The Saga Continues – Are Hipsters’ Days Numbered? Part 2

May, 2015

By Clayton Payne

The war on facial hair continues.

The Supreme Court of Victoria has confirmed that certain forms of facial hair, such as beards, goatees, soul patches, long sideburns and even handlebar moustaches, are no longer welcome in the Victorian Police Force.

In Kuyken v Chief Commissioner of Police, new “standards of grooming” introduced to the Victorian Police force have survived a challenge in the Supreme Court.

Although the findings rested on different grounds, the decision echoes that of the Fair Work Commission in May this year (see article here), where a mining worker was found to have been fairly dismissed after he refused to shave off his facial hair.

Following the introduction of the standards in January 2012 which prohibit “beards, goatees, soul patches, and other forms of facial hair”, the Senior Constable and a number of other police force members mounted a challenge in the Victorian Civil and Administrative Tribunal (VCAT). They alleged the standards were unlawfully discriminatory.

The VCAT confirmed that the move by the Police Commissioner to discipline the Senior Constable in question was, in these circumstances, discriminatory. However, it also found that the Police Commissioner was empowered to discriminate in this way under the Police Regulation Act (PRA). The PRA contains a validating provision allowing grooming standards that may “differ based on sex, gender identity, physical features or religious belief or activity”.

The Senior Constable also claimed that his goatee was a form of protected expression under the Equal Opportunity Act. This argument was dismissed as the VCAT was unconvinced that the wearing of a goatee imparted any information or ideas, or conveyed any meaning at all.

The Senior Constable argued that the power conferred by the PRA extended only to a determination of “neatness and cleanliness,” not complete removal of facial hair. He also argued that the power should be limited to standards that did not breach the Victorian Equal Opportunity Act or the Charter of Human Rights and Responsibilities Act.

The Supreme Court rejected the Senior Constable’s arguments on appeal.

Mr Justice Garde found that the intention of Parliament in enacting the PRA was to allow the Police Commissioner to “ … superintend and control matters affecting the appearance of members of the police force”. He agreed that Parliament also intended for the standards to be discriminatory in that they turned on “ … attributes such as sex, gender, identity, physical features, religious beliefs or activities”. His Honour also found that the “standards of grooming” clearly involved not just the trimming but also the removal of facial hair.

In the decision, reference was made to the Second Reading speech given by the Minister for the relevant amendments to the PRA leading to the imposition of the standards. In this regard, it was said that standards of professional appearance were required to “ … maintain the public’s confidence, trust and respect and contribute positively to Victoria Police’s image and reputation”, before going on to state that, “the new policy will also improve the safety of members through eliminating physical aspects that could be exploited by others in confrontational situations, such as ponytails or body piercings that could be grabbed by an attacker”.

It should be noted that the grooming standards also contained exceptions based on “genuine medical, cultural or religious grounds.” This included practising Sikhs, for example, being permitted to wear beards.

Conclusion

The decision does show that, in certain circumstances, public authorities may be able to impose appearance standards, even where it could be argued that such standards impose upon a person’s individuality. In cases such as this one however, the standards were mandated by specific legislation.

Businesses may also be in a position to enforce standards of appearance and dress on workers, however, they need to tread carefully. Even in relation to the standards imposed by the PRA, exceptions were granted to certain groups such as practising members of the Sikh community who had a religious obligation to wear beards.

Contact Mills Oakley

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Ross Levin | Partner
Melbourne
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E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
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E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
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E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

 

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