Smith v Lay

Judgment (11 paragraphs)

[1]

The applicant, Lee Smith (Mr Smith), is a Leading Senior Constable employed by Victoria Police.
Mr Smith has worked for Victoria Police as a sworn member for 24 years. He currently has facial hair, which he describes as a neatly trimmed beard. 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 have neat and tidy beards.
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".

Mr Smith alleges direct discrimination on the basis of physical features in the area of employment in breach of section 18(d) of the Equal Opportunity Act 2010 (the EOA 2010).[6] The specific physical feature claimed is facial hair.
Mr Smith also alleges victimisation under section 104 of the EOA 2010 and a breach of section 38 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) in respect of his right to freedom of expression under section 15 of the Charter.
The specific conduct Mr Smith 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 Smith to disciplinary action unless he complies with the new Grooming Standard by shaving off his beard, as set out in Commander Forti's email dated 31 August 2012
- (c) the implication Mr Smith says is contained in Chief Commissioner Lay's emails dated 9 December 2011 and 29 December 2011 that because Mr Smith has a beard, he is unprofessional, does not take pride in his appearance and does not care about himself or the community
- (d) the implication Mr Smith says is contained in Commander Forti's email dated 31 August 2012 that because Mr Smith has a beard, 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 Smith and the other members who made applications to the Tribunal as "rebel police" and subsequent comments made by the public, subjecting Mr Smith and the other applicants to "effective ridicule in a public forum"
- (f) negative comments made on internal Victoria Police forums by other members about Mr Smith.[7]
As a result, Mr Smith claims that:
- (a) he has been made to feel less professional
- (b) he has suffered from stress
- (c) his health has been affected due to lack of sleep
- (d) he has suffered a loss of identity.
Mr Smith also claims he was victimised by Chief Commissioner Lay in breach of section 104 of the EOA 2010. Mr Smith alleges that Chief Commissioner Lay victimised him when Commander Forti gave Mr Smith 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 Smith 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 Smith seeks the following orders from the Tribunal:
- (a) that Chief Commissioner Lay amend the VPM so as to permit Mr Smith to have a beard whilst on duty
- (b) that Mr Smith's leave be reinstated for each day he attended the Tribunal to pursue this application
- (c) that Chief Commissioner Lay apologise to Mr Smith.

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Smith v Lay (Human Rights) [2013] VCAT 1981 (29 November 2013)