Australia: The Virgin look book: can you control the appearance of your employees?

IN BRIEF

One issue commonly faced by employers is getting employees to comply with dress and grooming standards, and when an employee chooses not to or cannot comply, determining what their options are.

This was the scenario faced by Virgin Airlines with one of its cabin staff, a Mr David Taleski, whose employment was ultimately terminated by Virgin following his non compliance with its grooming standards. He brought an unfair dismissal application before the Fair Work Commission and was reinstated. This decision was then appealed by Virgin with the appeal being dismissed by the Full Bench of Fair Work Commission on 24 July 2013. The Airline is reviewing the decision.

This article looks at some of the issues arising from these decisions.

BACKGROUND

In mid 2010, Mr Taleski started to grow his hair longer for religious reasons. He maintained the reasons for doing so were associated with the 10th anniversary of his mother's death. Virgin allowed him to do so on a temporary basis, despite their grooming standards.

In December 2010, Virgin told Mr Taleski that he had to now comply with their grooming standards. This required Mr Taleski to cut his hair into a men's business style haircut. In January 2011 Mr Taleski raised medical reasons for keeping his hair longer and produced the first of many medical certificates.

In February 2011, Virgin introduced the "Look Book", a guide to uniform and personal styling which, amongst other things, covered grooming for employees. The male guidelines in the "Look Book" provided that male hair is to be no longer than collar length and when styled should not exceed 4cm in height. In February and March Mr Taleski was told that his hair needed to comply with the Look Book but he refused to cut his hair or to give Virgin information about the religious or medical reasons which prevented him from cutting his hair. Subsequently, Mr Taleski provided medical certificates from various practitioners including one in April 2011 which referred to Mr Taleski's anxiety about having his hair cut.

The issue of Mr Taleski's hair ended up as a conciliation before the Human Rights and Equal Opportunities Commission in August 2011 following which, Virgin agreed to him wearing a wig on flying duties as a temporary measure. Mr Taleski returned to work wearing a wig between August and October 2011 during which time Virgin sought information from him concerning the diagnosis of his medical condition and a treatment and progress plan which would contain timelines in which he would become compliant.

In October Mr Taleski complained that he was suffering abuse as a result of wearing the wig and felt his anxiety was being increased by Virgin because its requirements were inconsistent with Mr Taleski's psychologist's recommendations.

On 20 October 2011 Mr Taleski attended a meeting with Virgin and given until 24 October to respond to the "preliminary decision" to dismiss him based upon Mr Taleski's failure to comply with the management directive to provide further medical information, his non compliance with the stated requirements of his role, and an unwillingness to accept business process and decisions.

Whilst Mr Taleski provided a detailed response to these matters, his employment was terminated on 24 October 2011 and he subsequently brought a case for unfair dismissal. At first instance, Commissioner Cribb found in favour of Mr Taleski finding that Mr Taleski had in fact provided all the information sought by Virgin as to his medical condition which was to be discerned from the medical certificates supplied.

As to the key compliance issue and Virgin's concerns that Mr Taleski had not demonstrated an intent to comply with the Look Book, the Commissioner found that he was trying to comply to the best of his ability and within the constraints of his medical condition. These efforts were demonstrated by Mr Taleski trying different hair styles and wearing a wig. With respect to a finding as to Mr Taleski's unwillingness to accept business process with respect to the complaints procedure, this alone was not considered an adequate reason to support the decision to terminate.

The Commissioner was critical of what appeared to be a decision to terminate before putting the allegations to Mr Taleski and therefore before he had had an opportunity to respond. In the circumstances, the Commissioner was not satisfied that Mr Taleski had been given a genuine opportunity to respond to the reasons for dismissal. The Commissioner also noted that Virgin had allegedly treated Mr Taleski differently to another employee who suffered from the same medical condition and who was also non compliant with the Look Book but who had been allowed to fly.

On Appeal, the Full Bench did not find any relevant appealable error and upheld the decision of Commissioner Cribb which had reinstated Mr Taleski to his position maintained his continuity of service and provided him with compensation for payments lost due to the dismissal.

The Full Bench also held that compliance with the hair guidelines in the Look Book were not an inherent requirement of Mr Taleski's role.

LESSONS FOR EMPLOYERS

The appeal decision in this case is interesting. By implication, the Commission is saying that it will decide whether or not particular grooming requirements of an employer constitutes an inherent requirement of the job. The fact that the employer may think so is ultimately not decisive.

Another message which emerges from these decisions is that if an employee is attempting as best they can, within the limitations of some psychological condition to comply with a requirement of their employer, a failure to comply will be looked at sympathetically.

Another interesting point to emerge was a process issue concerning the termination. The making of a preliminary decision to terminate followed by an opportunity for the employee to respond was heavily criticised by Commissioner Cribb as tantamount to pre judgement.

On appeal the Full Bench considered that any error that may have been made by the Commissioner in this regard was of little consequence given that there was no valid reason for dismissal in the first place. It may be inferred from this, that the Full Bench did consider that Mr Taleski had been given an adequate opportunity to respond, however, the approach taken to make a preliminary decision to terminate with an opportunity to then respond, is not without risk.

Finally, a relevant factor at first instance was whether the termination could be considered harsh, unjust or unreasonable due to the apparent inconsistent application of the grooming requirements between different employees. The message is that employers need to apply and be seen to be applying policies, in a consistent and uniform manner.

For further information please contact:

Richard Ottley, Partner
Phone: +61 2 9233 5544
Email: rbo@swaab.com.au

Laura Sowden, Solicitor
Phone: +61 2 9233 5544
Email: lms@swaab.com.au

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.