The applicant, Dean Kelly (Mr Kelly), is a Leading Senior Constable employed by Victoria Police.
Mr Kelly has worked for Victoria Police as a sworn member for 24 years. He currently has facial hair, which he describes as a neatly trimmed goatee. He has done so since about 2003, when Chief Commissioner Christine Nixon amended the Grooming Standard contained in the Victoria Police Manual (VPM) to allow sworn members to wear neat and tidy goatees.
On 9 December 2011, the respondent, Chief Commissioner Ken Lay, (Chief Commissioner Lay), informed all sworn members of Victoria Police by email that the guidelines for Uniform and Appearance in the VPM were being updated and would take effect on 1 January 2012 (the 9 December 2011 email).[1]
Chief Commissioner Lay explained in the email that Victoria Police's appearance in the community, at courts and in an operational context had been "subject to much debate". He wrote that he was "keen to ensure a more uniform look" that "sends a powerful message to the community" that Victoria Police is a "professional organisation" and "we are as one, and that we care about ourselves and the community".
The email explained (relevantly) that the changes for male members included the banning of ponytails or buns, and beards, goatees, soul patches and other forms of facial hair other than clean, tidy and neatly trimmed sideburns and moustaches (the new Grooming Standard).[2]
On 29 December 2011, Chief Commissioner Lay sent an email to senior management reiterating the changes contained in the new Grooming Standard (the 29 December 2011 email). Chief Commissioner Lay stated, "these changes will become force policy and there is a requirement to comply with the new standards". However, it also stated that the new Grooming Standard would not apply to members of Victoria Police who had made a complaint to the Victorian Equal Opportunity and Human Rights Commission () until those complaints had been determined (). Chief Commissioner Lay also stated that the policy would "build on the image of Victoria Police" and that it was important to Chief Commissioner Lay that the members "protect and enhance the Victoria Police image, a major component being our consistent and professional appearance".
the Commission
the exemption to the application of the new Grooming Standards
As Mr Kelly had made a complaint to the Commission, in an email dated 14 February 2012, Chief Commissioner Lay's delegate, Commander (then Superintendant) Jeffrey Forti (Commander Forti) confirmed that Mr Kelly was exempted from complying with the new Grooming Standard until his complaint was resolved.[4]
On 27 June 2012, Chief Commissioner Lay sent a third email to all sworn members about the new Grooming Standard, which had by then been in force for just under six months. The email explained that the new Grooming Standard would be "ratified in law" because of an amendment to the Police Regulation Act 1958 (Vic) (the PR Act) which would come into effect on 1 July 2012.
The Commission conducted a conciliation on 29 June 2012. The dispute was not resolved and in an email dated 31 August 2012, Commander Forti informed Mr Kelly and the other members who had complained to the Commission that they were to either comply with the new Grooming Standard or make an application to the Tribunal by 28 September 2012 (Commander Forti's email dated 31 August 2012).[5] The email stated that if the members made an application to the Tribunal, the exemption to the application of the Grooming Standard would continue until the Tribunal proceedings were heard and determined. However, the email also stated that if neither of the options were followed by 28 September 2012 then Mr Kelly "could be subject to disciplinary action for non-compliance with the VPM".
Accordingly, on 28 September 2012 Mr Kelly made an application to the Tribunal. Fifteen other members also made applications to the Tribunal.
[2]
Mr Kelly alleges direct discrimination on the basis of physical features in the area of employment in breach of section 18(d) of the Equal Opportunity Act2010 (the EOA 2010).[6] The specific physical feature claimed is facial hair.
The specific conduct Mr Kelly alleges to be discrimination is, in summary:
(a) the introduction of the new Grooming Standard on 1 January 2012 banning sworn members of Victoria Police from having any form of facial hair other than clean, tidy and neatly trimmed sideburns and moustaches
(b) proposing to subject Mr Kelly to disciplinary action unless he complies with the new Grooming Standard by shaving off his goatee, as set out in Commander Forti's email dated 31 August 2012
(c) the implication Mr Kelly says is contained in Chief Commissioner Lay's emails dated 9 December 2011 and 29 December 2011 that because Mr Kelly has a goatee, he is unprofessional, does not take pride in his appearance and does not care about himself or the community
(d) the implication Mr Kelly says is contained in Commander Forti's email dated 31 August 2012 that because Mr Kelly has a goatee, his appearance is unprofessional, inconsistent with other members and not well-groomed, and that he lacks the public's confidence, trust and respect
(e) media articles describing Mr Kelly and the other members who made applications to the Tribunal as "rebel police" and subsequent comments made by the public, subjecting Mr Kelly and the other applicants to "effective ridicule in a public forum".[7]
As a result, Mr Kelly claims that:
(a) he has been made to feel less professional
(b) he has suffered from stress
(c) if he is required to shave off his goatee, he may develop skin cancer as he currently works for the Water Police Squad and his goatee helps to protect against UV damage.
Mr Kelly also claims he was victimised by Chief Commissioner Lay in breach of section 104 of the EOA 2010. Mr Kelly alleges that Chief Commissioner Lay victimised him when Commander Forti gave Mr Kelly the following directions in an email dated 4 October 2012:
(a) to attend and manage the Tribunal proceedings while off-duty
(b) not to attend the Tribunal proceedings or meetings regarding the proceedings, while on duty or in Victoria Police uniform, and
(c) not to use any Victoria Police vehicle to attend the proceedings or meetings regarding the proceedings (the email dated 4 October 2012).[8]
He also alleges Chief Commissioner Lay victimised him when he sought to have Parliament change the PR Act to confirm his power to make the new Grooming Standard.[9]
Finally, Mr Kelly alleges that Chief Commissioner Lay has breached section 38 of the Charter in respect of his right of freedom of expression under section 15 of the Charter by making the new Grooming Standard.
Mr Kelly seeks the following orders from the Tribunal:
(a) that Chief Commissioner Lay amend the VPM so as to permit Mr Kelly to have a goatee whilst on duty
(b) that Mr Kelly's leave be reinstated for each day he attended the Tribunal to pursue this application
(c) that Chief Commissioner Lay apologise to Mr Kelly.
[3]
Mr Kelly's claim is essentially identical to the application made by Michael Kuyken in proceeding number A168/2012.
The findings and reasons set out in A168/2012 equally apply to Mr Kelly's claim.
Accordingly, for the reasons set out in A168/2012, Mr Kelly's claim is dismissed.
[4]
APPLICATION TO THE UNIFORM AND APPEARANCE ADVISORY COMMITTEE SUB-COMMITTEE
[5]
Commander Forti gave evidence that in early 2012, a sub-committee of the Uniform and Appearance Advisory Committee was set up to assess and determine applications for permanent exemptions from certain standards in the new Grooming Standard based on genuine medical, cultural or religious grounds.
Nothing in these reasons or the reasons set out in A168/2012 prevents Mr Kelly from making an application for a permanent exemption from the new Grooming Standard based on genuine medical grounds in relation to his claim that his goatee provides him with protection from UV damage.
[6]
[1] JFS-5 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[7]
[2] JFS-4 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[8]
[3] JFS-7 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[9]
[4] JFS-14 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[10]
[5] JFS-15 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[11]
[7] Mr Kelly withdrew all claims against Deputy Premier Peter Ryan at the hearing.
[12]
[8] JFS-17 of the witness statement of Commander Jeffrey Forti, Exhibit R1.
[13]
[9] This is alleged in Mr Kelly's amended particulars, which were filed on 25 September 2013, mid-way through the hearing.
Parties
Applicant/Plaintiff:
# Kelly
Respondent/Defendant:
Lay
Legislation Cited (4)
Opportunity Act 2010
Human Rights and Responsibilities Act 2006
Police Regulation Act 1958ss 5, 17, 69.
Regulation Act 1958
Cases Cited (1)
Kelly v Lay (Human Rights) [2013] VCAT 1979 (29 November 2013)