Supermarket fires employee for refusing to remove eyebrow ring.

This case which was heard in the Australian Industrial Relations Commission underscores the tension between personal expression and workplace policies, especially in environments where public health and safety are particularly important. It also examines the legal requirements for an enforceable lawful direction.

As always I do not provide any names but refer to the parties as the Employee and the Employer.   

Background

The Employee started working for a large supermarket chain as an apprentice butcher.   Over the years, he worked at various locations, eventually completing his apprenticeship.  After completing his apprenticeship the Employee decided to get an eyebrow ring. Mindful of food safety regulations, he always covered it with a blue waterproof band-aid while working. The Employer’s dress policy strictly prohibited visible body piercings, including eyebrow rings, but the Employee's blue band-aid initially went unnoticed by management.

The Employee started working at another branch of the supermarket and the Employee’s Store Manager permitted him to continue covering his eyebrow ring with a blue band-aid.  The Employee continued to do this for two years without issue until his eyebrow ring was noticed by a New Manager who was determined to enforce the dress policy strictly, the policy stated:

Exposed jewellery (including body piercing) is not permitted as this is a potential threat to food safety due to possible physical and microbiological contamination. No visible body piercing is permitted, which includes (visible) tongue piercing, eyebrow, nose, lip etc piercing. Watches, earrings, rings with stones, necklaces or fob/key chains are not to be worn . The following exceptions are permitted to be worn but particular attention must be given to ensure that they are clean and do not contaminate food: • Approved medic alert necklaces and bracelets; • A maximum of one small plain sleeper in each ear; • Plain wedding bands.

Where a wedding band contains stones and cannot be removed, it must be taped and a glove worn to prevent possible contamination of food. This also applies to other rings that are unable to be removed ...

The New Manager repeatedly told the Employee to remove the ring. Despite multiple warnings, the Employee, supported by his union, argued that his band-aid-covered ring didn’t breach the supermarket’s policy.

The Employer was unwilling to allow the Employee to continue to wear the eyebrow ring and he was given a formal direction to remove his eyebrow ring before returning to work.  Despite the direction, the Employee again showed up with the covered ring, his refusal to comply led to the termination of his employment.

Application for unfair dismissal

The employee applied for unfair dismissal.  The employee had two main arguments for why the dismissal was unfair:

First Argument: Not exposed jewellery

The Employee argued that as the ring was covered by a band-aid it did not constitute “exposed jewellery” and therefore did not breach the Employer’s policy.  However, the Commission disagreed, interpreting "exposed jewellery" to include piercings visible even under band-aids. The policy explicitly mentioned that no visible body piercings, including eyebrow rings, were allowed. The Employer’s policy aimed to prevent any risk of food contamination, no matter how remote, justifying their strict stance.

Second Argument: Store Manager’s initial approval

The Employee’s application also hinged on permission granted by store manager allowing him to wear the covered eyebrow ring. The Commission found this informal permission insufficient to override company policy. It was determined that the Store Manager lacked the authority to alter or waive the Employer's dress code. Thus, The Employer acted within its rights to enforce the policy and require compliance.

Was the failure to comply with a lawful direction sufficient to justify dismissal?

A breach of an employer's policy can justify dismissal if it involves a failure to obey a lawful and reasonable direction. However, this is contingent upon the policy itself being:

• Legal

• Relevant to the employee's role

• Reasonable

Determining Reasonableness:

A policy is deemed reasonable if a rational employer, under similar circumstances, could have adopted it. This consideration involves:

• The nature of employment

• Established industry practices

• The governing employment agreement

Grounds for Unreasonableness:

A policy is unreasonable if no reasonable employer would adopt it. Importantly, a policy is not deemed unreasonable simply because a better policy could be imagined.

Harsh, Unjust, or Unreasonable Terminations:

Even when a breach justifies termination, the dismissal may still be considered harsh, unjust, or unreasonable based on:

• Employee ignorance of the policy

• Disproportionate response relative to the breach and employee's history

• Prior non-enforcement or inconsistent application of the policy

• Discriminatory application of the policy or if the policy disguises an impermissible reason for dismissal (e.g., union membership).

Decision:

The Commission held the view that the Employer's dress policy was reasonable, addressing public presentation and hygiene standards crucial for employees handling food. The policy’s few exceptions, like plain sleepers in ears or wedding bands, were deemed reasonable concessions, balancing hygiene with personal expression.

The Commission also found that the prior permission that the Employee had been given by his manager was not sufficient for the Employee to disregard the Employer’s policy.

The Commission found that the subsequent lawful and reasonable directions given the Employee were sufficient grounds for his termination. The Employee’s refusal to comply with these directions amounted to a breach of his employment terms, justifying his dismissal.

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