Victorian Civil and Administrative Tribunal|2013-11-29|Before: Member J

The applicant, Robert Twining (Mr Twining), is a Leading Senior Constable employed by Victoria Police.
Mr Twining has worked for Victoria Police as a sworn member for over 28 years. In 2003, he adopted the Buddhist faith. He currently wears his hair in a ponytail. He has done so since about 2003, after Chief Commissioner Christine Nixon amended the Grooming Standard contained in the Victoria Police Manual (VPM) to allow sworn male members to wear long hair in a ponytail.
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 Twining alleges direct discrimination on the basis of physical features, sex and religious belief or activity in the area of employment in breach of section 18(d) of the Equal Opportunity Act 2010 (the EOA 2010).[6] The specific physical features claimed are hair and facial hair.
Mr Twining 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 Twining alleges to be discrimination is, in summary:

the introduction of the new Grooming Standard on 1 January 2012 banning sworn male members of Victoria Police from wearing their hair in a ponytail 2. proposing to subject Mr Twining to disciplinary action unless he complies with the new Grooming Standard by cutting his hair, as set out in Commander Forti's email dated 31 August 2012

the implication Mr Twining says is contained in Chief Commissioner Lay's emails dated 9 December 2011 and 29 December 2011 that because Mr Twining wears his hair in a ponytail, he is unprofessional, does not take pride in his appearance and does not care about himself or the community

the implication Mr Twining says is contained in Commander Forti's email dated 31 August 2012 that because Mr Twining wears his hair in a ponytail, his appearance is unprofessional, inconsistent with other members and not well-groomed, and that he lacks the public's confidence, trust and respect 2. media articles describing Mr Twining and the other members who made applications to the Tribunal as "rebel police" and subsequent comments made by the public, subjecting Mr Twining to "effective ridicule in a public forum" 3. negative comments made on internal Victoria Police forums by other members about Mr Twining.
As a result, Mr Twining claims that:

he has been made to feel less professional 2. he has suffered angst, stress and anxiety

his health has been affected due to lack of sleep.
Mr Twining also claims he was victimised by Chief Commissioner Lay in breach of section 104 of the EOA 2010. Mr Twining alleges that Chief Commissioner Lay victimised him when Commander Forti gave Mr Twining the following directions in an email dated 4 October 2012:

to attend and manage the Tribunal proceedings while off-duty 2. not to attend the Tribunal proceedings or meetings regarding the proceedings, while on duty or in Victoria Police uniform, and

not to use any Victoria Police vehicle to attend the proceedings or meetings regarding the proceedings (the email dated 4 October 2012).[7]
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.[8]
Finally, Mr Twining 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 Twining seeks the following orders from the Tribunal:

that Chief Commissioner Lay amend the VPM so as to permit Mr Twining to wear his hair in a ponytail whilst on duty 2. that Mr Twining's leave be reinstated for each day he attended the Tribunal to pursue this application

that Chief Commissioner Lay apologise to Mr Twining.

Mr Twining's claim is identical to the application made by Michael Kuyken in proceeding number A168/2012 except that he makes a claim for discrimination based on sex and religious belief or activity, as well as physical features.
The findings and reasons set out in A168/2012 equally apply to Mr Twining's claim. In particular, I am satisfied that hair is a physical feature for the same reasons that I have found that facial hair is a physical feature as set out in A168/2012. In addition, even if Chief Commissioner Lay discriminated against Mr Twining on the basis of his sex or his religious belief or activity,[9] that discrimination was permitted under section 75 of the EOA 2010 for the same reasons as set out in A168/2012.
Accordingly, for the reasons set out in A168/2012, Mr Twining's claim is dismissed.

APPLICATION TO THE UNIFORM AND APPEARANCE ADVISORY COMMITTEE SUB-COMMITTEE

Commander Forti gave evidence that in early 2012, a sub-committee of the Uniform and Appearance Advisory Committee (the UAAC sub-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 Twining from providing the UAAC sub-committee with additional evidence in support of his previous application (or making a new application) for a permanent exemption from the new Grooming Standard based on genuine religious grounds in relation to Mr Twining's claim that he wears long hair in a natural style in accordance with his religious beliefs.

[1] JFS-5 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[2] JFS-4 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[3] JFS-7 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[4] JFS-14 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[5] JFS-15 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[7] JFS-17 of the witness statement of Commander Jeffrey Forti, Exhibit R1.

[8] This is alleged in Mr Twining's amended particulars, which were filed on 25 September 2013, mid-way through the hearing.

[9] Mr Twining claimed the new Grooming Standard discriminates against him on the basis of sex because female members are permitted to have long hair worn in a ponytail but male members are not. He also claimed the new Grooming Standard discriminates against him on the basis of religious belief or activity because he wears long hair in a natural style, rather than an "artificial style", in accordance with his religious beliefs.

Opportunity Act 2010

Human Rights and Responsibilities Act 2006

Police Regulation Act 1958ss 5, 17, 69.

Twining v Lay (Human Rights) [2013] VCAT 1977 (29 November 2013)

Twining v Lay

At a glance

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Judgment (22 paragraphs)

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Cases Cited (1)

Twining v Lay (Human Rights) [2013] VCAT 1977 (29 November 2013)