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Sacked Servo Operator Wins Unfair Dismissal After Bizarre ‘armed Hold Up’

Sacked servo operator wins unfair dismissal after bizarre ‘armed hold up’

A service station operator has won his unfair dismissal claim, after Woolworths sacked him over a bizarre ‘armed-hold up’.

The company described the incident as an armed hold-up, however, the worker said it was not.

A full bench of the Fair Work Commission overturned the original decision made by Commissioner Bruce Williams.

Mr Williams initially found Woolworths had an entitlement to sack the worker for allegedly not following the company’s armed hold-up procedures.

Additionally, he found the worker failed to follow food safety procedures.

The bizarre ‘armed hold up’

36 year-old Tapan Mistry worked as a console operator at the Woolworths service station at Beckenham in Perth.

On the night of 7 October 2016, a male customer approached him and placed some food and drinks on the counter.

Mistry scanned the items and then waited for payment, however, the customer said, “Give me the money”.

Mistry mistakenly believed the customer wanted his change, however this confused him because the customer had not yet paid for the items.

The customer then said, “Give me the money or I’ll jump the counter.”

It was at that point that Mistry realised the customer wanted money from the till, so he backed away from the till.

The customer then said, “Okay, give me the smokes”.

Mistry became confused about what the customer wanted.

As more customers came into the service station, the offender took the scanned items without paying and left the store.

Tapan Mistry.

Worker did not believe the incident was an armed hold-up

Mistry told the Commission he didn’t believe the incident was an armed hold-up or a robbery because the offender wasn’t armed.

Additionally, he didn’t threaten Mistry at any point.

Mistry then served the customers who had come into the store before telephoning his Site Manager to report what had happened.

She told him that she would call her manager, and that Mistry should:

  • cordon off the area,
  • serve customers through the night counter,
  • press the “panic button”
  • and contact the police.

However, Mistry did not immediately call the police, and at no stage did he press the panic button.

The Woolworths service station at Beckenham in Perth.

Investigation by Woolworths leads to dismissal

After Woolworths conducted an investigation, it dismissed Mistry with three weeks pay.

The dismissal notice said:

“You failed to act in accordance with the Armed HoldUp procedure when an offender entered the store and demanded money and cigarettes, exposing yourself and others to serious risk of harm and demonstrating a poor attitude towards safety in the workplace.”

It went on to say that Mistry “failed to comply with the offender’s demands” and “failed to follow the correct notification procedure and engage the emergency distress button after the offender left the store.”

“This behaviour is unacceptable and of serious concern to the business, of more concern you have failed to recognise the risk you have exposed yourself and others to through your actions.”

The dismissal letter also noted a previous warning issued to Mistry concerning a failure to follow food safety procedures.


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WHAT MAKES A DISMISSAL UNFAIR?


Workplace policies not clear

In an interview with SBS Punjabi, Mistry claimed Woolworth’s policies aren’t easy to understand.

“The Company should define their policy clearly.  

“If you start complying with anyone’s demands for money… someone isn’t armed, doesn’t threaten you, there’s no forced entry, you will have such incidents five times a day.

“I lost my job which has placed me under severe financial stress. I was suspended right after the incident instead of being provided emotional support.”

The original decision

In dismissing the original claim, Commissioner Williams said:

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.”

Decision overturned

However, the full bench overturned that decision, ruling the company’s armed hold up policies did not apply to this incident, therefore making the dismissal unfair.

“Mr Mistry was entitled to contend that he should not have been dismissed on the basis of a breach of particular policies which, on their face, did not apply on the 7 October 2016 incident.”

In addition, the full bench found that Commissioner Williams erred by not admitting CCTV footage of the incident into evidence.


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