October 1, 2015

Battle of the Beard: Unfair Dismissal Claim

In Felton v BHP Billiton Pty Ltd [2015] FWC 1838, Mr Felton (the applicant) was dismissed by BHP Billiton (his employer of 6 years) when he repeatedly refused to comply with BHP’s clean shaven policy.

Due to occupational health and safety concerns, Mr Felton was directed by BHP to shave his facial hair so he could safely wear a respirator mask in the underground mine. The mask was required to be worn in order to prevent exposure to diesel particulate matter, dust and other gasses and chemicals.

The clean shaven policy had been in existence at BHP for some years, but BHP sought to comprehensively apply it to its underground operations in 2014, following advice confirming diesel particulate matter was a human carcinogen.

Mr Felton had previously worn a different brand of respirator which covered his goatee, and he argued he ought to be able to use the brand which catered for his facial hair, at his own cost (instead of the BHP sanctioned respirator). BHP denied this request and said that Mr Felton’s respirator was not appropriate for the risks associated with the underground mine he worked in.

BHP issued a number of warnings to Mr Felton to comply with the direction to shave. Mr Felton did not comply with the directions, and as a result BHP terminated his employment.

Mr Felton alleged his termination amounted to unfair dismissal because BHP had conducted inappropriate consultation about the clean shaven policy. He also argued his offer to supply another brand of respirator mitigated BHP’s alleged workplace health and safety risk. Mr Felton was unsuccessful.

Commissioner Hampton found Mr Felton’s dismissal was not unfair in light of his refusal to comply with BHP’s policy and said: “Mr Felton made a deliberate and well informed decision not to comply with the policy… It was his right to maintain his appearance however this was in conflict with a reasonable and lawful direction and… made future employment for him at BHP Billiton at Olympic Dam untenable.”

Takeaway
This decision demonstrates a couple of important precedents:

1. the Fair Work Commission’s support for the employer’s protection of the health and safety of its employees; and

2. an employer who has property complied with the requirements of the Fair Work Act 2009 (Cth) when dismissing an employee will be successful in defending an unfair dismissal claim.