Michelle Knuth lost her job at a Kmart store after trying to de-escalate an attack on two security guards. (file image) Photo: RNZ / Cole Eastham-Farrelly
A Kmart worker who lost her job after a "commendable" attempt to de-escalate a shopper's altercation with a security guard has been reinstated on an interim basis by the Employment Relations Authority.
Michelle Knuth was sacked from her job at Kmart in Palmerston North's Plaza mall in May.
That came after an incident on 23 April, when she was returning from a break and encountered a member of the public attacking, kicking, and attempting to kick two security guards. Knuth tried to defuse the situation.
Kmart said in doing so, she had breached its policies, including the "5Ds": distance - a requirement to keep three metres away, door - plan an exit, de-escalate - stay calm, don't detain - let them go, and don't follow - stay in the shop.
Kmart also has a code of conduct which refers to employees not putting their own health and safety, or that of others, at risk.
The company said Knuth's behaviour amounted to serious misconduct and the appropriate outcome was termination without notice.
But Knuth told the authority that her actions did not amount to misconduct. Kmart had not asked her for an explanation and had not considered an alternative to dismissal, she said.
Kmart submitted that she had put herself in a dangerous situation and her actions presented a health and safety risk.
It said she had been given an opportunity to respond before she was dismissed.
Authority member Rowan Anderson said there were serious questions about the application of both the code of conduct and the 5Ds policy in regard to the incident.
"Having viewed the CCTV footage it is clearly apparent that the incident did not happen in the store, nor could it be suggested that Knuth failed to remain in the store. Further, it is clear from the CCTV footage that the incident was not simply an incident of threatening behaviour but was one that involved an actual physical attack on two individuals, the security guards, by a member of the public.
"It appears to show Knuth seeking to deescalate the situation by calmly holding her hands up in front of the security guards while also distancing herself from the attacker. While at one point she runs or moves quickly in the general direction of the attacker, she does so in the context of maintaining a distance from them and protecting the security guard.
"Knuth's actions appear not only commendable in the face of an apparent active assault, but also consistent with seeking to deescalate the situation in accordance with the third 'D'."
Anderson said if the policy applied in the circumstances, there was an arguable case that it was unreasonable - and there was a strong case that Knuth was unjustifiably dismissed.
Kmart did not want to reinstate her because it said it had lost trust and confidence in her. It said the company could not know she would comply with health and safety policies.
But Anderson said Knuth had a strongly arguable case for permanent reinstatement if she was successful in her claim for unjustified dismissal - and ordered Kmart to reinstate her on an interim basis in the meantime.
"Her evidence is that she needs her income and that the dismissal has caused her family huge concern. Knuth says she has been looking for other jobs since the dismissal but has not been successful in securing other work and that there is a stand-down period for obtaining any benefits."
The order will remain in place until the authority makes a further determination or order in relation to her claims.
The whole incident lasted only 18 seconds, First Union organiser Dion Martin said.
He represented workers at the Plaza mall Kmart, and said many retail staff were becoming disgusted at how little they could do to stop shoplifters.
"We tell them 'it's not worth the wages you get paid to intervene and get clocked' ... they are disgusted. Security guards can't touch people, they're boldly walking out.
"I was talking to someone yesterday who said someone came through their checkout and had lamb from the meat department sticking out of their backpack, a jacket full of cans of beer. They put a few products through the checkout and [the staff member] said, 'Are you going to pay for what's in your backpack and jacket?' … They said 'no'."
The security guard was not allowed to touch them to stop them leaving, Martin said.
"They are trespassed and have their face on the camera but they go boldly, they don't care."
It was members of the public who restrained the attacker, he said, until police arrived and took over.
He said in 35 years in his job, Knuth was only the second person he had seen reinstated.
"She was three months - virtually almost three months - suspended and she did nothing wrong. And she was a very popular worker and a very good worker, a hard worker. Everyone knows her. She'll do anything for anyone… No one could understand it."
Kmart has been approached for comment.
Another hearing would be held in the next three months, Martin said, where he expected her full reinstatement and reimbursement for lost earnings, plus compensation.
