Australia: Dress codes and directions to comply

Last Updated: 17 February 2013
Article by Stephen Trew

In a recent decision of Taleski v Virgin Australia International Airlines Pty Ltd the Fair Work Commission considered the circumstances in which Mr Taleski was dismissed for failure to follow Virgin's dress code. This decision provides some useful reminders for employers in dealing with dress code compliance issues.

Mr Taleski was employed as a flight attendant. This case arose because Mr Taleski refused and/or was unable to comply with Virgin's dress code contained in the Look Book. This non-compliance concerned the length of his hair. The Look Book described the appropriate hairstyle for men as being something tidy, with a natural look and no longer than 4 centimetres in length.

Mr Taleski first notified Virgin of his inability to comply by email in July 2010 and was ultimately dismissed in October 2011. The reason Mr Taleski gave for his inability to comply with the dress code, and more particularly the hair length requirements, was due to his suffering from Body Dismorphic Disorder (BDD) symptoms. Mr Taleski claimed this gave rise to his inability to cut his hair.

Between July 2010 and October 2011, Mr Taleski provided a number of medical certificates to Virgin. Mr Taleski was also removed from flight duties but was allowed to return to the flight crew duties following a successful conciliation at the Australian Human Rights Commission in which it was agreed that he would wear a wig. There was some debate about whether this arrangement was to be temporary or permanent.

The decision outlines a series of meetings and discussions between representatives of Virgin and Mr Taleski concerning his hair length, compliance with the Look Book and the medical diagnosis leading to his inability to cut his hair to the length required in the Look Book. In fact, Virgin had purported to terminate Mr Taleski's employment in June 2011 but subsequently rescinded this. In addition Mr Taleski made an application to the Australian Human Rights Commission, following which there was an agreed outcome at a conciliation conference on 3 August 2011. As noted above, this lead to Mr Taleski wearing a wig and returning to his flight crew duties.

Following August 2011, Mr Taleski wished to continue with the arrangement of wearing a wig. However, Virgin saw this as a temporary arrangement pending his compliance with the hair requirements in the Look Book. Virgin pressed Mr Taleski for a medical certificate that described his diagnosis and provided a time period within which he could be expected to comply with the Look Book. On 24 October 2011, Mr Taleski was issued with a notice of termination of his employment, providing three reasons, the first two of which are relevant to the topic of this article. These were:

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  • "You have not complied with reasonable management direction in relation to the provision of documentation as requested; and
  • You have not demonstrated an intent to comply with the stated requirements of your role... ...."

Were there valid reasons for the dismissal?

Commissioner Cribb examined in detail the first reason given by Virgin for Mr Taleski's dismissal, which related to the provision of a medical certificate containing the diagnosis and details of when Mr Taleski would be able to comply with the Look Book. In this context, and after reviewing 8 forms of medical certificates provided by Mr Taleski, Commissioner Cribb found that on an overall basis the various medical certificates did disclose a medical diagnosis. One instance relied upon was a statement to the effect that Mr Taleski was receiving management "regarding a body image disorder relating to the length of his hair". There was also reference to a treatment plan being developed.

Commissioner Cribb found that the medical certificates did provide Virgin with a diagnosis, a link between Mr Taleski's medical condition and not being able to cut his hair, information that a treatment plan would be developed and a medical opinion that a time frame for successful treatment of the condition would take a "considerable period of time". On this basis, the direction to provide the medical opinion and treatment plan was not reasonable and therefore, the first reason relied upon by Virgin was found by Commissioner Cribb not to be substantiated.

Commissioner Cribb considered the second ground relied upon by Virgin. This concerned whether Mr Taleski had expressed an intent not to comply in the future with the Look Book. There was considerable conjecture as to how best to interpret certain email communications and statements made by Mr Taleski and to reconcile these as a whole. In this context, Commissioner Cribb was not prepared to find that Mr Taleski considered he would not comply with the Look Book in the future and had no intention of doing so. As part of this finding, Commission Cribb drew on evidence that suggested Mr Taleski was endeavouring to comply as best he could with the requirements of the Look Book, including by wearing a wig.

The question arose in the proceedings as to whether Mr Taleski wearing the wig was in fact compliant with the Look Book. While no ultimate finding on this was point was made, Commissioner Cribb considered the issue of Mr Taleski's willingness to comply through the framework of the BDD disorder that was revealed in the medical certificates provided. In this regard Commissioner Cribb stated as follows [396]: "Taking all of this into account, I find that, to the best of his ability and within the framework of a body image disorder relating to the length of his hair, Mr Taleski's intention was to comply with the Look Book. He made several attempts to do this by exploring options that did not require him cutting his hair. These included trying different hairstyles and wearing a wig."

Accordingly, Commissioner Cribb also found that the second ground relied upon by Virgin to substantiate the dismissal had not been made out. On this basis, there was a finding that there was no valid reason for Mr Taleski's dismissal and the dismissal was harsh, unjust and unreasonable. In response to that finding an order for reinstatement was made. This was on the basis of Commissioner Cribb restating the principle that reinstatement is the primary remedy.

Virgin has sought leave to appeal the finding of the Fair Work Commission and has been granted a stay of the order for reinstatement.

Lessons for employers

This case highlights a number of important lessons for employers who adopt dress code policies or are dealing with other policies where an employee claims they are unable to comply due to a disability. Some of the lessons from this decision include the following:

  • State the objective of the policy and include examples on a non-exhaustive basis. While the policies need to be prescriptive when it comes to the dress standards required, they must also provide for discretion to be exercised in unforeseen circumstances, like those which arose in this case concerning whether the use of a wig complied with the Look Book. Detailing the overall objective that the dress code is seeking to achieve and providing non-exhaustive examples gives the employer the most flexibility.
  • Employers need to be careful when reviewing medical evidence and seeking, legitimately, to understand both the specific diagnosis and also time constraints on an employee recovering from any particular disability. Employers need to review all of the medical evidence provided, even if it is not contained in one specific document or expressed in language of a type that provides certainty for the employer. In circumstances where there is not a sufficiently precise description of the particular diagnosis and timeframe for recovery, employers should be careful how they seek clarification. It is generally advisable for employers to form requests for more detailed medical information around the employer's obligation to accommodate disability.
  • Where compliance with a particular requirement is linked to a disability, the communications around this are often mixed with conjecture about the employee's willingness and ability to comply. Employers need to be very careful before determining that an employee is evidencing an intention not to comply and using this to determine the existence of a failure to meet the inherent requirements of the position.
  • Develop and implement defensible work rules. This case and other cases uphold the employer's right to set policies for the management and conduct of their business, including, in respect of dress codes so long as they are reasonable and justifiable.

What is happening in the overseas context?

January 2013 also saw the delivery of a decision by the European Court of Human Rights (ECHR) which concerned the manifestation of religious beliefs in the workplace and is therefore related to dress codes. One of the cases considered by the ECHR emanated from the United Kingdom and related to restrictions placed on employees preventing them from wearing visible crosses around their necks. In this case, Ms Eweida, a member of British Airway's check-in staff, won her appeal and was awarded damages for the period when she was suspended for wearing a cross around her neck.

The ECHR endorsed the principle that employees be allowed to manifest their religious beliefs in the workplace through what they wear, although noting that this is not an unfettered right if the exercise of the right by an employee would encroach on the interests of others. In this case, the ECHR found that too much weight had been given by the UK Courts to the dress code's aim of projecting a corporate image, in circumstances where there was no evidence that Ms Eweida wearing the cross had any negative impact on the brand or image of British Airways. At the same time, the ECHR also made it clear that an individual's right cannot impinge on the rights of others, and evidence of this can justify the imposition of restrictions on manifestations of religious beliefs. Health and safety considerations were also identified as another ground that justified restrictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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