The Fair Work Commission (FWC) has recently upheld the dismissal of a former underground mineworker, whose employment was terminated after he repeatedly refused to shave off his beard in compliance with the company’s clean-shaven policy.
Implications for employers
It is not uncommon for employers to encounter workers sporting a variety of unique physical features such as beards, tattoos and body piercings or adopting unique personal dress styles. However, there may be circumstances where an employer can impose requirements on the physical appearance of employees, provided it is an objectively reasonable and proportionate response in the circumstances. One example is to address a genuine safety concern.
James Felton was employed by BHP Billiton (BHP) at the Olympic Dam mine site in South Australia for a period of 6 years. At the time of Mr Felton’s dismissal, he was employed in the capacity of an underground truck driver and his employment was terminated following his repeated refusals to comply with a direction to present to work clean-shaven. This direction was given in the context of a clean-shaven policy that had been in existence for some time but was being comprehensively applied to BHP’s underground operations at the relevant time.
The clean-shaven policy in question was adopted in the context of the need for employees of the mine to wear appropriate PPE (personal protective equipment), namely face masks or respirators, due to the nature of the mining and processing environment and the potential exposure to certain dusts, gases and diesel particulate matter (DPM). The extended application of the policy arose from advice received by BHP that DPM was a human carcinogen and that further control measures needed to be adopted to limit employees’ exposure.
Mr Felton had sported a goatee beard and a moustache, since he was 19 years old, which he considered to be a “personal attribute” and his “liberty of right”. However, this “personal attribute” prevented the kind of respirator mask intended for supply by BHP from working appropriately. Mr Felton had previously worn a different brand of respirator, called an Airstream helmet, which allowed him to roll up his goatee inside the facemask. In the lead up to his dismissal, Mr Felton offered to supply this Airstream helmet at his own expense as an alternative to the company-sanctioned respirator. BHP denied this request, finding that this different type of respirator was not appropriate for the risk profile of the underground mine.
Following a series of warnings to comply with the directions of the clean-shaven policy, BHP terminated Mr Felton’s employment on 2 October 2014 for a serious breach of its code of conduct and his contract of employment. Mr Felton subsequently made an unfair dismissal application.
Mr Felton contended that there was no valid reason for the termination of his employment. He argued that the clean-shaven policy was not valid because BHP had not complied with the consultation requirements under the Work Health and Safety Act 2012 (SA). He also argued that that there was no causal connection between the clean-shaven policy and the alleged work, health and safety (WHS) risk as he offered to purchase the Airstream helmet himself which mitigated this risk.
The dispute centred on whether the direction to comply with the clean-shaven policy was a lawful and reasonable instruction. Commissioner Hampton found that it was reasonable for BHP to direct employees at the underground mine to be clean-shaven to ensure that their respirators protected them from workplace hazards, and that Mr Felton’s dismissal was not unfair in light of his repeated refusals to comply with the clean-shaven policy.
In rejecting Mr Felton’s argument that his offer to purchase an alternative device made his dismissal unfair, the Commissioner said it was clear that there were “real hazards in this workplace, including potential exposure to DPM” and that the “clean-shaven policy is in general terms, an appropriate control strategy and is directed at genuine WHS issues”.
The Commissioner noted that, as a general rule, the capacity for employees to supply their own PPE is not a workable and appropriate approach in a workplace of the kind conducted by BHP at Olympic Dam. It is a large and complex workplace with genuine hazards and the approach contended by Mr Felton had the capacity to undermine the integrity of the workplace policy. If BHP were to permit an employee to avoid the clean-shaven policy based upon a personal preference as to appearance, this would likely lead to flow-on issues and claims for other ‘exemptions’.
Although the clean-shaven policy impacted upon the individual rights and preferences of employees, given the hazardous nature of the operations of BHP and in light of the actual risks and the nature and size of the mine and its workforce, the FWC found that the interests of the protection, safety and health of employees will outweigh any personal desire to maintain a particular appearance. As such, the FWC found that the instruction and the clean-shaven policy were an objectively reasonable and proportionate response in the circumstances, and Mr Felton’s refusals to present to work clean-shaven made his future employment at Olympic Dam untenable.
James Felton v BHP Billiton Pty Ltd  FWC 1838