Your rights: Children's biscuits cost me my job

Q. I'd been with my company for six years and never had any problems. Then my employer fired me for taking home half a packet of biscuits from the lunchroom. My employer always supplied biscuits for us. The packet was already half gone and I thought they would have been stale by the next day so I took them home for my kids. Can I be fired for taking half a packet of biscuits?

A: Being dismissed for taking half a packet of biscuits may seem heavy handed. But employers generally view theft seriously and often a dismissal in a clear theft case will be justified. That said, there is now a new test for when a dismissal is justifiable and a recent Employment Court case has indicated how this new test will be applied. Under the new test, your dismissal might be unjustified.

Under previous law, basically, an employer could dismiss so long as dismissal was within the range of responses a 'fair and reasonable employer' could have taken, and a fair process was followed for the dismissal.

Following an amendment to the Employment Relations Act 2000, the question of whether a dismissal was justifiable must now be determined by considering whether the employer did what a 'fair and reasonable employer' would have done in all the circumstance's at the time the dismissal happened.

A recent case in the Employment Court has indicated what this new test means.

Basically, the question has now moved from whether a reasonable employer was able to respond in the way the employer in question did, to whether a reasonable employer would have actually responded the way the employer in question did.

This different approach won't make much difference to serious theft cases where, say, the employee took thousands of dollars worth of biscuits. In that case a fair and reasonable employer could dismiss.
But it might make a difference in a case like yours where, arguably, a fair and reasonable employer could dismiss, but whether it would have dismissed depends on all the relevant circumstances.

Were you justifiably dismissed for taking a packet of biscuits? This means justification for your dismissal depends on all the circumstances. Your dismissal is more likely to be justified if, say, your employer had told you not to take left over biscuits home and that doing so might be grounds for dismissal.

Taking all the circumstances into account also requires your employer to consider circumstances such as your length of service. There will be less justification for dismissing a long service employee with an impeccable record of service.

Justification will also depend on whether the actions the employer took to investigate the biscuit taking against you were ones a fair and reasonable employer would have taken. In other words, was there a full and fair investigation? And would a fair and reasonable employer have decided the conduct uncovered from the investigation was serious misconduct?

If, for example, it was 'routine' for employees to take home uneaten biscuits or other left-overs and you genuinely thought it would not be a problem and showed remorse for what you had done, it is quite possible your dismissal was unjustified under the new test for justification for a dismissal.

This would be even more likely if, say, your manager had told you to 'go ahead and take them' but the employer had failed to take this into account or speak to that manager during its investigations.
As always, your employer must also have followed a fair disciplinary process before dismissing you, in order for your dismissal to be justified. This includes a proper investigation, putting details of the allegations to you, giving you the opportunity to respond to the allegations with a representative present and considering your responses before making a decision.

It is clear that your case is a borderline one and your dismissal might well have been unjustified.

You may wish to bring a claim against your employer. If it is not more than 90 days since you were dismissed you can submit a personal grievance to your employer saying you were unjustifiably dismissed.

You should lodge the personal grievance with the Employment Relations Authority. The claim might be resolved at a mediation arranged by the Employment Relations Authority's medication service. This is a quick and cost effective way to resolve claims.

* Rani Amaranathan is a solicitor in the employment team of the Australasian law firm, Phillips Fox.