Ms Lummis was employed by The Shawz Group to work in its supermarket. Ms Lummis signed an employment agreement in November 2019 and at the same time signed a set of house rules.
Sometime later she dyed her hair blue. When she was next at work, she asked Mr Shaw what he thought of it. He asked her to put a hat on for the remainder of her shift. Branded caps were part of the uniform available to staff but not compulsory for all staff.
On her next shift, Ms Lummis forgot to bring the cap to work with her. The grocery manager questioned her and Ms Lummis tried to explain that the house rules did not require her to wear a hat. The grocery manager contacted the owner Mrs Shaw, resulting in a speakerphone conversation between Ms Lummis, Mrs Shaw and the grocery manager. Mrs Shaw told Ms Lummis that refusal to wear a hat was considered serious misconduct and could result in disciplinary action or even dismissal.
Mrs Shaw referred to a 2020 set of house rules they were developing; these were not signed by Ms Lummis. Neither set of house rules prohibited dyeing hair or required the wearing of a cap. The Employer believed that it was common knowledge that dyeing your hair unnatural colours would result in the requirement to wear a cap.
Ms Lummis entered into a discussion with her Employer where she was again told to comply with wearing a hat. She continued to protest that the rules did not require her to wear a hat.
The Employer claims that Ms Lummis was insubordinate and suspended her on pay. A formal investigation meeting was held, which was not helpful and after the meeting Ms Lummis was sent a letter of the outcome.
The letter said that she was dismissed for serious misconduct. Ms Lummis raised a personal grievance claiming unjustified dismissal.
The Employment Relations Authority (ERA) found that the Employer:
- Relied on the 2018 and 2020 set of rules, neither of which prohibited hair dyeing or the requirement to wear a cap.
- Relied on it being “commonly understood in the store that if a staff member dyed their hair an unusual colour, then they needed to wear a uniform cap”.
However, the Employment Relations Authority found that this claimed common understanding was based entirely on one conversation with Ms Lummis.
The dismissal was found to be unfair, and the employee, Ms Lummis, was found to have not failed to follow lawful and reasonable instructions. This resulted in Ms Lummis being unfairly dismissed.
To add insult, the Employment Relations Authority also found the Employer did not thoroughly investigate whether Ms Lummis’ failure to adhere to any policy or code of conduct, was done deliberately in the knowledge it was wrong. So, the dismissal was unfair both procedurally and also lacked justification.
An Employer must consider whether the behaviour was deliberate or whether there was a genuine misinterpretation of what the policy or code of conduct meant. This could have been avoided if the Employer had completed a proper investigation to avoid the unfair dismissal.
The Employment Relations Authority ordered the Employer to pay $7,000 for the hurt and humiliation and $3,000 for lost wages resulting from the summary dismissal.
So, what is the learning here?
The Employer should have undertaken a better investigation. Paused and considered the Employee’s behaviour. Was it deliberate, and could the Employer have behaved differently? Maybe the Employer should have placed the Employee on notice and consulted over the hair colour or the hat. Then any further failures may have resulted in disciplinary action.
If you want a code of conduct or any specific workplace policies for your workplace, you need to consult and have staff buy into the policies.