Truck driver sacked by BHP Billiton for refusing to shave off goatee loses unfair dismissal claim

An Adelaide man sacked by BHP Billiton for refusing to shave off his goatee, arguing the facial hair was his “personal attribute” and a “liberty”, has lost an unfair dismissal claim. James Felton worked for the company at its Olympic Dam mine near Roxby Downs for six years as an underground truck driver. He told the Fair Work Commission his employment was terminated in September after he repeatedly refused to comply with a safety regulation. Workers are required to be clean-shaven so facemasks and respirators fit. Mr Felton was instructed that he needed to be clean-shaven and he advised he would not do so. The masks are used to protect workers from dangerous silica and other dusts, radon decay products and carcinogenic diesel fumes. “At the time of his commencement and dismissal, [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][Mr Felton] had a goatee beard of about 100 millimetres in length and a moustache,” Commissioner Peter Hampton said in his judgement. “Mr Felton was instructed that he needed to be clean-shaven and he advised he would not do so.” Mr Felton had had the goatee and moustache since he was 19, and the company said his repeated refusal to follow its directions to shave it meant his dismissal was warranted. He offered to purchase an alternative face mask that would allow him to keep his beard, but that proposal was rejected. About 70 per cent of underground workers had facial hair at the time of Mr Felton’s dismissal, but he was the only one not to comply. Commissioner Hampton dismissed Mr Felton’s claim in his judgement, which was handed down recently. “BHP Billiton employ, either directly or via agency contractors, approximately 2,700 employees at its Olympic Dam site,” he said. “Approximately 990 of these employees are directly engaged in the underground mining operation and all persons working or visiting the mining, processing and smelter refinery areas are required to comply with the [Personal Protective Equipment] requirements including the respirator provisions.” Commissioner Hampton said Mr Felton had entered into an employment contract, which required him to “comply with workplace policies, rules, practices and procedures”. Mr Felton wrote to his employer in September after being informed he was “in serious breach of his obligations to his employer.” In his letter, he argued his case: “My facial hair is my personal attribute, it is who I am and my liberty of right”. Commissioner Hampton recognised that “the impact of the dismissal upon Mr Felton is significant” because he had lost “a relatively high-paying position in a climate where such employment is increasingly difficult to obtain”. “Mr Felton was a relatively long-serving employee and there is no evidence of any performance or conduct issues other than those directly leading to the dismissal,” he said. But Commissioner Hampton said Mr Felton had “made a deliberate and well-informed decision not to comply” with company policy, and found in favour of BHP Billiton. “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,” he said. “I consider that Mr Felton’s dismissal was not harsh, unjust or unreasonable. As such, it was not unfair within the meaning of the FairWork Act.”

ABC News, 1 May 2015 ;http://www.abc.net.au/news/ ;[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]