable. Further, I conclude the employer is in violation of art. A.1 by exempting employees from the policy for reasons of handicap, and not exempting Mr. Singh from the policy for reasons of creed. I would have allowed the grievance.