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Can you Direct an Employee to Shave their Beard?
In the age of the hipster, it is more and more common for employers to be confronted with workers sporting beards, tattoos and piercings, and as employees are the human faces of any organisation, it is understandable that employers be concerned with their physical appearance in the workplace. But when it comes to managing employee appearance, what is and what is not okay?
Earlier this month, the Fair Work Commission (the “FWC”) (in James Felton v BHP Billiton Pty Ltd  FWC 1838) upheld BHP’s dismissal of a mine worker who refused to comply with BHP’s clean-shaven policy.
The FWC accepted BHP’s argument that the dismissal was fair because the employee had repeatedly refused to follow its lawful and reasonable direction to shave his goatee and moustache for the purpose of properly wearing a respirator.
In this case, it was quite clear that BHP’s work, health and safety (“WHS”) obligations had to take precedence over the employee’s personal preference to wear a beard. However, whether an employer’s direction to an employee to alter their appearance is lawful and reasonable will be dependent on all the circumstances of the case. Aside from their WHS obligations, employers must consider:
- whether they have a particular “image” to uphold. For example, in 2003, Star City’s dismissal of a casino dealer for refusing to remove her tongue stud was upheld because it was accepted that Star City had a “5-star” image to maintain;
- how relevant contracts of employment treat workplace policies and whether they allow for disciplinary action to be taken in relation to employee conduct which threatens the employer’s reputation; and
- whether the employee’s appearance is related to a particular characteristic they possess that is protected under anti-discrimination legislation (for example, their sex or race). Policies which appear to apply to workers equally may nevertheless result in “indirect” discrimination.