An Indian worker whose unfair dismissal claim was shot down by the Fair Work Commission has been given a reprieve by the full bench of the commission.
The FWC has upheld Tapan Mistry’s appeal against supermarket giant Woolworths after he was sacked for failing to follow its armed hold-up protocol when he refused to hand over money and cigarettes to an unarmed but “difficult” customer.
36-year-old Tapan Mistry was working as a console operator at a Perth service station in October last year when a person demanded money and cigarettes from him and then left the store without paying for the items he had picked up.
The company alleged that in failing to comply with the offender’s demands, he violated the company’s policy. It said he exposed himself and others to serious risk of harm and he was subsequently sacked. In February this year, Fair Work Commission upheld Tapan’s dismissal.
Woolworths said Mr Mistry did not press the panic button and did not immediately inform the police as warranted by the armed hold-up procedure of the company. However, he contended that the person was unarmed and that he did not issue any threat until he said he would jump across the counter. Mr Mistry said a different procedure ‘Dealing with Difficult Customers’ applied to the situation. During the initial challenge to the dismissal, Commissioner Bruce Williams said Mr Mistry's argument was an attempt to avoid criticism.
However, a full bench of the Fair Work Commission earlier this month upheld his appeal against the earlier decision of the FWC and remitted the case for re-determination, and directed the company to clearly set out circumstances where health and safety procedures apply.
“This failure to deal with Mr Mistry’s case meant that the Commissioner failed to take into account a material consideration, manifested an injustice to Mr Mistry, and constituted appealable error,” the bench said.
It also remarked that Commissioner Williams’ assertion that the operator was being "disingenuous" in an attempt to counter criticisms of him and avoid disciplinary consequences was "with respect” not a logical conclusion to draw.
The bench also noted that when Commissioner Williams asked Woolworths about the inclusion of the word "armed" in the policy title, its representative responded that it would "probably look at removing the word 'armed'" and "just call it a hold-up procedure".
The bench said it was not reasonable to expect that employees would apply the Armed hold-up procedure to situations which did not involve the actual or possible use of arms.
“Nor could it reasonably be expected that Mr Mistry would necessarily understand that he was to hand over the contents of the till to a customer who was not visibly armed and did not give any indication or sign he was armed merely because the customer requested that this occur,” Commission Vice President Adam Hatcher, Deputy President Binet and Commissioner Cribb remarked.
Mr Mistry’s case has been remitted to a single member of the FWC for redetermination. He and Woolworths will be provided with an opportunity to present their evidence once again.
