A Coles worker who tried to stop two suspected thieves at a neighbouring Liquorland store will receive $6500 in compensation from the supermarket chain after he was unfairly dismissed for breaching its workplace rules.
Fair Work Commission deputy president Judith Wright said there was a valid reason for the man’s dismissal but found it was harsh and unreasonable given his good employment record and because he did not knowingly and deliberately breach the rules.
The man, who was a casual team member at a Coles store in the Sydney suburb of Pyrmont, saw two suspected shoplifters walking past the self-checkouts during an evening shift in December last year.
He had previously crossed paths with the two suspects, who he said were well known in the Pyrmont store for stealing, verbally abusing and physically assaulting other employees.
The man said he asked them not to steal but saw the suspects opening cooler bags and walking into an adjacent Liquorland store – a chain owned by Coles – and that he asked them not to enter because they were underage.
However, the suspects allegedly ignored him and placed several four-packs of alcohol into their bags. He confronted them again as they walked towards the exit, after which one of the suspects threw a four-pack of alcohol on the cement outside. A staff member in Liquorland, who was working alone, called the police.
The man attempted to restrain one of the suspects, holding her around the shoulders and upper body and moving with her around the store as she pulled against him for about two minutes and 20 seconds before he realised the police would not arrive for some time and let her go.
The man checked the Liquorland staff member was all right and arranged for Coles staff to help with cleaning. A few hours later, police arrived, and the man said he was informed the suspected shoplifters were known to the police.
The man’s actions breached three rules in Coles’ code of conduct, including requirements for staff to avoid putting themselves in a situation where they could be hurt; to always keep a safe distance from an aggressor; and to never follow anyone out of a shop.
The man said his “sudden impulse” to stop the suspects was out of frustration and a lack of action by Coles in preventing repeat offenders.
He also said he would not have detained them if he was in Coles, and had never done so in his 10 years working there. Because he was on a break, and outside his place of employment, he believed the action he took was acceptable.
Two days later, the Pyrmont Coles store manager told the man he had been suspended because CCTV footage showed him having a physical altercation, and that he was not allowed back into the store. He was denied a union delegate and documentation, which he requested.
The following day, the man approached the manager with a union delegate just inside the front automatic doors of the Pyrmont store and requested a discussion regarding the allegations with the delegate present, as well as a copy of the suspension script.
The manager said she felt “anxious and a bit scared” because of what she had seen in the CCTV footage, asked him to leave and eventually handed him the script.
The man and the delegate left the store shortly after receiving and reading the documentation.
In a disciplinary meeting, the man was shown the CCTV footage and read out the allegations against him. The following day, the man provided a typed response to the allegations.
The regional manager who reviewed this response said the man provided “irrelevant information, did not explain what he was thinking or why he acted in the way that he did, and seemed to believe he did not do anything wrong”, ultimately dismissing him.
Wright said while it was “understandable” that the man felt frustrated by the suspects’ actions, Coles had a valid reason for dismissing him because he had breached its code of conduct – which applies to all situations where there is a connection to Coles.
However, Wright noted the suspension was poorly handled by the store manager who denied him a support person and did not provide him with written information about the suspension despite it being requested, making his breach of the direction not to return to the Coles store an invalid reason for dismissal.
“If this information had been provided, it would not have been necessary for [the man] to attend the workplace the following day,” she said, noting it was unusual for an organisation as large as Coles not to have prepared this documentation. “It is not clear whether [the man] knew that Coles regarded any breach of this requirement [not to return to the store] to be a serious matter … The provision of the direction in writing would have emphasised the importance of the direction and the consequences of contravening it.”
Wright said the man’s failure to acknowledge that he breached Coles’ policies meant he should not be reinstated to his job.
However, she said that because it was a one-off, isolated incident where the man did not “knowingly and deliberately” breach the policies, and because he had a long period of unblemished service with Coles, he should be compensated $6,483.51 for the harsh and unreasonable dismissal.
A spokesperson for the Shop, Distributive and Allied Employees’ Association said the case was “an unfortunate example of the real risks surrounding shops and stores every day”.
“It is just one of the reasons the SDA has pushed, successfully, for tougher measures and penalties to protect retail workers from the rising tide of violence and abuse,” they said.
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