FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS & SPENCER IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-051278-Ir-07/TB.
BACKGROUND:
2. The Claimant has been employed by the Respondent since 1994, initially as a Sales Advisor and, since 2005, as a Section Manager. The Respondent alleges that on 14th December 2006, while taking a break in the company of three Sales Advisors, the Claimant used inappropriate language concerning another Section Manager. Following a disciplinary hearing held on 28th December 2006, the Respondent decided that the Claimant's behaviour constituted an act of gross misconduct and warranted a stage 3 sanction.
While the Claimant was issued with a written warning in accordance with a section 3 sanction, the effects of that warning was that she was not paid a €1,000 bonus that was paid to all employees in July 2007; she was not given a performance pay review that would have potentially given her an increase of c.€2 per hour; and she was denied an opportunity to apply for promotion or a transfer to another store. The Union claims that the alleged incident was not investigated in accordance with the Respondent's disciplinary procedures and that the disciplinary sanctions against the Claimant should be withdrawn and she should be given the bonus and a performance pay review.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 30th November, 2007 the Rights Commissioner issued his Recommendation as follows:-
“The implications of a stage 3 sanction appear to be very far reaching indeed and go way beyond what is described in the company handbook as a final written warning. It is clear in the handbook that any sanction under stage 3 beyond the written warning only happens if no improvement results.
On the basis of the submissions of the parties and on the discussions at the hearing I consider the sanctions imposed on the claimant to be overly harsh.
I recommend that the sanction be reduced to a stage 1 as outlined in the company handbook”.
On the 2nd January, 2008, the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 11th April, 2008.
3. 1. At no time prior to the Claimant's initial meeting with Management to discuss the alleged incident was the Claimant advised what the meeting was in relation to or of her right to representation at the meeting.
2. One of the alleged witnesses to this incident could not recall the Claimant using inappropriate language. The other two witnesses gave differing accounts of what the Claimant allegedly said.
3.In dealing with this matter, the Respondent denied the Complainant the right to natural justice and fair procedures.
COMPANY'S ARGUMENTS:
4. 1. The Claimant's behaviour constituted a deliberate breach of the Respondent's 'Managing Dignity at Work Policy'.
2. Although deliberate breaches of'Managing Dignity at Work Policy' can result in serious disciplinary action up to and including dismissal, the Respondent stopped short of dismissal on this occasion as this was the first time the Complainant had breached this policy.
3.The Respondent carried out an extensive investigation into the Claimant's behaviour. The Claimant was also afforded an appeal of the Respondent's decision that her behaviour constituted a deliberate breach of the Respondent's 'Managing Dignity at Work Policy'. In the circumstances, the Respondent believes that its decision to impose a stage 3 sanction was proportionate and reasonable.
DECISION:
The Court has given careful consideration to the submissions of the parties in this case.
The Court believes that the Rights Commissioner took full account of all relevant factors in his consideration of the case. The Court is satisfied that the conclusions reached by the Rights Commissioner are reasonable and that his recommendation is appropriate in the circumstances.
Accordingly the appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
17 April, 2008.______________________
JMcC.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.