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How to eat yourself out of a job

4 August 2015

Most readers will have heard of Harrods department store in London, and many will have shopped there.

The store has been a favourite destination for members of the Royal family and the English aristocracy. Its appeal dimmed somewhat when the owner of the store, Mohammed Fayed, alleged that the Royal family had a hand in the death of his son and Princess Diana.  Not long afterwards, the Royal warrants, which were proudly displayed in the grand old lady of Knightsbridge, were removed.

The store has traditionally shunned negative publicity and would have been shocked when Chilean-born Juan MacKenzie sued it for £1 million (NZ$2.4m) for being sacked from the store.  He was the restaurant supervisor and his case was heard and decided last month.

The core issue was that a customer had returned a slice of cake, valued at £7.50, complaining it was too dry.

MacKenzie tasted the cake to check whether it truly was too dry.  He swallowed the whole piece of the Devil’s Dog chocolate dessert cake but went on to take a bite out of a fresh slice for comparative purposes. Perhaps a bite too many. Harrods claimed he was “eating rather than tasting” the cake.

The returned cake was clearly going to be thrown out but Harrods sacked Mackenzie for this infraction.

However Mackenzie, 35, did not take this perceived injustice lightly. He told media that now he had recovered from the initial trauma of his dismissal, he was “strong enough to fight against evil” and more than capable of pursuing his case against Harrods.

He claimed he was subject to racial abuse by his colleagues as well as ageism. In particular, he complained that some female colleagues (allegedly dubbed the “Lithuanian mafia”) on the second floor of Godiva Café had mocked him for being bald.

Finally MacKenzie claimed unjustified dismissal.

MacKenzie’s allegations of discrimination and the like were not particularly credible because he had never raised them with Harrods at the time or even during the disciplinary process.  They were raised for the first time in the Employment Tribunal.

MacKenzie lost all claims. Eating the cake was theft.

Do readers think it was fair to dismiss MacKenzie in these circumstances? How would the Harrods case have been decided in New Zealand?  Perhaps differently.

A recent New Zealand case shows how a claim of this nature may succeed.

Erica Durning was a shop assistant with the Evergreen Food Company Ltd. She started there in January of last year.

The practice was that staff could take home old magazines once they had been refunded by the distributor. Normally this was done on a case by case basis with the approval of the owners.

Durning asked for a copy of a particular magazine and the owners refused.

Later that day, the magazine was placed next to the till with other magazines which were to be thrown out. It was unclear exactly who placed the magazines there.

However video surveillance showed Durning placing the magazine, along with others by the till, in her bag when she left for the day.

The owners spoke with Durning about the magazine but she denied taking it.  However, when the owners explained that the magazine had been kept behind the counter Durning then accepted she had taken it.

The owners were not happy with her response and sacked her.

She took a personal grievance and won.  The Employment Relations Authority held that there was no adequate investigation conducted and that the magazine was in effect worth nothing.

While the authority accepted that Durning should have asked for permission to take the magazines, the authority held that not asking for permission to take the magazine was not serious misconduct, particularly where there were no warnings.

One could also take the view that the Harrods cake in question was also of no value and was also destined for the rubbish bin. Perhaps if Mackenzie had been fortunate enough to “fight evil” in New Zealand, his case would have succeeded.

When faced with a claim, an employer’s case is strengthened by having clear policy on whether workers can, in the case of Harrods, consume food destined for the rubbish bin, or in the New Zealand case, whether staff can take home magazines for which a refund has been made.

A prohibition in policy helps an employer defend a subsequent dismissal.

In cases such as these where what is taken has little, if any value, the decision could often go either way and it is ultimately likely to turn on issues such as company policy.

Perhaps a claim being modest and the employee being frank and cooperative during any investigation will also be important.

Where items are of no value, it is perhaps best for the manager to proceed disciplinary processes with a warning rather than outright dismissal.

Borderline behaviour is the fertiliser for litigation.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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