FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner Recommendation R-035608-Ir-05/Gf.
BACKGROUND:
2. The worker commenced employment with the Company in 1983 and currently works in the Tesco Merrion Store. The dispute concerns a first written warning that was issued to him in May, 2005. The worker's case is that stock being delivered by a company -Cuisine de France - did not correspond with what was on the delivery docket. The worker attempted to contact the company representative to sort out the problem but without success. The worker claims that he discussed the problem with his Store Manager and suggested refusing deliveries from the company. The Store Manager advised against it. Having discussed the situation with other members of the back store area the worker decided that he would not issue the company driver with a receipt. This would mean that the Company would not be paid without the "T.R.N." for documentation that was incorrect. The worker claims that the Store Manager told him to do whatever was needed as long as he did not send deliveries back to the Company. The worker proceeded with his plan for approximately three months at which time he had accumulated 32 dockets.
In April, 2005, the worker claims that he contacted the Transport Manager and Distribution Manager of Cuisine de France and that they agreed with his handling of the situation. The following week he was called to a meeting in Tesco in relation to the 32 outstanding dockets and he explained the situation. At a further meeting a few days later he was informed that his actions in holding on to the dockets were regarded as serious misconduct, and he was issued with a written warning. The Company regarded his actions as very serious.
The Union referred the case to a Rights Commissioner and his recommendation was as follows:-
"I have listened to the case carefully and I must come to the conclusion the claimant was hard done by. I don't think the fault lay with him. I recommend the warning be withdrawn from the records and he be compensated in the amount of €400.00 in full and final settlement of the matter".
The Company appealed the recommendation to the Labour Court on the 2nd of December, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th of March, 2006.
COMPANY'S ARGUMENTS:
3. 1. The Company issued the written warning to the worker because of his failure to properly complete routine documentation procedures. This failure had a direct impact on the store's stockloss figure. Furthermore, Cuisine de France was without payment for these deliveries during that time.
2. The first written warning was issued in line with the Company's disciplinary procedures. The warning was removed from the worker's file after 6 months (in November 2005).
3. The Store Manager denies that he told the worker to"do whatever it takes to sort out the problem". At no stage did the worker inform the Store Manager that he was not issuing the correct paper work to Cuisine de France, nor was the Store Manager aware of the meeting between the worker and representatives from the Company.
UNION'S ARGUMENTS:
4. 1. The worker believed that he had the Store Manager's approval in pursuing the course of action he took to sort out the problem.
2. Cuisine de France took responsibility for the situation, apologised and gave an undertaking as to further performance. The worker believed that he had sorted the problem and done a good job for the Company.
3. The worker has been employed by the Company for 22 years without a blemish on his record. He believes that the warning was totally unwarranted as he was only using his initiative for the benefit of the Company. The Company's actions have caused him great stress.
DECISION:
The Court fully accepts the Company's right to insist on full compliance with the documentation procedures of the type at issue in this case. The Court further accepts that in normal circumstances a failure to comply with those procedures could constitute serious misconduct.
In the present case it appears to the Court that the failure to comply with the procedures was the result of a misunderstanding between the Claimant and his Manager. It did not, in the Court's view, result from a deliberate decision by the Claimant to disregard correct procedures. In these circumstances, the omission complained of could not be properly classified as serious misconduct. A more appropriate response would have been to deal with the matter by way of an informal caution.
The Court concurs with the Rights Commissioner's recommendation that the written warning be expunged from the Claimant's record. However, the Court does not consider that monitory compensation is appropriate in the circumstances. Accordingly, this aspect of the Rights Commissioner's recommendation is set aside.
The Rights Commissioner's recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
23rd March, 2006______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.