Winter 2020
CASE NOTE
Can an employer sack a worker if they have tattoos or an unusual hairstyle?
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Generally speaking, there is no law that protects a person's appearance and there is nothing stopping an employer setting reasonable standards of dress and appearance. Whilst tattoos in recent years have become increasingly popular in Australia and that the public perception of persons with tattoos has changed some tattoos can be considered to be inappropriate and in extreme cases vulgar. We also see some fairly different hair colouring such as pink, green and purple hair as well as facial piercings. For some businesses, image and appearance is of critical importance and as such those businesses are entitled to set an enforceable standard of appearance which takes into account hair colour and styles, tattoos, dress and facial piercing. An employer can refuse to employ a prospective job applicant on the basis that they do not meet the employer’s appearance policy/ standard. Having said that an employer cannot ban tattoos in principle where those tattoos are not visible when the employee is wearing their normal clothing or employer’s uniform. In order to have an enforceable code of appearance or policy the employer must have an “official” policy known to its employees which clearly sets out the terms of the policy. It is also important that new employees are informed of the policy and in fact all employer policies. The employer must enforce the policy across all employees. Allowing an employee to work in breach of such a policy
could impede the disciplining of other employees for breaching the same policy. Failure to comply with a reasonable and lawful direction of an employer can constitute a valid reason for dismissal of an employee. Employee policies are of course subject to the Fair Work Act and the anti-discrimination legislation in various States and Territories. If a hairstyle or tattoo is a part of the person’s culture or religion, then the enforcement of a code of appearance may amount to discrimination. We all know that it is a part of the culture of people from Polynesian countries to have tattoos and in fact in New Zealand it is a part of the Indigenous culture for women to have facial tattoos. In the Apostolic Pentecostal religion women are not allowed to cut their hair or wear makeup; some orthodox Jewish men wear beards and side curls; Sikh men generally do not cut their hair and wear turbans as a part of their religion and culture; there are many examples of religious and cultural practices in multicultural Australia that are protected by law and override employer’s codes of practice.
This article has been prepared by Tony Cardillo, principle of Cardillo Gray Partners. You are invited to call Cardillo Gray Partners should you require additional information on this subject.
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