27/08/2015

The Fair Work Commission has upheld the dismissal of a mining employee who refused to shave his beard.

For several years, BHP Billiton (“BHP”) had been promoting a clean-shaven policy so that any staff who needed to use respiratory protective gear were not at risk because they had facial hair.  

In 2014, a review of the respiratory equipment policy revealed that diesel fumes emitted by the company’s diesel trucks were categorised as a human carcinogen. As a result of this finding, BHP extended its policy to all staff working in its underground operations and directed them to wear a respirator mask to prevent exposure to harmful elements.

Felton had been working for BHP for 6 years as an underground diesel truck driver.  He had a goatee and moustache since the age of 19.

Despite multiple directions from his supervisors, Felton repeatedly refused to shave in order to have a respirator mask fitted, claiming that his facial hair was ‘a personal attribute, it is who I am and my liberty of right’.  

He was eventually dismissed for breach of employment contract and company code of conduct.

Felton made a claim to the Fair Work Commission (“the Commission”) that he was unfairly dismissed and asked the Commission to consider whether the dismissal was harsh, unjust or unreasonable.  

As a compromise to shaving, he offered to provide an alternative face mask at his own expenses, which would allow him to keep his beard, while still providing a certain level of protection.  BHP rejected this suggestion as it concluded that the mask was not appropriate to the level of risk involved in Felton’s work.

The Commission recognised that Felton had a right to maintain his personal appearance however he made an informed and deliberate decision not to comply with the policy, which put BHP at risk of breaching its WHS obligations towards its employees.  This meant that his employment with BHP could not continue.

The Commission upheld the dismissal as both lawful and reasonable on the basis that the policy was an appropriate response to BHP’s duty to provide a safe place of work to its employees.  Felton’s proposed alternative was not suitable as it would not have provided the required level of protection.

Here’s some tips for employers:

• Employers have an obligation to provide a safe work environment to their employees and failure to do so may be a breach of WHS laws;
• Keep your policies and procedures up to date;
• Monitor the risks your staff are being exposed to and take appropriate actions if and when necessary;
• Educate your staff on the company’s procedure and be ready to enforce them when needed;
• Be ready to show that the implementation of specific policies is supported by reasonable motives and is aimed at ensuring the safety of employees.