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Can you require your employees to wear makeup?
If you were asked to suggest 10 nominees for the title of "perfect New Zealand male" it is most unlikely that you would think of Jake the Muss.
Jake was, of course, a fictional character in Alan Duff's Once were Warriors - played admirably in the movie version by Temuera Morrison.
He was a hard drinker, who lived as hard as he drank beer. He enjoyed getting into fights, and told women that if he wished to speak to them he would drink in the lounge bar.
Famously, he was also a terrible wife beater. One of the most memorable lines in the movie occurs just after he has thrashed his partner, Beth: "You look awful - clean yourself up, woman."
It's hard to imagine many social circumstances where it would be acceptable for a man to utter this line. Remarkably, however, a recent decision of the Employment Court suggests that it may occasionally be acceptable in an employment context.
The plaintiff in Williams v Kimberleys Fashions Limited (Unreported, Employment Court, Auckland, 12 December 2006) worked as an assistant manager in the defendant's retail store in New Market.
Difficulties arose for Williams in early 2003, after she was required to work for a new Manager, Ms Toumadj.
Toumadj had a bad relationship with Williams - and other shop assistants. Amongst other things, an issue arose about Toumadj's apparently regular absences from work. Toumadj allegedly asked her shop assistants to lie to the owners of the store about the frequency of her absences.
Largely because of the deterioration in her employment relationship, Williams began to suffer from a number of serious health conditions. She began to display signs of harm from stress - including an epileptic seizure and a severe migraine attack. Unfortunately, she also had a cancer scare - and was required to undertake a cervical biopsy. To compound matters, the biopsy procedure caused her to suffer excessive bleeding on one occasion while she was at work.
And just to make things about as bad as they could get, at about the same time Williams' relationship broke up - and a friend committed suicide.
Toumadj was aware of these problems, but appeared to lack understanding about them. For her part, Williams used up all of her sick leave, and was absent from work on several occasions.
The owners of the store were concerned about Williams' behaviour. They validly raised issue about certain aspects of her behaviour, and told her that she would be required to attend a disciplinary meeting to address it.
Unfortunately, however, they made the mistake of instructing Toumadj to undertake the disciplinary meeting. The irony of the situation (an absentee manager asked to investigate employee absenteeism) was not lost on Williams. Further, the court found that Toumadj was inexperienced in dealing with disciplinary matters - and managed the meeting poorly.
What compounded the entire situation, however, was an issue that Toumadj raised at the end of the meeting. She reported a concern that one of the owners had noted - namely that she considered that Williams occasionally arrived at work "unclean, not wearing makeup or untidy look/dress."
Of all the matters raised at the meeting, Williams was particularly upset about this one. It was a concern that had not been foreshadowed. She reacted poorly to the suggestion that she was "unclean". The evidence of a psycho-therapist was that the allegation had a profound effect upon her self esteem.
The evidence at trial was that, in response to this criticism, Williams forced herself to wear makeup for a number of weeks - and made a special effort to ensure that her presentation was up to the owners' stated requirements. Eventually, however, the stress associated with this - and the accompanying blow to her self-esteem - led Williams to resign. She claimed that she had been constructively dismissed.
The court agreed with Williams. It criticised the way in which this particular concern had been raised with her - and generally criticised aspects of the disciplinary procedure undertaken by the employer. It concluded that she did, indeed, have no realistic option other than to resign.
Perhaps what was most interesting, however, was the additional comments that the court made about the requirement for Ms Williams to "clean herself up". It observed that, while the procedure adopted in this case was unacceptable, it was not, as a rule, unacceptable for an employer to insist upon a tidy standard of appearance for its employees. Exactly what could reasonably be demanded in this context was, to a large extent, influenced by the nature of the work.
For example, the court concluded that it would be acceptable for a cosmetics retailer to require its staff to wear its product.
Similarly, one would presume that a person involved in the sale of clothing should generally wear - and be well presented - in the employer's product.
This does not represent an open authority to all employers to require their workers to dress - or generally to present themselves - in a particular manner. It does, however, suggest that, depending upon a particular workplace, an employer may be justified in prescribing the way in which its employees should appear.
