The Fair Work Commission has dismissed an underground truck driver’s unfair dismissal application after his employment was dismissed following his refusal to shave off his beard.
The employee had been employed by a major mining operator for 6 years and had worn the goatee and moustache since he was 19 years old. His employment was terminated after he refused to shave his beard in order to take a respirator fit test. The employer had a clean-shaven policy in place, but the policy was only really ‘comprehensively applied’ to underground operations from 2014, as a result of ‘diesel particulate matter’ being found to be a human carcinogen.
The employee, in the process of his dismissal, offered to supply his own respirator which he considered was suitable to use with his facial hair.
The employee argued that that there was no ‘…causal connection between the policy and the alleged work health and safety risk, in light of the offer to purchase the more advanced protection’. He also argued that given his service and employment record, the dismissal was harsh.
The employer argued that the employee’s ‘repeated refusal to follow lawful and reasonable directions of both his supervisor and superintendent to attend for work clean-shaven’ was a valid reason for the dismissal.
Commissioner Hampton found that there was a valid reason for the dismissal, a fair process followed and ultimately that the dismissal was not harsh, unjust or unreasonable. The Commissioner commented that ‘… in light of the actual hazards…the interests of the protection of safety and health become more important than personal preference and a desire to obtain an appearance…”
Implications for Employers: In this case, the requirements of personal grooming were linked specifically to work health and safety concerns. As such, the refusal to comply was deemed to give rise to a valid reason to terminate the employment. The case reinforces the primacy of health and safety obligations in the workplace.
Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.