Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

What is a Reasonable & Lawful Direction? Fair Work Commission Recent decision

The Fair Work Commission has upheld the dismissal of a BHP Billiton underground mineworker sacked after repeatedly refusing to shave off his beard for the purposes of  ensuring his respirator operated effectively. Cut Your Beard in WorkplaceCommissioner Hampton found the company’s instructions to the uranium mine employee at Olympic Dam to comply with its Clean-Shaven Policy were lawful and reasonable, and the policy itself a “reasonable and appropriate one given the circumstances of the operations of BHP Billiton and the potential hazards in the mine“. The Commissioner said BHPB had “significant WHS obligations upon it as the employer” and, given technical advice about the hazards workers were exposed to and relevant safety regulations, “the instruction (and the policy) was an objectively reasonable and proportionate response to the circumstances“. Commissioner Hampton acknowledged a clean-shaven policy, such as the company’s policy, affected individual rights and preferences.  He said, 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 [the employee]“. The Commission heard the employee, an underground truck-driver, had a goatee beard about 100mm long and a moustache since he was 19 years old, including for his 6 years at the mine.  In a letter to the company after being asked to show cause why he should not be dismissed, he said, “My facial hair is my personal attribute, it is who I am and my liberty of right.” The company’s long-standing clean-shaven policy became an issue for the employee when it began rolling it out across all operational areas last year, after a review of its respirator protective equipment (RPE) policy, sparked by information that diesel particulate matter (DPM), emitted by its diesel trucks, had been categorised as a human carcinogen. The mine leadership team decided that by the end of the year, the entire mining and processing workforce was to be clean-shaven for respiratory fit-testing and, once fit-tested, to carry the RPE the company supplied and maintained. The employee to be sacked was the only 1 of 900 underground workers who refused to comply. He argued before the tribunal that the clean-shaven policy and related directions were not valid, as BHPB had failed to meet its consultation requirements under the state WHS Act.  He also said there was no causal connection between the policy and the alleged work, health and safety risk given his offer to purchase an alternative Airstream helmut, which he had worn in the past and allowed him to roll up his goatee inside it. However, Commissioner Hampton said he did not have to rule on compliance with the WHS Act, for reasons including that it was fundamentally a matter for a court of competent jurisdiction and it was possible to determine the unfair dismissal claim without doing so. In rejecting the employee’s argument that his offer to purchase an alternative device made his dismissal unfair, the commissioner said it was evident that “there are real hazards in this workplace, including potential exposure to DPM, and other issues arising from the fact that (amongst other minerals) the BHP Billiton mine at Olympic Dam is a uranium mine… It is also evident that the clean-shaven policy is in general terms, an appropriate control strategy and is directed at genuine WHS issues in this workplace… As a general rule, the capacity for employees to supply their own PPE is not a workable and appropriate approach in a workplace of the kind conducted by BHP Billiton at Olympic Dam..It is a large and complex workplace with genuine hazards and the approach contended by [the employee] had the real capacity to undermine the integrity of the policy… If BHP Billiton were to permit an employee to avoid the clean-shaven policy based upon personal appearance preference, then in my view, this is likely to lead to flow-on issues and claims for other ‘exemptions’.” The Commissioner noted that using the Airstream helmet with any “significant” facial hair was of itself “problematic and would require regular testing”. [James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 (30 April 2015)]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, News