FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR9071/02/GF.
BACKGROUND:
2. The worker is employed with the Company since the 23rd March, 1984. In September, 1997, when the Privilege Card scheme was introduced, the worker was the recipent of a Privilege Card from the Company.
In February, 2002 the worker purchased goods and availed of a staff discount on those purchases. However, the purchases were for his family who live at two different residences. The Company claim that these purchases were in breach of the terms and conditions of the Privilege Card. On the 12th April, 2002 a decision was taken by the Company to inform the worker that he was being given a final written warning and of the withdrawal of the Privilege Card for a twelve month period.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 11th of November, 2002, the Rights Commissioner issued his Recommendation as follows:
" I am recommending the privilege card be restored to the claimant and the final written warning be removed from his record. I reject any claim for compensation for loss of the card or any stress involved."
The Company appealed the Recommendation to the Labour Court on the 16th of December, 2002 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th of February, 2003.
UNION'S ARGUMENTS:
3. 1. Due to personal circumstances the worker resides at two family residences.
2. The worker is being discriminated against on the basis that he does not permanently reside at one of his two permanent addresses.
3. The Company's policy handbook refers to "family friendly policies" and the Company's actions are clearly in breach of this policy.
4. As the Privilege Card scheme is discriminatory, the "final written warning"which is part of that scheme is also flawed and must be withdrawn.
5. The worker requests payment of €1,000 to compensate for the loss of the Privilege Card effective from the date of the Rights Commissioner's Recommendation.
COMPANY'S ARGUMENTS:
4. 1. The Company employs in excess of 10,500 people. As the Privilege Card is not 'capped' it would be an unacceptable precedent for the Company to allow a breach of the terms and conditions of the card.
2. The worker accepts that he has breached the terms and conditions of the Privilege Card in that he has shopped for more that one household which the scheme does not allow.
3. The worker was afforded the offer of full representation in relation to his case and he was given the opportunity to respond.
4. The restoration of the Privilege Card and the removal of the "final written warning" after only six months obstructs the Company's right to manage abuses of this nature and exonerates the worker of any wrong doing which he has admitted.
5. The withdrawal of the "final written warning" and return of the Privilege Card after only six months sets a precedent for the Company in terms of its disciplinary procedures and the possible knock on effects for the Company.
6. To allow such an abuse of the Privilege Card scheme would seriously undermine the viability of the scheme.
DECISION:
Having considered the positions of both sides to this appeal the Court concludes that as the worker breached the rules of the Staff Discount Scheme, the Court upholds the Company's appeal. Taking account of all factors in this case the Court decides that the recommendation of the Rights Commissioners should be varied. Therefore, the Court recommends that with effect from the date of receipt of this decision the worker's final disciplinary warning should be considered, as having expired and the Privilege Card should be restored.
The appeal is allowed and the recommendation of the Rights Commissioner is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th March, 2003______________________
CMCM/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Carmel McManus, Court Secretary.