By Clayton Payne
“Are Hipsters’ Days Numbered?”
While this might sound like a droll and trivial question, what if an employer requires a worker to abide by certain directions relating to their physical appearance? Is such a direction or policy easier to sustain in the context of health or safety obligations?
This issue was considered recently by the Fair Work Commission in an unfair dismissal application in the matter of Felton v. BHP Billiton P/L.
The worker was engaged at the Olympic Dam mine by the employer as an underground truck driver.
The worker’s employment was terminated on the basis that he refused a direction to remain clean shaven at work. A policy relating to this direction had been in existence for some time, and had been implemented to allow for a respirator fit test to be completed.
Respirator protective equipment was required to be worn by mining personnel to protect against the inhalation of substances such as crystalline silica and diesel particulate matter.
The worker argued that he could wear a positive air pressure respirator that would allow him to keep his beard and offered to supply this at his own expense.
The worker sported a goatee beard of about 100mm in length and a moustache. The worker had worn the beard since he was 19 years of age and considered it to be a “personal attribute”.
The employer directed the employee to shave several times in order that a respirator fit test could be conducted. The worker declined to do so on each occasion. This action led to the worker being taken through a disciplinary process and ultimately culminated in the termination of his employment.
In response to a show cause letter given to the worker, the worker said (in part):
“My facial hair is my personal attribute, it is who I am and my liberty of(sic) right”.
In defending its decision to terminate the worker’s employment, the employer argued in part that it was its obligation to supply and maintain personal protective equipment (such as respirators) and that the worker’s proposal to supply his own respirator was both “unworkable and inappropriate”.
In deciding that the termination of the employee’s employment was not “unfair”, Commissioner Hampton found:
“I also note that the extent of risk is relevant to the steps reasonably required by the employer under (work health and safety) law. However, the attempts by (the worker’s) representative to suggest that the extent of risk was small, and that the full application of the clean-shaven policy was not the genuine reason for dismissal, is not supported by the evidence or the circumstances under which the policy was developed and implemented”.
The Commissioner also found:
“As a general rule, the capacity of employees to supply their own (personal protective equipment) is not a workable and appropriate approach in a workplace of the kind conducted by (the employer) … If (the employer) were to permit an employee to avoid the clean-shaven policy based upon personal appearance preference, then in my view, this is likely to lead to flow-on issues and claims for other “exemptions” ”.
This decision is interesting because it re-iterates that employers can impose policies relating to the appearance of employees, particular if they relate to matters of health and safety.
However, employers need to be very careful about the implementation of such policies or requirements. For example, had the employee in this matter expressed that his religious convictions required him to wear a beard, the employer may have been required to contemplate more carefully whether a reasonable adjustment could be made to its policy. To do otherwise could have additional consequences, particularly with respect to the potential for unlawful discrimination or general protection claims.
The decision also highlights the importance of having well drafted and implemented policies in place.
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