Cashier slaps youth

Shop staff who take physical action against difficult customers. This phenomenon seems to be all too common in recent years. Sometimes this leads to criminal prosecution, as in the Anja Joos case and the case in which Prince Bernhard came forward as the guardian angel of shop staff. The question is, where do the boundaries lie? How far are your employees allowed to go in setting your customers straight? They can take action to apprehend a customer they catch red-handed, but breaking someone’s nose when he’s already been detained is going too far. And when is it acceptable for you to dismiss an employee who has hit a customer? The Sub-District Court of Zaandam gave judgment on this last issue on 3 November 2005 (JAR 2005/263). Finally, what measures should an employer take to ensure that he won’t be held liable for any consequences of a scuffle?

The facts of the case were as follows. A group of five teenagers started behaving badly in the presence of the cashier of an Aldi supermarket in Zaandam. They began messing around and shouting. The cashier ordered the teenagers “in no uncertain terms” to leave the store. After much effort they eventually left. Outside, the cashier, herself “a mother of three children, including three big boys” came to blows with one of them. This rather large boy made a gesture as though intending to strike her, following which she slapped him with the flat of her hand. The assistant manager, who had been present in the background, came over but did not take any further action against the cashier. However, the boy went to the police saying that he had been molested. The local police officer came round to ask questions. Word reached the management and Aldi dismissed the cashier summarily as a result.

The employee was forced to commence summary proceedings against her employer, claiming continued payment of salary and to be allowed to return to work. However, Aldi maintained its position that the cashier’s behaviour was unacceptable. According to Aldi, in this situation she should have called in the manager in accordance with the applicable protocol. Aldi reproached the employee with failing to do so. According to Aldi, her behaviour was contrary to Aldi’s customer-friendly approach and reflected badly on the store.

Not vengeful

The Sub-District Court took the cashier’s part. It found that this situation could not be compared with notorious earlier cases in which aggressive shop staff came to blows with customers. It held that this case did not involve “a vengeful employee who joined with others in pursuing a shoplifter or other villain in order to apprehend him and then beat him up”. This cashier, by contrast, was, in the words of the Sub-District Court, “a tough Surinamese matron who stood her ground when faced with brazen teenagers”.

In its judgment the Sub-District Court emphasised the fact that it may have been unwise of the cashier to give one of the boys a clip around the ears. But this in itself is not grounds for summary dismissal. In coming to this conclusion the Sub-District Court judge took the circumstances of the case into consideration. He described the fact that the cashier “resolutely” ejected the boys from the store. “One of those boys then had the audacity to raise his hand to this woman, who could have been his mother, following which she gave him a clip around the ears.”

The Sub-District Court judge therefore granted the employee’s claims. He added that in such situations employees dealing with unacceptable behaviour deserve the support of their employer. It is not acceptable for the employer to retreat behind ‘rules’ that he has drawn up. The Sub-District Court judge commented, “I quite understand that Aldi would prefer not to be involved in such incidents, but the problem is that Aldi does not have a choice as it is unrealistic to think that troublemakers will simply avoid its stores. Aldi will have to accept that this can easily place its employees in awkward situations. As a matter of principle, employees who are the target of unacceptable behaviour deserve the support of their employer."

Commentary

Cases like this have been in the news regularly in the recent past. How should employers instruct their shop staff to deal with difficult customers? At first glance, this judgment from the Sub-District Court seems to contradict other notorious cases involving shop staff who took physical action against difficult customers. A much-publicised case resulted in Prince Bernhard giving financial assistance to an employee of an Albert Heijn supermarket in Amsterdam after the employee received a fine for breaking a thief’s nose. Another notable case was that of the homeless Anja Joos who was beaten to death by staff of the supermarket Dirk van den Broek who suspected her of shoplifting.

However, there are several critical differences between the notorious cases mentioned above and the court judgment under discussion here. The most obvious difference is that the notorious examples involve criminal cases, in which the shop staff concerned were prosecuted by the public prosecutor and convicted for their actions by the District Court. The case considered here does not involve criminal proceedings before the District Court but a civil claim before the Sub-District Court by an employee who was dismissed summarily due to involvement in a scuffle. Even more crucial is the fact that no-one was injured or killed in this case, unlike the two notorious cases referred to.

Essentially, the point here is that staff must be allowed to defend themselves if necessary. That self-defence must be proportional. In the two notorious cases mentioned the actions taken went beyond self-defence. Instead, a situation arose in which shop staff went further than was necessary to apprehend someone or defend themselves. In the case where Prince Bernard assisted the shop worker financially, an injury was inflicted that the District Court held to be unnecessary. This was due to the fact that the shop worker broke the man’s nose after he had already apprehended him. In the Anja Joos case, the brawl even resulted in the death of the customer, a clear case of unnecessary violence. To the attentive reader, this is no subtle legal distinction but a vital difference.

It appears that Aldi had set out its policy for dealing with difficult customers in an instruction to staff. Although courts generally attach great importance to the observance by staff of instructions from the employer, the Sub-District Court does not appear to have given much weight to this fact in the present case. So what’s the point of instructions, Aldi is probably thinking. Despite this, there was nothing wrong with Aldi having instructions in place to cover this situation. But Aldi clearly had the wrong expectations with respect to these instructions and accorded them too much legal significance. In the end, the actual circumstances in which an incident occurs should be the determining factor, in particular the question of whether an employee has acted in self-defence and if he/she has gone further than was necessary.

Furthermore, merely issuing instructions is insufficient from a legal perspective. The Dutch Working Conditions Act explicitly places the responsibility for developing a policy on aggression at work on the employer. Article 2(2) of the Act provides that “(t)he employer shall have, as part of its general working conditions policy, a policy with respect to the protection of employees from sexual intimidation and from aggression and violence”. So the fact that Aldi had issued instructions on how to deal with this situation was nothing more than the bare minimum to satisfy its legal obligation. However, there is no evidence in this case that Aldi had also given its employees training on this issue. In past judgments, the failure to provide such training has turned out to be a costly mistake on the part of the employer when an employee suffered personal injury as a result of a confrontation with a violent customer.

A final word of warning. Even in situations where staff receive criminal convictions for relatively minor transgressions, it turns out that it is not easy to dismiss them as a consequence. In such cases the totally different standards for assessment under employment law apply, such as whether the misdemeanour is serious enough that the employer can no longer be required to maintain the employment relationship and whether it has irreparably damaged the employer’s trust in the employee. So employers should think at least twice before deciding not to support an employee and conduct a proper investigation into any awkward situation that an employee unfortunately appears to have got themselves into.