Felton v BHP Billiton Pty Ltd [2015] FWC 1838: BHP Worker Loses Unfair Dismissal Claim
Tuesday 5 May 2015 @ 9.36 a.m. | Industrial Law | Legal Research
In the case of Felton v BHP Billiton Pty Ltd [2015] FWC 1838 (30 April 2015), a former BHP Billiton worker has lost an unfair dismissal bid against the mining giant at the Fair Work Commission (FWC) after he was dismissed for refusing to shave his beard.
The applicant brought the action against BHP Billiton Pty Ltd under s 394 of the Fair Work Act 2009 (Cth) (the Act), seeking a remedy for alleged unfair dismissal.
Background
James Felton, who had been employed with BHP Billiton for six years, was working on the company’s Olympic Dam mine in South Australia as an underground truck driver in October 2014 when he was dismissed for his repeated refusal to follow a direction to come to work clean-shaven.
Felton had sported a goatee beard and a moustache since he was 19 years old and told the commission he considered it to be “a personal attribute”.
OH&S Concerns
In September 2014, Felton was repeatedly directed by BHP management to shave his facial hair so he could safely wear a respirator mask in the underground mine to prevent exposure to diesel particulate matter (DPM), dust and other gasses and chemicals.
BHP Billiton had its clean-shaven policy in existence for some years but was comprehensively applying it to its underground operations in 2014 after it received advice DPM was a human carcinogen.
Felton had previously worn a different brand of respirator that allowed him to roll his goatee underneath the facemask and had made the case to BHP that he should be allowed to use the mask at his own expense as an alternative to the company-sanctioned respirator. But BHP denied the request, finding the other type of respirator was not appropriate for the risk profile of the underground mine.
Potential Breaches of Code of Conduct and Contract of Employment
After a series of warnings to comply with the direction to shave, BHP terminated Felton on 2 October 2014, for a serious breach of its code of conduct and his contract of employment.
Felton argued his termination was unfair because BHP had conducted inappropriate consultation about the clean-shaven policy. He also argued his offer to supply another type of mask mitigated the alleged work health and safety (WHS) risk.
But Commissioner Hampton found Felton’s dismissal was not unfair in light of his refusal to comply with the WHS policy [at para 136]:
“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 for reasons outlined above, made future employment for him at BHP Billiton at Olympic Dam untenable.”
Comment on the Decision
Employment lawyer and principle at M+K Lawyers Andrew Douglas said that BHP faultlessly complied with its obligations to provide a safe workplace. Mr Douglas said:
“What BHP has done is they’ve stayed up to date with safety and risks and taken appropriate actions.”
Douglas says the direction to shave was both lawful and reasonable because a company has an obligation to provide a safe place of work and Felton’s failure to comply represented a breach of WHS laws and a serious breach of the company’s policy.
Reaction from BHP Billiton
A BHP Billiton spokesperson said that the company is:
“… pleased that the Fair Work Commission has supported our position in this case, that protecting the health and safety of our people comes above all other considerations."
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Sources:
Felton v BHP Billiton Pty Ltd [2015] FWC 1838 (30 April 2015)
BHP worker loses unfair dismissal claim after being sacked for refusing to shave his
beard – Article from smartcompany.com.au
