Constructive dismissal occurs when an employer does not outright dismiss an employee but their actions and conduct are equivalent to a dismissal and compel the employee to resign.
Kimberleys is a fashion store. Ms Williams did not wear make-up although witnesses confirmed that she always worked in a very presentable, clean and well groomed state.
After a visit to the store by the owner, the Human Resources Manager sent a note to the Store Manager that she wanted read to Ms Williams. It stated that Ms Williams was to go home if she arrived at work unclean or not wearing make-up. This note was part of a larger display of poor employer actions towards Ms Williams.
Ms Williams’ employment agreement did not specifically require that she wear make-up at work. Kimberleys breached the employment agreement by demanding that Ms Williams wear make-up. Ms Williams did not breach reasonable standards of dress by not wearing make-up.
Ms Williams was awarded 6 months lost wages and $12,000 compensation for the humiliation, loss of dignity and injury to feelings.
The Judge indicated that there may be workplaces where the nature of work requires facial makeup be worn, such as a women’s cosmetic retail shop. This would have to be with the mutual contractual agreement with their employees. He did note however that there has been no test case as to whether this breaches human rights principles.
Kimberleys did not take the opportunity of contractually requiring make-up. Instead of including it in Ms Williams Employment Agreement contract they demanded it later. This breached their employment agreement with Ms Williams.
Now to the situation where a reader’s employer insists on female staff wearing skirts or dresses rather then dress pants. There are difficulties in the employer doing this if this is not a term of the employment agreement. An employment agreement may legitimately state that employees must maintain an acceptable standard of dress at all times. It may be difficult, however, for an employer to argue that dress pants for woman are not an acceptable standard of dress.
If employers want their staff to do specific things, such as wear make-up or skirts then these should be included in the employment agreement.
