Tapan Mistry v Woolworths Limited T/A Woolworths Fuel

[2017] FWC 3097

[2017] FWC 3097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tapan Mistry
v
Woolworths Limited T/A Woolworths Fuel
(U2016/13165)

COMMISSIONER WILLIAMS PERTH, 7 JUNE 2017

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Tapan Mistry (Mr Mistry or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is Woolworths Limited T/A Woolworths Fuel (Woolworths or the Respondent).

Factual findings

[2] Having considered the evidence of the witnesses I find as follows.

[3] Mr Mistry commenced working with Woolworths on 1 August 2013. He was employed as a Console Operator on a part-time basis.

[4] On the evening of Friday, 7 October 2016 Mr Mistry was working at the Woolworths Beckenham petrol service station.

[5] Mr Mistry started his shift at 7.30 p.m. and was the only staff member on duty for that evening.

[6] Late on the evening a customer approached the service counter. There was nobody else in the service station at that time.

[7] Mr Mistry describes the customer as being male approximately 25 years old with a slim build and about 5 foot 10 inches tall.

[8] He was wearing a cap, a grey and white t-shirt, black jeans and sneakers. The evidence is he also had a backpack on. 1

[9] Mr Mistry’s evidence at the hearing was that the customer placed a spinach ricotta roll, a Dare iced coffee and a tomato sauce on the counter. Mr Mistry scanned the items which came to $8.65 told the customer the price and waited for the payment. A few seconds later the customer said to Mr Mistry “Give me the money”.

[10] Mr Mistry thought the customer was asking for change, and was confused because he had not given Mr Mistry any money yet.

[11] Mr Mistry kept waiting for him to realise that he had not paid yet.

[12] The customer again said “Give me the money”. He said this calmly.

[13] Mr Mistry replied “Mate you need to pay me first, then I can give you the change”.

[14] The customer, speaking normally, said “Give me the money or I’ll jump the counter”.

[15] Mr Mistry says at this point he got a bit scared and realised the customer was not forgetful. Mr Mistry realised the customer was not asking for change, he was asking for money from the till.

[16] Mr Mistry looked at the customer, who was skinny, and thought he would be able to jump the counter. Mr Mistry felt uncomfortable so he stepped back away from the counter.

[17] The customer then said “Ok give me the smokes”.

[18] Mr Mistry says he got confused about what the customer wanted and was not sure if he wanted money or smokes.

[19] At this time more customers came into the service station.

[20] The customer picked up the items from the counter and walked out.

[21] The evidence is that Mr Mistry gave a somewhat different account as to what occurred up to this point, when later speaking to Mr Ellis that night and at subsequent interviews.

[22] The customer did not pay for the items.

[23] Mr Mistry says the total time the customer was at the counter was 1 minute and 59 seconds.

[24] During the incident the customer did not display any weapon, never stated he had any weapon, never tried to use any object as a weapon, he was never violent and he never talked in a raised voice.

[25] Mr Mistry then served the two waiting customers and after this called the Site Manager to report the incident.

[26] Ms Vanitha Jayapahan (Ms Jayapahan) is the Site Manager. She has been employed with Woolworth’s petrol division since 2009 and up until May 2015, when she became the Site Manager, she had performed the role of Console Operator.

[27] Mr Mistry rang Ms Jayapahan and told her briefly what occurred.

[28] To the extent that the evidence of Mr Mistry and Ms Jayapahan differs over what was said in this phone conversation I prefer the evidence of Ms Jayapahan.

[29] I did not find Mr Mistry to be an entirely believable witness. For example on one occasion his oral evidence at the hearing was inconsistent with his own written witness statement. 2

[30] Relevantly I am satisfied that during that phone conversation Mr Mistry explained what had occurred and asked Ms Jayapahan for advice. She asked Mr Mistry if he had shut the site down, if he had pressed the panic button and if he had informed the police. Mr Mistry told her he had not done these things. Ms Jayapahan then told him that she would call her manager that he should cordon off the area and serve any customers through the night counter, press the panic button and call the police. 3

[31] I find that at no time did Mr Mistry press the panic button.

[32] I also find that Mr Mistry did not immediately call the police after speaking to Ms Jayapahan.

[33] Following the conversation with Mr Mistry Ms Jayapahan rang her manager Mr Brett Ellis (Mr Ellis) and explained what had occurred. Mr Ellis is the Group Manager for the WA Fuel and Metro Division of Woolworths.

[34] Mr Ellis rang and spoke to Mr Mistry. By this time Mr Mistry still had not called the police and Mr Ellis also told him to do this. 4

[35] Mr Ellis then went to the Beckenham service station. When he arrived Ms Jayapahan was already there. Sometime after Mr Ellis had arrived at the service station the police then arrived.

[36] Mr Ellis’s evidence which I accept is that he then discussed the incident with Mr Mistry and Mr Mistry told him that he had ‘played dumb’ or words to that effect when the customer asked for money from the till and for cigarettes. Mr Mistry told Mr Ellis that he told the customer he did not have access to the till or the cigarettes.

[37] The evidence is that Mr Mistry did have access to both the till and the cigarettes.

[38] Mr Ellis’s evidence which I accept was that Mr Mistry explained that the customer had then threatened to jump the counter, that he had stepped back from the counter and said words to the effect of ‘I’m not giving you anything’. This evidence was not challenged in cross-examination.

[39] Mr Mistry told Mr Ellis that he then continued to serve customers and that he had not called the police right away nor had he pressed the panic button. He had still not phoned the police despite being told to do so over the phone by both Ms Jayapahan and later Mr Ellis.

[40] When the alarm button at a service station is pressed this notifies the Respondent’s Incident Management Team who then send a priority request for the police to attend that service station.

[41] The evidence is that the alarm button in service stations is variously known as the duress, hold-up, armed hold-up or panic button. Mr Mistry himself at times referred to this alarm as the ‘panic button’. 5

[42] Mr Mistry conceded at the time of the incident he did realise the customer was demanding money from him, that the customer was demanding Mr Mistry give him money from the till, that the customer was attempting a robbery and was threatening him. 6

[43] I note that the evidence of Mr Mistry at the hearing as to what occurred during the incident differs in some detail from the evidence of Mr Ellis above as to what Mr Mistry told him had occurred on the night. Having had the benefit of viewing both witnesses I prefer the evidence of Mr Ellis as to what Mr Mistry told him had happened that night and find that this is a more accurate version of what occurred. Specifically I find that Mr Mistry told Mr Ellis that he had played dumb and told the customer he did not have access to the till or the cigarettes and that he told the customer he was not giving him anything.

[44] The Respondent has a series of procedures dealing with various Emergency Response situations. 7 These involve specific procedures for dealing with situations ranging from Fire and Explosions through to Needlestick Injuries. One of those procedures is titled ‘Armed Robbery/Hold-Ups’. This procedure instructs employees what to do if they suspect someone is going to attempt ‘a robbery’ or if an ‘armed robbery ’occurs.

[45] The procedure also has a section entitled ‘After the Robbery’ which lists the following steps,

• Immediately activate the silent alarm system



• Lock the doors so the offender cannot return



• Call the police by calling 000



• Call IMC to report incident



• Complete the offender description form



• Don’t disturb the area and serve through the night counter

[46] The procedure refers to the Respondent’s associated procedure ‘Armed Hold-Up Survival-5Cs’. The 5Cs are headings which instruct employees to be Calm, Cooperate, Communicate, Conserve and Complete. Under each of these headings there are detailed instructions including to,

• Obey the offender’s demands



• Avoid any action that may incite the offender to violence



• Do not try to outsmart the offender



• Do precisely as you are told to do



• Don’t take any risks, obey the offender’s instruction



• As soon as the offender has left and it’s safe to do so activate the ‘Hold up Alarm’ and lock the doors



• Seal off the area and conserve the crime scene

[47] Approximately every two months Woolworths’ employees are issued a safety pack which includes two parts one being a policy to read and another being a section which the employees are required to complete which involves answering a number of questions to demonstrate their understanding of the policy.

[48] In Mr Mistry’s case this had occurred two months prior to the incident with a safety pack which contained questions on the Respondent’s Armed Robbery/Hold-Ups Procedure. Mr Mistry completed this on 22 May 2016. 8

[49] The document he completed is headed ‘Armed Hold-Up Questionnaire’ it then follows with questions as below,

1. What could you do to defuse a situation when a customer becomes abusive?

2. What should you do if someone is being abusive towards you?

3. In the event of a robbery what are the 4 things you should remember?

4. List the 5Cs and a brief description of each.

5. What 3 procedures can you follow to help avoid armed hold-ups?

6. Who should you contact in the event of an armed hold-up? When should you contact them?

7. Who else should you contact and where should you record the event of an armed hold-up?

[50] I note that questions 1, and 2 deal with situations that are not ‘Armed Hold-Ups’ and also that question 3 refers to a robbery not an ‘Armed’ robbery.

[51] The evidence is that Mr Mistry is familiar with both the Armed Robbery/Hold-Ups Procedure and the Armed Hold-Up Survival-5Cs.

[52] I am satisfied that Mr Mistry did not comply with important elements of these procedures. He did not obey the offender’s demands, he tried to outsmart the offender, he did not do precisely as the 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 do so.

[53] Mr Mistry acknowledged that he did not follow the Armed Hold-Up Procedure and says this was because there were no ‘arms’ involved in the incident. 9

[54] Separately I note there is another procedure headed Aggressive or Violent Behaviour’ which deals with a range of circumstances including demonstrators, fights, threats by mail, suspicious packages/bags, and threat – by person. 10 Each of the procedures under these five different headings include at some point calling the police.

[55] The Respondent was concerned that Mr Mistry’s behaviour had been contrary to the Respondent’s procedures. Consequently a letter was sent to Mr Mistry outlining the Respondent’s concerns and advising he was suspended and that a meeting was to be arranged to discuss their concerns.

[56] A meeting was held to discuss these matters on 10 October 2016. Mr Ellis was in attendance accompanied by another Woolworths’ employee and Mr Mistry was accompanied by his union representative.

[57] A record of those discussions was attested to by Mr Ellis is being a correct record of what occurred and I accept that to be the case and I reject Mr Mistry’s denials of some elements of that record. 11

[58] Woolworths on 11 October 2016 issued Mr Mistry with a show cause letter.

[59] Mr Mistry provided a detailed written response to that by email on 17 October 2016.

[60] On 17 October 2016 the Respondent by letter notified Mr Mistry that he had failed to act in accordance with the Respondent’s procedure during the incident, specifically it said he had failed to comply with the offender’s demands and failed to follow the correct notification procedure and to engage the emergency duress button after the offender left the service station.

[61] Mr Mistry was dismissed with three weeks’ pay in lieu of notice.

[62] Under cross-examination Mr Ellis summarised the Respondent’s view this way

“Mr Mistry: Because you’re not understanding that if somebody comes up and you have never been in the situation, it takes a bit longer for you to respond?

Mr Ellis: Of course it does. But you also chose not to follow any of the procedures afterwards, including the holdup button, duress button, panic button, whatever you wish to call it, notifying the police. None of that happened. Conserving the crime scene, which you chose not to, you chose to serve other customers directly afterwards, so there was no possible way the police could get finger prints from the zone. There was a lot of things that you chose not to do. You also chose not to give him the cigarettes or the cash.”  12

[63] I accept the evidence of Mr Ellis that in October 2016 the Respondent investigated a breach by Mr Mistry of its food safety procedures. The Respondent concluded that Mr Mistry had failed to undertake the Food Safety Temperature Checks he was required to do on 6 August 2016. Following a meeting regarding this, the Respondent issued Mr Mistry with a written warning on 4 October 2016 which detailed the expected behaviours for the future regarding temperature checks and recording. The letter stated it was a written warning and if there were further instances of unacceptable conduct or behaviour in the future further disciplinary action may be taken including termination of employment.

[64] Under cross-examination Mr Ellis confirmed that he had handed Mr Mistry a copy of that written warning at the conclusion of the meeting which was attended by his union representative, and I accept this. 13

Submissions

[65] Mr Mistry submits that he has been unfairly dismissed and he seeks reinstatement and payment of any lost income.

[66] Mr Mistry points out that in the incident there was no violence, no arms or actions which involved intimidation.

[67] Mr Mistry points out the procedure concerns Armed Hold-Ups which was not the case in this incident and so he says the procedure is not applicable.

[68] In his response to the show cause letter Mr Mistry argued that he was just dealing with a difficult customer. He says the alarm button is not an emergency duress button it is an armed hold-up alarm. He said that the procedure in any event requires this to be activated and the police called as soon it is safe to do so and that he did not feel safe to do so and that is why after instinctively serving the other customers waiting in the queue he then stepped away from the console went to the office area to report the incident on the phone to his Site Manager.

[69] Woolworths submits that Mr Mistry was dismissed for breaches of its procedures.

[70] It is submitted that Mr Mistry exposed himself and other customers to a potentially significant safety risk.

[71] Mr Mistry also previously failed to follow the required procedures with respect to Food Safety Temperature Checks.

[72] Mr Mistry’s response to the show cause letter with regard to the incident in October 2016 denies any failure to comply with any procedures and denies having exposed himself or others to any risk. He argued that no one was injured and there was no property loss or damage. Mr Mistry has failed therefore to accept responsibility or understand the serious nature of his breaches of the Respondent’s procedures.

[73] This lack of contrition or acknowledgement of Mr Mistry’s own failures and the Respondent’s legitimate concerns demonstrates retaining Mr Mistry in employment is inappropriate.

[74] Mr Mistry’s job involves working in an isolated setting in the evenings and safety in these circumstances is paramount.

[75] Mr Mistry has a pattern of disregard for the Respondent’s procedures and the Respondent could not tolerate this any further.

Legislation

The relevant section of the Act is set out below,

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Valid reason

[76] Mr Mistry was aware of the Respondent’s procedures to deal with various types of emergencies.

[77] At the meeting with Mr Ellis on 10 October 2016 Mr Mistry explained that he did not initially follow the Armed Hold-Up Procedure because he did not at first think of the customer as an offender. I accept that at that point in the incident this was a reasonable reaction. However Mr Mistry went on to explain to Mr Ellis that after the customer had threatened to jump the counter he agreed this had heightened the risk and he then thought he should follow the procedure. Mr Mistry told Mr Ellis that at this point he felt it was important to report this because of the threat. 14

[78] At this meeting on 10 October 2016 whilst Mr Mistry was reasonably explaining there was some ambiguity as the incident evolved he never suggested he was not required to follow Woolworths’ procedures because the customer was not armed in fact he acknowledged he should have done so.

[79] Mr Mistry’s argument in response to the show cause letter and at hearing that he was not required to follow Woolworths’ Armed Robbery/Hold-Ups Procedure and the Armed Hold-Up Survival-5Cs in the situation because the customer was not armed was disingenuous.

[80] This argument that he believed the procedure did not apply to the incident because the person was not armed was an attempt to counter Woolworths’ criticisms of him and to avoid any disciplinary consequence. Woolworths’ expectation that Mr Mistry should have followed at least in general terms the principles in the Armed Robbery/Hold-Ups Procedure and the Armed Hold-Up Survival-5Cs in dealing with this incident which was an attempted robbery was reasonable in the circumstances.

[81] Woolworths’ criticisms of him were not pedantic. Woolworths’ criticism of Mr Mistry’s conduct were limited to important failures to follow the procedure, specifically that Mr Mistry had failed to comply with the offender’s demands and had failed to follow the correct notification procedure and failed to engage the duress button after the offender left the service station.

[82] The evidence is that Mr Mistry did not obey the offender’s demands and in fact he did try to outsmart the offender by saying he could not give him money from the till and could not give him cigarettes when he was able to do both. These actions were not merely a failure to comply with the procedures but involved positive acts by Mr Mistry doing things the procedure said he should not do. In addition Mr Mistry never activated the alarm. Finally Mr Mistry was very slow to ring the police and only did this after twice being told to do so in two separate phone calls by two managers. Mr Mistry’s conduct involved a complete failure to follow the key principles of Woolworths’ procedures of which he was aware.

[83] This conduct by Mr Mistry was a valid reason for his dismissal.

Notification of the reason

[84] The Respondent notified Mr Mistry in the show cause letter of the reasons why it was considering dismissing him.

Opportunity to respond

[85] Mr Mistry had an opportunity to respond to the reasons the Respondent was considering dismissing him and he did so in writing.

Unreasonable refusal to have a support person

[86] There was no unreasonable refusal by the Respondent for Mr Mistry to have a support person present at any discussions.

Warnings

[87] Mr Mistry does not have an unblemished employment record. He had received a written warning three days prior to the 7 October 2016 incident for failing to follow the Respondent’s Food Safety Procedures. That warning advised further unacceptable conduct could result in termination of his employment.

Size of the employer’s enterprise

[88] The Respondent is a large employer and the procedures followed were consistent with this.

Absence of human resource management specialists or expertise

[89] The Respondent does have human resource management expertise or specialists.

Other matters

[90] Mr Mistry was employed for just over three years.

[91] Mr Mistry would at times work alone in the Respondent’s service stations.

[92] During the disciplinary meetings and at the hearing of this matter Mr Mistry would not accept that he did anything wrong. This continued refusal to accept that his actions on the night of 7 October 2016 were seriously wrong, or even wrong at all, has destroyed any confidence Woolworths could have that Mr Mistry had learnt from what occurred and can be relied upon in future.

[93] Considering all of the circumstances the dismissal of Mr Mistry was neither harsh, unjust nor unreasonable. Mr Mistry was not unfairly dismissed.

[94] Consequently this application will be dismissed and an order [PR593537] to that effect will be issued.

COMMISSIONER

Appearances:

T. Mistry on his own behalf.

J. Hollway on behalf of the Respondent.

Hearing details:

2017.

Perth:

March 2.

 1   Transcript at PN101.

 2   Ibid., at PN162 to PN165.

 3   Ibid., at PN230 to PN243 and Exhibit R5 at paragraph 13.

 4   Ibid., at PN399 to PN406.

 5   Ibid., at PN230, PN240 and PN245.

 6   Ibid., at PN79 to PN83.

 7   Exhibit R2.

 8   Exhibit R4.

 9   Transcript at PN416.

 10   Exhibit R2

 11   Transcript at PN376 to PN383.

 12   Ibid., at PN484.

 13   Ibid., at PN365 and Exhibit R6, Attachment BE1.

 14   Exhibit R7.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR593536>