FWC agrees: The mo's gotta go!
Posted on May 07, 2015
In Felton v BHP Billiton Pty Ltd [2015] FWC 1838, the Fair Work Commission (FWC) upheld an employer’s decision to dismiss an employee who ignored the company’s “clean-shaven policy” in order to preserve his 100mm goatee and moustache.
Mr Felton worked for BHP Billiton (BHP) for 6 years as a truck driver at Olympic Dam. As part of his role, Mr Felton was required to operate diesel trucks in the underground mine.
BHP had long required its employees to wear appropriate personal protective equipment, including respirator protective equipment (ie. face masks or respirators) (RPE). Such equipment was necessary to protect the employees from potential exposure to crystalline silica and other dusts, diesel particulate matter and radon decay products.
In 2013, BHP received advice that diesel particulate matter was a human carcinogen and that further control measures should be adopted. This led to BHP reviewing its Respiratory Protection Policy to the extent that by 31 December 2014, all employees were required to be clean-shaven for fit-testing and wearing of new RPE.
Mr Felton’s team was scheduled to undergo fit-testing on 22 September 2014 and all employees were instructed to present clean-shaven for this purpose. Mr Felton presented to work unshaven and advised that he would not shave. On a number of subsequent occasions, representatives of BHP repeated this request to Mr Felton and he continued to ignore them.
On 25 September 2014, Mr Felton was required to attend a meeting where he was informed that he was in serious breach of his obligations to BHP and that he would be required to show cause as to why his employment should not be terminated by 30 September 2014. Mr Felton responded by letter as follows:
My facial hair is my personal attribute, it is who I am and my liberty of right.
Consequently, on 2 October 2014, Mr Felton was advised that his employment would be terminated. This was even despite Mr Felton offering to purchase his own RPE which would allow him to roll up his goatee.
Mr Felton contended that his dismissal was unfair on two grounds: that BHP had not complied with its obligation to consult with employees in respect of the clean-shaven policy, and that there was no connection between the policy and the alleged WHS risk.
The FWC agreed with the employer and concluded that the dismissal was not harsh, unjust or unreasonable in the context of the Fair Work Act 2009. Commissioner Hampton explained as follows:
There is an impact upon individual rights and preferences in the adoption of a clean-shaven policy of the kind in operation at BHP Billiton. However, in light of the actual hazards, the nature and size of the mine and its workforce, and the impact of the relevant WHS obligations, the interests of the protection of safety and health become more important than personal preference and a desire to obtain an appearance, even one held so strongly by Mr Felton.
While the decision has no general impact upon some of the woeful displays of facial hair we see in November each year, it does show that an employer with a reasonable motive and process behind a workplace policy will be in a strong position to enforce it.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about your workplace policies.
