AD9373

Labour Court Database __________________________________________________________________________________ File Number: CD93493 Case Number: AD9373 Section / Act: S13(9) Parties: PENNEYS - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION

Subject:
Appeal by the Union against Rights Commissioner's recommendation No. D.C. 82/93.

Recommendation:
5. Having considered the submissions from the parties and noting
the Company's commitment to review the position as recommended by
the Rights Commissioner the Court is of the view that the Rights
Commissioner's recommendation is not unreasonable in the
circumstances and should therefore be upheld.

The Court accordingly rejects the appeal and so decides.

Division: Ms Owens Mr Brennan Ms Ni Mhurchu

Text of Document__________________________________________________________________

CD93493 APPEAL DECISION NO. AD7393


INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969


PARTIES: PENNEYS
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)

and

IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION




SUBJECT:

1. Appeal by the Union against Rights Commissioner's
recommendation No. D.C. 82/93.


BACKGROUND:

2. The worker concerned has been employed as a cashier for the
past eighteen years at the Company's Dundalk store. On the 28th
May, 1993 she included a sterling cheque to the value of #9,000,
payable to herself from a Building Society, in a bank lodgement
from Penneys store. She removed a cash amount of #9,105.63 punts
from the lodgement in lieu of the cheque and made an appropriate
alteration to the lodgement. Following an investigation by the
Company the worker was advised by letter dated 8th June, 1993 that
on her return from sick leave she would be transferred to the
sales floor.


2. The Union claimed that the worker was treated unfairly and
referred the issue to a Rights Commissioner for investigation. On
the 14th July, 1993 the Rights Commissioner issued his
recommendation as follows:






"RECOMMENDATION

Whilst I accept the Union's point that there are no
formalised procedures in place between the parties for
dealing with sterling transactions, nevertheless there was a
previous incident in this area in August, 1992, involving the
claimant, which was the subject of exchanged correspondence,
and it is also evident that there was a tightening-up on such
procedures, after that date. Consequently, the transaction
on 28th May, 1993, which is central to this dispute, given
the amount of cash involved, was clearly irregular and that
the claimant did not seek authority for or bring to notice of
the Manager is simply inexplicable. Against that backdrop
therefore the Company had ample justification to invoke
disciplinary action against the worker.


Furthermore in doing so, the Company have, in my opinion, not
dealt unreasonably with the claimant, in that it has been
acknowledged that her honesty and integrity are not impugned
and whilst the penalty imposed implies some loss of status,
there is nevertheless no diminution of salary or conditions
of employment.


I therefore recommend that the worker should accept the
Company's decision as reasonable in the circumstances, and
also that Messrs. Penneys in implementing the claimant's
re-deployment, having regard to her previous background and
experience, should ensure that she is solely involved in cash
handling duties in her revised role.


I further recommend that the Company should consider a review
of the worker's position, after a period of six months from
the date of implementation of her transfer".


(The worker was named in the Rights Commissioner's
recommendation).


On the 20th August, 1993 the Union appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on the 13th September,
1993.






UNION'S ARGUMENTS:

3. 1. The worker was suspended with pay until 4th June, 1993.
During this period Management investigated every detail of the
cash-office operation. No irregularities were found in
relation to the operation of that office. All monies and
lodgements with the exception of that of 28th May were deemed
proper and correct. The Company accepted that no financial
loss accrued to it as a result of the worker's action. The
Company also stated that the worker's honesty was not in
question.


2. The Union accepts that the worker made a mistake in her
handling of the lodgement of the 28th May. The penalty
imposed by the Company was extreme. No formal procedures
exist in relation to sterling policy at the Dundalk branch.
The cashing of a third party cheque is not unusual and it is
common policy to cash third party cheques for some staff,
without Management involvement.


3. The Rights Commissioner recommended that "the Company
should consider a review of the worker's position after six
months". This places no requirement on the Company to return
the worker to her position as cashier. The decision to
transfer the worker is unfair and unreasonable. She should be
allowed to resume her duties in the cash office.


COMPANY'S ARGUMENTS:

4. 1. The Company took disciplinary action against the worker
for:


- cashing a sterling bank draft payable to herself


- deliberately interfering with a cash lodgement for the
bank previously authorised by Management


- sending an unauthorised and unchecked lodgement to the
bank


- carrying out an unauthorised currency exchange.




The worker was well aware of Company procedures in relation to
lodgements. In the previous year an incident occurred where
the worker was also in breach of those procedures and
following that incident Company procedures were outlined to
her by letter dated 14th August, 1992. The fact that written
procedures do not exist is irrelevant. It would be impossible
for the Company to write down every detail of its procedures.
The only valid criterion is what happens in practice.

2. The worker's action would normally carry the penalty of
dismissal. In appreciation of her long service and as a
gesture of goodwill the Company issued her with a final
written warning clearly indicating that further breaches would
result in dismissal. The Company has treated the worker
fairly. She cannot be returned to the cash office but there
will be no diminution either of her pay or conditions of
service.

3. The Company accepts the Rights Commissioner's
recommendation in full. Management will do everything
possible to make the worker's transition to the sales floor as
smooth as possible and will review her position six months
from the date of implementation of her transfer.

DECISION:

5. Having considered the submissions from the parties and noting
the Company's commitment to review the position as recommended by
the Rights Commissioner the Court is of the view that the Rights
Commissioner's recommendation is not unreasonable in the
circumstances and should therefore be upheld.

The Court accordingly rejects the appeal and so decides.
~

Signed on behalf of the Labour Court
Evelyn Owens
____________________
23rd September, 1993. Deputy Chairman
T.O'D./J.C.