The Vir­gin Look Book: Can you con­trol the appear­ance of your employees?

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In Brief

One issue com­mon­ly faced by employ­ers is get­ting employ­ees to com­ply with dress and groom­ing stan­dards, and when an employ­ee choos­es not to or can­not com­ply, deter­min­ing what their options are.

This was the sce­nario faced by Vir­gin Air­lines with one of its cab­in staff, a Mr David Tales­ki, whose employ­ment was ulti­mate­ly ter­mi­nat­ed by Vir­gin fol­low­ing his non com­pli­ance with its groom­ing stan­dards. He brought an unfair dis­missal appli­ca­tion before the Fair Work Com­mis­sion and was rein­stat­ed. This deci­sion was then appealed by Vir­gin with the appeal being dis­missed by the Full Bench of Fair Work Com­mis­sion on 24 July 2013. The Air­line is review­ing the decision. 

This arti­cle looks at some of the issues aris­ing from these decisions.

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Background

In mid 2010, Mr Tales­ki start­ed to grow his hair longer for reli­gious rea­sons. He main­tained the rea­sons for doing so were asso­ci­at­ed with the 10^th anniver­sary of his moth­er’s death. Vir­gin allowed him to do so on a tem­po­rary basis, despite their groom­ing standards.

In Decem­ber 2010, Vir­gin told Mr Tales­ki that he had to now com­ply with their groom­ing stan­dards. This required Mr Tales­ki to cut his hair into a men’s busi­ness style hair­cut. In Jan­u­ary 2011 Mr Tales­ki raised med­ical rea­sons for keep­ing his hair longer and pro­duced the first of many med­ical certificates.

In Feb­ru­ary 2011, Vir­gin intro­duced the ​“Look Book”, a guide to uni­form and per­son­al styling which, amongst oth­er things, cov­ered groom­ing for employ­ees. The male guide­lines in the ​“Look Book” pro­vid­ed that male hair is to be no longer than col­lar length and when styled should not exceed 4cm in height. In Feb­ru­ary and March Mr Tales­ki was told that his hair need­ed to com­ply with the Look Book but he refused to cut his hair or to give Vir­gin infor­ma­tion about the reli­gious or med­ical rea­sons which pre­vent­ed him from cut­ting his hair. Sub­se­quent­ly, Mr Tales­ki pro­vid­ed med­ical cer­tifi­cates from var­i­ous prac­ti­tion­ers includ­ing one in April 2011 which referred to Mr Taleski’s anx­i­ety about hav­ing his hair cut.

The issue of Mr Taleski’s hair end­ed up as a con­cil­i­a­tion before the Human Rights and Equal Oppor­tu­ni­ties Com­mis­sion in August 2011 fol­low­ing which, Vir­gin agreed to him wear­ing a wig on fly­ing duties as a tem­po­rary mea­sure. Mr Tales­ki returned to work wear­ing a wig between August and Octo­ber 2011 dur­ing which time Vir­gin sought infor­ma­tion from him con­cern­ing the diag­no­sis of his med­ical con­di­tion and a treat­ment and progress plan which would con­tain time­lines in which he would become compliant. 

In Octo­ber Mr Tales­ki com­plained that he was suf­fer­ing abuse as a result of wear­ing the wig and felt his anx­i­ety was being increased by Vir­gin because its require­ments were incon­sis­tent with Mr Taleski’s psy­chol­o­gist’s recommendations.

On 20 Octo­ber 2011 Mr Tales­ki attend­ed a meet­ing with Vir­gin and giv­en until 24 Octo­ber to respond to the ​“pre­lim­i­nary deci­sion” to dis­miss him based upon Mr Taleski’s fail­ure to com­ply with the man­age­ment direc­tive to pro­vide fur­ther med­ical infor­ma­tion, his non com­pli­ance with the stat­ed require­ments of his role, and an unwill­ing­ness to accept busi­ness process and decisions.

Whilst Mr Tales­ki pro­vid­ed a detailed response to these mat­ters, his employ­ment was ter­mi­nat­ed on 24 Octo­ber 2011 and he sub­se­quent­ly brought a case for unfair dis­missal. At first instance, Com­mis­sion­er Cribb found in favour of Mr Tales­ki find­ing that Mr Tales­ki had in fact pro­vid­ed all the infor­ma­tion sought by Vir­gin as to his med­ical con­di­tion which was to be dis­cerned from the med­ical cer­tifi­cates supplied.

As to the key com­pli­ance issue and Vir­gin’s con­cerns that Mr Tales­ki had not demon­strat­ed an intent to com­ply with the Look Book, the Com­mis­sion­er found that he was try­ing to com­ply to the best of his abil­i­ty and with­in the con­straints of his med­ical con­di­tion. These efforts were demon­strat­ed by Mr Tales­ki try­ing dif­fer­ent hair styles and wear­ing a wig. With respect to a find­ing as to Mr Taleski’s unwill­ing­ness to accept busi­ness process with respect to the com­plaints pro­ce­dure, this alone was not con­sid­ered an ade­quate rea­son to sup­port the deci­sion to terminate.

The Com­mis­sion­er was crit­i­cal of what appeared to be a deci­sion to ter­mi­nate before putting the alle­ga­tions to Mr Tales­ki and there­fore before he had had an oppor­tu­ni­ty to respond. In the cir­cum­stances, the Com­mis­sion­er was not sat­is­fied that Mr Tales­ki had been giv­en a gen­uine oppor­tu­ni­ty to respond to the rea­sons for dis­missal. The Com­mis­sion­er also not­ed that Vir­gin had alleged­ly treat­ed Mr Tales­ki dif­fer­ent­ly to anoth­er employ­ee who suf­fered from the same med­ical con­di­tion and who was also non com­pli­ant with the Look Book but who had been allowed to fly.

On Appeal, the Full Bench did not find any rel­e­vant appeal­able error and upheld the deci­sion of Com­mis­sion­er Cribb which had rein­stat­ed Mr Tales­ki to his posi­tion main­tained his con­ti­nu­ity of ser­vice and pro­vid­ed him with com­pen­sa­tion for pay­ments lost due to the dismissal.

The Full Bench also held that com­pli­ance with the hair guide­lines in the Look Book were not an inher­ent require­ment of Mr Taleski’s role.

Lessons for Employers

The appeal deci­sion in this case is inter­est­ing. By impli­ca­tion, the Com­mis­sion is say­ing that it will decide whether or not par­tic­u­lar groom­ing require­ments of an employ­er con­sti­tutes an inher­ent require­ment of the job. The fact that the employ­er may think so is ulti­mate­ly not decisive. 

Anoth­er mes­sage which emerges from these deci­sions is that if an employ­ee is attempt­ing as best they can, with­in the lim­i­ta­tions of some psy­cho­log­i­cal con­di­tion to com­ply with a require­ment of their employ­er, a fail­ure to com­ply will be looked at sympathetically.

Anoth­er inter­est­ing point to emerge was a process issue con­cern­ing the ter­mi­na­tion. The mak­ing of a pre­lim­i­nary deci­sion to ter­mi­nate fol­lowed by an oppor­tu­ni­ty for the employ­ee to respond was heav­i­ly crit­i­cised by Com­mis­sion­er Cribb as tan­ta­mount to pre judgement.

On appeal the Full Bench con­sid­ered that any error that may have been made by the Com­mis­sion­er in this regard was of lit­tle con­se­quence giv­en that there was no valid rea­son for dis­missal in the first place. It may be inferred from this, that the Full Bench did con­sid­er that Mr Tales­ki had been giv­en an ade­quate oppor­tu­ni­ty to respond, how­ev­er, the approach tak­en to make a pre­lim­i­nary deci­sion to ter­mi­nate with an oppor­tu­ni­ty to then respond, is not with­out risk.

Final­ly, a rel­e­vant fac­tor at first instance was whether the ter­mi­na­tion could be con­sid­ered harsh, unjust or unrea­son­able due to the appar­ent incon­sis­tent appli­ca­tion of the groom­ing require­ments between dif­fer­ent employ­ees. The mes­sage is that employ­ers need to apply and be seen to be apply­ing poli­cies, in a con­sis­tent and uni­form man­ner.

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