November 24, 2014 By: Jim Anstey
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It’s Movember! Men throughout the country are merrily sprouting moustaches – from Charlie-Chaplin-style ‘staches to big bushy imperials that would make Santa jealous – all in the name of raising awareness and funds to battle male cancers.

Around this time every year, labour lawyers receive inquiries from clients asking whether an employer in a unionized workplace can force an employee to shave his newly grown moustache or beard. Limiting a person’s freedom of self-expression is a sensitive topic and, as with most areas of arbitral case law, the analysis is rather complex. Nonetheless, it is the employees subjected to such intrusive demands who have generally won the day.

An employee facing a demand by an employer to shave his moustache should first look to the collective agreement to determine whether the topic of facial hair is addressed. Assuming the issue of a man’s facial hair has been the subject of a negotiation between the union and the employer, and a clear standard is applicable, then that standard likely governs. As you might expect, very few collective agreements contain clauses about men’s facial hair. In the decided cases, employers typically rely on the broad management rights clause or, possibly, articles dealing with health and safety.

It is settled that for an employer policy/rule (not addressed by the collective agreement) to be enforceable, it must satisfy the factors set out in the 1965 Ontario Arbitration Board decision, Lumber and Sawmill Workers’ Union, Local 2537 v. KVP Co. (1965) 16 L.A.C. 73. We will not review all the factors here, but will focus on the primary requirement that the new policy/rule “must not be unreasonable”. To show reasonableness in their actions, employers must demonstrate that without the policy in question, their image and/or operations are threatened to such a degree that the policy should trump the employees’ freedom of self-expression.

There are numerous decisions dealing with disputes over the physical appearance of employees, including moustaches and beards. For example, in Ontario Northland Transportation Commission and Canadian Brotherhood of Railway, Transport and General Workers (1985 CarswellNat 1451), the grievor was employed as a chef on a train. He decided to grow a beard but was instructed by his employer to shave it off, which he did under protest and filed a grievance. The arbitrator stated the relevant question to be whether “a well trimmed, neatly groomed beard worn by a chef on the … dining car would be an image problem for the employer. Or more succinctly, would a chef wearing such a beard during the course of discharging his duties result in loss of business?

The arbitrator found that “the simple answer is that it would not”. The arbitrator noted that the chef interacted with few customers (given he was hidden in the dining car) and also pointed out that the company permitted neatly trimmed moustaches. However, the arbitrator’s principal reason for allowing the employee’s grievance was as follows:

“…finally, it is commonly accepted in contemporary society that the sporting of a beard is a fashionable form of grooming. In my view, so long as the wearing of beards presents no problem with respect to hygiene and is properly trimmed then the company’s concern for its “image” should it permit its male employees to wear beards is unwarranted. As a result, its policy requiring its male employees to be “clean shaven” represents an unreasonable posture that cannot be supported on the grounds advanced by the company’s representative.”

In a more recent decision of Arbitrator Etherington, U.F.C.W., Local 175 & 633 v. Zehrs Markets Inc. (2003 CarswellOnt 3894), the employer issued a directive to employees who sported beards to either shave the beard or wear a “beard net”. Two employees grieved the new policy, both of whom had sported goatees for many years. The employer argued that because one of the grievors was a manager of a deli and the other worked in the meat department, the policy was grounded in a legitimate public health concern. In response, the union pointed out that there were no policies concerning the coverage of arm hair, eye lash hair, nose hair or ear hair.  Another manager testified for the employer that he had received several complaints about hair in food over the years including a recent complaint by a physician. The grievors testified that they were not aware of any complaints about their food preparation.

Arbitrator Etherington decided the employer’s unilateral beard policy was not reasonable and not enforceable. In particular, he noted that provincial food regulations did not require the wearing of beard nets. While he found that the employer’s unilateral policy change did not meet other KVP factors, and that the case did not require him to comment on the reasonableness of the policy, he believed the parties would benefit from his guidance on the issue. He noted that there are three situations where business interests may supplant an employee’s right of self-expression: a particular image may be offensive or repulse customers; a particular employee presentation may have safety implications; and certain presentations that may have health and sanitation consequences. Each case must be decided on its own merits.

Arbitrator Etherington held that when it comes to disputes based on businesses image, it is not sufficient for employers to simply allege possible damage to their image due to the employee’s appearance. There must be proof, usually in the form of customer complaints or negative customer surveys.

Ultimately, Arbitrator Etherington found that the employer’s case lacked “cogent evidence scientific or otherwise concerning the risk of food contamination that might be presented by workers like [the grievors] who have very small, very short, and neatly trimmed goatees”. Thus, the limited evidence of the employer’s witnesses about a few complaints over the years was insufficient to force employees to alter their appearance. Of note, one of the factors to consider in the reasonableness analysis is whether the employee’s acquiescence with the new policy or directive would affect the employee’s freedom of self-expression outside the workplace. In the Zehrs matter, the employees’ alternative to wearing a beard net was to shave their beards, a result that would certainly affect their appearance outside the workplace.

There are numerous other decisions in the arbitral jurisprudence on this issue and analogous issues. Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re (2013 CarswellOnt 130) is another interesting read. It deals with a new employer policy on minimizing the appearance of piercings and tattoos in a hospital setting. The union was largely successful in having the policy curtailed.

As such, if you are an employee being asked by your employer to shave your moustache this Movember, be sure to speak with your union before taking such drastic measures!

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law