A Melbourne concreter won an unfair dismissal claim last month against a firm that summarily dismissed him. The dismissal came in April after he either smiled or smirked during a meeting called only to warn him over a dangerous safety breach.

His previous record at the company was good and his ex-employer described him as a good concreter. ”From our end, he was dismissed for his perceived lack of concern for workplace safety,” said the firm’s general manager.

The concreter had been at a building site operating a trowel driver, a piece of heavy machinery for smoothing concrete, and was seen giving a colleague a lift for about 20 metres on the machine, something he later admitted was extremely dangerous.

The employer told the commission the breach could ”have resulted in them probably dying, one of them at least, if not being severely injured, and we don’t want that behaviour in our workplace”. But when the employee was interviewed a month after the incident, he either smiled or smirked at his boss. He was then sacked, a move Fair Work commissioner David Gregory ruled was unfair.

The concreter now works for another concrete firm. He said that for many years his managers had been happy with his work. ”It was wrong to sack me over such a simple misunderstanding,” he said.

The Construction, Forestry, Mining and Energy Union, which represented the worker, told the commission it was ”inherently unreliable to dismiss a worker based on one person’s interpretation of that worker’s facial expression”.

Another worker at the firm said that, during the incident, his manager had said in a raised voice: ”Don’t be a f—ing smart arse; we could have you sacked for this.” The employee is said to have replied: ”If you want to sack me, then sack me,” after which he was told to get out.

Is this fair? Most think not. A poll asking “Should smirking at your boss be a sackable offence?” reported an overwhelming 70 percent ‘No’ result.

The phenomenon of being sacked for one’s facial expressions is not unique to Australia. In China, last year, a safety official was sacked for smiling at the scene of a bus crash. He claimed to be trying to ‘relax’ other stressed safety workers.

It is important to remember that smiling can mean different things to different people (eg. nervousness) and can have different meanings in different cultures.

Given current unfair dismissal laws, iHR urges adherence to proper procedures around terminations and offers advice on termination, harassment, unfair dismissals, workplace bullying and adverse actions.

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