The Fair Work Commission has remitted an application for an unfair dismissal remedy for re-determination after it found that the Commissioner who heard the application failed to deal with a fundamental issue, namely, whether a policy applying to an armed hold-up situation had any application to an incident for which the employee was dismissed and, accordingly, whether any failure to comply with the policy could constitute a valid reason for dismissal of an employee.
Failure to comply with 'Armed Holdup Procedure' and exposed self and others to serious risk of harm
Mr Mistry was employed by Woolworths Ltd t/a Woolworths Fuel (Woolworths) as a console operator at a Woolworths service station in Perth. His employment was terminated because of an alleged failure to comply with its policies in relation to an attempted robbery.
During Mr Mistry's shift on 7 October 2016, a young male customer approached him and said "give me the money". Mr Mistry said he mistakenly believed the customer was referring to his change for items he was purchasing, and was confused as the customer had not yet paid for the items.
Mr Mistry therefore replied "mate, you need to pay me first, then I can give you the change". The customer then said "give me the money or I'll jump the counter".
Mr Mistry then realised the customer was referring to money in the till and backed away from the till. The customer then said "Ok, give me the smokes". When he noticed that others had come into the service station, he grabbed what he could and left.
Following the incident, Mr Mistry telephoned his Site Manager, who told him to cordon off the area, serve customers through the night counter, press the duress alarm and notify the police. Mr Mistry did not immediately call the police and did not press the duress alarm. The Site Manager then called her Manager, who called Mr Mistry and reiterated the instruction to call the police, which Mr Mistry proceeded to do.
Following an investigation, Woolworths dismissed Mr Mistry. The dismissal letter stated that, in relation to the incident on 7 October 2016, "…it was established that you had failed to comply with Armed Holdup procedure exposing yourself and others to serious risk of harm and demonstrating a poor attitude towards safety in the workplace".
The Commissioner's initial decision found conduct constituted a valid reason for dismissal
In the initial decision, Commissioner Williams found Mr Mistry to have failed to comply with Woolworth's Armed Holdup Procedure and held that Mr Mistry:
"… did not obey the offender's demands, he tried to outsmart the offender, he did not do precisely as to offender told him to do, he did not activate the alarm, he did not lock the doors and he did not seal off the area and conserve the crime scene. He was also very slow to ring the police and only did this after twice being told to".
Commissioner Williams found Woolworths' criticisms of Mr Mistry' conduct during the incident to be "not pedantic" and Mr Mistry's conduct to constitute "a complete failure to follow the key principles of Woolworths' procedures of which he was aware".
Mr Mistry's argument that he believed the Armed Holdup Procedure did not apply to the incident because the person was not armed was considered by Commissioner Williams to be "an attempt to counter Woolworths' criticisms of him and to avoid any disciplinary consequences".
Commissioner Williams therefore found Mr Mistry's conduct during the incident to be a valid reason for his dismissal.
Decision on appeal - examining the fact the incident was not an 'armed hold up'
On appeal, Vice President Hatcher, Deputy President Binet and Commissioner Crib (Full Bench) examined whether Commissioner Williams had failed to consider the fact that the incident was not an "armed holdup" and, as such, a different policy (namely, the Aggressive or Violent Behaviour Policy) ought to have been considered as applicable in the circumstances instead of the Armed Holdup Procedure.
The Full Bench noted that Commissioner Williams had made the "critical finding" in relation to the incident that at no point during the incident did the customer display any weapon, state that he had a weapon, use any object as a weapon, act in a violent manner or raise his voice. In these circumstances, the Commission found that the incident could not have constituted an attempted "armed holdup" or "armed robbery" according to the ordinary meaning of those terms.
The Full Bench was of the view that the Armed Holdup Procedure did not indicate that the expressions "armed holdup" or "armed robbery" had a special meaning which extended beyond incidents involving the actual or threatened use of a weapon, nor had Woolworths ever indicated anything to this effect to Mr Mistry.
As a result, Full Bench determined that Commissioner Williams had failed to take into account a material consideration, which manifested an injustice to Mr Mistry and constituted an appealable error. For this reason, the Commission found it in the public interest to grant permission to appeal and that the appeal should be upheld and Mr Mistry's application re-determined.
Lessons for employers regarding OH&S policies and dismissal
- Employers should ensure that policies are drafted broadly enough so as to cover all situations in which they are intended to apply.
- When considering whether or not to dismiss an employee, an employer should closely analyse the conduct to determine what, if any, policy can be said to apply.
- If there is no applicable policy, this does not necessarily mean that the employer cannot take disciplinary action, including dismissal. However, an employer may make it more difficult for themselves to defend an unfair dismissal claim if they seek to characterise the conduct as breaching a policy which is unlikely to apply.