Hair raising unfair dismissal decision unappealing for employers

Hair raising unfair dismissal decision unappealing for employers

By Leonie Kyriacou

September 08, 2013

On 24 July 2013, the Fair Work Commission refused an appeal by Virgin Australia against the Commission’s earlier decision to reinstate Mr Taleski after he was held to have been wrongfully dismissed for refusing to cut his hair.

Virgin had sought to have Mr Taleski cut his hair to comply with the company’s “look book” over a period of nearly 18 months. Mr Taleski provided a variety of reasons as to why he shouldn’t cut his hair from religious reasons to the medical issue of having “Body Dysmorphic Disorder”.  He resorted to wig wearing and eventually writing to the Virgin Australia’s CEO.

Mr Taleski’s employment was eventually terminated on the grounds that he had:

  • not complied with reasonable management direction in relation to the provision of documentation as requested;
  • not demonstrated an intent to comply with the stated requirements of his role; and
  • displayed an unwillingness to accept business process and decisions surrounding that and other matters.

However, the Fair Work Commission upheld the initial decision which ordered the reinstatement of Mr Taleski.  Essentially it held that there was medical evidence to support Mr Taleski’s claims and while such evidence was not as detailed as Virgin required, it nonetheless established that he had a disability relevant to his non-compliance with the “look book”.  It also found that compliance with the “look book” was not an inherent requirement of Mr Taleski’s job and that he had not been given a final opportunity to respond to the decision to terminate his employment.

Lessons for employers

  1. Tread carefully when an employee provides a medical certificate. If an employer has reason to disagree with an employee’s doctor it may be necessary to seek an independent medical opinion.
  2. Be consistent with the treatment of employees (Mr Taleski had complained that “employee X” had been allowed to grow his hair long for a similar medical condition).
  3. Employees must be given an opportunity to respond to allegations (although the dispute had gone on for over 15 months, the commission held that Mr Taleski was not given the opportunity to respond to allegations put to him in the final meeting to consider the termination of his employment).
  4. Employers should not make any decision before meeting with an employee to formally put allegations to him or her. Instead an employer should:
    1. formally put the allegations to the employee;
    2. allow the employee to respond; and
    3. consider the employee’s response before making any decision regarding the possible termination of the employee’s employment.

For more information contact l.kyriacou@pigott.com.au

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.