Budden v Finke Enterprises Pty Ltd [2016] FWC 562 – employer can direct you to change your hair colour and a retaliatory response could constitute reason for dismissal

Thinking of dying your hair a crazy colour for charitable purposes? You might want to think again, as an employer may be able to lawfully direct you to change your hair colour and a failure to comply with a lawful direction may constitute reason for dismissal. You should also think twice about the way you react to a warning about your hair colour or appearance, as your reaction alone may be a sufficient reason for dismissal. In the recent case of Budden v Finke Enterprises Pty Ltd [2016] FWC 562, the employee’s reaction to a direction to change hair colour was a valid reason for dismissal under s.387(a) of the Fair Work Act 2009.

Unfair dismissal – the basics

To come within the unfair dismissals jurisdiction of the Fair Work Commission, an applicant must first meet a number of qualifying criteria, including the minimum employment period of 6 months or 12 months for small business employers (s.383), and come within the limitation period of 21 days (s.394). An unfair dismissal will only have occurred where the criteria in s.385 are satisfied:

(a)    The person has been dismissed; and

(b)   The dismissal was harsh, unjust or unreasonable; and

(c)    The dismissal was not consistent with the Small Business Fair Dismissal Code (where applicable); and

(d)   The dismissal was not a case of genuine redundancy.

In Ms Budden’s case, the focus was on s.385(b), whether the dismissal was “harsh, unjust or reasonable”. In considering whether a dismissal is “harsh, unjust or unreasonable”, the criteria in s.387 must be taken into account:

(a)  whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

While all the criteria in s.387 must be taken into account, the focus in Ms Budden’s case was on s.387(a), whether there was a valid reason for the dismissal related to the person’s capacity or conduct.

Facts

Ms Budden was employed part time by Finke Enterprises to work five hours a day Monday to Friday at Fused Café. Ms Budden was the most senior cook employed. She was passionate about raising awareness about breast cancer and persuaded the Directors of Finke Enterprises to raise funds for breast cancer research in October 2015. The Directors agreed to donate 10c from every hot beverage sold as well as part proceeds from the sale of pink slices cooked by Ms Budden. There were two separate issues that led to Ms Budden being issued with a formal warning on 17 September 2015 and later put forward as a valid reason for dismissal under s.387(a) of the Fair Work Act 2009:

1.       Making derogatory comments about her employer to colleagues after she dyed her hair fluorescent pink and was directed to dye it a more work appropriate colour; and

2.       Complaints from staff about intimidation and bullying.

Dyeing hair fluorescent pink

Without consulting with her employer, Ms Budden dyed her hair fluorescent pink on 10 September 2015 in preparation for the October breast cancer fundraising campaign. On 17 September 2015 Ms Budden was given a formal verbal warning giving her until the 21 September to change her hair colour. This was followed up by a phone call during which Ms Budden yelled and swore at a Director. A formal written warning was also issued reiterating the options for changing her hair colour, indicating her behaviour on the telephone was inappropriate and that any further issues would result in a review of her employment status.

Commissioner Saunders held that the direction to change hair colour was a lawful direction because:

1.       Customers of the café could see Ms Budden in the kitchen and Ms Budden sometimes interacted with customers;

2.       The owner of a café is entitled to require staff working in a café to have a neat and professional appearance;

3.       The owner offered a number of reasonable options including for Ms Budden to dye her hair a lighter “ash pink” colour for the duration of the breast cancer fundraising month;  and

4.       The fact the employer had previously accepted Ms Budden’s different hair colours did not matter, as those hair colours were not fluorescent.

While Ms Budden reluctantly followed the direction and dyed her hair a more subtle cranberry colour, she was not happy and vented to her colleagues. In particular, at an employee’s 21^st birthday in which many of her colleagues were present, Ms Budden approached a number of colleagues and indicated she was angry she had to change her hair colour and made statements such as “would you like me to show you what it looked like before they fucking made me change it?”.

A final meeting was held on 21 September 2015 with management to give Ms Budden an opportunity to apologise or provide a comment on her behaviour. Ms Budden stormed out a number of times, returning only to make angry comments and storm off again. The decision was then made to dismiss Ms Budden. 

While Commissioner Saunders relied more on the intimidation grounds for dismissal discussed below, he also found Ms Budden’s behaviour in bad-mouthing her employer to be a valid reason for dismissal as her behaviour viewed objectively was likely to cause serious damage to the relationship of trust and confidence with her employer. As Ms Budden had complied with the direction to change her hair colour, Commissioner Saunders did not have to consider whether a failure to comply with the direction would have been a valid reason for dismissal. It is likely it would have been a valid reason for dismissal given if the direction was lawful, as the refusal would likely effect the trust and confidence between parties in the employment relationship.

Staff complaints of intimidation and bullying

Prior to the verbal and written warnings issued on 17 September 2015 Ms Budden had received a number of warnings about her intimidating behaviour including yelling aggressively at staff, putting staff down, calling staff names such as “idiot”, slapping a staff member’s hand, criticising staff members behind their back, and criticising the café’s owners. There was also a particular incident where Ms Budden cornered a junior employee and asking if she was scared of her. The warnings on 17 September 2015 also included a further warning about her intimidating behaviour.

Commissioner Saunders found Ms Budden’s behaviour was a valid reason for dismissal, as an employer has obligations of health and safety to employees in the workplace and Ms Budden negatively impacted on the health and wellbeing of other employees. The fact Ms Budden’s “style” was direct and blunt and she did not personally see anything wrong with her behaviour did not prevent her intimidating behaviour being a valid reason for dismissal.

Conclusion

The case of Budden v Finke Enterprises is a good example of how things can rapidly spiral out of control for an employee who takes a direction from an employer too personally and does not think before they act to bad-mouth their employer. If you do plan to dye your hair a crazy colour, even for charity, ensure your employer is supportive of the change, as you will be required to comply with a lawful direction where an employer is entitled to require staff to have a neat and professional appearance. If you are directed to change your hair colour or appearance, the best course of action will usually be to make the change as directed and refrain from bad-mouthing your employer, especially to colleagues. This includes bad-mouthing your employer on social media, as tempting and satisfying as it may seem at the time. An apology or considered explanation for certain behaviour can go a long way to preventing dismissal if you do act in a way that diminishes your employer’s confidence in you.    

How to put together a brief for a barrister

An essential skill for a law graduate is being able to put together a brief for a barrister. Even if you work in an advisory practice and rarely work on litigious matters, you may have to brief a barrister to provide advice or settle a contract or other document. If you worked as a paralegal prior to graduating, you may already have experience putting together a brief. Law firms expect law graduates to be able to put a brief together, yet the skills required are rarely taught. Mastering the ability to put together an accurate and succinct brief is important as it will help you gain the trust of your team, the barrister you are working with, and can lead to increased responsibility such as drafting observations and managing matters with a barrister directly.

1.       Identify purpose of the brief

To identify the purpose of the brief ask yourself what work the barrister will be doing for you. Will the barrister be attending court, attending conciliation, settling a document, writing an advice, providing oral advice, or providing other legal services? At this point you may want to consider the Bar Rules which provides guidance on what work a barrister can and cannot do. In NSW, Bar Rule 74 states:

74. A barrister must confine the barrister’s professional work to:

a) Appearing as an advocate;

b) Preparing to appear as an advocate;

c) Negotiating for the client with the opponent to compromise the case;

d) Representing the client in a mediation;

e) Giving legal advice;

f) Advising on documents to be used in the client’s affairs;

g) Acting as a referee, arbitrator or mediator; and

h) Carrying out work properly incidental to the kinds of work referred to in (a)-(g).

The briefs you are most likely to prepare as a graduate are:

·         Brief to advise (on a legal question, on evidence, etc.); and

·         Brief to appear (at a hearing, at directions, at a costs hearing, etc.).

2.       Select your barrister, ensure a retainer is in place and communicate need to use barrister with client

If you work at a law firm, chances are a barrister has already been selected, a retainer is in place and your client is aware of the need to involve a barrister in their matter. Ask your team’s secretary or assistant to ensure the barrister knows the brief is coming. If unsure, phone Chambers ahead of time to ensure the barrister is able to take on the brief. If you work at a smaller firm, the client’s budget may be smaller and may dictate which level of barrister you use, so it is important to communicate with your client about their budget and expectations prior to selecting a barrister.

3.       Write observations

If you are fresh from university, a more senior lawyer is likely to have written the observations for you. If that is the case, ask if they need you to proof read the observations. Even if you do not need to proof read the observations, you should read the observations thoroughly, as they will identify the documents you will need to locate and collate for the brief.

Points to note when drafting observations:

·         Prominently position the text that explains what you expect the barrister to do (e.g. attend a hearing on 17 March 2016) and any timeframes (e.g. please provide a written advice on this matter within two weeks of receipt of this brief);

·         You should include a short narration of key facts, but you can refer to documents included in your brief such as a chronology or facts contained in a client’s affidavit or draft affidavit;

·          The focus on the brief should be the legal issues you have identified and any analysis you have undertaken of these key issues;

·         Refer to all documents you intend to attach to the brief as this will help put the documents in context for the barrister;

·         If you are going to include documents of marginal relevance, justify why you have included them in the brief;

·         Number your paragraphs;

·         Triple check spelling and punctuation.

A full blog post on drafting observations is coming soon, but for the meantime, look at observations colleagues have drafted in the past to help you understand what content should go in the observations.

4.       Collate and prepare documents

All relevant but no irrelevant documents should be provided to the barrister. Irrelevant documents waste the barrister’s time and may unnecessarily increase costs for your client. Ordinarily a document should only be included if it is referenced in the observations. If a document is not important enough to be mentioned in the observations, the barrister probably does not need the document. If you have not written the observations yourself, and you are coming into the matter cold, to find out which documents to collate, read the observations, as observations should refer to each key document included in the brief. You may also have to prepare documents from scratch. Unless exceptional circumstances exist, your brief should include a chronology. If no chronology has been made, take the initiative to make one yourself.

If you have created a quality legal research memorandum for the matter, include this in your brief. Not only will this help the barrister with authorities, the document will have your name on it, and is a good way to start getting your name out there. If your boss does not want it included, they will let you know when they review the brief.

5.       Select folder and dividers

Many barristers edge on the OCD end of the personality spectrum. They like to have new white folders and the more expensive looking dividers. For the uninitiated, there are two types of folders you will encounter as a lawyer:

1.       D-Ring –a basic folder with two (or four) D-Rings at the centre. To open the D-Rings you snap them open with your hands. This is the cheaper variety which barristers generally do not like. If you look at the hands of older barristers you will see faint scar lines from past altercations with such folders.

2.       Lever Arch – similar to the D-Ring, but with a lever mechanism that opens the rings for you in a civilised and safe manner. Generally these folders will be stronger and more robust than the basic D-Ring. There are a variety of different brands out there, but if you go to Office Works to have a look, the best ones available are the Bantex A4 2 Ring Lever Arch File. A Lever Arch costs between $6 to $10, so if it is cheaper you are probably not looking at a Lever Arch. Always purchase white. Black and coloured folders are for lawyers who do not know what they are doing.

When the matter concludes, the barrister is meant to return the brief back to you in the folder(s) you provided, so if you are working at a law firm and not paying for the folder yourself, you may as well give them the best. When selecting dividers, choose plastic over paper, as they are more robust. If you only have paper dividers, try and at least use the dividers with reinforced hole punches. Some QC’s and SC’s have preferences when it comes to types of folders (2 binder or 4 binder – but always white lever arch), photocopying (double or single sided – if in doubt copy single sided), and securing documents (staple, paperclip or nothing), and types of dividers (i.e. A-E or 1-5). Ask your Senior Associate or other colleagues if they know about the barrister’s preferences. If in doubt phone the Barrister’s Chambers. You may be asked to redo the whole task if the barrister is not impressed on your first effort.   

6.       Insert cover page and index

Check if your firm has a template for the cover page and/or index. Your team’s legal assistant may be able to help you with this if you are struggling. If you are making the folder cover from scratch it should contain:

1.       Type of brief – brief to advise, brief to appear;

2.       Name of the matter – i.e. if it is a litigious matter the name of both the parties to the dispute;

3.       Name of barrister and address of barrister’s chambers;

4.       Name of your firm, name of contact lawyer and contact details of lawyer.

Remember you need a cover page for the front of the folder and a label to insert in the folder’s spine so that when the folder is on a shelf you can identify what is inside the folder.

7.       Get brief checked by more senior colleague

This step is particularly important if you are a paralegal, a graduate who is not admitted or a lawyer who is still on a probationary practising certificate. Even senior lawyers can benefit from having another lawyer read over their work.

8.       Make copies of the brief

For large litigation matters you will usually need three copies: the original for you to keep, a copy for the barrister, and a copy for the junior barrister. If it is an advice, you may just need the original and one copy for the barrister. Do not fall at the last hurdle. Make sure your photocopying is accurate and that you have not photocopied double sided documents as single sided documents.

9.       Deliver the brief

If the brief is urgent, offer to deliver it by hand. Meeting your barrister in person is one of the best ways to gain the trust of your barrister. Do not just shove it into their hands and leave, unless the barrister is in an obvious hurry, such as where the barrister is robed up and about to attend court in the morning. Stand your ground, as the barrister may ask you about the brief, and using your knowledge gained from reading the observations and the documents in the brief, you may be able to assist the barrister and even impress the barrister. Other options for delivery obviously include express post, courier and hand delivery by a paralegal. Do not send a brief by ordinary post, as you will not be able to track the brief. Express post and registered post both allow for parcel tracking. Keep a copy of the tracking number. If the barrister does not receive the brief for any reason, you will be first in the line of fire.

Happy brief making!