By James Tan
Often employers may choose to enforce strict uniform/dress codes and limitations on the personal physical appearance of employees in the interest of workplace health and safety. There is a question as to what extent employers can impose policies which impact upon the personal preferences of employees.
In the recent decision of Felton v BHP Billiton Pty Ltd  FWC 1838, the Fair Work Commission upheld an employer’s decision to dismiss Mr Felton for breaching the company’s ‘clean-shaven’ policy.
James Felton was employed at BHP Billiton Pty Ltd (BHP) for approximately six years in Olympic Dam mine in South Australia.
BHP is heavily regulated by the then Work Health and Safety Regulations 2012 (SA) (“WHS Regulations”), as well as the Australian/New Zealand Standards (“AS/NZS”), and has a duty to ensure their employees are supplied with and wear adequate clothing and equipment supplied by the company. Mr Felton was terminated on the basis of his repeated refusal to be clean shaven in order to allow for a Respirator Protective Equipment (RPE) test to be completed.
He made an unfair dismissal application under s394 of the Fair Work Act 2009, holding that the clean-shaven policy was not valid in light of the circumstances and that the dismissal was ‘harsh unjust or unreasonable.’ The policy had been in place since 2010 in Olympic Dam due to the strict safety regulations imposed to minimise employees to exposure to harmful fumes, dusts and other pollutants involved in working in the mining environment.
Although 70% of the BHP employees had facial hair before the clean-shaven policy, Mr Felton was the only person to refuse to comply. Mr Felton argued he had worn both a goatee and moustache since he was 19 years old which he considered was his own ‘personal attribute’ and ‘liberty of right’ to have.
Mr Felton had offered to supply an alternative ‘Airstream’ RPE at his own cost. However this was proposal was rejected by BHP as there was no evidence that the Airstream would be appropriate in the circumstances of Mr Felton’s goatee beard, as there would still be a risk the facial hair will prevent a good seal to the wearer’s skin.
Commissioner Hampton found that the dismissal was fair, and not harsh unjust or unreasonable. The clean-shaven policy was seen to be reasonable and appropriate given the nature of the mining company operations and strict WHS Regulations.
He further noted that if BHP was to make an ‘exemption’ for Mr Felton over the clean-shaven policy this would likely lead to a ‘flow-on’ issue where there would likely be other claims for other ‘exemptions,’ further risking the safety operations of the Company.
The Commissioner acknowledged the judgment in Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd  AIRC 893 which determined that:
“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.”
While the Commissioner found that the dismissal was fair, and not harsh unjust or unreasonable, it should be noted that the Commissioner considered there are arguably circumstances where an exemption could be granted upon “genuine health or discrimination issues”.
Our Concluding Comments
This case demonstrates the heavy weight the Fair Work Commission places on the workplace health and safety of employees, particularly in heavily regulated areas such as mining.
The decision also highlights that a breach of a policy would not immediately lead to “a valid reason for termination of employment”. If an employer is seeking to rely upon an employee’s breach of a policy to dismiss the employee, legal advice is recommended to assist the employer in minimising the risk that the dismissal will be “harsh, unjust or unreasonable”.
It does however, raise questions as to what would constitute an unreasonable dismissal over a hair or personal wear policy.
While only alluded to within the Commissioner’s decision, employers will need to exercise care when seeking to enforce a policy, particularly where enforcement can lead to discrimination under the relevant Anti-Discrimination legislation.
If you require employment law advice or feel you have been unfairly dismissed or discriminated against, please do not hesitate to contact one of our friendly Business Development Officers on (07) 3252 0011 to arrange an appointment with our Brisbane Employment Lawyers.