Worker with a stud beats Woolies by a nose

Cases

Worker with a stud beats Woolies by a nose

A Woolworth’s employee has been given the right by the AIRC to wear a nose stud at work, contrary to company policy, but only while she is not handling fresh food or engaged in work that does not involve significant customer contact.

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A Woolworth’s employee has been given the right by the AIRC to wear a nose stud at work, contrary to company policy, but only while she is not handling fresh food or engaged in work that does not involve significant customer contact. The issue of whether the dress policy was reasonable was a key element in the case.

Deputy President Ian Watson said the employee, Belinda Miller, had raised a grievance in relation to a direction by Woolworths that she remove a small diamante nose stud whilst at work in order to comply with a national dress policy applied by Woolworths, which included a policy regarding the wearing of jewellery.

She had been wearing the stud for the previous 15 years of her employment.

He said Miller did not challenge the policy itself, but contended that it unreasonably applied to her in her particular circumstances.

The policy in issue

The relevant parts of Woolworth’s dress and jewellery standards that applied to Miller were -

The Company, having regard to the nature of the industry, the work to be performed and the comfort of the employee, shall have the right to determine a code of dress for each employee including colour of clothing.

The Company image is an important responsibility borne by all employees. To this end, when at work, employee’s presentation, grooming and dress shall be in a neat, tidy, business like manner at all times.

Fresh Food Departments:

No jewellery is to be worn other than a plain wedding band (no stones), one small sleeper in each ear and an approved medic alert necklace/bracelet, if applicable.

Other Departments:

No more than two studs/sleepers are allowed in each ear. No other visible body piercing is permitted - this includes tongue piercing. Jewellery in general should be kept to a minimum.” 

Arguments

Watson said her complaint is that it is harsh and unreasonable for Woolworths to insist that she comply with the dress policy in the particular circumstances applying to her. She said that she wore the nose stud when she commenced her employment and has continued to wear it over the course of her 15 years employment, without reproach until 11 July 2005.

‘Those circumstances also involve the fact that she works in an office environment, not involving customer interface, other than when relieving in a customer service position,’ he said.

Watson said Miller was not seeking to establish a position by which Woolworths is precluded from introducing policies or practices which did not apply at the time she commenced her employment or deny the reality that policies change and new policies are introduced by employers as a fact of commercial and employment life.

Rather she was asking that Woolworths refrain from insisting she remove her nose stud in the same way ‘has refrained from insisting that [a Ms] Ranjan, a checkout operator, remove her nose stud because it would be unreasonable to do so in the circumstances of Ranjan’s religious and cultural beliefs’.

Woolworths submitted that Miller’s grievance did not fall within the scope of an application under s.170LW of the Workplace Relations Act 1996 since it is not a dispute “over the application of the agreement’. Watson rejected that submission.

Course of events

Evidence was given that in February 1999, Woolworths launched a new uniform for staff. Managers were asked to ensure compliance with the dress policy, but advised not to proceed with disciplinary action in respect of employees wearing jewellery in contravention of the policy if that person had been wearing the jewellery prior to 1998 (Miller commenced employment with Woolworths in September 1990).

On 20 June 2005, a new manager commenced at the Mordiallic Safeways store in Melbourne. He noticed the wearing of jewellery by staff in contravention of dress policy and asked six employees to remove offending jewellery. All complied, other than Ranjan, who was permitted to continue to wear a nose stud worn for religious and cultural reasons.

On 11 July 2005, the manager noticed that Miller was wearing her nose stud and asked her to remove it as it was inconsistent with policy. She refused. He advised that he would have to speak to her further about it;

On 25 July 2005 a Human Resources officer attended the Mordiallic store and requested that Miller remove her nose stud, conveying the instruction to Miller as a personal request. She refused but agreed to think about reconsidering her position.

On 11 August 2005, the HR manager formally counselled Miller concerning her breach of the dress policy in relation to the nose stud and the wearing of a greater number of earrings than is permitted by the policy;

On 13 October 2005, a second formal counselling of Miller by the HR manager occurred. On the instruction of the region’s Human Resource Manager, on 13 October 2005 he advised Miller that she must comply with the Policy.

She agreed to remove earrings, as she was not wearing them at the time she was hired. She declined to remove the nose stud. The HR manager advised Miller that she would be required to remove the nose stud by shift commencement on 17 October 2005 or her employment would be placed at risk;

On 17 October 2005, Miller attended for work in full compliance with the dress policy, without her nose stud in place. She advised the HR manager that she was only complying pending further advice. Miller provided a letter to him stating that she was complying with the policy under protest. Her compliance with policy has continued since that time.

On 4 November 2005, Miller filed a s.170LW application.

Woolworths' position

Watson said the reason given by Woolworth for introducing the dress standards was directed to two ends:

  1. in work involving food, to meet public health responsibilities, with body piercing causing additional body cavities which create a greater risk of the accumulation of bacteria and the potential dislodgment of jewellery into food products; and
  2. to project a positive image for its business, through professional and consistent standards of dress and presentation of staff, as part of a marketing image. In this respect Woolworths has formed a judgement that visible body piercing creates the risk that part of its broad customer base may view body piercing as being inconsistent with projecting an acceptable, business-like image.

Miller was ‘at all relevant times’ aware of the policy, Watson said.

It was also accepted, he said, that apart from the nose stud issue, Miller has a good employment record and ‘always presents at work with a neat and business-like appearance’. 
‘She has been an excellent employee for Woolworths over 15 years, with no issues arising as to her performance over that time.’

Commission finds stud was not objectionable

Watson said the nose stud is a ‘small, discreet diamante nose stud’.

‘It is inconspicuous, to the point where I failed to observe the stud in Miller’s nose during the morning of the hearing, including the period in which Miller gave evidence 3-4 metres away,’ he said.

Watson noted a fellow employee said in a statement “the nose stud is so unobtrusive” that she did not realise that Miller had her nose pierced for the first few years she worked with her.
‘One Manager, Mr Coman, gave evidence that he had not noticed Miller’s nose stud over a two year period he managed the store where Miller worked, despite contact and discussion with her over that period,’ he said.

‘The particular stud would in my view be unlikely to cause offence to customers. There is no evidence of a customer complaint about it to Woolworths.’

Watson said Miller had represented Woolworths in public, wearing her nose stud, in training sessions, conferences, competitions and presenting a cheque to the Royal Children’s hospital on behalf of Woolworths.

He said some elements of the dress policy are not applied to particular employees in light of their particular circumstances - for example, to accommodate the religious and cultural beliefs of employees.

One manager had given permission for Miller to wear her stud whilst on breaks, even though in uniform and liable to come into contact with customers.

‘He did this in case Miller had a concern as to the possible closing of the aperture in her nose, reflecting a concern by Miller of possible infection from removing and reinserting the stud,’ Watson said.

Specific circumstances sometimes exempted certain employees

The Commission continued:

‘Whilst Woolworths argued that it was not practical to allow individual employees to wear jewellery other than that permitted under the policy, the policy has been and currently is applied in a manner which reasonably recognises particular specific circumstances, such as those of Ranjan, and if the reason for such reasonable application is clear and known, any practical problem should not be significant.’

Watson said Woolworths tried to distance itself from the actions of its managers in the matter, however he found Woolworths was responsible for their actions.

‘The prior failure to apply the policy to Miller does not involve an isolated failure by one or two managers,’ he said. ‘It involves a consistent failure to apply the policy over nine years by store managers and performance appraisal assessors.

‘The non-application of the policy is further evidenced by the fact that Ranjan was engaged, in a position involving direct interaction with customers, wearing a nose stud, in late 2002 or early 2003, long after the jewellery policy was in place and compliance coordinators had been introduced by Woolworths.’

Reasonableness of application of policy

Watson said Woolworths contended that Miller’s application raised an issue of whether ‘if someone is doing something or has been wearing something when they start a job, that employer is locked in’. 

‘Such an approach mischaracterises the nature of Miller’s grievance,’ he said. ‘It is a grievance about the reasonableness of the application of a policy in the particular and specific circumstances of Miller.

‘My determination of the grievance does not prohibit Woolworths, and employers generally, from exercising their right to change a policy or practice or introduce a new policy or practice and to apply it to existing employees.

‘Rather, I find that the application of the policy, extremely belatedly, to the particular circumstances of Miller was unreasonable. My determination in this case is confined to the particular facts and circumstances surrounding the circumstances of Miller’s employment and can have no real significance in other cases.’

Conclusion

Watson ruled that Miller should be permitted to wear her nose stud whilst engaged in her back office functions, but should remove the stud when:

  1. Engaged in work in Fresh Food Departments, involving the handling and preparation of Fresh Food; and/or
  2. Engaged in work involving other than incidental customer contact.

The full judgement can be found here.

Related

Employer's right to insist on reasonable dress/jewellery policy

Body piercing not acceptable so dismissal justified
 

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