Friday, May 3, 2024

“Donnie, Get Rid of Those Sideburns!”

When are an employer’s rules legitimate?

By Robert Brink, Representative

In a classic episode of the great animated show The Simpsons, Mr. Burns, owner of the local nuclear power plant, fires an employee for wearing sideburns. The employee—an animated version of Yankees great Don Mattingly—had recently been hired to play on the company softball team.

The incident in this episode raises an important question: when is a workplace policy acceptable and enforceable? There are troves of arbitration decisions on that question, the most important of which lays out what is known as the “KVP test.” (The case related to the decision of KVP Co. Ltd. to terminate an employee who was subject to a high number of third-party garnishment requests. The employer unilaterally imposed a rule that it would discharge a worker for more than one garnishee.)

Policies that conflict with the collective agreement are not legitimate, of course. But beyond that, there are three main questions to keep in mind when thinking about a workplace policy:

Is it reasonable?
Is it known?
Is it enforced fairly?

Much of the legal world hinges on the question of reasonableness. In the case of workplace policies, it’s good to think of reasonable as connected to a legitimate workplace purpose. But not only that, a zero-tolerance safety policy could still be found unreasonable—despite its connection to a good and legitimate goal—if it doesn’t differentiate between the severity of incidents and the context of individual violations.

The second piece, whether a policy is known (including consequences for violation), not only means that secret policies aren’t legitimate, but also that policies never reviewed, discussed, or updated for years on end could be hard for employers to legitimately enforce.

Just because someone initialled a page upon hire a dozen years back doesn’t automatically mean a policy passes this test.

Third, policies can’t be applied willy-nilly or used in bad faith to discipline an unfavoured worker or crew. A policy must be enforced fairly.

Returning to The Simpsons sideburns example, restrictions on facial hair may be reasonable in some cases, such as where facial hair is known to reduce the usability or effectiveness of a safety device. That could be a policy rationally connected to a legitimate workplace goal, and it could pass the reasonableness test.

Mr. Burns’s sideburn prohibition doesn’t have any such justification. It’s not clear whether the sideburns rule is known to the animated ball player (potentially passing the second prong of the test), but it definitely wasn’t fairly applied, because he was terminated despite compliance!

Because of the unreasonableness and the unfair application, the hired-ringer softball star should have spoken to his union representative or steward about filing a grievance. The Springfield Nuclear Power Plant is a unionized workplace, after all.

If your workplace has unreasonable, unknown, or unfairly applied policies, let your steward or representative know. They might be able to keep you on the team.

“Donnie, Get Rid of Those Sideburns!”

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