Dismissal of male wearing earring held sex discrimination

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Dismissal of male wearing earring held sex discrimination

The Administrative Decisions Tribunal (NSW) awarded almost $17,000 in damages and costs to a service station attendant who was dismissed for wearing an earring while carrying out his duties.

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The Administrative Decisions Tribunal (NSW) awarded almost $17,000 in damages and costs to a service station attendant who was dismissed for wearing an earring while carrying out his duties.
 
The tribunal found that as female employees were allowed to wear earrings without complaint from the employer, the applicant had established a case based on sex discrimination.
 
Background
 
The legislation provided that if one of the reasons for acting was unlawful discrimination then that was sufficient to establish a case.
 
After a number of warnings the employer dismissed the employee. It also argued that the employee was on a trial.
 
Findings of the tribunal
 
The employee alleged that one of the reasons for his dismissal was his persistence in wearing a stud earring in his ear when carrying out his duties as a console operator at the employer's service station.
 
The employer denied that the wearing of the earring by the employee during his employment was a reason for his dismissal and insisted the reasons for dismissal were those set out earlier and were unrelated to the employee wearing an earring during his employment at the service station.
 
The tribunal was satisfied the evidence established that the employee was challenged over wearing an earring.
 
The employer referred to 'personal presentation' rules which prohibited the wearing of an earring by the employee. However, its application resulted in unfavourable treatment of the employee when in the same or similar circumstances the employer did not apply the same personal presentation rules to a female employee.
 
It was necessary to deal with the alternative proposition of the employer, which claimed that the employee was employed only on a trial basis which had expired. It claimed that his employment was not renewed on the expiry of the trial period and he was not dismissed - in particular he was not dismissed because he wore an earring during employment.
 
The tribunal rejected this proposition. It had earlier dealt with the evidence about the engagement of the employee on a trial period basis and had not accepted that at the time of his appointment such a condition was attached to his employment.
 
Costs
 
The tribunal ordered the employer pay the costs and expenses incurred by the employee in the making of his complaint and the holding of the inquiry into his complaint.
 
See: Bree -v- Lupevo Pty Limited & Ors [2003] NSWADT 47 - Administrative Decisions Tribunal, Equal Opportunity Division - 11 March 2003.
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