The Fair Work Commission has upheld the decision to sack a BHP employee who refused to shave off his beard.
James Felton’s application for unfair dismissal application was dismissed on April 30 on grounds that he had “made a deliberate and well informed decision not to comply with the policy.
The clean shaven policy at the Olympic Dam mine was brought in by BHP in 2010 to ensure workers did not have facial hair which would interfere with the use of Respirator Protective Equipment (RPE) to guard against silica dust and diesel particulate.
Felton was employed as a truck driver at the Roxby Downs mine for six years, during which time he wore a long goatee.
The mine leadership team at Roxby Downs decided to roll out the clean shaven requirement for the whole workforce, including laboratories, from January 2014.
Felton was called for a respirator fit test on 22 September 2014 and was instructed that he had to be clean shaven, however Felton said he would not shave his beard.
Felton presented for work on 23 September, bearded, and he was informed that if he did not comply with the policy he would face disciplinary action and possible termination of employment.
Felton again refused, and stated that his beard was a physical attribute that he would not change, which resulted in his being stood down on full pay.
Felton offered to purchase and maintain his own PAPR Airflow helmet, however management said the company was responsible for supplying, servicing and maintaining RPE and that employees could not bring their own RPE on site.
Felton continued to refuse requests to shave in the face of warnings that his actions would result in termination, and on September 29 he was in serious breach of his obligations to the employer and was required to show cause why he should not be terminated on September 30.
“My facial hair is my personal attribute, it is who I am and my liberty of right,” Felton wrote.
Felton also maintained that he had not been informed about the clean-shaven requirement until the morning of the 23rd, however his dismissal took place on 3 October.
Felton contended that the clean-shaven policy was not bona fide or valid as it may not have been developed in accordance with the relevant workplace health and safety laws, and was not developed in consultation with employees or workplace health and safety representatives.
Commissioner Hampton said the instruction to attend work clean-shaven was a lawful and reasonable direction.
“Even if there were some deficiencies in the consultation surrounding the application of the full clean-shaven policy (and I make no conclusive finding about that), the policy itself is in my view a reasonable and appropriate one given the circumstances of the operations of BHP Billiton and the potential hazards in the mine,” he said.
“There is an impact upon individual rights and preferences in the adoption of a clean shaven policy of the kind in operation at BHP Billiton. However, in light of the actual hazards, the nature and size of the mine and its workforce, and the impact of the relevant WHS obligations, the interests of the protection of safety and health become more important than personal preference and a desire to obtain an appearance, even one held so strongly by Mr Felton.”
“It was his right to maintain his appearance however this was in conflict with a reasonable and lawful direction and for reasons outlined above, made future employment for him at BHP Billiton at Olympic Dam untenable.”
Hampton observed that given the policy was applied site-wide there were no other jobs in which Felton could be employed in his bearded state.