Ashraf said the staff member told him that they had the right to check bags.
“I, me and my son, [were] both offended and embarrassed because [there were] so many people on the weekend just watching,” Ashraf said.
He added that some of his son’s schoolmates were present. He said his son felt “humiliated” when he went back to school.
Ashraf described bystanders at the incident looking at him as if he were a “thief or an animal at a zoo”.
So this time, he said he decided to take the matter to the media and formally complain to Pak’nSave.
In an email to Ashraf, seen by RNZ, the supermarket apologised and offered him a $100 Pak’nSave gift card. But Ashraf turned it down.
A Foodstuffs North Island spokesperson provided a statement to RNZ, apologising for the incident and the distress caused.
“Our review confirmed that staff acted outside our policy.
Chris Quin, the head of Foodstuffs. Photo / RNZ, Marika Khabazi
“Our teams can request to see a bag, but they do not have the right to search it, and any check must only occur with the customer’s consent and with the customer presenting the contents themselves.”
The supermarket said it reinforced policies and training around customer rights and privacy.
It said it took the incident seriously and investigated accordingly.
“We expect all customers to be treated with respect at all times, and on this occasion we fell short.”
The apology was not enough for Ashraf, who said he wanted an apology from the head of Pak’nSave for himself and his son, as well as monetary compensation.
He declined to tell RNZ the amount he was seeking.
He wrote to Chris Quin, the head of Foodstuffs, which owns Pak’nSave.
In an email seen by RNZ, Quin replied that Ashraf had been offered the gift card as a goodwill gesture and that financial compensation was not appropriate in this situation.
Quin said the incident had been reviewed and steps had been taken to ensure it did not happen again.
Barrister Simon Shamy said retail staff do not have the right to search customers’ personal property without permission.
“If they’re asked to search your bag, you can refuse.
“If they try to use force, they’re committing a criminal assault and you may also have a civil claim against them for compensation.”
He said unauthorised searches could be considered as infringing on a person’s right to privacy.
As a result, complaints could be made to the Human Rights Commission or to the Office of the Privacy Commissioner, he said.
Barrister Marie Taylor-Cyphers said complaints to the Privacy Commissioner and Ombudsman would most likely end in an apology rather than compensation.
She said one remedy would be suing the supermarket, but this would be prohibitively expensive for most.
Ashraf told RNZ he had lodged a complaint with the Privacy Commissioner.
A spokesperson for the Office of the Privacy Commissioner told RNZ that having your bag searched without permission may be a breach of privacy – depending on the circumstances.
The spokesperson said a shop owner or employee could request to search a customer’s bag, ask the customer to leave their bag outside, or require someone to leave the store – but not the right to search a bag.
In order for it to breach privacy, the spokesperson said, the shop would have to collect personal information from the bag search.
“If an agency (in this case the supermarket) takes a quick look to check you don’t have a stolen item in a backpack and then lets you go, then that would struggle to be a genuine collection of personal information. They still really don’t know who you are or anything about you.”
But it could be argued that “the fact of whether or not you’ve stolen something is personal information, but often the shop would have a lawful purpose to check that”.
The spokesperson said the commissioner would often decline to investigate complaints like these, as a breach of privacy had often not occurred or “because the person hadn’t suffered harm that would meet the threshold in the Privacy Act”.
But they added: “If a shop had no signage about their practices, searched your whole bag, photographed your licence or took a copy of your passport while they were in there, and/or did the search in an unfair way (ie in front of other customers), then it would be a privacy law issue and we might look at the case.”