Cafeteria company concerned about makeup, jewelry

An employer can limit the jewelry and makeup its employees wear if there are legitimate public health concerns and when the restrictions are not a great infringement on employees’ rights

An employer can limit the jewelry and makeup its employees wear if there are legitimate public health concerns and when the restrictions are not a great infringement on employees’ rights, the Ontario Arbitration Board has ruled.

The case involved Walfoods Ltd., a company that prepares and serves food in cafeterias throughout Canada. In July 2004 it revised its dress code to prohibit employees from wearing watches, jewelry (including rings, earrings, necklaces and body piercings), makeup and fingernail adornments when on the job.

The workers’ union filed a grievance claiming the changes were an unreasonable infringement on the employees’ rights of self-expression.

Doug Powell, a food safety expert from the University of Guelph, testified on behalf of the company. He told the Ontario Arbitration Board there are about eight million cases of food borne illnesses and an estimated 200 to 300 deaths every year in Canada. Thorough hand washing is the most effective way to prevent food borne illnesses, he said.

The effectiveness of washing hands is undermined by the wearing of rings. Wearing gloves also prevents contamination – but gloves can get contaminated and employees who wear gloves can become overly confident and often do not wash their hands sufficiently.

Walfoods was concerned that watches and bracelets could get caught on kitchen equipment, and therefore pose a safety risk. It said facial jewelry could fall into the food.

As long as they are reasonable, under the collective agreement, the company can set personal appearance standards. The test of “reasonableness” is whether the standards are operationally necessary for a legitimate business purpose, ruled the board. A worker’s entitlement to free expression is a freestanding right with an intrinsic value. Therefore, there must be a valid reason to infringe on it.

The right of free expression has a practical dimension, the board said. The time it takes to remove jewelry, and also the inconvenience involved (and pain in the case of nose and tongue piercings) is also a consideration on what’s reasonable.

A balance needs to be struck between the employer’s legitimate aim to improve food safety and the employees’ right to freely express themselves. The gains in food safety must be sufficient to justify the increased inconvenience to employees. The board said:

•necklaces can be worn, but must be under work clothes;

•clip-on earrings should not be worn;

•properly secured, non-dangling pierced earrings or ear studs can be worn;

•nose, tongue and other facial piercing can be worn if properly secured; and

•excessive makeup should not be worn.

The company’s policy relating to watches, bracelets, rings and artificial nails was upheld. The risks of food contamination are increased with the wearing of hand and wrist jewelry. There is also a small risk to employee safety should a piece of jewelry get caught in a machine. It is inconvenient for employees to remove false nails, nail extensions and acrylic nails, but the company had a valid safety objective.

For more information see:

Walfoods Ltd. v. U.F.C.W., Locals 175 & 633, 2005 CarswellOnt 4089 (Ont. Arb. Bd.)

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