By Clayton Payne
The desire of most businesses is to promote a positive image to the public. The way that this is done can vary. Many workplaces require employees to wear uniforms, and/or to be neatly attired.
What about body adornments? Can an employer require that an employee refrain from displaying tattoos and body piercings?
The Fair Work Commission recently made interesting comments in dealing with an application for dispute resolution made by a leagues club which sought to prevent an employee from wearing a lip piercing at work.
In Dapto Leagues Club Ltd v Agius, the Dapto Leagues Club’s (the Club) dress policy was changed, providing that employees’ nose and face piercings (including the lips, neck and eyebrows) were not acceptable to be displayed at the workplace. In addition, new employees were not permitted to display “visible” body art, and existing employees were not permitted to display new tattoos because “ it [did] not fit the image that [the Club] wishes to portray… [and] may be offensive to some people”.
Following several discussions between the Club and an existing employee, Ms Agius (Agius), the Club handed her a letter which indicated that if she continued to refuse to remove her lip piercing, that disciplinary action would be taken against her.
The Club brought the matter before the Fair Work Commission which dealt with the terms of the parties’ Enterprise Agreement and its dispute resolution process.
While the matter was dismissed on jurisdictional grounds, Deputy President Sams stated that some might find it ironic that the Club would have a strict approach to such matters when they involved Club employees, when a majority of professional footballers were heavily tattooed. For this reason, Deputy President Sams found that the new standards were “unrealistic… and denied (Ms Agius’) right of self-expression”. He also considered that there was a hint of discrimination in that there was no requirement for existing employees to have their tattoos removed, or be subjected to disciplinary sanctions.
The Deputy President also found that despite these matters, the Club was still entitled to introduce and insist on compliance with policies that it considered to be in its best interests, subject to those policies being lawful and reasonable.
While employers should be able to insist on certain standards of appearance and dress, this insistence should be based on reasonable grounds. The aesthetic standard of attire that may be reasonable in a professional services environment, for example, may not be reasonable in a refuse dump.
When decisions are made to implement policies imposing dress standards, and in this case preventing the display of body adornments, employers should be aware of cultural and religious sensitivities, which if ignored might give rise to unlawful discrimination complaints.
In addition, whether the wearing of body adornments such a piercings may lead to possible work health and safety issues should also be taken into account.
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