An employee focused approach in a recent case involving dress codes

The Employment Relations Authority has recently found that an employer unjustifiably dismissed an employee after they refused to cover their newly dyed blue hair.

Background

The Employment Relations Authority (ERA) has ordered an employer to pay their former employee nearly $10,000 after she was summarily dismissed without notice for divisive behaviour and refusal to comply with its house rules.

Ms Lummis was an 18 year old student when she began work at the Stokes Valley New World in August 2018. At the beginning of her employment she signed an individual employment agreement and a set of house rules. This was her first job.

In 2019, Stokes Valley New World was sold to Shawz Group 2019 Limited. The new owners entered into new individual employment agreements with the existing staff. In November 2019, Ms Lummis signed a new employment agreement but the existing house rules were not replaced and continued to apply.

In November 2020, Ms Lummis dyed her hair partially blue. When she started her next shift, she was asked to cover it with the company’s branded baseball cap which was available to staff as a part of the uniform, although for many positions was not mandatory.

When Ms Lummis returned for her next scheduled shift, she forgot her hat. Ms Lummis informed management that she had forgotten it, and in any case it was not a requirement under the house rules.

Because of Ms Lummis’ response, she was pulled aside by her manager mid-shift and in front of other colleagues. She was informed that refusing to wear a hat to cover her blue hair was “serious misconduct” which could result in disciplinary action or even dismissal.

The employer relied on the fact that it was “commonly understood” that staff with “unnatural” hair colours had to be covered, despite this not being reflected in Ms Lummis’ employment agreement or the house rules. After an investigation meeting, the employer labelled Ms Lummis’ conduct as insubordinate, which could amount to serious misconduct with the chance of disciplinary action including dismissal.

This was followed by a disciplinary meeting at which Ms Lummis stood her ground, maintaining that she was under no obligation to wear a hat to cover her hair. The employer claimed that her conduct was divisive, and she had undermined the employment relationship . She was then summarily dismissed for serious misconduct.

Ms Lummis then filed a personal grievance for unjustified dismissal.

ERA Decision

The ERA found in favour of Ms Lummis finding the employer could not rely on “common knowledge” when attempting to assert a contractual requirement. There was no proper communication, with the employee being merely told to wear a hat without any explanation of the origin of the requirement.

The 2018 house rules signed by Ms Lummis, which required that an employee’s hair, jewellery, and presentation was “in keeping with the professional image of the store”, was interpreted in favour of Ms Lummis, with the ERA finding that this rule did not extend to a requirement for an employee to cover their dyed hair.

Additionally, Ms Lummis provided a specific reason why she acted the way she did (she believed there was no contractual requirement for her to wear a hat) and the ERA found that this was entirely reasonable in the circumstances.

The ERA awarded Ms Lummis $7,000 for the hurt and humiliation she experienced and $3,000 for lost wages resulting from the summary dismissal.

Where did the employer go wrong?

While an open and deliberate failure to obey a lawful and reasonable order can justify disciplinary action by the employer, the employer needs to demonstrate that it has properly promulgated a lawful and reasonable order.

It is clear in this case that Ms Lummis was asked by her employer to wear a hat, and that this constituted an order. However, it was determined that this order was not lawful and reasonable, taking into account the scope of Ms Lummis’ contractual obligations. The employer had an obligation to fully engage with Ms Lummis on this point, but did not do so.

Additionally, Ms Lummis provided a specific reason why she acted the way she did (she believed there was no contractual requirement for her to wear a hat) and the employer failed to adequately consider this.

How can employers avoid this?

For workplace policies to be implemented effectively, there must be adequate consultation with the employee and any order or directive must be lawful and reasonable. It is best practice to discuss and obtain written agreement by the employee before the implementation of any rules if they are not specifically addressed in any employment agreement.