Mr William Bishop v Incitec Pivot Limited

[2011] FWA 8289

[2011] FWA 8289

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr William Bishop
v
Incitec Pivot Limited
(U2011/11341)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 1 DECEMBER 2011

Summary - termination of employment - whether harsh, unjust or unreasonable - whether the Applicant was dismissed at the initiative of the employer - s.386(1)(b) of the Act - Full Bench in O’Meara - safety requirements - wearing of beard - goatees - Australian Standards - Was the employer’s demand so odious to make conformity with it unreasonable?

[1] This is an application by Mr William Bishop (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant seeks an unfair dismissal remedy in relation to his alleged dismissal by Incitec Pivot Limited (“the Respondent\IPL”).

[2] The Applicant performed duties as a Process Control Engineer for the Respondent and had done so since June 1999. The alleged dismissal is said to have taken effect on 31 August 2011.

[3] However prior to determining this application, it is necessary to consider initially whether the application is jurisdictionally competent.

[4] The Act provides that a person who has been unfairly dismissed may seek a remedy under s.394 of the Act. Section 385 of the Act reads as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[5] Section 386 of the Act sets out the definition of ‘dismissed’, and reads relevantly as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[6] Here, the Applicant contends that his dismissal was consistent with s.386(1)(b) of the Act. That is, that the dismissal arose from a set of circumstances in which he resigned his employment, but did so for reason of the conduct, or course of conduct, engaged in by the Respondent. The Respondent contends to the contrary, and states that it did not force the Applicant's resignation by its own conduct, but that he resigned voluntarily.

[7] The Act requires that for a resignation to be a resignation at the initiative of the employer, it must be a resignation that was forced upon the Applicant by the course of conduct of the employer.

[8] The verb that is used in s.386(1)(b) of the Act (“forced”) suggests that the employer's course of conduct must have, in some manner, compelled the employee to have resigned their employment, in the sense that the employee had no reasonable, alternative choice but to resign.

[9] In my view, the Full Bench in O’Meara 1 (“O’Meara”) remains the relevant authority in this respect, despite it being decided under the Workplace Relations Act 1996 as it was prior to being amended by the Workplace Relations Amendment (Work Choices) Bill 2005.

[10] That is, the Full Bench judgment in O'Meara was based upon the legislation prior to the introduction of s.642(4) of the Workplace Relations Act 1996 in March 2006, and therefore before the current legislative provision under s.386(1)(b) of the Act. Although there are some differences the relevant provisions of the Workplace Relations Act 1996 and the current Act, these differences do not affect the principal reasoning of the Full Bench in O'Meara.

[11] In O'Meara, the Full Bench asked whether the employer's conduct intended, or had the probable effect or result of, bringing the employment of the relevant employee to an end, such that the employee effectively had no choice but to resign 2. The answer to this question determines whether a dismissal was forced or voluntary:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”  Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”  3[My emphasis].

[12] The circumstances relevant to this application are as follows.

[13] On 25 June 2011 the Respondent implemented a new Personal Protective Equipment (“PPE”) policy. It read in part as follows:

“2.6Respirator use at Phosphate Hill Operation Plant Site

All personnel who are required to work or move outside of an exempt area may be required to wear respiratory protection to give protection against dusts, mists, fumes, gases, vapours or a combination of these substances which enter the body through the respiratory system.

IPL supply a half facepiece/full facepiece respirator that requires a facial seal to be effective. Australian Standard – AS/NZS1715:2009 states that a bearded (e.g. facial hair) person cannot expect to achieve adequate respiratory protection when wearing a full facepiece or half facepiece Respiratory Protection Equipment (RPE), due to stubble, depending on its length and stiffness that may interfere with the proper sealing of a facepiece. Therefore, all personnel that access the Phosphate Hill Operation Plant Site must be clean shaven to AS1715:2009 see appendix B – Facial Seal of Respirators [My emphasis]. 4

[14] As a consequence of the PPE policy having been introduced, the Applicant was required to be clean shaven to the extent required to be in accordance with the Australian Standard cited above, and to carry a personal respirator in all designated areas across the site.

[15] At 4.08pm on 25 July 2011 the Applicant directed an email to Mr Tony Puglisi and Mr Gerrish Burstow, the Site Manager, in the following terms:

Hello Tony,

I am tendering my resignation. From the first of August I will not meet the new site PPE policy.

I would like the effective date to be the 31Aug2011. My contract specifies the giving of one months notice.

As I no longer meet the PPE requirement on site, I will have to locate to the Townsville office until the 31Aug 2011.

Regards

Bill. (sic)

[16] The Applicant contended that his resignation, set out in the terms above, arose because he faced “the choice of resigning of being fired.” 5

[17] The Applicant maintains that up until the announcement of the PPE policy above, there had been no requirement to adhere to AS/NZS 1715:2009.

[18] He contended his duties were performed in an area - the Central Control Room (“CCR”) - where the risk of exposure to fluoride gas emissions was negligible. In fact, the CCR was the designated refuge area in the event of a major release.

[19] Prior to his resignation, the Applicant corresponded with Mr Burstow on 23 June and 7 July 2011, and sought information on options for employees such as himself who wore a beard. The Applicant says he was eventually informed that the Respondent’s HR Department would be required to find him another position.

[20] On 19 July 2011, the Applicant received correspondence from Mr Burstow, which read in part as follows:

[...]

You clearly stated to me your deliberate and considered refusal to comply with this Policy, and as I also understand you have advised your dept manager (Tony Puglisi) of the same during these last few weeks whilst this Policy has been discussed during regular monthly HS Safety meetings.

Specifically, your objection and refusal to comply with the Policy has to do with removal (or part removal) of your facial hair to the extent of achieving a seal for the effective and safe respiratory protection when wearing a full face piece or half face piece Respiratory Protection Equipment (RPE).

I have given a great deal of consideration to your objections, and the serious impact this will have not only on your personal safety, but also what the roll on effect of your objections and refusal will have on employees you are directly in control of and under your supervision as the Process Control Engineer.

I would like to formally advise you of my response for you to consider and meet with me to discuss on the 21st July 2011 at 10.00am in my office as follows:

1. The IPL group, myself and the management supervisory group is committed to uphold and comply with all safe work practices, PPE Policy, compliance to Australian Standards, and OH&S legislation.

2. Likewise, all employees are equally responsible for their safety and the safety of their fellow workers and compliance to the Standards and Legislation above as well as IPL Safety Policies which reinforce the mandatory safety behaviour in the work place.

3. As you are aware we also recently had a high risk liquid Ammonia release incident that spread through out the plant air instrumentation systems which further highlighted the need for the use of personal respirators beyond the boundaries of the Ammonia plant.

4. As a leader of your team, you must provide leadership for leading your team members to uphold our safety standards for their safety and the safety of others. You cannot pick and choose which safety practices suits you to the exclusion of all compliance requirements for the total site and all other employees.

5. I am deeply concerned that as a leader of your team, you have expressly stated that you will not comply with the Safety Policy which requires you to a facial seal in the use of your respirator according to the Australian Standards.

6. You have not provided me or to your manager any reasonable justification or medical reason to consider your possible exemption to comply with the Standards or Policy.

Please be formally advised that while you choose to maintain a level of facial hair which does not provide you with the sealing requirements as specified by AS/NZS 1715:2009 as well as other OH&S Legislation, I cannot allow you to work on this site in your existing role, or any other role on site. In view of your non-compliance to IPL Safety Policy requirements which is a mandatory condition of your employment, you effectively eliminate yourself from any other employment opportunities with IPL.

I would like you to consider my responses and discuss your views at our next meeting on the 21st July.

I have not made any final decision regarding your ongoing employment, however, subject to your responses at our meeting on the 21st July, I want you to clearly understand that your ongoing refusal to comply with the site safety Policies, Standards and Legislation which I consider is a serious and wilful breach of your employment contract, would constitute reasonable grounds to terminate your employment with IPL.

I am disappointed with your refusal behaviour to comply which is unacceptable for any employee in a leadership role who must lead by example. I hope that your attitude will have changed when we next meet.

[...] (Sic) [my emphasis].

[21] The Applicant forwarded to Mr Burstow a written response to the above correspondence on 21 July 2011, immediately prior to their meeting that same day. The purpose of the correspondence was “to point out why I have refused to shave my beard.” The summary points made by the Applicant are as follows.

[22] The Applicant argued that the Respondent was acting in a contradictory way as it had other sites with Ammonia and Granulation plants that did not impose the same policies.

[23] While he agreed that employees are equally responsible for their safety, and that of others, the Applicant disagreed with the Respondent's “method/s used to determine that the site should be in accordance with AS\NZ 1715:2009”.

[24] The Applicant claimed that the policy was intended to be phased in but appeared to be in full operation.

[25] He also claimed that the then recent release of ammonia was attributable to mismanagement and the absence of a safety culture in the plant.

[26] The Applicant defended his leadership role in safety and also observed that he was under an obligation as a team leader to speak candidly about his concerns with the policy.

[27] The Applicant claimed the policy in dispute was “seriously flawed” and did not examine control methods other than PPE; had not been subject to consultation (with him in particular); and the relevant advisory committee was narrowly representative of employees from a particular department.

[28] The Applicant raised questions, based on different information he had received, as to whether goatees and moustaches would be acceptable or whether employees had to be clean shaven, and who on site would determine who was and was not cleanly shaven.

[29] The Applicant also criticised the approach to the declaration of exempt areas (the top car park and the top office). He claimed that no risk assessment had underpinned these declared exemptions from the policy.

[30] The Applicant also questioned why designated egress and access routes allowed the policy to be relaxed (in relation to carrying the respirator, wearing a hard hat and wearing long sleeved shirts) on fly in days. He claimed he was unable to differentiate these areas from other areas to which the policy applied comprehensively.

[31] In the final paragraph of his correspondence to Mr Burstow, the Applicant stated that:

At this stage, until a firm policy is put in place, and hopefully with some type of review process before implementation, I find that an informed decision is not possible.

[32] The Applicant met with Mr Burstow later in the day. According to the Applicant the meeting was less than convivial and Mr Burstow asserted a right to introduce a policy with or without consultation. While admitting, it appears, some imperfections in the roll out, Mr Burstow is said to have indicated to the Applicant that the relevant documentation had been available to him for a period of time and he did not need to be “hand fed”.

[33] Mr Burstow is said, by the Applicant, to have commented that the policy did not require an employee to be clean shaven:

I again raised my concern that having a days growth, moustache, goatee did not meet AS/NZ standard 1715.

[Mr Burstow] replied that the standard allowed people to have a moustache/goatee.

I disagreed.

[Mr Burstow] told me to go read the standard and that it even showed pictures of people with Moustache/goatee. (I did check the standard AS/NZ 1715:2009 there is no picture that shows people with a goatee, it clearly states that one must not have any growth to conform)

The conversation finished with [Mr Bustow] telling me to go away and have a good think about it 6.

[34] The Applicant had also met his departmental manager, Mr Puglisi on several occasions where they had discussed the PPE Policy and the Applicant's attitude towards compliance. Mr Puglisi, in fact, stated that they had discussed it dozens of times, and the Applicant did not contest this 7.

[35] Mr Puglisi repeatedly also informed the Applicant that he should “go away and think about it” and declared that he “pleaded” with the Applicant to change his mind and just shave his beard 8.

[36] Does the conduct of the Respondent or its course of conduct as revealed in the evidence demonstrate that the Applicant was left with no reasonable choice other than to resign in these circumstances?

[37] The evidence in this matter suggests that a demand was placed upon the Applicant by his employer to conform to the PPE policy or be disciplined. It was reasonable for the Applicant to assume that persistent non-compliance with the PPE policy would ultimately lead to his dismissal: Mr Burstow’s correspondence as set out above shows this to be the case.

[38] There is no evidence that the Respondent requested that the Applicant resign his employment as an alternative to dismissal, and that the Applicant's resignation was a result of this direction. The Applicant claimed that he was informed that he would be “fired”, or even “dismissed” if he did not resign his employment, though he later came to suggest that this was more the sub text of Mr Burstow’s comments to him:

Okay. You've just said that he did say he would fire you, but that wasn't your earlier evidence. Your earlier evidence was that you said to him - - -?---"Your bottom line is - - -"

Your bottom line is?---That's right. And he said, "Correct."

So the word "fire" is your vocabulary not Mr Burstow's? He never used that term, did he, Mr Bishop? He never said to you, "You're fired" or "They'll fire you"?

---He did use the word "dismissal" sometimes but I don't think he did say straight out, "I am going to dismiss you," but he did say he would ask for my resignation at the meeting on the 7th.

And he never asked for your resignation, though, did he?---Did he?

Yes?---I mean, I thought he did in the fact that he would not discuss a single thing with me. I mean - - -

But that's completely different. Let's be clear about this. Mr Burstow didn't say to you, "Right, Bill, you're not complying. Can I have your resignation"?---Not in those words, no.

No. Okay. So it was your choice - - -?---In manner and attitude, and when I asked him about the bottom line, he was very definite 9.

[39] At the conclusion of the meeting of 21 July 2011 the Respondent made no demand upon the Applicant. Impliedly, the Respondent sought compliance with the PPE policy and invited the Applicant to take a further opportunity to consider his circumstances before indicating a final position.

[40] That is, in final context, the matter was left in the hands of the Applicant. The step that he then took was to resign his employment.

So during the course of the meeting did Mr Burstow just say to you, "Why don't you shave your beard"?---He did.

And what was your response?---My response?

Mm?---I don't think it was quite, "Why don't you shave your beard?" It was, "Why aren't you going to shave your beard?" And I said, "Well, I happen to like my beard. I've had it since I started work here and I do not see, at this stage, any reason why I should shave it." 10

[41] Within the confines of this construction of events, it could not be concluded that the Applicant was forced to resign his employment. He did so at his own volition.

[42] Was the demand itself so odious to make conformity with it unreasonable?

[43] In this case, the Applicant was required to modify his facial hair significantly in order to comply with the PPE policy and enable the respirator to make the appropriate seal. The evidence suggests that a goatee or moustache may have been acceptable to his employer (though the Applicant argued against this construction of the PPE policy and contended the underpinning Australian Standard demanded a totally clean shaven face).

[44] There is nothing unusual for a contract of employment or an employer policy to require an employee to modify their cosmetic appearances for purposes of giving effect to a lawful and reasonable policy objective. Hair length and hair management, for example, have always been concerns in industries where work is performed in close proximity to moving equipment (e.g. conveyor belt rollers) or where food contamination is of concern. Of course, when such policies are introduced after a long period of employment where customs, practices and appearances have been taken for granted, there is scope for more controversy, as in the current case.

[45] Here the Respondent required a modification of the Applicant’s facial hair to give effect to a workplace health and safety concern. The policy is not an unlawful one as an employer has a duty of care to provide a safe place of work. Nor is the requirement an unreasonable one, as it requires modification of the facial hair of an employee in exchange for measures to prevent injury or disease occurring to the employee as a result of misadventure, or otherwise.

[46] The Respondent’s site had only recently experienced a gaseous leak in the granulation plant that had highlighted the importance of better managing occupational health risks. This event appears to have been a primary reason for the enhancement of the PPE policy. The policy, therefore, does not appear to have been carelessly promulgated or improperly motivated.

[47] Seldom is it the case that the management of such risks come without the modification of behaviours of numerous kinds. No doubt some modifications to an employee’s cosmetic appearance (such as facial or ear jewellery) might be more readily accommodated than a significant modification to a long standing facial hair practice. The Applicant preferred to retain his beard, and he expressed a dislike of goatees:

And what about modification? Were you prepared to modify?---No, I don't like goatees.

I'm sorry, you don't like - - -?---I don't like goatees, no.

You don't like goatees?---No 11.

[48] But in the end, no matter what subjective value the Applicant placed on the retention of his beard (without the modifications permitted by his employer), it cannot be concluded on an objective basis that the requirement to modify his facial hair to accommodate the seal on a respirator was so odious so as to force the Applicant to resign his employment, or left him without any reasonable choice other than to resign.

[49] I add as an aside that as Mr Burstow’s evidence demonstrated, a number of employees in the workforce of almost 500 persons had beards of varying kinds, and these were modified to accommodate the PPE policy. This approach seemingly had been accepted by the on-site unions, and this accommodation was achieved without disciplinary action of any kind to Mr Burstow’s knowledge.

[50] This is evidence that goes some way, at least, towards demonstrating that others who have been in similar circumstances (presumably) as the Applicant have not found themselves to have no effective choice but to resign their employment. Indeed, the evidence of the witnesses (particularly that of Mr Brian Templar) who the Applicant had requested to be summonsed, supported this observation by Mr Burstow.

[51] That all said, it may be that I have placed too much weight on the presumed subjective cosmetic value that the Applicant placed on his beard. I say this because at times in his evidence, the Applicant appeared to have been willing to dispense with his beard and to adopt a clean shaven approach, but he would only do so if those employees who he believed to be sporting bushy moustaches or goatees (which he did not prefer) were subject to the clean shaven policy (as he defined it).

[52] In this context, the Applicant was not defending his affinity for his beard as such, but his belief that the roll-out of the PPE policy had unfairly fallen upon those with beards such as himself, and less so upon those with modified facial hair:

THE SENIOR DEPUTY PRESIDENT: Can I just ask about your evidence, Mr Bishop?---Yes, your Honour.

Irrespective of that, your view was that - irrespective of whether the standard incorporated an opportunity for a modification of facial hair, be that a conversion - I'll use that word, given your sensitivities about the definition - a conversion from a beard to a goatee, they were not options you wanted to entertain in any event, were they? I mean it's a bit academic whether it was a - the standard incorporated a modification of the facial hair or required clean-shaven, because your view was, as I understood your earlier evidence, that neither scenario was satisfactory for you in terms of - is that correct?---Well, I wouldn't say fully correct, your Honour, because if it was deemed that everybody on site would have to be clean-shaven, then I would have given it serious consideration. But when people could run around with goatees, moustaches, long sideburns, basically whatever you want - stubble on your jaws, your cheeks - I thought why are we quoting a standard when we're not going to abide by the standard? It appeared to me the only person that was going to miss out on anything when the standard was introduced was those that had a full beard. Any other form of facial hair seemed to be fine.

But you were prepared to go that way?---If everybody on site would have been made to be clean-shaven then I would have had to have made a decision based on that and I believe that if everybody was, I would have abided by it. But whilst people could get around basically any way they want, as long as they shave a little bit around here - I mean that's - to me really it's farcical. You know, that's all right 12.

[53] The wider evidence in this matter (led through Mr Templar, Mr Puglisi and Mr Burstow) demonstrated that employees have indeed been required to comply with the policy (though this is not to say the evidence before me was comprehensive as to how the PPE policy was to be enforced).

[54] On other occasions, the Applicant was of the view that the policy was just one with which he disagreed as its rationale and implementation was never fully explained, he was not consulted to his satisfaction about its particular terms, and he contended it was based on a misreading of the applicable Australian Standard and was inconsistently applied. That is, the Applicant would not comply with the policy until such time as his concerns were addressed. As he was not ultimately satisfied, he resigned his employment.

[55] The Applicant’s motivation appears also to have been driven to some measure by his interactions with Mr Burstow, which he found personally demeaning. This was because of Mr Burstow’s alleged manner, his insistence that the Applicant conform to the PPE policy, and Mr Burstow’s unwillingness to engage with the Applicant on all the issues that he had raised about the rationale for and implementation of the PPE policy (which Mr Burstow believed had been explored through the Applicant's discussions with Mr Puglisi). Ultimately, the Applicant came to belive that:

Mr Burstow did not care about what was to happen to me or my beard 13.

None of this, however, affects the objective chain of reasoning. The Applicant was never forced to resign his position. He had a reasonable option. He could have shaven his facial hair completely, or modified it and remained employed with the Respondent. He chose to resign instead.

CONCLUSION

[56] For these reasons, the Applicant cannot be taken to be an employee who is protected against an unfair dismissal because he was not dismissed at the initiative of his employer, nor forced to resign because of the Respondent’s conduct or course of conduct.

[57] I note, as a concluding aside, that the Respondent also raised a further jurisdictional objection under s.382(b) (i),(ii) and (iii) of the Act.

[58] The Applicant’s salary or annual earnings ($127,000 per annum) was above the amount stipulated at s.329(1) of the Act and Regulation 2.13 of the Fair Work Regulations 2009. That amount is currently $118,100. There is no controversy about this between the parties.

[59] Where the controversy did arise was in respect of whether the Applicant's duties as a Process Control Engineer were subject to either a Modern Award or an enterprise agreement as defined. The parties agreed that no enterprise agreement as defined by the Act applied to the Applicant, however the Applicant claimed that his work was covered by a Modern Award; the Manufacturing and Associated Industries and Occupations Award 2010 (“the Manufacturing Modern Award”). The Respondent was of the view the Applicant's work was not covered by the Manufacturing Modern Award.

[60] Given my findings above, it has not been necessary for me to determine whether the Applicant's work fell within a classification of the Manufacturing Modern Award. Even if the Applicant had been successful on this ground, his application would still have failed for the reasons I have set out above. In any event, I add that the matter was far from properly argued out before me.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr W. Bishop for the Applicant

Ms C. Brattey for the Respondent

Hearing details:

2011.
24 and 25 November.
Townsville.

 1   Appeal by O’Meara against certificate issued by Raffaelli C on 15 May 2006 – Re: Stanley Works P/L, Giudice J, Watson VP, Cribb C, 11 August 2006 [PR973462].

 2   Ibid at PN 23

 3   Ibid.

 4   Annexure GB2 to the statement of Mr Gerrish Burstow, dated 14 November 2011 - Phosphate Hill Operations Site PPE Policy, Version #15, Edited 25 June 2011

 5   Exhibit A1 - letter accompanying the Applicant’s application.

 6   Exhibit A1 - Record of conversation with Gerrish Burstow 21 July 2011.

 7   Transcript of proceedings, 24 November 2011 at PN 888.

 8   Ibid at PN 841.

 9   Ibid at PNS 660 - 666.

 10   Ibid at PNS 631 - 633.

 11   Ibid at PNS 521 - 524.

 12   Ibid at PNS 562 - 564.

 13   Ibid at PN 525.

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