Thinking of dying your hair a crazy colour for
charitable purposes? You might want to think again, as an employer may be able
to lawfully direct you to change your hair colour and a failure to comply with
a lawful direction may constitute reason for dismissal. You should also think
twice about the way you react to a warning about your hair colour or appearance,
as your reaction alone may be a sufficient reason for dismissal. In the recent
case of Budden v Finke Enterprises Pty
Ltd [2016] FWC 562, the employee’s reaction to a direction to change hair
colour was a valid reason for dismissal under s.387(a) of the Fair Work Act 2009.
Unfair
dismissal – the basics
To come within the unfair dismissals
jurisdiction of the Fair Work Commission, an applicant must first meet a number
of qualifying criteria, including the minimum employment period of 6 months or
12 months for small business employers (s.383), and come within the limitation
period of 21 days (s.394). An unfair dismissal will only have occurred where
the criteria in s.385 are satisfied:
(a) The person
has been dismissed; and
(b) The
dismissal was harsh, unjust or unreasonable; and
(c) The
dismissal was not consistent with the Small Business Fair Dismissal Code (where
applicable); and
(d) The
dismissal was not a case of genuine redundancy.
In Ms Budden’s case, the focus was on s.385(b),
whether the dismissal was “harsh, unjust or reasonable”. In considering whether
a dismissal is “harsh, unjust or unreasonable”, the criteria in s.387 must be
taken into account:
(a) whether there was a
valid reason for the dismissal related to the person's capacity or conduct
(including its effect on the safety and welfare of other employees); and
(b) whether the person was
notified of that reason; and
(c) whether the person was
given an opportunity to respond to any reason related to the capacity or
conduct of the person; and
(d) any unreasonable refusal
by the employer to allow the person to have a support person present to assist
at any discussions relating to dismissal; and
(e) if the dismissal related
to unsatisfactory performance by the person--whether the person had been warned
about that unsatisfactory performance before the dismissal; and
(f) the degree to which the
size of the employer's enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(g) the degree to which the
absence of dedicated human resource management specialists or expertise in the
enterprise would be likely to impact on the procedures followed in effecting
the dismissal; and
(h) any other matters that
the FWC considers relevant.
While all the criteria in s.387 must be taken
into account, the focus in Ms Budden’s case was on s.387(a), whether there was
a valid reason for the dismissal related to the person’s capacity or conduct.
Facts
Ms Budden was employed part time by Finke
Enterprises to work five hours a day Monday to Friday at Fused Café. Ms Budden
was the most senior cook employed. She was passionate about raising awareness
about breast cancer and persuaded the Directors of Finke Enterprises to raise funds
for breast cancer research in October 2015. The Directors agreed to donate 10c
from every hot beverage sold as well as part proceeds from the sale of pink
slices cooked by Ms Budden. There were two separate issues that led to Ms
Budden being issued with a formal warning on 17 September 2015 and later put
forward as a valid reason for dismissal under s.387(a) of the Fair Work Act 2009:
1. Making
derogatory comments about her employer to colleagues after she dyed her hair
fluorescent pink and was directed to dye it a more work appropriate colour; and
2. Complaints
from staff about intimidation and bullying.
Dyeing
hair fluorescent pink
Without consulting with her employer, Ms
Budden dyed her hair fluorescent pink on 10 September 2015 in preparation for the
October breast cancer fundraising campaign. On 17 September 2015 Ms Budden was
given a formal verbal warning giving her until the 21 September to change her
hair colour. This was followed up by a phone call during which Ms Budden yelled
and swore at a Director. A formal written warning was also issued reiterating
the options for changing her hair colour, indicating her behaviour on the
telephone was inappropriate and that any further issues would result in a
review of her employment status.
Commissioner Saunders held that the direction
to change hair colour was a lawful direction because:
1. Customers
of the café could see Ms Budden in the kitchen and Ms Budden sometimes
interacted with customers;
2. The owner
of a café is entitled to require staff working in a café to have a neat and
professional appearance;
3. The owner
offered a number of reasonable options including for Ms Budden to dye her hair
a lighter “ash pink” colour for the duration of the breast cancer fundraising
month; and
4. The fact
the employer had previously accepted Ms Budden’s different hair colours did not
matter, as those hair colours were not fluorescent.
While Ms Budden reluctantly followed the
direction and dyed her hair a more subtle cranberry colour, she was not happy
and vented to her colleagues. In particular, at an employee’s 21st
birthday in which many of her colleagues were present, Ms Budden approached a
number of colleagues and indicated she was angry she had to change her hair
colour and made statements such as “would you like me to show you what it
looked like before they fucking made me change it?”.
A final meeting was held on 21 September 2015
with management to give Ms Budden an opportunity to apologise or provide a
comment on her behaviour. Ms Budden stormed out a number of times, returning
only to make angry comments and storm off again. The decision was then made to
dismiss Ms Budden.
While Commissioner Saunders relied more on the
intimidation grounds for dismissal discussed below, he also found Ms Budden’s
behaviour in bad-mouthing her employer to be a valid reason for dismissal as
her behaviour viewed objectively was likely to cause serious damage to the
relationship of trust and confidence with her employer. As Ms Budden had
complied with the direction to change her hair colour, Commissioner Saunders
did not have to consider whether a failure to comply with the direction would
have been a valid reason for dismissal. It is likely it would have been a valid
reason for dismissal given if the direction was lawful, as the refusal would likely
effect the trust and confidence between parties in the employment relationship.
Staff
complaints of intimidation and bullying
Prior to the verbal and written warnings
issued on 17 September 2015 Ms Budden had received a number of warnings about
her intimidating behaviour including yelling aggressively at staff, putting
staff down, calling staff names such as “idiot”, slapping a staff member’s
hand, criticising staff members behind their back, and criticising the café’s
owners. There was also a particular incident where Ms Budden cornered a junior
employee and asking if she was scared of her. The warnings on 17 September 2015
also included a further warning about her intimidating behaviour.
Commissioner Saunders found Ms Budden’s
behaviour was a valid reason for dismissal, as an employer has obligations of
health and safety to employees in the workplace and Ms Budden negatively
impacted on the health and wellbeing of other employees. The fact Ms Budden’s
“style” was direct and blunt and she did not personally see anything wrong with
her behaviour did not prevent her intimidating behaviour being a valid reason
for dismissal.
Conclusion
The case of Budden v Finke Enterprises is a good example of how things can
rapidly spiral out of control for an employee who takes a direction from an
employer too personally and does not think before they act to bad-mouth their
employer. If you do plan to dye your
hair a crazy colour, even for charity, ensure your employer is supportive of
the change, as you will be required to comply with a lawful direction where an
employer is entitled to require staff to have a neat and professional
appearance. If you are directed to change your hair colour or appearance, the
best course of action will usually be to make the change as directed and
refrain from bad-mouthing your employer, especially to colleagues. This
includes bad-mouthing your employer on social media, as tempting and satisfying
as it may seem at the time. An apology or considered explanation for certain
behaviour can go a long way to preventing dismissal if you do act in a way that
diminishes your employer’s confidence in you.
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