FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-059847-Ir-07/SR
BACKGROUND:
2. The worker is employed as a Night Shift Duty Manager in Superquinn, Sundrive Road. His case is as follows:
At approximately 4.30 a.m. on the 3rd November, 2007, the worker stopped in at the Superquinn Branch on Sundrive Road after a night out to talk with the Night Crew Manager about the Christmas roster. He entered the building through a side entrance. He met another employee and went outside for a smoke and was joined shortly afterwards by the Night Crew Manager. He discussed the Christmas roster with the Manager and went home soon afterwards. The worker claims that he was on the premises for only a short time. On the 8th November, 2007, the worker was called in to a meeting where it was put to him that he had been under the influence of alcohol on the night of 3rd November, 2007, something he denied. The worker was suspended and another meeting was arranged for 19th November, 2007, when his Union representative was present. The Union representative asked what part of the Company's hand book had been transgressed and was told that it was the following:
"No colleague should become involved in any in behaviour or activity which might bring the Superquinn name into disrepute. This applies at all times while on the Company premises or while attending a Superquinn function or party, also while in Company uniform"
The meeting was adjourned as the Union sought a statement from the Night Crew Manager. A further meeting took place on the 22nd November, 2007, when the Union representative sought to speak to the Night Crew Manager but this was refused. The worker was given a verbal warning. The Union representative told management that the complaint was vexatious and that the worker was being victimised. The case was referred to a Rights Commissioner and his recommendation was as follows:
"I have carefully considered the evidence and submissions made. I have concluded that there is considerable merit in the claimant's claim/complaint.
I recommend that the warning be expunged from the claimant's record. I further recommend that the employer observe fair procedures in any such investigations in future and I recommend that the employer pay the claimant compensation in the sum of €2,000."
The Company appealed the recommendation to the Labour Court on the 4th June, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th July, 2008.
COMPANY'S ARGUMENTS:
3. 1. The worker's claim that he was on the premises for only 5/10 minutes is incorrect. Video evidence clearly shows that he was there for approximately 45 minutes. The Union refused to view this evidence.
2. The worker confirmed that he had consumed alcohol before entering the Sundrive Road premises, and the Night Crew Manager told the Company that he appeared to be under the influence of alcohol.
3. It is not normal behaviour for someone to go into work at 4.30 a.m. to discuss rosters particularly as the rosters in question were weeks away. There is no evidence that the rosters in question were sorted. For Health and Safety reasons colleagues should not be on the premises when they are not rostered to be there.
UNION'S ARGUMENTS:
4. 1. There is no evidence that the worker was under the influence of alcohol. It was several hours between having a drink and being on the Company's premises. The Night Crew Manager's written statement stated".. he might have had a couple of pints as well but to me he seemed normal."
2. The Company did not follow proper procedures in its investigation. It could not point to any behaviour where the worker brought the Company's name into disrepute but it appears to have found him guilty before the investigation even took place.
DECISION:
Disciplinary procedures are an important means of ensuring adherence to appropriate standards of behaviour and performance in the work place. However, such procedures can only have credibility if they are applied fairly and objectively. In that regard it is essential that disciplinary sanctions should only be taken where an employee is found to have engaged in misconduct on credible evidence following a fair investigation.
The worker was disciplined for conduct calculated to bring the Company into disrepute. The substance of the complaint is that the worker attended at his place of work while under the influence of drink. This was clearly stated in the Company’s letter to the worker dated 12th November, 2007. While the worker accepted that he had consumed two pints of beer some seven hours previously, there was no credible evidence whatsoever on which it could have been objectively concluded that the complainant was under the influence of drink at the material time.
In the circumstances of this case the Court is satisfied that the conclusions reached by the Rights Commissioner are reasonable and supported by the evidence. The Court is also satisfied that in the exceptional circumstances of this case the award of compensation recommended by the Rights Commissioner in both warranted and appropriate.
Accordingly, the appeal is disallowed and the recommendation of the Rights Commissioner is affirmed
Signed on behalf of the Labour Court
Kevin Duffy
21st July, 2008______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.