Davies Ndumiso Sibanda Labour Matters
MANY employees risk being dismissed from employment for dressing inappropriately while they argue that the employer has no dress code and their contracts of employment are silent on how they should dress. The issue of acceptable dressing standards has remained problematic for both employers and employees with many employers demanding workers dress in a certain way and workers on the other hand arguing that they can dress as they want.
The matter of appropriate dressing for work was put to rest in the matter Mpumela vs Berger Paints SC 133/99 where Mpumela was ordered to dress properly at work by putting on a jacket and a tie. He refused and was given warnings which he ignored arguing that his contract had no provision to put on a jacket and a tie and he was dismissed.
When Mpumela’s matter got to the Supreme Court, it was held that despite having no written dress code the order by the employer was lawful as it properly appertained to the character of the employee’s contract. The court said, “I am satisfied that in the present case the order issued by the respondent’s Manager was an order properly appertaining to the character of the appellant’s contract of employment and was lawful. It cannot cogently be argued that as the contract of employment did not mention what type of clothes the appellant was required to wear, the respondent’s Manager could not order him to wear appropriate clothes. In my view, there is certainly no substance in the argument that the appellant was entitled to wear whatever clothes he wanted to wear. If that were the case, the appellant would have been entitled to go to work wearing a jogging suit or track suit, which could hardly have been within the contemplation of the parties at the time the contract of employment was concluded, bearing in mind the fact that the appellant was employed as a bookkeeper.”
This judgement clearly shows that many employees who dress improperly at work are skating on thin ice as they are risking dismissal. The legal question is not whether it is written in the contract but whether at engagement the parties contemplated the kind of dress was acceptable in the circumstances. Further, whether the order appertains to the character of the appellant’s contract of employment.
Simply put, when an order appertains to the character of the employee’s contract, we use the eyes of the reasonable person to establish whether given the circumstances of the employer’s business and its character would such dressing be appropriate. For example, a bank teller cannot be expected to put on a two piece overall and be expected to sit behind the counter and serve customers or a receptionist cannot be expected to come and sit at work in their pyjamas.
It is advisable for workers to look at how other employees in the organisation dress and try to dress in a way consistent with how others in the organisation dress and better still ask your boss what general acceptable standards of dress are and what would be completely unacceptable. This will save the employee from embarrassment and possible dismissal.
In conclusion, despite the guidelines given in this judgment, employers should try as much as possible to have a known written policy to guide workers dressing for the various occasions while at work. Workers on their part must dress in a manner consistent with the character of their workplace.
l Davies Ndumiso Sibanda can be contacted on: email: email@example.com, or cell No: 0772 375 235