FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS & SPENCER - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's R-050479-Ir-07/JT.
BACKGROUND:
2. This dispute concerns an incident on 14th December 2006, when the worker, while operating a till, allowed one co-worker to purchase goods using the staff discount card of another co-worker. A Disciplinary Hearing held on 29th December 2007 decided to issue the worker with a Stage Three written warning and to withdraw her staff discount card, both sanctions to last for 12 months. When this decision was appealed by the worker the Company then decided that while the Stage Three written warning would remain, the worker's staff discount card would be restored to her.
The issuing of a Stage Three written warning meant that, for 12 months, the worker would not receive a salary review (PDR); could not apply for a transfer or a promotion; and would not receive any bonus payments. The dispute was referred to a Rights Commissioner and his recommendation was as follows:
"I have considered the representation and submissions made by both parties. I further note that the claimant co-operated fully with the investigation and did not deny her actions. However, I believe, because of the disciplinary decisions taken, it went beyond what the respondent expected would be as a consequence. Therefore, I believe it would be reasonable in the circumstances that the claimant's disciplinary action would be reduced to a two stage penalty and that her PDR be restored and paid to her."
The Union appealed the recommendation to the Labour Court on the 15th October 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court took place on the 1st February 2008.
UNION'S ARGUMENTS:
3. 1. The worker was not in breach of the Company's staff discount card policy.
2. There was no collusion between the worker and her two co-workers.
3.The Company suffered no monetary loss.
4. The issuing of a Stage Three written warning meant that the worker, who had a clean disciplinary record prior to this incident, was not paid a bonus of €510.
COMPANY'S ARGUMENTS:
4. 1. This incident was fully investigated in accordance with the Company's disciplinary and appeal's policy.
2. The worker breached the Company's staff discount card policy and till procedures.
DECISION:
The Court fully accepts that adherence to correct till procedures is a vital obligation on all staff employed by the Company. Accordingly the Company is entitled to treat any departure from those procedures seriously.
However, on the facts of the present case the Court is satisfied that any departure by the Claimant from correct procedures was inadvertent and there was no element of deliberate or culpable departure from the correct procedure. In the Court's view the matter should have been dealt with by a verbal warning at stage 1 of the Disciplinary procedure.
It is the decision of the Court that the sanction should be reduced to a verbal warning. Consequently, the bonus payment now in issue should be paid to the Claimant.
For the avoidance of doubt the Court wishes to emphasise that this decision is made on the basis of the facts of this case. It is not intended to have any application to any other case in this or any other employment. Nor should it be quoted or relied upon as a precedent in the future.
Signed on behalf of the Labour Court
Kevin Duffy
4th February, 2008.______________________
AH.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.