The Fair Work Commission kept the decision to terminate a BHP worker who refused to shave off his beard.
On April 30, James Felton’s request for unfair dismissal application was dismissed on the basis that he actually deliberately decided to simply not comply with the policy implemented by his employer.
At the Olympic Dam mine where Felton is employed, everyone is required to come to work clean shaven. The clean shaven policy at work was ordered for implementation by BHP in 2010 as part of their work health and safety measures. The said policy was to ensure workers did not have any facial hair that is said to pose an interfering factor with the RPE or respirator protective equipment that serves to protect them against diesel and silica dust particulate.
Over the course of six years for which Felton was employed as a truck driver at the Roxby Downs mine, he wore a long goatee. From January 2014, the leadership team of the mining department at Roxby Downs decided to roll out the clean shaven policy for their entire workforce, including those employed for services at the laboratories.
On 22 September 2014, when Felton was called for a respirator fit test, he was instructed to have his beard shaved, where Felton did not comply. When he reported for work the following day, he was made aware that the policy will entail a disciplinary action on him if he did not shave his beard as ordered.
Again, Felton refused and explained that his beard was a physical attribute that he did not wish to change. Although he offered to buy and maintain his own helmet, the management did not agree to it, explaining that it was their responsibility to supply, service, and maintain the RPE in the workplace and workers are not allowed to bring their own equipment.
Despite the repeated requests and warnings that his actions would result in termination, Felton remained adamant about his decision; and on September 29, he was ultimately required to show reasonable cause why he should not be terminated from work.
Felton insisted that his facial hair was a prominent personal attribute, that it was a personal identifying factor for him, and that it was his liberty of right to keep it. Felton further maintained that he was not made aware of the policy until the morning of the 23rd, although the dismissal was implemented on 3 October.
Felton iterated that the policy on coming to work clean shaven was not valid as it was not established in accordance with the appropriate provisions on workplace health and safety laws and was neither created after a thorough process of consultation with employees or representatives from workplace health and safety.
Fair Work Commissioner Hampton explained that the instruction to come to work clean-shaven was reasonable and lawful. He added that while it was Felton’s right to maintain his appearance, it was in direct conflict with a lawful and reasonable direction—and for all the reasons that have previously outlined, Felton’s future employment with BHP Billiton at Olympic Dam mine untenable.