Fair Work Australia (FWA) has ordered an employer to reinstate an employee who was dismissed after refusing to cut his hair shorter, in breach of the employer’s grooming and uniform policy.
The employee informed the employer he had grown his hair long for religious reasons. Subsequently, he stated that he had medical grounds (a body image disorder) and provided medical certificates. The employee tried to compromise by styling his hair to make it appear shorter and wearing a wig. The employer dismissed the employee for not providing further medical documentation about the condition, not demonstrating an “intent to comply with the stated requirements of his role”, and not following the correct grievance resolution process. The employee filed an unfair dismissal application.
FWA found that the employee was unfairly dismissed, as:
- the medical certificates provided the employer with sufficient information regarding the employee’s diagnosis, its link to why the employee was not able to cut his hair, and treatment timeframes;
- the employee demonstrated an intention to comply with policy “to the best of his ability and within the framework of a body image disorder”;
- although the employee “exhibited an unwillingness to follow business process and accept business decisions”, this, on its own, did not constitute a valid reason for his dismissal;
- the employer had exempted another employee who suffered from the same condition from complying with the policy; and
- the employer had caused the employee stress.
The employer has appealed to a Full Bench. Deputy President Greg Smith granted the employer’s application to stay the reinstatement order (pending the outcome of the appeal), on the condition that the employer pays the lost remuneration into an interest-bearing account.