Can You Be Fired For Not Smiling Enough?
Employers have the right to expect a certain standard of behavior from their employees. Workers certainly shouldn’t be rude or abusive to clients or customers. Employees need to look presentable and act in a way that will promote the business.
But now some employers are taking this a step further by sending out testers pretending to be regular customers, who then score the employees’ performance.
A British sandwich chain wants a trendy hip image and expects its workers to constantly be effusively friendly with each other, hugging and high-fiving so that customers find buying a sandwich a memorable experience.
If the tester finds the worker behaves in the decreed super friendly manner, the entire team in the shop gets a bonus. If they fail the test there is no bonus and a black mark against their name.
But what if the worker is having an off day? What if something bad happens at home and they struggle to crack a friendly smile that day?
Employment law specialists Nathan and Kym Luke at Stacks Law Firm say the test for an unfair dismissal is whether it was harsh, unreasonable or unjust.
The Fair Work Commission takes a number of factors into account when deciding this.
“There is no set formula such as three written warnings, and it depends on the situation. Employers should seek advice at the earliest stage” said Mr Luke. “Employees have to file an application for unfair dismissal within 21 days of the dismissal.”
If the worker has a problem which is influencing their performance it would be wise to tell their employer. Similarly if an employer has a poor performing employee they should – in writing – tell them what is going wrong and what’s expected to change so they improve.
If that requires them to smile all the time and high five fellow workers, then that has to be made clear as a condition of employment. If the worker fails to reach those standards the employer is within their rights to dismiss them.
However an employee has legal rights if they believe discrimination was involved in their sacking involving religion, age or sexual orientation or if bullying occurred.
This can be difficult to prove if it is one person’s word against another. Also most workers in the retail or service industry are casuals, which means they have very little protection. They simply aren’t given another shift with no explanation.
Don’t forget, under workplace laws new employees have a probation period of six months, 12 months if there are less than 15 employees.