Unfair dismissal; dress standards at work and employer policies

The issue of the validity of employer policies about dress standard, appearances and conduct at work were at the heart of this well known decision in an unfair dismissal case.

 

“What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it.  A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate.  As the Full Bench observed in the XPT Case[1], albeit in a somewhat different context, it is not the role of the Commission “…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.”[2]

 

  • Even where a breach of policy (or failure to comply with a direction to observe a policy) provides a valid reason for termination of employment, it is well established that the termination may nevertheless be harsh, unjust or unreasonable.[3] For example:

 

  • the employee may establish ignorance of the policy;

 

  • termination of employment may be a disproportionate response to the breach having regard to its nature and the employee’s length of service and prior history;

 

  • the employee may demonstrate prior non-enforcement or inconsistent application of the policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “…merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.”[4]);

 

  • the evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible (eg union membership or non union membership).

 

This list is not intended to be exhaustive and each case will turn on its own facts.

 

  • The lawfulness of directions by an employer as to dress has been considered by the courts. As long ago as 1912, Higgin J said:[5]

 

“Mr. Badger has a quaint theory that he has a common law right to tell the employee what he should wear, apart from the power given to make regulations. I know of no such common law right. A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse to attend a particular church or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work. Prima facie, a man may wear what he likes so long as he does not offend against decency; and the burden lies on the employer to show the contrary.”  (emphasis added)

 

  • In Australian Telecommunications Commission v Hart[6] the Full Court of the Federal Court was concerned with disciplinary action against a male employee of Telecom consequent upon charges arising from the employee’s refusal to comply with a direction not to wear a ‘caftan’. The direction in question stated:[7]

 

“…your present practice of wearing a caftan and thongs during working hours is not acceptable. You are therefore directed to maintain a standard of dress generally acceptable in the community and in Telecom in future as is expected of an officer in your position.  Disciplinary action will be taken if you wear your caftan and thongs during working hours in the future.”

 

  • At first instance Smithers J rejected an argument by the employer based on discrimination but found that the charges were not made out on the basis that, while there was an implied term as to dress standards, it did not justify the particular direction.[8] It is important to note that counsel for Telecom had suggested that there was a policy in relation to dress that excluded a man from wearing a caftan but that such policy was not proved before Smithers J.[9] The Full Federal Court (Fox and Sheppard JJ; Northrop J dissenting) allowed the employer’s appeal.

 

  • Fox J (with whom Sheppard J agreed) observed that “[t]here does not seem to be any doubt as to the common law position” and set out the passages from Darling Island Stevedoring above. His Honour continued:

 

“The English law respecting employment is now dealt with comprehensively by statute (see Harvey, Industrial Relations and Employment Law (1982)) but some of the cases relating to “conduct” justifying dismissal are helpful in the present context.  Harvey (op. cit. pars. 531-532) deals with appearance, including dress and grooming, and says, quoting from a passage from Boychuk v. H.J. Symons Holdings Ltd [1977] I.R.L.R. 395:  “… a reasonable employer… can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees…”  The effect on customers and staff of the conduct of the respondent in wearing the particular garment was considered by the Board in the present case.”

 

  • His Honour held that Telecom was entitled to give to Mr Hart “a direction authorised by the common law, with its correlative duty to obey.”[10] His Honour observed that a direction that all officers should maintain a standard of dress acceptable to Telecom “could well be regarded as unduly arbitrary, authoritarian and unreasonable. On the other side of the line, [Telecom] may be able to legislate to ban caftans.”[11]  His Honour took the view that in substance the direction given by Telecom was a direction that the employee not wear a caftan.[12]  Having adverted to evidence that Telecom had a “well founded and genuine concern…as to its image being detrimentally affected by the [employee’s] frequent wearing of caftan whilst on duty,”[13] his Honour clearly took the view that a direction not to wear a caftan was authorised by the common law.[14]

 

We turn now on the rehearing to consider the matters specified in s.170CG “