$11,000 awarded to waitress forced to smile

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A restaurant owner who sacked an employee for not smiling enough has lost a case against them at the Employment Relations Authority.

The waitress, Jacinta Highley, was dismissed from her role as waitress and duty manager at Cocopelli, a pizza restaurant and bar in Christchurch following a number of meetings with general manager Jeanette Francis, a part-owner of the restaurant. 

Highley joined the business in October 2013 and two months later was called into a meeting with Francis where she was told she needed to smile more. Francis also told other members of staff to use the code word “miley” to remind the waitress to look happier. The ERA heard that this was used by them even when Highley felt she was smiling.

Two further meetings took place between the employer and the waitress and on one occasion Highley was told that if she didn’t smile more then her employment could be at risk of termination.

Francis claimed that there had been complaints from customers describing Highley as “unhappy” and “seemingly hating her job”.

At a further meeting the waitress was told that she had one last chance to improve or her employment would not continue past her trial period. Highley sold the ERA that she was very upset that she had not improved but that there were no other issues raised about her performance.

The ERA heard that the waitress was dismissed on 28 January 2014 and was told that her lack of smiling and failing to improve within the time scale set by the employer. Highley said that the experience had led to depression and an inability to trust others.

The ERA decided that although “Ms. Highley did not have the particular skill set required by the respondent” she was unjustifiably dismissed outside her trial period and that the actions were “not the action of any fair and reasonable employer.” Highley was awarded $11,250 in compensation and $3,600 for lost wages and holiday pay.

While employers are entitled to require a particular skill set from workers, this case shows that when issues are identified it is vital to ensure that workers are fully supported to adapt. The ERA felt that the waitress had been “ambushed” by her employer.
  • Steve Punter on 14/08/2015 1:27:09 p.m.

    I've not read the actual judgement, just this article. Having said that, and based purely on this article: While the article ends by saying that the lesson learned was that 'when issues are identified it is vital to ensure that workers are fully supported to adapt', my reading of it is that (1) a smile should come naturally and is part of the customer service experience - it shouldn't be a matter of 'adapting', and (2) the actual lesson learned is to ensure you enact the Trial Period properly. Had the employee's employment been terminated a few days earlier, there would have been no case to answer?
    What we don't know is whether she smiled at the recruitment interview, and were ref checks done with past employers?

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