Bearded employee challenges dismissal for breach of clean-shaven policy
In April this year, the Fair Work Commission (FWC) heard the case of Felton v BHP Billiton Pty Ltd  FWC 1838, which saw Mr Felton dismissed for breaching his employer's 'clean-shaven policy'.
The case demonstrates the evolution of workplace health and safety regulation and the consequential potential decline of personal claimed freedoms. An employer can implement and enforce specific policies, such as those requiring staff members to be clean-shaven, if it can show that it has reasonable motives and that the policy is to ensure the safety of its employees.
Mr Felton worked as an underground truck driver at the Olympic Dam Mine, operated by BHP Billiton Pty Ltd (BHP) near Roxby Downs in the north of South Australia. Mr Felton had been a BHP employee for approximately six years before his employment was terminated on 2 October 2014.
Mr Felton was let go for repeatedly refusing to follow a direction to present to work clean-shaven to allow a respirator fit test to be completed. The direction was given in line with a 'clean-shaven policy' which had been in place at Olympic Dam since July 2010. Mr Felton had worn a goatee beard and moustache since he was 19 years old and claimed that his facial hair was a personal attribute he was unwilling to part with. His refusal to follow the directive to shave was made on two contentions, which were filed under s 394 of the Fair Work Act 2009 (Cth) (FW Act):
- the clean-shaven policy was not valid in light of the circumstances, including the statutory requirements for consultation on such matters; and
- the dismissal was harsh, unjust and unreasonable pursuant to s385(b) of the FW Act.
Olympic Dam operates under strict regulatory control due to the ore products mined there and the dangerous nature of the operations that take place. BHP adopted the clean-shaven policy as employees are required to wear appropriate personal protective equipment [respirator protective equipment (RPE)] because of the risk of potential exposure to crystalline silica and other dusts, diesel particulate matter and radon decay products. The strict enforcement of the clean-shaven policy arose from advice received by BHP in 2013 that diesel particulate matter was a human carcinogen.
Mr Felton would occasionally wear an Airstream helmet RPE, instead of the standard company-issued RPE mask. He claimed that the Airstream helmet nullified the problems caused by having a beard and the subsequent inadequate seal when wearing the standard mask. As an alternative to shaving, Mr Felton offered to supply his own Airstream respirator.
Lawful and reasonable
Mr Felton argued that the clean-shaven policy was invalid, and therefore unlawful, as the statutory requirements for consultation on such matters were not satisfactorily implemented under the Work Health and Safety Act 2012 (SA).
Commissioner Hampton held that there was insufficient evidence that the implementation of the clean-shaven policy was done in line with the relevant statutory provisions, however this did not render the policy unlawful or invalid. Further, it was held that the onus was on Mr Felton to provide sufficient evidence to support his claim that statutory requirements were not met.
Although Mr Felton offered to supply his own Airstream helmet RPE as an alternative to shaving, there was insufficient evidence to suggest that the Airstream helmet was suitable to Mr Felton's work. Further, the manufacturers of the Airstream helmet warn that certain types of beards may impact upon satisfactory operation of the helmet. Therefore, the offer made by Mr Felton was unworkable as the use of the Airstream helmet would present a relatively high safety risk to him.
Mr Felton's contract of employment established a clear duty for BHP to ensure employees "wear and maintain personal protective clothing and equipment as required by the company". Therefore, BHP has a right and a duty to ensure its employees are supplied with, and wear, adequate protection, clothing and equipment.
If BHP allowed Mr Felton to use an Airstream helmet, it could be argued that the company would be breaching its duty as an employer to provide adequate safety measures, as the evidence confirmed that the Airstream helmet was inadequate for Mr Felton's line of work.
In his letter written to show why his employment should not be terminated, Mr Felton said, "My facial hair is my personal attribute, it is who I am and my liberty of right". The fact that he went to the point of risking his job demonstrates a fervent dedication to retaining his beard. On hearing, Commissioner Hampton acknowledged this fact, however stopped short of attributing a medical or physiological reason underpinning Mr Felton's unwillingness to shave.
Individual rights are clearly impacted by the adoption of the clean-shaven policy. However, the nature of the work at Olympic Dam and the subsequent heightened health and safety risks become more important than personal preference and a strong desire to maintain a physical characteristic. Furthermore, at the time of the full application of the clean-shaven policy, many BHP employees had facial hair. In the section where Mr Felton worked, it was found that approximately 70% of the employees had facial hair before the full application of the clean-shaven policy. Mr Felton was the only employee to turn up to the RPE fit testing on 22 September 2014 unshaven, despite a clear directive to shave being issued to all staff.
Implications for employers
Mr Felton's desire to retain his beard was thwarted by the highly protective nature of mining health and safety regulation.
Employers are required to provide a safe work environment for their employees and companies, such as BHP, are obliged to implement specific policies to ensure this. The determination for what is deemed a reasonable and lawful policy is entirely dependent on the nature of the workplace in which it is derived.
Ultimately, Felton v BHP highlights that the collective health and safety of individuals in the workplace remains the priority.
This article was originally published in the July issue of Proctor and is republished here with their kind permission. Click here to read the article.
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