[2015] FWC 1838
The attached document replaces the document previously issued with the above code on 30 April 2015.
The Decision has been refiled to correct a typographical error in Para [118].
Tara O’Connor
Associate to Commissioner Hampton
Dated 1 May 2015
| [2015] FWC 1838 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Felton
v
BHP Billiton Pty Ltd
(U2014/14375)
COMMISSIONER HAMPTON |
ADELAIDE, 30 APRIL 2015 |
Application for relief from unfair dismissal - clean-shaven policy adopted in the context of an underground uranium and other mineral mine - applicant refused to comply with instruction to attend for work clean-shaven to permit a fit test to be conducted - whether instruction was lawful and reasonable - whether offer by applicant to supply alternative PPE was reasonable and meant that there was no genuine link to work health and safety concerns - instruction found to be lawful and reasonable - offer by applicant not workable or appropriate and did not make the instruction unreasonable - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.
1. Background and Case Outline
[1] Mr James Felton has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, BHP Billiton Pty Ltd (BHP Billiton).
[2] BHP Billiton conducts an underground mine and metallurgical plant at Olympic Dam near Roxby Downs in the north of South Australia. The mine produces uranium, copper, gold and silver and at its deepest is 720 metres below the surface. Mr Felton was employed to work in the mine.
[3] Mr Felton commenced employment approximately 6 years ago and was employed until 2 October 2014. At the time of the applicant’s termination he was employed as an underground truck driver and this required him to operate diesel trucks in the underground mine.
[4] Mr Felton was terminated on the basis of his repeated refusal to follow a direction to present to work clean-shaven in order to allow a respirator fit test to be completed. This direction was given in the context of a clean-shaven policy that had been in existence for some years but was being comprehensively applied to the underground operations during 2014.
[5] The clean-shaven policy was adopted in the context of the need to wear appropriate Personal Protective Equipment (PPE), being Respirator Protective Equipment (RPE) - face masks or respirators. This need arises due to the nature of the mining and processing environment and in particular potential exposure to Crystalline Silica and other dusts, diesel particulate matter (DPM) and radon decay products. For some workers, exposure to ammonia gas is also an issue.
[6] The extended application of the clean-shaven policy arose from advice received by BHP Billiton in 2013 that DPM was a human carcinogen and that further control measures should be adopted to limit exposure.
[7] Mr Felton has for many years had a goatee beard and a moustache. There is no dispute that this is not consistent with the clean-shaven policy and would prevent the kind of respirator intended for supply by BHP Billiton to Mr Felton from working appropriately.
[8] Mr Felton had at some stage previously worn a different form of respirator known as an Airstream helmet, which operates on the basis of positive air pressure and has a different fit to the head (known as a Positive Air Pressure Respirator - PAPR). When used by Mr Felton, he rolled up the goatee inside of the facemask. There is no evidence that this approach was ever properly fit tested and there is some conjecture about whether the PAPR was technically effective when used by Mr Felton in that manner. In the lead up to his dismissal, Mr Felton offered to supply such a helmet at his own expense as alternative RPE.
[9] Mr Felton contends that his dismissal was unfair on two principal grounds. Firstly, that the clean-shaven policy and the related instruction was not valid in light of the circumstances including the statutory requirements for consultation on such matters. Secondly, that there was not a causal connection between the policy and the alleged work health and safety (WHS) risk, in light of the offer to purchase the more advanced protection afforded by the Airstream helmet.
[10] On that basis, Mr Felton contends that there was not a valid reason for dismissal. Further, he contends that in light of his service and employment record, the dismissal was harsh.
[11] BHP Billiton contends that it had a valid reason for dismissing the applicant and that the termination was not harsh, unjust or unreasonable. That is, the applicant’s repeated refusal to follow lawful and reasonable directions of both his supervisor and superintendent to attend for work clean-shaven. Furthermore, the respondent contends that it is the employer’s obligation to supply and maintain appropriate PPE and the option proposed by Mr Felton was unworkable and inappropriate.
[12] There is no dispute that Mr Felton was protected from unfair dismissal within the meaning of s.382 of the FW Act.
[13] The applicant does not dispute the process followed by BHP Billiton in the lead up to the dismissal and accepts that procedural fairness was afforded to him in terms of the relevant statutory considerations.
[14] What is in dispute is whether the direction to comply with the clean-shaven policy was a lawful and reasonable instruction. More directly, this application requires consideration as to whether the dismissal was harsh, unjust or unreasonable, given the circumstances of Mr Felton, his proposal to purchase an alternative item of RPE, and the circumstances at the workplace generally.
2. The evidence
[15] Mr Felton provided a witness statement and gave evidence in the matter. In addition, he also relied upon evidence from Mr Richard Wormald - OHS Coordinator, Australian Manufacturing Workers’ Union (AMWU).
[16] BHP Billiton provided witness statements and led evidence from the following employees:
● Mr Mark Dillon - Load and Haul Superintendent;
● Mr Christopher Platt - Manager Employee Relations; and
● Mr Chuong Dinh Pham - Superintendent Radiation and Occupational Hygiene Improvement.
[17] The applicant did not attempt to mislead the Commission on the facts and I find that he was an honest and credible witness.
[18] Mr Wormald was an expert witness and has sound technical knowledge of workplace hazards and control measures and the operation of the relevant WHS Act. However, as expected given his role, he did not have detailed knowledge of the particular workplace concerned here. He also tended to advocate for the applicant.
[19] Mr Dillon tended to be somewhat defensive in relation to the clean-shaven policy and was not involved in its development. He was however in my view an honest witness and gave his perspective frankly.
[20] Mr Platt’s evidence was clear, precise and given openly. I accept it.
[21] Mr Pham was an excellent witness who demonstrated sound technical and practical knowledge and made concessions on issues where appropriate. His evidence was also objective and I accept it without hesitation.
[22] With the exception of Mr Pham, some elements of the evidence provided by each of the witnesses tended to be their subjective views about the reasonableness of various aspects. I have considered that evidence in the context of their respective roles and experience but noting that in the end it is the Commission’s objective views on those matters of judgement that count.
[23] The parties referred to the Australian/New Zealand Standard AS/NZS 1715:2009 titled the Selection, use and maintenance of protective equipment (the A/NZ Standard). Further, the use of the Airstream Underground Mining Helmet that is utilised by BHP Billiton in some areas was helpfully demonstrated by Mr Wormald and various pieces of product information associated with the Airstream helmet were tendered.
3. The circumstances of Mr Felton’s employment and the events leading to his dismissal
[24] I will separately deal with two particular aspects that emerge from the facts and the considerations arising in this matter. These concern the process underpinning the clean-shaven policy and the issues arising from Mr Felton’s offer to purpose the alternative RPE. However, it is appropriate to initially set the broader factual context based upon the evidence before the Commission.
[25] BHP Billiton operations at Olympic Dam operate under strict regulatory control given that the ore products mined and processed include uranium. These controls include having a controlled “dirty” zone where employees, their work clothing, equipment and PPE must remain until cleaned. In terms of equipment and PPE leaving the dirty zone, this must be screened for radiation before that can occur.
[26] The nature of the operations, including the underground nature of the mine and the potential hazards in the workplace, mean that all employees must have access to appropriate PPE that includes respirators that will work effectively when required. BHP Billiton also has advanced and extensive air extraction systems and other control measures that operate to reduce or eliminate exposure to potentially harmful dusts and gasses.
[27] BHP Billiton employ, either directly or via agency contractors, approximately 2,700 employees at its Olympic Dam site. 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 PPE requirements including the respirator provisions.
[28] Mr Felton was employed with the respondent for approximately six years. At the time of his commencement and dismissal, he had a goatee beard of about 100mm in length and a moustache. Mr Felton has had the goatee and moustache since he was 19 years of age and considers it to be a personal attribute.
[29] Mr Felton entered into a written contract of employment and at the time of his dismissal this relevantly included a requirement to familiarise himself and comply with all workplace policies, rules, practices and procedures as amended from time to time and to comply with all lawful directions. 1 A specific requirement was also provided in relation to health and safety policies, and in relation to PPE, the contract provided that “It is a requirement that you wear and maintain personal protective clothing and safety equipment as required by the Company”.
[30] To the extent that the PPE requirement included the need to maintain the clothing and equipment, this would reasonably include taking care of such but would not in my view extend to actually servicing and maintaining the same. I note that this was the understanding held by Mr Felton.
[31] Mr Felton worked as an underground truck driver and he generally performed his work in an air-conditioned pressurised cab with appropriate filtration. The applicant’s role did however require him to regularly get out of the truck when underground. This included circumstances where he was required to check the work area and his vehicle, water down dirt or assist other employees involved in the underground “bogging” work being undertaken in the new area of the mine being developed. It was primarily in this context that he was required to have access to appropriate respirator and a self-rescuer, which is a short term respiratory aid carried by all underground employees.
[32] BHP Billiton has had a Respiratory Protection Policy (RPP) for some years. In July 2010, the surface production area of the Olympic Dam operations adopted a clean-shaven policy 2 and this was extended in December of that year to include the Laboratory areas.3
[33] In the November 2012 version, the RPP 4 applied to all areas at Olympic Dam including the mining operations and relevantly stated as follows:
“5.1.7 Respirator Fit
All respirators except PAPR’s rely on a good seal between the face and the contact surface of the respirator to prevent inward leakage of contaminants. Facial hair lying between the sealing surface of a respirator face-piece and the wearer’s skin will prevent a good seal. Consequently all people requiring respiratory protection from non-PAPR’s at Olympic Dam must be clean shaven daily. For additional details refer AS/NZS1715 Selection, Use and Maintenance of Respiratory Protection Devices.
Clean Shaven is interpreted for Olympic Dam as:
● The Complete sealing surface of the respirator mask should be in contact with the wearer’s skin, stubble growth will interfere with the seal of the face piece and make wearers should shave daily.
● No one who requires respiratory protection shall wear Respiratory Protection Equipment over a beard.
● Moustaches shall not extend past a line drawn through the top of the tragion (the notch in the cartilage of the ear just above and immediately in front of the ear hole) and the canthus (corner of the eye)
● All forms of jewellery that may interfere with the facial seal should not be worn while using respirators.
A “field fit check” (not to be confused with a “Fit Test”) must also be conducted each time a respirator is fitted and gives an indication to the wearer that the respirator is sealing as required. It involves the wearer covering the inhalation ports on half or full face respirator and inhaling gently. For a disposable “dust mask” the field fit check is performed by cupping both hands over the respirator and inhaling. In all cases the respirator should be drawn to the face, indicating no inward leakage is occurring. Fit checking should be undertaken on a daily basis by is not a substitute for periodic fit testing.”
[34] In effect, this policy required all people at the Olympic Dam operations requiring respiratory protection, other than those utilising the PAPR helmets (Airstream helmets or similar), to be clean shaven as described.
[35] During 2013, BHP Billiton became aware that DPM had been categorised as a human carcinogen and given the extensive use of diesel trucks in the operations a review of the RPE was conducted. I will deal with the issues associated with the development, adoption and roll out of the full clean-shaven policy in due course. It is presently sufficient to note that the Mine Leadership Team determined that it would implement a clean-shaven requirement to the entire mining workforce and that this would be progressively rolled out to all employees, including those who might use a PAPR, commencing from January 2014. This meant that by 31 December 2014, all employees were required to be clean-shaven for fit testing, and once fit tested, to carry the required RPE supplied and be clean-shaven.
[36] The RPE and its clean-shaven roll out operated on the basis that a risk assessment would be made in relation to each of the categories of employees according to the nature of their work and their exposure to risk. A hierarchy of respirators is provided by BHP Billiton ranging from disposable respirators through to reusable half and full face respirators. The Airstream helmets are also contemplated where the nature of the work requires that form of respirator.
[37] In addition to risk exposure, the type of respirator was determined according to a fit test that took account of facial features, such as high cheek bones. The type of respirator suitable for the work undertaken by Mr Felton was a disposable respirator or potentially a half face model but not an Airstream helmet. Leaving the clean-shaven aspect aside, it is clear that in the normal course the Airstream is considered under the policy to be appropriate where the wearer is subject to spray or similar hazards where the inbuilt visor provides enhanced physical protection. In the normal course, the Airstream helmet is not appropriate or necessary for an employee in the circumstances of Mr Felton. I also note that the clean-shaven policy now applied by BHP Billiton also requires all employees, including those wearing the Airstream helmet or other PAPR, to be clean-shaven within the meaning of that policy.
[38] After the roll out of the full clean-shaven requirement to all mining staff, BHP Billiton commenced respirator fit testing for all employees. The purpose of the fit testing was to ensure that all wearers of RPE were provided with a respirator which is most suitable to not only their facial characteristics but also to the type of atmospheric contaminants to which they may be exposed. BHP Billiton assumed all costs for the RPE and the responsibility for its maintenance and service.
[39] In mid-September 2014, Mr Felton and the crew he works with were notified that they were scheduled to undergo a respirator fit test on 22 September 2014. The employees were also informed that they were required to present clean-shaven for the testing.
[40] On 22 September 2014, Mr Felton presented to work unshaven with the result that he could not be fit tested for the intended respirators. Mr Felton was instructed that he needed to be clean-shaven and he advised that he would not do so.
[41] Mr Felton was again requested to present for work clean-shaven on 23 September 2014. He again presented unshaven on that day.
[42] On 23 September 2014, BHP Billiton convened a meeting between Mr Felton, Mr Dillon and a senior human resource adviser. Mr Felton was again directed to shave to permit the fit test to be conducted and he refused. Mr Felton was informed that his failure to follow the direct instruction to present clean-shaven was a breach of his contract of employment and that any continued refusal could result in disciplinary action, including the possible termination of his employment.
[43] Mr Felton was then again requested to present clean-shaven and he again refused, stating that his beard was a physical attribute that he would not change. At this stage, Mr Felton was stood down on full pay and sent off-site.
[44] On 24 September 2014, Mr Felton met with his superintendent, Mark Dillon, and a Human Resources representative John Langley. Mr Felton was unshaven and he was issued with a final written warning 5 which included that:
“Any failure to meet the obligations of your contract of employment, the requirements of your management plan, or the failure to follow Company policies and procedures, may result in the termination of your employment.
... ...”
[45] During the 24 September meeting, the applicant offered to purchase, at his own expense, an Airstream helmet instead of shaving off his beard. Mr Felton was informed to the effect that “this is not how we do things”. I also find that Mr Dillon and/or Mr Langley explained that BHP Billiton was responsible for supplying, servicing and maintaining the RPE and that this was why employees could not bring their own RPE onto site.
[46] The applicant was then directed to present clean-shaven at the following shift, which was the evening of 24 September 2014. The applicant presented unshaven. Also on that day when Mr Dillon became aware that Mr Felton had not complied with the direction, he had an informal discussion with Mr Felton and advised that if he continued to refuse to attend clean-shaven, he was at risk of being terminated. Mr Felton said words to the effect that he wanted to get it over and done with.
[47] On 25 September 2014, Mr Felton was informed during a meeting that he was in serious breach of his obligations to the employer and that he would be required to show cause as to why his employment should not be terminated by 30 September 2014. A letter confirming the discussion was issued on the same date.
[48] On 29 September 2014, the applicant responded to the show cause request and stated as follows 6:
“To whom it may concern
Dear Sir/Madam
My facial hair is my personal attribute, it is who I am and my liberty of right.
Also I was not told one on one on the 14/9/14 nor 16/9/14 as stated by Paul Inglis shift supervisor that I had to shave for fit test. I WAS only told at 4.30am on the 23/9/14.
Yours faithfully
Jim Felton.”
[49] On 2 October 2014, Mr Felton was advised that his employment would be terminated. This was confirmed in writing on that day and following a recounting of the history of the matter the letter advised as follows 7:
“... ...
These incidents represent a serious breach of our Code of Conduct and your Contract of Employment.
We have considered your response to the allegations. We have also considered alternative options and any other mitigating circumstances in arriving at our decision. Your previous work history and length of service have been taken into account.
The company has determined to terminate your contract of employment upon notice. You will not be required to work out your notice.
... ...”
[50] At the time of the full application of the clean-shaven policy, many of the employees working underground had facial hair. In the Load and Haul section in which Mr Felton was employed, about 70 percent of the 200 employees were not clean-shaven and had facial hair of some description that required removal under the policy.
[51] Charity fund raising activities were promoted across the site in relation to a number of long standing beard wearers who shaved in response to the full clean-shaven policy roll out.
[52] All employees at the BHP Billiton operations at the Olympic Dam site, with the exception of Mr Felton, have complied with the clean-shaven policy.
4. The process associated with the introduction of the clean-shaven policy
[53] Principally arising from the witness statement of Mr Wormald that was provided in the immediate lead up to the hearing of this matter, Mr Felton contended during the course of the hearing that the clean-shaven policy was not a valid or bona fide policy in that it may not have been developed and implemented in accordance with the relevant work health and safety (WHS) laws. This, in turn, had two related elements; namely, that the policy may not have been the subject of appropriate consultation as required by s.47, s.48 and s.49 of the Work Health and Safety Act 2012 (SA) (the WHS Act) and that the health and safety representatives (HSRs) who may have been involved in the process, were not elected in accordance with s.61 of WHS Act.
[54] I also note that Mr Felton in his witness statement alleged that he had not been consulted about the clean-shaven policy and that he had been informed by a health and safety representative in early 2014 to the effect that BHP Billiton had not yet really consulted with them.
[55] Mr Felton contends that as Mr Platt indicated (in his witness statement) that he had organised the election of HSRs this may not be in accordance with the WHS Act which requires that management become involved in HSR elections only if requested by the workers concerned (s.61 of WHS Act).
[56] In relation to the duty to consult, Mr Felton asserts that there was no evidence that the employees were consulted about the policy or its implementation. This, he argued, was not consistent with the consultation requirements of the WHS Act (s.47, s.48 and s.49).
[57] BHP Billiton contends that the issue of compliance or otherwise with the WHS Act is a matter for a Court to determine and should not be dealt with through a collateral attack in this matter. Alternatively, the employer argues that it was necessary for Mr Felton to introduce some prima facie evidence that the requirements had been met before any responsibility was shifted to it to meet the challenge to the policy on that basis.
[58] BHP Billiton also contends that there was no foundation for the issues raised in relation to the HSRs and noted that there were transitional arrangements associated with HSRs and policies under the WHS Act. Further, the clean-shaven policy had been in existence for some years and a decision was taken to progressively apply it in practice. This was not a change in policy in terms of Mr Felton, rather it was a change in its application and this was undertaken in consultation with the workforce.
[59] The high point for the applicant’s reservations about the HSR election was that Mr Platt stated in his witness statement that he had responsibility for the provision of advice on matters including the “election of WHS representatives”. There is no evidence about the circumstances leading to Mr Platt being requested by the relevant management officer to act as the returning officer for that election. There is evidence that Mr Platt was not responsible for WHS matters generally and only played the role of a returning officer in the most recent election of the HSRs at Olympic Dam. The WHS Act requires that the workers in a relevant work group may determine how an election for the HSRs is to be conducted. 8 I accept that this is an important provision to protect the independence of HSRs. Further, that Act commits the business or undertaking concerned to provide whatever assistance may reasonably be required9 and it would appear that if the workers requested the employer to provide a returning officer, this would fit into that category. For reasons outlined earlier, it is not possible to make definitive findings on this aspect.
[60] I note also that the WHS Act at Item 18 of Schedule 6 Transitional Provisions effectively preserved the appointments of any HSRs and HS Committees operating under the former Act.
[61] There is no real foundation for the attack on the election of the HSRs in this matter and it is almost entirely speculative. Further, for reasons that I will come to, the HSR issue on its own would not provide a basis to consider that the clean-shaven policy was “unlawful” or inappropriate as a foundation for the instructions at issue here.
[62] In terms of the policy itself, the evidence reveals as follows.
[63] The clean-shaven policy was implemented within BHP Billiton at Olympic Dam in 2010. It was however not consistently applied across all areas of the workplace. By late 2012, the policy was already applicable to all employees who were required to wear the form of RPE ordinarily assigned to employees in the position of Mr Felton.
[64] During 2013, a decision was made to apply the policy without exception including in relation to employees who may wear Airstream helmets or similar PAPRs that operate on a positive air basis. This was done in the context of an awareness about the dangers associated with DPM and there is evidence that this followed a discussion within management in 2012 and/or early 2013 and consideration by the Mine Safety (MS) Committee in August 2013. These discussions involved the DPM concerns, the clean-shaven policy and its full application. The MS committee is made up of specialist advisors, management and employee representatives.
[65] Having made that decision, the implementation process rolled out from January 2014 and concluded with the fit testing in relation to Mr Felton (and others in his team) in September 2014. This included the provision of comprehensive information about the implementation of the policy and the opportunity to raise questions or concerns about the application of the policy.
[66] The WHS Act commenced operation in January 2013. It was preceded by the Occupational, Health, Safety and Welfare Act 2006 (SA) (OHSW Act) and this applied at the time of the development of the clean-shaven policy and the initial decision by management to extend its full operation to the above ground operations.
[67] The OHSW Act contained consultation obligations 10 however these were relatively general in nature and primarily applied to policies relating to OHSW in the workplace.
[68] The WHS Act applied at the time that the MS committee dealt with the full implementation of the clean-shaven policy to the mine site and during the roll out of those changes.
[69] Sections 47, 48 and 49 of the WHS Act provide as follows:
“Division 2—Consultation with workers
47—Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.
48—Nature of consultation
(1) Consultation under this Division requires—
(a) that relevant information about the matter is shared with workers; and
(b) that workers be given a reasonable opportunity—
(i) to express their views and to raise work health or safety issues in relation to the matter; and
(ii) to contribute to the decision-making process relating to the matter; and
(c) that the views of workers are taken into account by the person conducting the business or undertaking; and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
49—When consultation is required
Consultation under this Division is required in relation to the following health and safety matters:
(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;
(b) when making decisions about ways to eliminate or minimise those risks;
(c) when making decisions about the adequacy of facilities for the welfare of workers;
(d) when proposing changes that may affect the health or safety of workers;
(e) when making decisions about the procedures for—
(i) consulting with workers; or
(ii) resolving work health or safety issues at the workplace; or
(iii) monitoring the health of workers; or
(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or
(v) providing information and training for workers; or
(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.”
[70] Accordingly, the WHS Act creates a duty, where reasonably practicable, to consult (in certain defined circumstances) and relevantly provides that:
● Consultation may be undertaken through agreed procedures provided those procedures are consistent with the consultation requirements;
● Consultation is defined and this includes the provision of information, the reasonable opportunity for workers to express views, to contribute to the decision making process and for those views to be genuinely taken into account and to be advised of the outcomes in a timely manner; and
● Where HSRs are in place, the consultation must include them.
[71] Further, consultation is required in relation to a number of defined circumstances including when making decisions about ways to eliminate or minimise workplace risks, when proposing changes that may affect the health or safety of workers, and providing information and training for workers.
[72] There was a change in policy to require the full application of the clean-shaven approach to all employees in the mine. That is, the decision to have the clean-shaven policy apply also to those who had been using PAPR devices and to more rigorously implement proper fit testing for all employees was a decision about ways to minimise or eliminate workplace risks. Although Mr Felton was not in a role where he was normally required to wear a PAPR device, he had done so in the past and the change in policy could be said to have at least an indirect impact upon him.
[73] There is evidence that the full implementation of the policy was subject to discussions through the MS committee in 2013 and this involved workers representatives. The WHS Act was in force by that time and consultation through such a committee is capable of meeting the consultation obligations of s.48 of the WHS Act. That is, it may have been the reasonably practicable method (through the representatives) by which the information was provided to the employees and the employees were given an opportunity to express views and to contribute to the decisions under that Act. I note that in terms of HSRs, they were apparently involved in the process through the MS committee and if they were properly elected (or had their election preserved by the transitional provisions) this would meet those requirements. If they were not properly elected, there would have been no legal obligation to consult them.
[74] The roll-out of the full policy itself may not be consultation in its own right. By that time, it was not a proposal that was up for discussion and was not the opportunity to contribute to the decision making process itself. Rather, it represented a decision that had been made after consultation with the MS committee and was being broadly communicated with an opportunity for workers to raise issues and questions throughout the process. This is evident from the written material and the evidence of Mr Dillon, who was directly involved in the roll out of the policy.
[75] Accordingly, in order to be satisfied that the revised application of the clean-shaven policy was undertaken in a manner consistent with the WHS Act, it is likely that the process involving the MS committee, or other consultative processes that have not yet been revealed given the manner in which the issue arose, would need to have met the requirements of s.48 of the WHS Act. There is evidence of a consultative process through the MS committee and the inclusion of workers representatives in that context, however there is presently insufficient evidence to make a definitive finding on this point.
[76] Prior to hearing final submissions I indicated that should I ultimately consider that the issues associated with compliance or otherwise with the WHS Act (or its predecessor) were sufficiently engaged and relevant to the determination of this matter, and if I considered that natural justice required an opportunity for BHP Billiton to provide relevant evidence, I would reconvene to provide that opportunity. The natural justice consideration leading to that point arose due to the fact that the substantive compliance issues only arose following the provision of the respondent’s materials and the nature of Mr Felton’s argument in that regard was revealed during the course of the hearing.
[77] Mr Felton conceded that there was insufficient evidence before the Commission to make the finding sought by him in relation to the WHS Act compliance issue and advised that he would not be opposed to re-opening the matter if the Commission considered that to be appropriate. 11 BHP Billiton contends that the issues were not sufficiently relevant and were not properly engaged in this matter. Alternatively, if the Commission intended to further consider the matters associated with this issue, the applicant should first provide prima facie evidence that the relevant consultation process had not been followed.
[78] I do not consider that it is necessary or appropriate to finally determine the issue of compliance with the WHS Act as part of this application. Those reasons include:
● The issue of compliance or otherwise with the WHS Act is fundamentally a matter for a Court of competent jurisdiction;
● The role of the Commission is to apply the statutory considerations under s.387 of the FW Act;
● Whilst the reasonableness and legality of a policy are relevant matters to the consideration of a valid reason, the potential failure to fully comply with the consultation obligations in relation to the roll out of the full clean-shaven policy would not of itself mean that the policy was illegal, invalid or irrelevant for present purposes;
● The clean-shaven policy has been in place and fully implemented for some time now, there is no indication that the policy has been disputed more generally, and the evidence is that all but one of the over 900 employees involved in the underground mining operations have complied with the policy; and
● It is possible to deal with this application without purporting to make any such determination.
[79] I will say more in relation to the clean-shaven policy and its impact upon the valid reason for dismissal as part of the consideration to follow.
5. Mr Felton’s offer to supply the alternative RPE
[80] During one of the early meetings as part of the disciplinary action, Mr Felton offered to supply (at his own cost) an Airstream helmet for his use in the mine. This was rejected by BHP Billiton management. The proposal was not raised again by Mr Felton including in the context of the show cause process that immediately preceded the dismissal.
[81] Mr Felton contends that with the comprehensive ventilation system within the mine and the nature of his role, there was a limited risk from exposure to gasses and the like. He also relied upon access to his truck cabin, the emergency self-rescuer and the existence of emergency refuge chambers within the mine in the unlikely event that his self-supplied Airstream helmet failed.
[82] Mr Felton contends that in any event there would have been a better level of protection afforded by the Airstream helmet. Further, he contends that he was not told why that option was not considered to be appropriate and was not consulted in relation to the issues at the time it was raised. He suggested during the course of the hearing that now that he is aware of the apparent concerns of the employer, he has offered to provide a second air stream helmet as a back-up and would be prepared to pay BHP Billiton for any additional costs associated with the maintenance of the helmets. He further suggested that this would also have enabled the Airstream helmet to be fit tested in the context of his goatee beard.
[83] In what he described as the “control and command environment” at BHP Billion, Mr Felton contends that his former employer did not genuinely consider any flexibility.
[84] Mr Felton contends that the provision of an Airstream helmet was a reasonable and workable option and should have been fully considered and adopted as an alternative. He also contended that this meant that there was not a causal connection between the policy and the WHS considerations and this meant that a dismissal based upon non-compliance with that policy was unfair.
[85] BHP Billiton contends that when Mr Felton raised the proposal to supply an Airstream helmet he was given an explanation as to why that was not appropriate. Further, the evidence is that when faced with that explanation, Mr Felton did not then further raise the option let alone some of the additional steps now proposed in relation to the second helmet and payment for the maintenance. Given that Mr Felton was on notice about the clean-shaven requirement since January 2014, this was significant.
[86] BHP Billiton also contends that the Airstream helmet is not necessarily appropriate and there was no evidence that an Airstream helmet would be appropriate in the circumstances of Mr Felton with his goatee beard. The employer also argues that the Airstream that is used by some employees at BHP Billiton are provided where the risk profile of the workers warrants that approach however the Airstream helmet must be used with a clean-shaven face as is now required of all employees who use the PAPR devices.
[87] BHP Billiton also argues that given the risks within the mine site, it was essential that the clean-shaven policy be applied to all employees. The reasons for this include the capacity for a clean-shaven worker to use the appropriate RPE that is being made available to workers more generally (including in relation to emergencies where spare or shared RPE could be used). Further, the capacity to have a uniform, equitable and enforceable PPE policy was said by BHP Billiton to be a very important consideration.
[88] The A/NZ Standard is not called up by the Work Health and Safety Regulations 2012 (SA) (the WHS Regulations) but is an appropriate objective standard for present purposes and is referenced in the clean-shaven policy.
[89] There are various references in the A/NZ Standard to the potential impact of beards upon the effectiveness of RPE. These include:
“4.4.3.1 General
Facial fit is a prime factor in obtaining good protection when utilizing half or full face piece RPE and needs to be taken into account in the selection of a RPE........RPE that maintains a positive pressure in the face piece at all times provide a higher degree of protection than can be achieved with negative pressure types. Positive pressure RPE may diminish the effect of poor facial fit but will not obviate the effect of leakage caused by facial hair (see Clause 8.3). .....At high rates of work, beards and other facial hair may cause inward leakage even when using positive pressure RPE.
...
8.3 FACIAL HAIR IN RPE FITTING
Facial hair lying between the sealing surface of a RPE face piece and the wearer’s skin will prevent a good seal. Beards, moustaches and sideburns prevent satisfactory sealing. Long hair may also interfere with the operation of exhalation valves. The sealing problem is especially critical when close fitting face pieces are used. The reduction in pressure developed in the breathing zone of these respirators during inhalation may lead to leakage of contaminant into the face piece where there is a poor seal. Therefore, individuals who have stubble (even a few days’ growth will cause excessive leakage of contaminant), a moustache, sideburns, or a beard which passes between the skin and the sealing surface should not wear a respirator which requires a facial seal.”
[90] In addition, Section 8 Typical RPE Fit Tests and Checks and Appendix B Facial Seal of Respirators of AS 1715 also appears to emphasise that it is the impact of the facial hair upon the seal that matters. A beard with a normal full or half face RPE would not be consistent with the standard however the impact of a beard with an Airstream helmet or other RPE utilising positive pressure (PAPR) may depend upon the extent of the facial hair and the circumstances under which the PAPR is being used.
[91] It appears that the A/NZ standard does not include any absolute facial hair restrictions for loose fitting types of headgear however the extent of facial hair may still be an issue where the face-seal contacts the wearer’s face. For hoods and helmets with an inner neck collar or an inner shroud that form a partial seal in the neck region of the wearer, beards and facial hair are less of an issue provided that it does not extend into the sealing surface area of the hood or helmet. The manufacturers of the Airstream helmet warn that certain types of beard types may impact upon the appropriate operation of the helmet. 12
[92] The A/NZ standard is also designed to establish standards across industry generally. As outlined in this decision, there are particular hazards and circumstances at the Olympic Dam site that bear upon the reasonableness of the clean-shaven policy and the instruction given to Mr Felton at this workplace.
[93] Regulation 44 of the WHS regulations, in effect, requires the Person Conducting a Business or Undertaking (PCBU) to provide PPE. Moreover, the PCBU must select the type of PPE and ensure that it is suitable, having regard to the nature of the work and any hazard associated with the work. It is also the PCBU’s duty to ensure that the PPE is of a suitable size and fit and “reasonably comfortable” for the worker who is to use or wear it. Regulation 46 places a duty on the worker (as far as the worker is reasonably able) to use or wear the equipment in accordance with any information, training or reasonable instruction given by the PCBU.
[94] The decision to implement and apply the clean-shaven policy was in part a business management decision. In that light, the following principle as stated in the Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) 13 (the XPT Case) is relevant:
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.” 14
[95] However, that principle is not an immutable rule applicable to any employer decision and other considerations must also be taken into account. 15 These include, in this case, the circumstances of, and impact upon Mr Felton, and potentially the process by which the policy was developed and implemented given the relevance of the WHS Act.
[96] It is evident that there are real hazards in this workplace, including potential exposure to DPM, and other issues arising from the fact that (amongst other minerals) the BHP Billiton mine at Olympic Dam is a uranium mine. It is also evident that the clean-shaven policy is in general terms, an appropriate control strategy and is directed at genuine WHS issues in this workplace. I also note that the extent of risk is relevant to the steps reasonably required by the employer under WHS law. 16 However, the attempts by Mr Felton’s representative to suggest that the extent of risk was small, and that the full application of the clean-shaven policy was not the genuine reason for dismissal, is not supported by the evidence or the circumstances under which the policy was developed and implemented.
[97] The risk based approach to the selection of the RPE and the fit testing process adopted by BHP Billiton would appear to be consistent with WHS Regulation 44 outlined above.
[98] There are also genuine issues associated with the desirability of the consistent and uniform application of PPE policies. These include the capacity for the employer to provide PPE that meets its requirements and can be readily verified. Further, the maintenance and updating of that equipment by the employer is an important part of its WHS duties.
[99] The proposal, also advanced by Mr Felton during the hearing, that he would effectively underwrite the maintenance of his own Airstream helmets by BHP Billiton, was not raised in the lead up to the dismissal and was, in any event, not fully articulated or thought through.
[100] As a general rule, the capacity for employees to supply their own PPE is not a workable and appropriate approach in a workplace of the kind conducted by BHP Billiton at Olympic Dam. It is a large and complex workplace with genuine hazards and the approach contended by Mr Felton had the real capacity to undermine the integrity of the policy. In that regard, I accept that the concerns expressed by Mr Platt in his evidence are genuine and well founded given the nature of the Olympic Dam operations.
[101] If BHP Billiton were to permit an employee to avoid the clean-shaven policy based upon personal appearance preference, then in my view, this is likely to lead to flow-on issues and claims for other “exemptions”. Although the proposal made by Mr Felton potentially involved a significant monetary contribution and this could tend to limit its attractiveness, the capacity for Mr Felton to use the Airstream helmet when it is not the RPE that is relevant to his job role would have the tendency to encourage further claims for “exemption”.
[102] Further, if all workers are clean-shaven within the meaning of the policy, a wider range of options are available, both generally, and in the case of emergencies. That is, the capacity to use generally available RPE is a further significant factor supporting the full application of the clean-shaven policy in this particular workplace.
[103] In addition, the capacity to use the Airstream helmet with any significant facial hair is by itself problematic and would require regular fit testing.
[104] I note that an employee with medical issues affecting the choice of RPE may need to be dealt with differently. Conceivably an argument could be made for an exemption to be based upon genuine health or discrimination issues. However, such an approach would not in my view have the same capacity to undermine the clean-shaven policy within the workplace.
[105] In this case, Mr Felton clearly has a strong dedication to his beard and a desire to retain his identity to that end. This is evident to the point of risking his job and offering to pay for expensive alternative RPE. Based upon the evidence, there is no identified medical or physiological reason underpinning this position. Further, despite the best efforts of his representative to suggest otherwise, there is also no evidence that this position is otherwise justified on psychiatric grounds.
6. Was Mr Felton’s dismissal unfair within the meaning of the FW Act?
[106] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[107] Mr Felton was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[108] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[109] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[110] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.
[111] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
[112] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 17
[113] Mr Felton declined on a number of occasions to attend for work in a clean-shaven state despite multiple directions to do so. Whether this provides a valid reason for dismissal depends upon a variety of considerations including the reasonableness of the clean-shaven policy that underpinned it and the earlier offer made by Mr Felton to supply the PAPR. I have dealt with the substance of those issues earlier in this decision.
[114] It has been held that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries 18 Beazley J stated:
"In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct." [Cf: Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J)] 19
[115] Conversely the failure to follow a lawful instruction which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment: Cox v South Australian Meat Corporation. 20
[116] In Woolworths Limited (t/as Safeway) v Cameron Brown 21 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,22 considered when failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.” 23
[117] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd, 24 Deegan C determined that:
“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” 25
[118] In my view, the instruction to Mr Felton to attend for work clean-shaven was a lawful and reasonable direction. Even if there were some deficiencies in the consultation surrounding the application of the full clean-shaven policy (and I make no conclusive finding about that), the policy itself is in my view a reasonable and appropriate one given the circumstances of the operations of BHP Billiton and the potential hazards in the mine. There are significant WHS Act obligations upon it as the employer, and given technical advice about the hazards and the implications of regulation 44 and the A/NZ standard, the instruction (and the policy) was an objectively reasonable and proportionate response to the circumstances.
[119] There is an impact upon individual rights and preferences in the adoption of a clean-shaven policy of the kind in operation at BHP Billiton. However, in light of the actual hazards, the nature and size of the mine and its workforce, and the impact of the relevant WHS obligations, the interests of the protection of safety and health become more important than personal preference and a desire to obtain an appearance, even one held so strongly by Mr Felton. Importantly, the full application of the policy and the measures that BHP Billiton have gone to implement the clean-shaven policy all reinforce the importance of the policy in objective terms.
[120] The proposal made by Mr Felton to purchase his own PAPR is also an important consideration. The context and issues surrounding that proposal have been discussed earlier in this decision. I find that it was a genuine offer however it was not fully thought through at the time and Mr Felton did not persist with the proposition. The use of an Airstream helmet or other PAPR could potentially provide an alternative, however whether it would provide adequate or better protection would depend upon regular fit testing. Further, there are practical and legal issues associated with the proposed provision of the PAPR by Mr Felton and any exception to the clean-shaven policy of that kind would in my view have the real tendency to undermine the efficacy of that policy more generally.
[121] The instruction given to Mr Felton was also in my view compatible with the obligation of the parties under regulations 44 and 46 of the WHS regulations.
[122] There was no position at BHP Billiton at Olympic Dam where an employee such as Mr Felton could be engaged without the need to comply with the clean-shaven policy.
[123] I am satisfied that the requirement to comply with the clean-shaven policy was not unreasonable, despite Mr Felton’s initial alternative proposal and the options that may have arisen from that approach.
[124] In all of the circumstances, I am satisfied that there was a valid reason for dismissal related to Mr Felton’s capacity or conduct, including its effect on the safety and welfare of other employees.
[125] This consideration requires the Commission to assess whether the applicant concerned was relevantly advised of the reasons leading to the dismissal before that decision was taken. 26
[126] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.
[127] In this case, there is no question that Mr Felton was notified of the reasons as required.
[128] In this case, the dismissal concerns Mr Felton’s conduct in refusing to comply with the direction to attend clean shaven.
[129] The reason for dismissal was identified and Mr Felton was given a more than reasonable opportunity to respond to the concerns.
[130] There was no refusal to permit Mr Felton to have a support person.
[131] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 27
[132] To the extent that not shaving could be said to relate to the performance of the job, Mr Felton was expressly warned that a failure of attend clean-shaven could lead to his dismissal.
[133] BHP Billiton is a large employer and has dedicated human resources staff. The applicant has not taken any issue with the disciplinary procedures followed by the employer directly related to the dismissal.
Section 387(h) - other matters considered to be relevant
[134] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances.
[135] 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. The impact of the dismissal upon Mr Felton is significant in that he has lost a relatively high paying position in a climate where such employment is increasingly difficult to obtain.
[136] However, 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.
Conclusion on nature of dismissal
[137] On balance, and having weighed each of the considerations in s.387 of the FW Act, I consider that Mr Felton’s dismissal was not harsh, unjust or unreasonable. As such, it was not unfair within the meaning of the FW Act.
5. Conclusions and orders
[138] I find that Mr Felton’s dismissal was not unfair.
[139] As a result, the unfair dismissal application must be dismissed and an order 28 to that end is being issued in conjunction with this decision.
Appearances:
T Hardie with R Wormald, both of the AMWU, for Mr Felton.
R Wade, of Ashurst Australia with permission, with C Platt for BHP Billiton Pty Ltd.
Hearing details:
2015
Adelaide
March 18 and 19.
1 Tab 1 of exhibit R1.
2 Document 14 of exhibit R1.
3 Document 15 of exhibit R1.
4 Document 3 of exhibit R1.
5 Exhibit R3
6 Document 11 of exhibit R1.
7 Document 12 of exhibit R1.
8 Section 61 of the WHS Act.
9 Section 61(4) of the WHS Act.
10 Section 20 of the OHS Act.
11 Transcript at 3.41pm on 19 March 2015.
12 Exhibit A6.
13 (1984) 295 CAR 188.
14 (1984) 295 CAR 188 at 191.
15 See Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1889.
16 Section 19 WHS Act as an example.
17 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].
18 [1995] IRCA 499 (14 September 1995).
19 See also Schreier v Austal Ships Pty Ltd, Print N9636.
20 [1995] IRCA 287 (13 June 1995) per von Doussa J.
21 PR963023 (26 September 2005) (footnotes excluded).
22 PR928970 (19 March 2003), at [14].
23 Woolworths v Brown at [34].
24 [2009] AIRC 893 (16 October 2009).
25 Lion Nathan at [54].
26 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
27 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
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