Australia: Robbery, but not under arms: did the safety policy still apply?

In the recent case of Mistry v Woolworths (Fair Work Commission, 2017), Mr Mistry made an unfair dismissal application when his employment was terminated, because when he was confronted by a would-be robber at a petrol station, he failed to follow a policy intended to protect the safety of employees and customers.

Mr Mistry was in sole charge of the petrol station late one evening, when a young male with a backpack approached the counter and said "Give me the money" and "Give me the money or I will jump the counter." Mr Mistry backed away from the till and said he couldn't. The customer said "Okay, give me the smokes." Mr Mistry was confused about what the robber wanted, but some other customers entered the service station, and the man took some items and left the store. The stand-off lasted about two minutes.

After serving the additional customers, Mr Mistry called his manager, who told him to cordon off the area, press the panic button and contact the police. Mr Mistry never pressed the panic button, and didn't call the police until told a second time, somewhat later.

Woolworths wasn't happy with Mr Mistry's conduct, and terminated his employment because he had failed to follow the Armed Hold-Up procedure when he failed to comply with the offender's demands, and failed to follow the notification procedure and his manager's instructions. Woolworths believed that failure to comply with the procedure exposed Mr Mistry and others to serious risk of harm, and demonstrated a poor attitude towards safety. Mr Mistry had also had a warning a short time before, for a failure to follow food safety procedures.

The Armed Hold-Up procedure required employees to do exactly as the offender instructs, and to activate the hold-up alarm, and call the police as soon as safe to do so. There was a more detailed policy dealing with Armed Hold-Up and also a policy for Dealing with Difficult Customers. Woolworths specifically referred to the Armed Hold-Up policy in terminating Mr Mistry's employment.

The Commissioner who heard Mr Mistry's application decided that Mr Mistry didn't follow important elements of the procedures because he did not obey the offender's demands, he tried to outsmart the offender by refusing to give him money and cigarettes when it would have been possible for him to do so, and he did not activate alarms. He therefore upheld the termination.

Mr Mistry appealed to the Full Bench of the Fair Work Commission, which upheld his appeal, because the policies did not, on their face, apply to the incident. There was nothing to suggest that the would-be robber was armed - he never showed or mentioned a weapon. When asked during the hearing what Woolworths thought about the application of the policies aimed at armed hold-ups, given the apparent lack of a weapon in this case, Woolworths' representative commented that in future they would probably call it a hold-up procedure, rather than armed hold-up procedure. Of course, that may help in future, but not retrospectively. The case was returned to a single Commissioner to take further evidence in relation to the possible application of the policy at the time to the circumstances Mr Mistry faced.

Getting the policy right

The point which can be drawn from this case, so far, is that employers need to take some care with the content and titling of policies, and also to take care with using policies as the standard to judge an employee's conduct or performance. As is often the case, going into too much detail, or too high a degree of precision in policies can leave gaps, as happened in this case between the Armed Hold-Up procedure and the Dealing with Difficult Customers procedure. On the other hand, something which is expressed too generally to operate as a catch-all policy or procedure may not be sufficiently specific about particular situations. This may be a damned-if-you-do, damned-if-you-don't, situation, and requires some care in drafting policies to cover a range of situations without becoming too vague, while giving sufficiently robust guidance to employees.

In any event, terminating an employee's employment on the basis of a policy which does not actually apply to the actual circumstances is risky. Employers need to focus on the actual provisions of a policy to make sure it does apply before using it as a basis for termination. In cases of doubt, a final warning may be a better option.

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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