Is this the end of Hipster-looks in the workplace? Kuyken v Chief Commissioner of Police [2015] VSC 204

On 14 May 2015, the Supreme Court of Victoria ruled in Kuyken v Chief Commissioner of Police [2015] VSC 204 that a policy preventing police from having a beard or goatee was valid and enforceable. In this short case analysis I highlight the main points on appeal and discuss whether more anti-Hipster policies are likely to be introduced in other workplaces.

Background

Since 2004, Leading Senior Constable Michael Kuyken had worn a goatee beard. Victoria Police introduced a new Grooming Standard for members of the Victoria Police, which came into effect on 1 January 2012. The new policy specified that beards and goatees would not be permitted, and had statutory status from 1 July 2012 due to section 5(2) in the Police Regulation Act 1958 (Vic).

The complaint to the Victorian Civil and Administrative Tribunal (“VCAT”)

Sixteen members of Victoria Police, including Senior Constable Kuyken, made complaints to VCAT in September 2012. Kuyken’s claim included the following allegations:

1.       Direct discrimination contrary to s18(d) of the Equal Opportunity Act 2010 (Vic) which concerns discrimination by employers against employees;

2.       Victimisation contrary to s104 of the Equal Opportunity Act 2010 (Vic);

3.       Breach of s38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), as Victoria Police allegedly failed to give consideration to relevant human rights in making the policy, being freedom of expression (s15).

The Tribunal addressed the arguments as follows, with numbers correlating to the above paragraph:

1.       Direct discrimination that occurred after 1 July 2012 was permitted by section 75 of the Equal Opportunity Act 2010 (Vic). Section 75 permits discrimination if the discrimination is necessary to comply with statute. The email sent prior to 1 July 2012 that threatened Kuyken with disciplinary action was found to constitute discrimination by the Chief Commissioner against the plaintiff.

2.       There was no victimisation, as Kuyken failed to establish the detriment element required.

3.       The Tribunal found that facial hair was not a form of protected freedom of expression under s15, as a “reasonable member of the public” would not consider having a beard or goatee to convey any meaning such as for example a “desire to be an individual rather than an automaton”.

The points of law on appeal

The main point on appeal concerned section 5(2)(c) of the Police Regulation Act 1958 (Vic). Kuyken asserted that consistent with s32 of the Charter, section 5(2)(c) of the Police Regulation Act 1958 (Vic) should be interpreted consistent with its purpose, in a way that does not permit discrimination. Section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states “so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights”.

Kuyken argued that if s32 of the Charter is correctly applied, the Police Commissioner cannot enforce the grooming standard determination in a way that permits discrimination. Such an interpretation would mean the Police Commissioner could only make determinations on the neatness and cleanliness of facial hair, but not determinations on the complete removal of facial hair.

Supreme Court decision – Garde J 

Garde J analysed section 5 of the Police Regulation Act 1958 and found parliament had intended police standards to be discriminatory, as the standards “turn, on attributes such as sex, gender, identity, physical features, religious beliefs or activities” (at [66]). Section 75 of the Equal Opportunity Act would therefore apply, and the discrimination is permitted, as the statute is essentially discriminatory and was intended to be discriminatory by parliament. Garde J also held that “grooming” extends to removal of all hair, so the Police Commissioner can validly make directives that all facial hair be removed. At paragraph 67(2) of the judgment, Garde J writes “the power to impose ‘standards of grooming’ extends to a power to change, modify or remove the appearance or presentation of uniform, equipment, hair including facial hair and accessories generally”.

Effect of the decision

Victorians will no longer see any bearded or goateed police patrolling the streets, as the directive and associated legislation was found to be valid.

Will this decision create a domino effect of workplace policies preventing employees from wearing beards or goatees?

The circumstances of Kuyken v Chief Commissioner of Police [2015] VSC 204 are unusual. The standards were mandated by specific legislation. The employer was a public authority and the Police Commissioner had special powers under statute. There were exceptions in the grooming directive for genuine medical, religious or cultural grounds. The case also hinged on provisions in the Charter of Human Rights and Responsibilities Act 2006 (Vic). Most other Australian jurisdictions do not have an equivalent.

A private sector employer could not adopt such a policy completely preventing beards or facial hair without risk of discrimination claims.

Conclusion

While there may be scope for public sector entities with the backing of enabling legislation to implement similar “grooming directives”, outside of this narrow sphere, such restrictive policies are unlikely to appear. In the private sector at least, we are likely to continue to see Hipster-looks at work for the foreseeable future.