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
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
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
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
Employment law specialists Nathan and Kym Luke at Stacks/The 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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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