Employee fired after reportedly attempting to defuse physical altercation
A Kmart employee who was terminated for attempting to defuse a "physical altercation" between a mall security guard and a shopper has won interim reinstatement.
The Employment Relations Authority (ERA) ordered the reinstatement of Michelle Knuth citing "compelling factors" including exclusion from her work and financial depravation.
"While damages may remedy aspects of that, they do not account for the ongoing exclusion from the workplace not consequential implications to Ms Knuth's family life in the interim," the ERA ruled.
Knuth's termination
Knuth was terminated in May 2024 on the grounds of serious misconduct after she was reportedly seen in a CCTV footage "engaging to some degree" when a member of the public was attacking and kicking two individuals identified as mall security guards.
According to Kmart, Knuth tried "placing [herself] amid a physical altercation between a mall security guard and a shopper outside of the store."
The employer said this is a violation of the company's "5 D's Policy," which states that employees should be reminded of the following things when faced with customer threatening behaviour:
- Distance - Keep three metres
- Door - Plan an exit
- De-escalate - Stay calm
- Don't detain - Let them go
- Don't follow - Stay in the store
Knuth raised the matter to the ERA, claiming unjustified dismissal and sought permanent reinstatement in the organisation.
Interim reinstatement granted
The ERA has yet to investigate Knuth's substantive claims on the case, but it granted her interim reinstatement request under the Employment Relations Act 2000.
The authority considered in its decision Knuth's financial hardship, as well as her lack of success in securing other work after getting dismissed.
"It is likely that the substantive investigation meeting would not take place until at least October 2024," the ERA said. "Having considered all of the relevant evidence, I conclude that the exclusion from her work and financial depravation are compelling factors that favour Ms Knuth's interim reinstatement."
Case for permanent reinstatement
In its decision, the ERA also said it was not satisfied that alternatives to dismissal were not adequately considered.
"While there was express consideration of the issuing of a final warning, it is not clear that other measures were appropriately considered," the ERA said.
There is also an arguable case that Kmart did not genuinely consider Knuth's responses to the incident, according to the authority.
"Overall, Ms. Knuth has a strongly arguable case that she was unjustifiably dismissed," the ERA stated.
According to the ERA, Knuth's conduct also appears to be "moderate and deescalating in nature and a reaction to the events that occurred in her presence."
Her actious may also be considered a human reaction to the physical attack, instead of intentional disregard for Kmart's 5 D's policy.
The authority stated that Knuth has a "strongly arguable case for permanent reinstatement if successful in relation to claim that the dismissal lacked justification."
