In a recent decision of the District Court of Queensland in Funnell v Michael Hill Jeweller (Australia) Pty Ltd [2019] QDC 255, an employer was held liable for a worker’s psychological injuries sustained as a result of an attempted ‘snatch and grab’ incident despite the worker’s failure to follow the prescribed sales procedure. In this article, Partner Anna Hendry and Solicitor Will Findlay examine the important implications of this decision for employers when providing training to workers.

Background

The worker was a sales assistant at Michael Hill Jewellers. On 1 November 2015, a male customer entered the store and asked the plaintiff for the price of a necklace in a display cabinet. The worker responded that the necklace cost $13,000.00. The customer then asked whether that was the best possible price and the plaintiff took the necklace from the cabinet to scan it. The customer then asked to feel the weight of the necklace which prompted the worker to ask the customer to produce his drivers’ licence for inspection.

The customer moved his hand to his right side as if reaching for his wallet and then aggressively reached over the counter and grabbed the necklace. He initially attempted to use both hands to pull on the chain, but the worker and a co-worker resisted, and he fled.

The worker initially suffered bleeding to her hand and was in a state of shock. Following the incident, she became nervous, anxious, suffered from panic attacks and developed a psychiatric injury.

Sales procedure

The employer had trained the worker in a sales procedure, which focussed on engaging with the customer to determine why they were interested in the item and who it was for, before negotiating on price. The employer’s evidence was that this procedure was aimed at slowing down the sale and gauging the customer’s intent and therefore assisted in both sales and security. However, the employer conceded that the sales procedure was not in fact identified to employees as being an anti-theft policy but simply a sales procedure.

The employer’s case was that the worker failed to follow the mandatory sales procedure by removing the item from the cabinet to scan it. Instead, she should have gone “back North” or to the start of the sales procedure by asking the customer further questions to gauge his intent. The worker disagreed, stating that the sales procedure was flexible depending on the customer.

Identification procedure

The employer also had in place a procedure whereby employees had been instructed to obtain identification from any customer asking to inspect an item greater than $20,000 in value before removing the item from the display cabinet. Although that procedure did not apply in the present circumstances because the item was valued at less than $20,000, the worker gave evidence that she asked for identification anyway because she was suspicious of the customer’s motives, but she denied that she thought he was going to grab the chain and run.

At some time after the incident, this procedure was changed to require identification for any item greater than $2,000 in value. The employer attributed the change in procedure to a recent spate of incidents in Melbourne, rather than the subject incident.

Decision

The worker submitted a number of hypothetical precautions including security guards, security doors and CCTV signage, which Judge Kent did not accept were reasonably practicable or likely to have prevented the injury. However, Judge Kent did conclude that reduction of the value limit for the identification procedure to $2,000 would not have been overly expensive or onerous and that a reasonable person in the employer’s position would have taken such a precaution against the foreseeable risk of both the incident and the injury. This conclusion was of course aided by the employer having in fact made the relevant change to the procedure since the incident.

Judge Kent also gave some consideration to the employer’s submission that the worker’s failure to follow the sales procedure contributed to the occurrence of the incident. He concluded that the failure was not a sufficient intervening event to break the chain of causation, noting that contributory negligence had not been pleaded.

Take away points

This decision provides some insight as to how a court would view the actions of an employee in failing to follow a procedure that involves incidental but not expressed safety measures. In this regard, it seems likely a distinction will be drawn between a procedure implemented to assist employees to achieve a desired business outcome, which would reasonably be considered to be flexible, and one implemented to protect an employee’s safety. Therefore, where a procedure is directed to the dual purposes of achieving a business outcome and protecting safety, employers should ensure that the dual purpose is clearly communicated to employees and that employees are instructed that the safety aspects of the procedure are mandatory and inflexible in nature.