Kuyken v Lay (Human Rights)  VCAT 1972 (29 November 2013)
The Victorian Civil and Administrative Tribunal has dismissed the claims of 16 police officers (the applicants) that they were discriminated against by the introduction, promulgation and enforcement of a new policy which banned male officers from having long hair or facial hair (other than a moustache).
VCAT found that the applicants had been directly discriminated against in the enforcement of the policy, by the threat of disciplinary action, and through an email implying the applicants were unprofessional and not trustworthy. However, that discrimination was not found to be unlawful as it was considered to be authorised by the Police Regulation Act 1958 (Vic) (PR Act). A victimisation claim was also dismissed, as was the applicants’ claims that the respondent had failed to properly consider their right to freedom of expression in the Charter of Human Rights and Responsibilities 2006 (Vic).
In late December 2011, the respondent announced that the Victoria Police Manual Uniform and Appearance Standards would be amended to ban male officers from wearing ponytails or buns, and to ban beards, goatees, soul patches and other forms of facial hair other than neatly trimmed sideburns and moustaches (the Policy). These had previously been allowed by former Chief Commissioner Christine Nixon, since around 2004.
In January 2012, the applicants filed complaints with the Victorian Equal Opportunity and Human Rights Commission. After conciliation did not resolve the matter, a Police Superintendent sent an email to the applicants on 31 August 2012, advising them that if they did not proceed to VCAT, they must comply with the Policy, and if they did not comply, they could be subjected to disciplinary action. The email also stated “As discussed … it is important for members of the police force to present a professional, consistent and well-groomed appearance to maintain the public’s confidence, trust and respect.”
The applicants proceeded to VCAT, arguing that the respondent had directly discriminated against them on the basis of their physical features (long hair and facial hair) in breach of section 18(d) of the Equal Opportunity Act 2010 (Vic) (EOA). Four officers also claimed discrimination on the basis of sex, and one on the basis of religious belief or activity as a Buddhist. The applicants also claimed victimisation, and a breach of the Charter on the grounds that the respondent failed to properly consider their right to freedom of expression and, as a result, that their right had been unjustifiably restricted. The applicants argued that their facial hair and long hair was an expression of their individuality and personal identity.
The Commission sought, and was granted, leave to be joined as an independent intervening party in the VCAT proceedings under section 159 of the EOA.
In order to determine this case, VCAT had to first consider whether the attribute of “physical features” included hair and facial hair. Member Grainger saw no reason to depart from the previous VCAT decision of Fratas v Drake International Ltd t/as Drake Jobseek (2000) EOC 93-130 which had found hair and facial hair to be physical features.
VCAT then considered whether the respondent had directly discriminated against the applicants, by treating them unfavourably substantially because of their long hair and facial hair (section 8 EOA) by subjecting them to a detriment (section 18(d) EOA). Member Grainger found that the mere introduction of the Policy was not discrimination as it was not directly aimed at the applicants. However, the Member found that the Superintendent’s email (quoted above) was detrimental and unfavourable treatment by:
- threatening disciplinary action and singling the applicants out as someone who Victoria Police disapproved of because of their hair; and
- implying that because they have long hair and facial hair, the applicants are unprofessional, not well groomed, and that they lack the public’s confidence, trust and respect.
The respondent submitted that section 75 of the EOA applied to his conduct, whereby a person may discriminate if that conduct is necessary to comply with, or is authorised by, a provision of an Act or enactment. Relevantly, section 5(2)(c) of the PR Act (which came into operation on 14 June 2012) gave the respondentpower to determine grooming standards which differ based on physical features, religion, sex and gender identity. Member Grainger agreed that the tailored wording of section 5(2)(c) of the PR Act, read with the power of the respondent in section 17 of the PR Act to enforce his determinations, authorised the respondent’s conduct.
In relation to the applicants' Charter claim, VCAT relied upon the reasoning in Caripis v Victoria Police  VCAT 1472 and Slattery v Manningham City Council  VCAT 1869 to confirm that it had jurisdiction to consider a claim of Charter unlawfulness alongside the EOA claim. However, Member Grainger was not satisfied that a reasonable member of the public would consider that facial hair imparts any ideas or information, or conveys any meaning at all (see Magee v Delaney  VSC 407). As such, freedom of expression was not engaged and VCAT did not consider whether the right had been properly considered or reasonably limited by the respondent.
While the applicants’ cases were ultimately dismissed, the decisions are important because they provide useful guidance on the interpretation of the EOA. VCAT has clarified that hair, including facial hair, is a physical feature, and is therefore covered as a protected attribute under the EOA. In doing so, VCAT was careful to emphasise that unfavourable treatment on the basis of physical features must be aimed or directed at the applicant personally.
This means that, generally speaking, employers must be very careful in the way that they promulgate, implement and seek to enforce their dress code policies.
The case also reinforces that to rely on the section 75 “statutory authority” exception, the words of the legislation or enactment relied upon must give specific authorisation for the conduct performed. General authorisation to do something, without reference to discrimination or differential treatment on the basis of an attribute, is unlikely to be sufficient to rely on section 75.
A copy of the decision can be found here: http://www.austlii.edu.au/au/cases/vic/VCAT/2013/1972.html
A copy of the Commission’s submissions in these proceedings can be found here: http://www.humanrightscommission.vic.gov.au/index.php/component/k2/item/682-michael-kuyken-and-ors-v-ken-lay-jul-2013
Jennifer Jones is a Senior Legal Adviser with the Victorian Equal Opportunity and Human Rights Commission and appeared in VCAT for the Commission as intervener in these proceedings. At the time of writing, a notice seeking leave to appeal has been filed in the Supreme Court by Mr Kuyken but leave to appeal had not been determined.