Smirking, rolling of eyes, or even smiling can lead to trouble
Working around workplace relationships can be difficult. Every boss, manager, and employer will interact with their staff differently. Some will choose to be more of an authoritarian figure, where others prefer having a more friendly approach. Nonetheless, it is not always easy to know how your boss will react to smirking, rolling of eyes, or even smiling. Sometimes it can even lead to dismissal.
Employers cannot dismiss employees for any reason. Even within a probation period there are some protected areas, such as discrimination, that prevent employers using that reason as the explanation for dismissal. When employers are considering terminating an employee they have to ensure the reason for dismissal is not harsh, unjust, or unreasonable.
Terminating an employee due to poor performance and constant insubordination is a fair and reasonable decision. However, termination due to laughing at a harmless joke at work is usually not. And may open the employer up to an Unfair Dismissal claim.
What can my employer dismiss me for?
There is no exhaustive list specifying all the reasons an employer can dismiss someone. However, there are recurring themes and trends that can highlight what the Fair Work Commission would consider reasonable or unreasonable.
Common, and usually fair, reasons for termination include:
- Poor performance
- Insubordination of reasonable direction
- Sexual harassment
- Violent or aggressive behaviour
- Consistent rude behaviour
- Theft
- Lying
Not all dismissals are fair, particularly surrounding behaviour. Where swearing may be commonplace or even expected at one workplace, another workplace may uphold strict no swearing policies. Therefore, dismissals are always viewed within the context of that specific workplace. However, actions such as sexual harassment or violence intending harm is almost always considered a fair termination.
Unreasonable terminations
I smirked at my boss and was dismissed
In 2013, a Melbourne concreter was unfairly dismissed after smirking in a workplace safety meeting. Prior to the incident the concreter was described as a good employee with a good record. Having worked at the concreting company for 15 years.
The safety incident involved the employee giving his colleague a lift on a trowel driver for approximately 20 metres. Resulting in a safety violation. Where the employer argued that the drive could have resulted in serious injuries or death if it were to ever happen again.
A month later the employee was called in for a safety meeting, where he was asked to apologise and recognise his mistakes. However, during the meeting the employee’s boss had supposedly seen the employee smirking and told him to “get that f*cken smile off your face”. The employee was then dismissed on the spot. The employee argued his dismissal was due to his smirk and a simple understanding. However, the employer’s argued it was due to the employees blatant lack of concern for workplace safety.
Dismissal has to be sound, defensible or well-founded
The Fair Work Commission did rule in the employees favour. Stating that there was no “sound, defensible or well-founded” explanation that would result in dismissing the employee. Particularly as the employee had a clean and upstanding work record and showed no other signs of disrespect.
It was found unreasonable to rely upon facial features to warrant a dismissal. People react differently to all sorts of situations and it is unreasonable to expect all employees to react the way an employer wants them to. Particularly in a case where there was no intention for offence or harm.
The correct course of action was for the employer and employee to have a simple discussion on what to expect regarding meeting behaviour. Realistically, a warning may have been issued due to the safety breach but nothing further.
Chinese Official fired after smiling
Trouble for facial reactions at work is not an issue isolated to Australia. In 2012, a Chinese official of the Shaanxi provincial work safety administration was fired after being seen smiling at a bus crash site. The scene was troubling for many Chinese citizens as the crash resulted in 36 deaths.
The official was investigated for his ‘inappropriate behaviour’ and stripped of his title. The scene was also demonising as the official was seen wearing luxury watches that were speculated to be above his salary. With many citizens speculating that he was involved in some sort of corruption.
The Chinese official advocated that he was only smiling to comfort the victims and onlookers of the crash. However, the official’s title was never returned to him.
Sacked for not smiling enough
Some employers will try to dictate an employee’s every move and facial feature. In 2013, a man at a real estate agency was fired for “not smiling enough”. The employee refused to smile during staff pictures. His manager supported his decision to dismiss the employee, stating that the employee refusing to smile was evidence of his “negative attitude”.
Furthermore, the employer supported that the employee was dismissed due to a variety of reasons. Including sending inappropriate emails, changing other employees’ access privileges, breaching company internet usage, and failing to inform the company that an injury will inhibit him from going to work.
Despite what the employer tried to argue, the Fair Work Commission supported that the employee was unfairly dismissed. It was found that there was a lack of procedural fairness and no “sound, defensible and well founded” reason to dismiss the employee.
It came out that the manager had failed to inform the employee of any alleged misconduct prior or during the dismissal. Therefore, the employee was refused an opportunity to respond or defend himself. Furthermore, the employee could not know that he needed to fix his behaviour, therefore it was more likely for him to keep misbehaving. Further information came out that the manager would purposely withhold evidence so that he could keep it “up his sleeve” for later discussions.
The Commission upheld that nothing could be inferred by the employee refusing to smile. Particularly as no one had asked the employee why he was not smiling. Furthermore, the lack of procedural fairness regarding the other alleged misbehavioural issues renders the allegations pointless. The employee was unfairly dismissed.
Punished for not smiling enough
To an extent employees are allowed to say how they want their employees interacting with customers. This could include whether to smile, talk politely, personally guide customers to items they are searching for, or banning swearing and other vulgar language. However, employees are not robots and there are a certain amount of reasonable exceptions that an employer should uphold.
Some employers will enforce a reward or punishment system to incentivise employees. For example, one British sandwich shop chain prioritises high energy and enthusiastic employees. Asking employees to even high five and hug each other. Therefore, secret shoppers will come in and evaluate how “high energy” the store is. If the store passes everyone gets bonuses, however if they fail there is a black mark against them.
While no one can be forced to do something they are uncomfortable with, this considered workplace harassment. Employers should be upfront with how they want employees engaging with clients, customers, and the general public. If the employee is not comfortable with how the business decides to conduct themselves then on some occasion the employee and employer may not be a good fit. However, there is an important distinction between unusual business practices and sexual harassment.
Boss fires employee as “April fools joke”
Sometimes it is the boss who does not know how the employee will react. An American employee sparked outrage against his boss online. The employee was dismissed as an “April fools joke” where his boss then laughed and walked away. Leaving the employee devastated.
The employee then spent the next few hours cleaning his desk, packing his belongings, removing all his clients, and going home three hours later. It was not until his boss called asking where he was did he find out it was all a joke. The employee was asked to return to work, however the employee was furious and refused. The employer had then harassed the employee, trying to call dozens of times with no avail.
The boss had been put on temporary leave after yelling at other employees later the same day. It was likely that the boss would never be allowed to return to the role. As compensation the employee was given a raise, moved to a different team, and received additional weeks of leave.
The boss has learnt that employees are allowed to react and behave to what is happening in their workplace. No employer can dictate how they react to jokes, bad news, or serious matters. And employees are allowed to complain and advocate when they are treated poorly.
What if my boss is smirking or laughing at me?
The same way employees are allowed to be told how to act with clients and each other. Bosses, employers, and managers also have a standard of professionalism to maintain. Arguably even more so than employees. People in management are typically paid more, and are expected to behave accordingly. Not succumbing to arguments, petty behaviour, or bullying.
Therefore, what can an employee do if it’s their boss rolling their eyes, smirking, or laughing at employees? The first step is to always have a discussion with the perpetrator. This allows for any miscommunications to be resolved without the need of third party intervention. Similar to employees, everyone should be given the benefit of the doubt once in case there was genuine no ill intentions. Sometimes facial reactions just happen with no conscious thought.
If it is the case where the boss or manager is genuinely acting snarky towards employees then the behaviour can be documented. Where it is then likely for Human Resources or upper management to get involved to prevent further unprofessional behaviour.
If an employee is feeling bullied or uncomfortable with a manager’s behaviour then all employees have a workplace right to complain. It is the company’s responsibility to investigate what is going on, get to the bottom of any issues, and come up with amicable resolutions.
If it is a matter where an employee’s complaints are being ignored and unprofessional behaviour continued then third party intervention may be necessary. This may include considering moving jobs, or filing a General Protections claim with the Fair Work Commission.
Conclusion to: Working around workplace relationships.
What should I know moving forward
As a general rule a single facial reaction will not provide reasonable grounds to terminate someone. If the gesture is considered rude and it was a one off event then a quick informal warning may be necessary. However, if an employee knows that their employer particularly cares about facial reactions and mannerisms then it should be a consideration in how they behave at work. Some employers may not care about a smirk or eye roll, however it is likely that at least one person will.
If there seems to be a situation where the issue has escalated to a formal written warning or termination then it is imperative to ensure that a fair process is being followed. This may include locating any workplace policy (if there is one related). Completely understanding what the alleged issue is. And being able to respond and provide a reason to their behaviour.
If you are unsure and require assistance we can help you at 1800 333 666.
We are A Whole New Approach one the nations leading workplace advisors and commentators. We are not lawyers. We are proud of our staff and the outcomes they obtain for our clients
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