One hospital, two pierced noses in the kitchen and a grievance

Dress code challenge hinges on hygiene, not public appearance

Sarah Russell had worked for West Lincoln Memorial Hospital in Grimsby, Ont., for eight years and after a three-year absence, applied for re-employment as a dietary aide. During her absence she had her nose pierced. Nothing was mentioned about the stud during the job interview, but after she was hired, the hospital requested that she remove it, stating it violated the dietary workers’ dress code, which limited the wearing of jewelry.

Several months later, Carol Hoadley, who also worked in the hospital kitchen and prepared and served food to patients, visitors and staff, pierced her nose.

Russell and Hoadley each wore a small stud about the same size as an ear-lobe stud. Their supervisors expressed their misgivings and the hospital, concerned about contamination and disease control, was afraid the pierced noses could shed bacteria during the piercing’s healing process or that the stud could fall out.

Hoadley agreed to wear a facemask while her piercing healed and did so –– uncomfortably –– for 11 weeks. Ultimately the hospital ruled that the two women had to remove their nose studs during working hours. The women grieved saying that putting in and taking out the nose stud was tedious. In the end, Hoadley simply let the piercing site grow over, while Russell removed her stud before every shift, and then “re-pierced” it at the end of every shift –– a painful process taking up to 10 minutes.

The two women grieved the nose-piercing ban, saying that the dress code did not cover facial jewelry and that being prohibited from wearing nose studs contravened the right of free expression.

Speaking for the hospital, Vikki Metler, director of dietary and diagnostic services, testified the jewelry violated hospital policy, and introduced a survey she had conducted with three similar institutions, all of which prohibited the wearing of facial jewelry by dietary staff. Another hospital witness, 23-year registered nurse Cathy Dixon, argued that having a nasal piercing probably increased the chances of food contamination and best practice –– if not actual studies –– suggested allowing it was not wholesome.

In contrast, an expert witness called by both parties, Andre Laflamme, who was the manager of health protection promotion at the regional public health department, testified that hand jewelry and poor hand-washing practices were of greater concern to public health officials. If the nose jewelry was properly secured and the skin around it healthy, such piercing was not risky, he maintained.

The union placed a two-fold argument before the arbitrator. It argued that in the first place, it was not consulted when the hospital changed the dress code 18 months before, something the hospital was required to do under the terms of the collective agreement. As a result, the dress code should be considered null and void. But even using the code, the union argued the nose studs were modest and similar in size to those found in ear piercing, which was allowed.

In the second place, the union argued the prohibition was an unreasonable use of management rights. It asserted that wearing a nose stud was protected by the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. As long as proper hygienic practices were used, no objection could fairly be raised.

The arbitrator sided with the union, but not for the reasons the union put forward. He said the fact the employer did not discuss the changes to the dress code was irrelevant and that appealing to the Charter was reaching too far beyond the collective agreement itself.

He drew attention to article 3 of the parties’ collective agreement which required that management decisions be “reasonable.” He commented, “In personal appearance cases, the arbitrator must … balance the employee’s right of self expression with the employer’s legitimate business interests.” In this case, the hospital repeated its concern was only for the safety of the food it was responsible for serving.

The arbitrator emphasized that the sole crux of the matter was whether the evidence established a link between wearing nose studs and increasing the risk of food contamination. He observed it was not “a situation where the employer has imposed a standard of personal appearance in order to promote a certain image to the public.”

As a result, he ruled that the only limitation was that the piercing be “healthy, properly cared for and secure, a standard readily met by the grievors.” He gave considerable weight to the fact that the pubic health department was not overly concerned. Calling the hospital’s concerns well intentioned, he said they were not upheld by the evidence. Balancing the hospital interests against the grievors’ discomfort at having to remove the studs before each shift and restore them afterwards, he supported the grievors’ right to wear such facial jewelry. He concluded, “The nose studs … fell within the guidelines established by the hospital’s existing dress code.”

For more information: West Lincoln Memorial Hospital and the Christian Labour Association of Canada, Local 302, Ontario Labour Code Arbitration, Gordon F. Luborsky –– Sole Arbitrator, April 5, 2004.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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