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11 March 2020

WorkCover pays jewellery employee $270k compensation after failed third party theft

After Michael Hill Jewellery at Westfield Helensvale was the target of an attempted theft, an employee has been awarded more than $270,000 in damages for injuries she sustained preventing it.

After Michael Hill Jewellery at Westfield Helensvale was the target of an attempted theft, an employee has been awarded more than $270,000 in damages for injuries she sustained preventing it.

Ms Funnell sustained some minor physical injuries and a psychological injury on 1 November 2015 after a ‘tug of war’ over a gold necklace with a would-be thief.

A male customer entered the shop and looked at a gold necklace on display in a glass cabinet. Ms Funnell approached the customer and engaged with him, in accordance with her training.

The customer asked Ms Funnell the price of the necklace. She told him it was almost $13,000. He asked if that was the best price. She took the necklace out of the cabinet and scanned it at the cash register. She then returned and told him the best price was $7,900.

The customer asked if he could feel the weight of the necklace. Ms Funnell was suspicious of the customer so, in accordance with her training, asked him to produce his driver’s licence for inspection.

CCTV footage showed that the customer moved his hand to his right side as if reaching for his wallet, while Ms Funnell kept hold of the necklace, keeping the counter and some distance between her and the customer. Then, without warning, the customer suddenly and aggressively reached over and grabbed the necklace. Ms Funnell held on to the necklace and resisted. The chain then broke and the would-be thief fled empty handed.

The shop was a standard one, which opened directly to the shopping mall, without security doors or protective barriers, and without any security guard.

Although the store had ample CCTV, Michael Hill Helensvale had still been the subject of at least three attempted robberies in similar circumstances previously. On top of that, in Queensland alone, Michael Hill’s 24 stores had seen 31 ‘snatch and grab’ incidents in just the five years before the incident.

At trial before Judge Kent QC in the Southport District Court, both liability and quantum were in dispute.

Ms Funnell argued Michael Hill should have:

  • provided a security guard at all times
  • ensured a male sales assistant was rostered on at all times
  • instructed sales assistants that ID needed to be provided and retained before expensive jewellery was removed from display cabinets
  • required ID to be provided when jewellery worth $2,000 or more was produced for inspection.

At the time of this incident, Michael Hill’s policy was that ID was required for inspection of jewellery worth $20,000 or more. However, after this incident, the value was reduced to $2,000.

Michael Hill’s legal representatives argued that the suggested precautions were unreasonable and would not have prevented the incident because:

  • placing security guards at all 161 Michael Hill stores in Australia would have been very expensive (with an annual cost of approximately $12M)
  • discrimination laws prevented the employer from allocating shifts based on gender
  • the established and enforced system at the time of the incident was that identification was required when demonstrating products in excess of $20,000
  • sales assistants were trained to follow a six-step sales discussion process and keep jewellery out of reach of customers if they thought there was a theft risk
  • Ms Funnell had appropriately asked for ID because she was suspicious of this customer (despite the jewellery being worth less than $20,000) but inappropriately removed the jewellery from the display cabinet before obtaining the customer’s ID and without following the six-step discussion process.

The Court sided with Ms Funnell.

Judge Kent found that Michael Hill should have reduced the value limit to $2,000, as has now been done. His Honour was satisfied that, had that occurred, it would have prevented the ‘snatch and grab’ on this occasion.

Judge Kent also noted that Michael Hill’s training was inadequate. His Honour found that the six-step process was a good theft prevention tool but employees did not understand this – they simply thought it was a sales tool.

The Court awarded 51-year-old Ms Funnell $270,439.33 in damages. This included ‘full loss’ calculations for past and future economic loss, discounted by 10% and 35% respectively for vicissitudes.

Kent DCJ preferred Dr Foxcroft’s evidence over that of Prof Whiteford, finding Ms Funnell had a 5% WPI, which resulted in a partial ongoing incapacity for work.

Post-incident, Ms Funnell had unsuccessfully attempted a return to work at another Michael Hill branch, obtained an alternative role at the Nerang RSL where she worked until a colleague ‘surprised her’ as a prank and she decompensated, worked briefly as an Uber driver (earning minimal income) but ceased after a car accident and then became her elderly parents’ full-time carer.

This case serves as a reminder that, although third party criminal actions are often unpredictable, if they are foreseeable, courts require employers to take extensive precautions to ensure the safety of their workers.

To read more, the Court’s decision can be accessed here: Funnell v Michael Hill Jeweller (Australia) Pty Ltd [2019] QDC 255.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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