An employer’s right to regulate an employee’s appearance — jewels, tattoos, unusual clothing — has given rise to numerous decisions over the years. Each case’s characteristics can present difficulties, as seen in a recent decision by the Court of Appeal of Québec (Aliments Olympus (Canada) inc. c. Union des employés de la restauration, métallurgistes unis d’Amérique, section locale 9400, 2017 QCCA 813).
The facts: A piercing in the kitchen
The employer operates a restaurant business.
One of its employees, a cook, has been wearing an eyebrow piercing for quite some time. It is a fixed piercing, that cannot be removed by the person who wears it: it must be taken off by a technician, using a special tool. The piercing can only fall if the skin is torn. While he’s at work, the employee covers it with a plaster. Government inspectors in charge of health laws and regulations have never commented on this during regular visits.
Still, the employer instructs him to remove his piercing, invoking s 2.2.3 of the Regulation respecting food [“Regulation”], which provides that:
| Persons who prepare products, wash or clean material and equipment must:
[…]
(5) refrain from wearing nail polish, watches, rings, earrings or other jewellery; |
Upon the employee’s refusal to comply, the employer makes a note in his disciplinary record.
The union files a grievance against this sanction: the grievance is allowed and the sanction is cancelled. The employer takes the case to the Superior Court, then to the Court of Appeal: both confirm the arbitrator’s decision.
The key to the decision: Concern for food safety
First, the arbitrator had mentioned the rationale for the Regulation: to ensure the safety of food products intended for consumption.
She then came to the conclusion that the “other jewellery” mentioned in s 2.2.3 “could not include jewellery unlikely to come into contact with food products” [our translation].
As noted, the employee’s piercing was very unlikely to fall into the food. Therefore, given the circumstances, it did not create a risk of contamination.
What employers must keep in mind
An important consideration is that this case was decided on the basis of its specific facts. It rests on the postulate that only jewellery that could fall into food is prohibited, a restriction that is not clearly expressed in the Regulation. What should be decided regarding a chain worn around one’s wrist, or a medal or a pendant hanging from a chain around one’s neck?
The decision does shed some light on a delicate workplace management question, but leaves out numerous dark areas. Before issuing guidelines on jewellery, a prudent employer will seek an expert’s advice.
By Jacques Bélanger, from our Labour and Employment Law Group.