The Fair Work Commission, in Tapan Mistry v Woolworths Limited T/A Woolworths Fuel [2017] FWC 3097, has found that Woolworths was justified in dismissing an employee for disobeying store emergency procedures. This decision supports employers in enforcing policies to maintain a workplace that is safe for employees and customers alike.
Disobeying emergency procedure
Mr Mistral was employed as a Console Operator, working at a Woolworths petrol station. One evening a customer approached Mr Mistral, demanding money, cigarettes, and threatening to jump over the counter.
Woolworths had a series of Emergency Response Procedures, including a specific procedure for "Armed robbery/Hold-Ups" and an associated procedure providing detailed instructions regarding behaviour during a hold-up. The procedures included obeying the robber's commands, sealing off the crime scene, immediately activating the silent alarm, locking the doors and contacting police. Employees were issued a safety pack approximately every two months to refresh their knowledge about the procedures.
Mr Mistral did not comply with the attempted robber's demands, instead playing dumb by telling him that he did not have access to the till or cigarettes. In response, the robber picked up a Dare iced coffee and a spinach and ricotta roll and departed the store without paying. At no point did Mr Mistral activate the silent alarm.
Mr Mistral continued to serve the two awaiting customers in the store, before contacting the Site Manager to report the incident. After corresponding with the Site Manager and Group Manager of the store, Mr Mistral was directed to contact police, however he failed to do so, until he was directed a second time.
Woolworths suspended and then consequently dismissed Mr Mistral for disobeying the emergency procedures, namely failing to obey the robber's demands and failing to activate the silent alarm.
Valid reason for dismissal
The Fair Work Commission found that Mr Mistral's disobedience of emergency procedures was a valid reason for his dismissal. Mr Mistral was aware of the procedures in place for robbery incidents, having been issued with a safety pack approximately two months earlier. His conduct constituted important failures of the key principles of Woolworth's procedures and also involved positive actions that went directly against the store's procedures. In determining the unfair dismissal application, the Fair Work Commission also considered the fact that Mr Mistral had been issued a prior warning for failing to follow the "Food Safety Temperature Check" procedure, and his lack of contrition in relation to the latest incident.
Employers, implement emergency procedures
This decision demonstrates that employers may be justified in dismissing employees for not complying with emergency procedures, particularly where such failure gives rise to a serious health and safety risk at the workplace.
However, employers must ensure that they have implemented clear and relevant procedures that detail the behaviour expected of employees in emergency situations. It is also important that employees are educated about these procedures, such as providing regularly refresher safety packs for employees. Furthermore, management should understand and direct employees to comply with procedures when appropriate.