BHP worker loses unfair dismissal claim after being sacked for refusing to shave his beard

A former BHP Billiton worker has lost an unfair dismissal bid against the mining giant at the Fair Work Commission after he was sacked for refusing to shave his beard.

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”.

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.

After a series of warnings to comply with the direction to shave, BHP terminated Felton on October 2, 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 Peter Hampton found Felton’s dismissal was not unfair in light of his refusal to comply with the WHS policy.

“Mr Felton made a deliberate and well informed decision not to comply with the policy,” said Hampton.

“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.”

Employment lawyer and principle at M+K Lawyers Andrew Douglas told SmartCompany BHP faultlessly complied with its obligations to provide a safe workplace.

“What BHP has done is they’ve stayed up to date with safety and risks and taken appropriate actions,” said Douglas.

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.

A BHP Billiton spokesperson told SmartCompany 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.”