But What About the (chocolate) Flake?

In the Tasmanian Industrial Commission
Rebecca Bishop and Justin Bartlett v McDonalds Launceston
Re: Alleged Unfair Dismissal

19 May 1999

Its a funny old world. On Wednesday 19th May the hearing of the complaint of unfair dismissal by two former employees of the McDonalds fast food restaurant, sacked late last year for misconduct, finally came to trial.

The two workers were sacked as a result of what the owner of the store described as "some indiscretions" in the early morning of 23/10/98. Justin and another worker had been let into to the premises at about 3.30 am by Rebecca, who was working the maintenance shift. The two early birds had been a bit under the weather and helped themselves to an extremely unhealthy breakfast of chicken McNuggets (and yes, they did have fries with that).

Giving evidence in the hearing, the franchise owner Steve Nicolaus complained bitterly of tens of thousands of dollars worth of product disappearing from his three McDonalds outlets in Launceston every year. "Stealing is stealing, no matter how small the value of the goods involved," explained his counsel, Andrew Flood, from the Tasmanian Chamber of Commerce and Industry. Charles Dickens eat your heart out.

However in the course of the Industrial Commission hearing Flood was forced to concede that the charges against Rebecca, who denied participating in the feast of fatty foods, rested largely on her confession to the charge of consuming a solitary chocolate Flake. Which, for those unfamiliar with Maccas fare, is a miniature version of the confectionary bar, sold as an optional extra with the standard Maccas soft serve ice cream cone.

The other reasons given for her dismissal, breach of security (for allowing the workers into the store before the start of their shift) and use/possession of alcohol on the premises, having collapsed due to lack of evidence. The employer could produce no evidence whatsoever that Rebecca had been drinking and the admission that it was usual practice for early morning shift workers to turn up for work at least half an hour before they clocked on, not least because this was the only way they could get their work done on time, somewhat undermined the "breach of security" argument.

Acting for the sacked workers I very early displayed my ignorance of the insides of the golden arches by pouncing on one of the employer's witnesses who had claimed that Rebecca had eaten the Flake before the deep fryers had been turned on - "Aha!" says I, "But is there not some inconsistency in your evidence there? How could she have eaten the flake before it could have been cooked?!!!"

Something of a faux pas, I admit. But I got my revenge. As it turned, out one of the perks of the Maccas maintenance shift workers was a free breakfast, Rebecca explained that she had "promoed" off the Flake on the register, thus complying with the regulations that her "meal" be recorded. However the employer gave evidence that this was not proper, he insisted that, since the Flake bars are not sold separately, it was quite improper for her to consume one for breakfast. Since a Flake bar, by itself, was not a discrete product, it was still stealing. (Presumably it would have been OK if she had got an ice cream with it though.)

No flies on our team though, during the lunch adjournment we sent an agent back into the Maccas, who managed to convince one of the staff to sell him a flake bar, which I offered to the court as rebuttal evidence.

The opposition was flummoxed! The adjudicator, Commissioner Imlach raised his eybrows. "What's this?" "A Flake," I told him, smugly, "purchased this very day from McDonalds Invermay. Evidence that Flake Bars are, indeed, sold separately."

Flood babbled, "We don't know WHERE this flake came..." from he blathered.

"Did YOU buy this?" the Commissioner queried me. "No, that fellow did, I told him, pointing to the purchasing party in the rear of the courtroom."

He muttered something, then the hearing continued, with the employers argument and summing up. I thought that was it, not impressed it seemed. But I was quite wrong. At the end of Andrew Flood's evidence and summary for the employer, the Commissioner suddenly pounced on him, "But what about the Flake?" he demanded. "What have you got to say about the Flake?"

You could have knocked me down with a feather. Flood looked rattled, he blathered something about it not being properly in evidence, the pedigree of the Flake being a matter of speculation, but he wasn't convincing, he looked a beaten man. Rumpole would have been proud of me.

A little later Commissioner Imlach reserved his decision. So we don't know how its all going to turn out yet.

Stay tuned for more details on this exciting saga. Yibbetty, yibbetty...

That's all folks!

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