Virgin has lost an appeal to terminate a male employee whose hair was too long, with the Fair Work Commission upholding the employee’s right to keep his hair long for medical reasons.
David Taleski, a Virgin flight attendant since 2008, was fired by the airline in June 2011 for not complying with the company’s “Look Book” because his hair was longer than collar length.
Following his dismissal, Taleski filed a complaint with the Human Rights and Equal Opportunities Commission and in January the Fair Work Commission ruled he had been unfairly dismissed. Virgin appealed this ruling, but yesterday lost the case for the second time.
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Taleski started growing his hair long in mid-2010 for what he said were religious reasons associated with the 10th anniversary of his mother’s death.
For a short-period of time Taleski was granted permission by Virgin to grow his hair long and wear it in a bun, despite Virgin’s grooming standards, but in December that year he was instructed to comply and cut his hair shorter.
In January 2011 Taleski then raised medical reasons for keeping his hair longer and produced a doctor’s certificate. This kick-started about 15 months of discussions between Virgin and the employee where Taleski produced further medical certificates.
After consultations with medical practitioners and psychiatrists, it was determined Taleski was suffering from body dysmorphia disorder and keeping his hair long would help with his condition.
Throughout the process, Taleski had attempted to keep his long hair tidy and eventually wore a wig, despite suffering harassment from his colleagues, on board flights.
The unfair dismissal case was brought to the Fair Work Commission after conciliation attempts and substantial evidence was presented by both parties, including the medical certificates, email correspondence and the “Look Book”.
Yesterday morning, FWC senior deputy president Jennifer Acton said in her judgement she was unconvinced there were errors in the commission’s January judgement.
“No significant errors of fact have been established and we do not consider it is in the public interest or otherwise to grant permission to appeal. We decline to grant Virgin permission to appeal in this matter,” she said.
M+K Lawyers partner Andrew Douglas told SmartCompany Virgin’s “Look Book” was treated more like a guideline than an inherent company requirement.
“There are two sets of cases, cases where their appearance goes to the inherent requirement of their job, so things like body piercings might not be appropriate in workplaces which require high standards of hygiene, and this could be a basis for termination.
“But there are also those which are less clear where there is some kind of appearance policy or guideline. These cases also sometimes involve people who have been fired for smelling bad,” he says.
Douglas says in this instance, short hair was not seen as a requirement of Taleski’s job.
“If it had been an inherent requirement, Virgin might have just fallen over the line, but the issue here is they were completely unwilling to move on the issue when there were many ways of having longer hair and still being tidy,” he says.
Douglas says high-end service industries such as airlines, expensive restaurants, law firms, accounting firms and hotel services usually have a dress code. He says employers need to be flexible with their employees and try and come up with mutual solutions to dress code breaches.
“Be open about it and talk to the employee as soon as possible, rather than waiting for someone else to start complaining about it.
“What you’re saying also has to connect with the values of the organisation, such as high levels of client service, expectations of the clients, the fact there is a company guide on how to market yourself, and also explain when the employee fails to comply this creates an unacceptable risk to the organisation,” he says.
Douglas says after explaining the company’s position, the employer should then ask if there are any underlying issues which have caused the problem and offer to assist.
“If the person gets offended you’ve raised this issue, well that’s just tough. Talk to them discreetly, provide them with options and try and understand why the problem has arisen. Ask how you’re going to manage the problem and then build a plan together on how it will be addressed.
“But make sure you’re always supporting the employee in finding a solution,” he says.