ONA challenge to dress code scrubbed by arbitrator

Hospital required nurses to only buy standardized uniforms

ONA challenge to dress code  scrubbed by arbitrator

A dress code requiring Ontario nurses to purchase their scrubs from a common supplier at set prices was reasonable, an arbitrator has ruled.

Cornwall Community Hospital is a 156-bed hospital in Cornwall, Ont. The collective agreement with the Ontario Nurses’ Association (ONA) didn’t include a uniform allowance but the hospital had a dress code in effect since 2005.

The dress code required all clinical staff — including registered nurses — to wear scrubs while on duty. Nurses paid for their own scrubs, except for those who worked in the operating room, the post-anesthetic care unit and case rooms — the hospital supplied them with clean, washable scrubs. Employees were free to choose the style and colour of the scrubs and from where they were purchased.

In 2017, the hospital informed the ONA that it planned to revise the dress code with a standardized uniform for the purposes of infection prevention and control, patient health and safety, the hospital’s professional image, and to make it easier for seniors to identify the staff members they needed.

The revision was implemented in April 2019. Registered nurses and registered practical nurses were required to wear royal blue scrub tops with their designation embroidered or heat-pressed on them. Pants were to be black, but could be acquired anywhere.

The hospital entered into a bulk purchasing agreement with clothing retailer Mark’s Work Wearhouse. Employees ordered uniform tops by submitting a standardized form and picking the orders up at the store.

Because employees had no choice but to purchase the uniform tops at Mark’s prices, the hospital provided staff with six scrub tops each on a one-time basis. The tops were mid-range in cost, but the bulk agreement allowed staff to purchase them at a lower price than if purchased individually. There were also sometimes clearance sales.

The ONA filed a grievance against the new policy, claiming the change was unreasonable and “a financial cost to our members.” It argued that under the old dress code policy, nurses could buy scrub tops at lower prices than what they were now required to pay. In addition, some nurses with long service or who were near retirement had enough scrubs to meet their needs, but the new policy required them to buy new ones. As for the one-time provision of six free tops, nurses would still have to buy uniforms at some point and those hired after the implementation weren’t eligible.

The ONA also pointed out that the requirement for nurses to buy their scrub tops through the arrangement with Mark’s violated the collective agreement since it imposed increased costs for some nurses and changed the wage structure outlined in the agreement.

The arbitrator noted that a mandatory cost imposed by an employer should generally be considered unreasonable.

However, purchasing scrub tops from one vendor was the only way to implement the policy of standardized uniforms — and the purpose was “grounded in legitimate considerations.”

The arbitrator found that while the cost of the scrub tops from Mark’s was higher than the cheapest available at other retailers, there was a discount and there was no minimum number that nurses were required to buy. The difference in pricing was less than $10 per scrub top, which wasn’t a significant amount of money considering hourly pay for nurses ranged from more than $33 per hour to more than $47 per hour — and there was no evidence on how long they lasted or if anyone had yet to replace those provided by the hospital, the arbitrator said.

The arbitrator determined that the “unquantified but small extra financial burden for some nurses” was a reasonable change to the dress code policy and the hospital’s initial absorption of the burden by providing six free uniform tops gave the union time to collectively bargain for a uniform allowance in the future.

Reference: Cornwall Community Hospital and ONA. Lorne Slotnick — arbitrator. Lennie Lejasisaks for employer. Alison Dover for union. June 16, 2020. 2020 CarswellOnt 8470

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