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Who stole the cookies from the cookie jar?
Serious misconduct... and the very serious matter of the missing biscuits.
When I was growing up, biscuits were a pretty serious business in my household. The occasional case of missing biscuits (especially prior to dinner time) was met with serious reprimand from my aggrieved mother.
If recent case law is anything to go by, it seems that biscuits are still regarded as a very serious matter - not only by children and their mothers, but by certain employers and their hungry employees.
The facts in Maxwell v Taranaki Sawmills Limited (Unreported, Employment Tribunal, Wellington, 2 April 2001) involved the consideration of five (partially digested) "Krispie" biscuits.
The applicant was an employee in a sawmill. He arrived at work shortly after 6.00 am one morning and, finding some of his colleagues in the staff cafeteria, made himself a cup of coffee. He sat down at a table in the cafeteria and which point he noticed an open packet of "Krispie" biscuits. Without thinking, the employee helped himself to five of the biscuits.
It transpired that the biscuits in fact belonged to another employee, who was (perhaps understandably) greatly distressed upon discovering that the favourite component of his lunch had been taken and eaten by one of his colleagues. The aggrieved employee was so upset that he made an immediate complaint to his employer.
Evidently, the employer regarded the subject of "Krispie" biscuits with the same high regard as the aggrieved employee who had suffered their loss. The allegedly guilty employee was warned that a disciplinary investigation would take place that afternoon, and that he should attend a meeting as part of that process, together with a support person or representative if desired.
To his credit, the employee was helpfully candid during the course of the investigation meeting. He admitted that he had eaten the biscuits without thinking and that he regretted doing so because he himself knew what it was like to suffer the anguish of having food stolen.
The employer somewhat unsurprisingly reached the conclusion that the employee had taken five biscuits without permission. It concluded that his actions constituted an act of theft of another employee's personal property - something which was expressly recognised by the employee's "House Rules" as an offence which might constitute serious misconduct. Having reached this conclusion, the employer made a decision to discipline the employee by dismissing him from his employment. The employee argued that this constituted unjustified dismissal.
The Tribunal's decision in this matter came down to a question of proportionality. Put simply, the Tribunal had to consider whether, in all the circumstances of the employee's employment, a decision to dismiss him for the theft of five biscuits was justified. The Tribunal weighed in its consideration the fact that the employee had been employed for over three years, that he had an exemplary employment record and that the case involved five biscuits with minimal value.
Perhaps predictably, the Tribunal considered that the decision to dismiss was an "extravagant over-reaction" to the employee's misconduct - and that dismissal was unjustified in the circumstances. The employee was awarded reimbursement for six months' lost wages (although the judgment happily recorded that he had subsequently found employment as a sports co-ordinator at a local school: where his firsthand experience of biscuit theft will undoubtedly stand him in good stead in resolving playground disputes of a similar nature).
What this case serves to underline is that employers may not make a decision to dismiss an employee, even where dishonesty is admitted, where to do so would be an over-reaction to the particular circumstances of wrongdoing. Cases such as this are arguably likely to arise where the employer has a predisposition to desiring a termination of a particular person's employment - ostensibly using a minor incident as an excuse for exercising severe punishment (although I note that there was no evidence of that in this case).
Employers should be at pains to ensure that even where an investigation is conducted properly, any disciplinary action taken as a consequence of that investigation needs to be carefully considered to take account of the seriousness of the wrongdoing concerned.
