Tattoos and Police Dress Regulations - Robson Hall Faculty of Law

212 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
As noted by the Arbitration Board the nature of the balancing will
vary depending on the nature of the employer's business; the duties of the
affected employees; the degree of contact of the employee with the public;
the degree of the risk and severity of the danger presented by the
employee's appearance; and the nature of the interference with the
employee's personal appearance caused by the policy. In all cases,
arbitrators required employers to demonstrate at least the likely prospect
of damage to one of its legitimate business interests. However, the mere
allegation of possible damage to their image was not sufficient and there
had to be proof of significant complaints or consumer surveys to indicate
the likely prospect the employer would lose business if it was not able to
maintain the policy. 46
More recently, in United Food and Commercial Workers v Westfair Foods
Ltd, the Alberta Court of Appeal upheld an arbitrator’s decision that a
policy prohibiting all visible facial piercings and tattoos was unreasonable,
substituting it with a revised policy permitting discreet piercings where the
parties could not agree on an acceptable policy. 47
In part the arbitrator found that Westfair Foods had failed to establish
that their policy was reasonable. While Westfair Foods claimed all visible
facial piercings (and tattoos) were detrimental to their business image and
competitive advantage, other food chains allowed discrete facial piercings
(even food chains owned by the same parent company). Furthermore
management was unable to provide any objective evidence that consumers
responded negatively to facial jewelry. However, without any evidence at
all on the impact of facial jewelry on consumer behaviour, the arbitrator
was reluctant to go any further than implementing a policy that allowed
for discrete facial piercings (i.e. nose studs). 48
As such, even though a police department policy might be clear and
unambiguous, issues of adverse or detrimental reliance may arise in
(available on WL Can), citing Re Dominion Stores Ltd and USWA (1976), 11 LAC (2d)
401 at 403-404 (available on QL) (Ont Arb Bd) [Dominion Stores].
46
Ibid at paras 61-62.
47
United Food and Commercial Workers Union, Local 401 v Westfair Foods Ltd, 2008 ABCA
335, 440 AR 249. While the policy also prohibited the display of tattoos, the grievers
in this case only had facial piercings.
48
Ibid. Also see Re Thrifty (Canada) Ltd, supra note 12, in which an arbitrator found that
Thrifty’s policy prohibiting facial piercings did not respond to any normal objectively
verifiable exigencies of reputation and image and, therefore, were not reasonable.