In light of a recent decision relating to an employer’s direction to an employee that he present to work clean-shaven, we take a look at an employer’s ability to enforce dress and grooming requirements in the workplace.
Overview of the claim
In recent proceedings brought against BHP Billiton ("BHP")1, a former employee, James Felton, alleged he was unfairly dismissed following BHP’s decision to terminate his employment for his repeated failure to comply with a direction to present to work clean-shaven. This direction was made to the underground mine truck driver pursuant to the company’s ‘clean-shaven policy’ which the company said formed part of its work health and safety obligations. Specifically, due to the substantial risk of inhaling contaminants in the mine, employees were required to wear respirators which were most effective when the employee was clean-shaven, allowing a ‘good seal’ between the face and respirator mask.
Mr Felton had sported a goatee and moustache for many years. Although BHP’s clean-shaven policy had been in place throughout this period, it was only in 2014 that BHP sought to comprehensively apply the policy and require all employees working in its underground operations to wear Respirator Protective Equipment ("RPE") following advice that one of the contaminants in the mine was a human carcinogen and a recommendation that further control measures be implemented. Mr Felton had previously worn a different form of respirator known as an Airstream helmet, which allowed him to roll up his goatee inside of the facemask. Prior to his dismissal, Mr Felton offered to supply an Airstream helmet at his own expense as alternative RPE to that provided by BHP. Mr Felton contended that the dismissal was unfair as the direction to shave was not lawful and reasonable and therefore his refusal to follow this direction was not a valid reason for termination of his employment.
Direction to shave lawful and reasonable
The Commission disagreed with Mr Felton and held that BHP’s direction to present to work clean-shaven was both lawful and reasonable.
In relation to Mr Felton’s offer to purchase alternative protective equipment, the Commission found that this was not appropriate in light of factors such as the obligation on the employer to provide and maintain appropriate safety equipment, the desirability of a uniform and enforceable policy to ensure its integrity and effectiveness in managing significant work health and safety risks, and the risk that by allowing Mr Felton an exemption it may open the flood gates for other employees to seek exemptions. The Commission also recognised the fact that Mr Felton was the only employee out of 900 who failed to comply with the clean-shaven requirement.
Because the direction to shave his beard was lawful and reasonable, the Commission found that Mr Felton’s failure to follow the direction constituted a valid reason to terminate his employment and thus the dismissal was not unfair. The Commission reasoned that the significance of the health hazards, the nature and size of the mine and its workforce, and the employer's work health and safety obligations, overrode Mr Felton’s personal preference and desire to maintain a particular appearance in circumstances where this preference was not underpinned by a genuine health reason or attribute protected by discrimination laws.
In reaching its conclusion, the Commission highlighted its reluctance to interfere with the right of an employer to manage its own business, unless the employer is seeking from the employees something which is unjust or unreasonable.
Consideration in the context of other decisions
The BHP decision should be viewed in light of other cases relating to this issue. In proceedings brought against Virgin Australia2, the Fair Work Commission found that when an employer is enforcing its right to determine grooming and dress requirements it must take into consideration employees’ unique circumstances, including any genuine medical or religious requirements.
In the Virgin Australia case, Mr Taleski was a flight attendant who was dismissed for failing to cut his hair in accordance with Virgin Australia’s ‘look book’. Mr Taleski initially claimed he could not cut his hair for religious reasons relating to the death of his mother, but later he provided medical evidence that showed he suffered from body dysmorphic disorder which necessitated him having longer hair. The Full Bench ultimately upheld the decision at first instance to reinstate Mr Taleski, finding that the medical certificates provided sufficient information about his disorder, and the fact that Mr Taleski had proposed to wear a wig demonstrated a willingness to comply, within the bounds of his medical condition, with Virgin Australia’s ‘look book’.
Key considerations for employers
Cases dealing with employee appearance provide useful guidance for employers seeking to manage their employees’ presentation in the workplace. Specifically, employers should be aware of the following:
- It is possible for employers to require employees to modify their appearance in order to give effect to a lawful and reasonable policy objective, particularly when the policy is directed at ensuring workplace safety.
- It may also be reasonable to require particular grooming or presentation in order to maintain standards of appearance judged consistent with the employer’s image.
- Notwithstanding the above, whether a requirement is reasonable will depend on all the circumstances, including the nature of the employment, common practices and tasks performed in the business.
- Further, when enforcing any requirement, employers must consider any circumstances which affect an individual’s ability to comply with the requirement, particularly if they relate to protected attributes such as medical or religious reasons.