Subway/Subpar

Much amazement has been available in the slowly unfolding car wreck that has been Subway's handling of one of their employees sharing a drink with her friend. Not only have Subway apparently entirely misjudged the amount and nature of public interest and feeling in this issue, they also seem to have blundered badly in terms of their adherence to employment law.

On the first count, it has been interesting to see the apparently cross-partisan support for this unfortunate woman. Even DPF has come out in support of her. One can only imagine what the other Subway franchisees think about their Dunedin-based counterpart dragging their brand through the mud!

I initially assumed that this dismissal would be substantively ok, procedurally dodgy, and politically stupid. Turns out though, this dismissal looks like being as substantively illegal as it was unwise. Trawling through various employment law databases as I was today, I found a case which was quite similar to the Subway case, and which suggests that unless Subway settle this pretty promptly, they might be in for an embarrassing time in the ERA/Employment Court.* Of course, thanks to the legendary minginess of our courts, any award given is fairly unlikely to be overly generous!

Essentially the case cited above involves a Hoyts employee who ate some popcorn without authorisation. The ERA was pretty scathing of the employer's conduct, and despite the occurrence of a technical theft, reinstatement was ordered. The amazing thing is that the Subway franchisees in question apparently haven't chosen to check the legal situation before sacking this woman. One can only assume that a person with the capital to buy a Subway franchise could afford a couple of hours of a lawyer's time to devise a plausible disciplinary proceedure. come to think of it, why didn't Subway head office either have a proceedure in place themselves, or at least intervene at an early stage to rescue their brand from the inevitable damage.

For the record, the employer in Hoyts actually followed a stronger proceedure than in the Subway case, and had a stronger substantive case too. As such, it seems likely that Subway are either going to have to settle, or fac an embarrasing and public day in court.

*Here's the citation, if you're into that sort of thing. HOYTS CINEMAS (NZ) LTD (HOYTS MOORHOUSE) v JACOB [[2002] 2 ERNZ 638] (Palmer J, 20 December 2002, Employment Court, Christchurch ( CC29/02))