FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEATONS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-075519-IR-09
BACKGROUND:
2. The worker has been employed by Heatons since 1990. She was promoted to the position of till supervisor in 2001 however in October and November 2008 following breaches of company policy relating to the misuse of staff till swipecards, she was subjected to disciplinary action including demotion and the issuing of a final written warning. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th September 2009, the Rights Commissioner issued his Recommendation as follows:
"I consider the breaches as alleged and accepted fall into the category of gross misconduct as submitted by the respondent. The claimant was or should have been in my opinion aware of the serious light in which these matters are regarded.
However I have major reservations with regard to the role played by the regional manager in this matter as it relates to the operation of the laws of natural justice. Furthermore the sanction applied in such circumstances seems to me to be disproportionate.
I recommend that the demotion to retail associate and the final written warning stand for one year, thereafter the claimant to be reinstated in her position as customer care supervisor subject to a three-month satisfactory probationary period".
In October 2009 both the union and the company 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 14th April, 2010.
UNION'S ARGUMENTS:
3. 1 The worker's breach of policy regarding the misuse of her swipecard was carried out in the presence of a regional manager. Immediately after the incident had occurred the worker was allowed to remain in her position for a period of time. Along with the fact that there was no loss to the Company following the incident, the worker was under the impression that her action was not one of gross misconduct.
2 The worker was subjected to disciplinary action including demotion and the issuing of a final written warning. The staff handbook did not provide for the imposition of a double penalty surrounding the incident that had occurred.
COMPANY'S ARGUMENTS:
4. 1 The staff handbook clearly outlines that breach of policy in relation to swipecards is considered as gross misconduct. The worker had on several occasions signed off on acceptance of the swipecard procedure and acceptance of the handbook which states that breach of the swipecard procedure and the consequences following such breach would be dealt with as gross misconduct.
2 The Company dispute the fact that there was a double penalty imposed and believe that the sanctions enforced on the worker were fully in accordance with the disciplinary procedures outlined in the Company handbook.
DECISION:
This is an appeal by the Company, dated 13th October 2009, and a cross-appeal by the Union, dated 22nd October 2009, against the Recommendation of a Rights Commissioner.
The Court has carefully evaluated the submissions made by the parties. Having done so it has come to the conclusion that the approach of the Rights Commissioner was balanced and fair having regard to the facts and other relevant considerations in the case.
In these circumstances the Court cannot identify any reasonable basis upon which it should interfere with the Recommendation of the Rights Commissioner. Accordingly the Recommendation is affirmed and the appeal and cross-appeal are disallowed.
The Court notes that certain implications may arise from the implementation of the Recommendation of the Rights Commissioner, as affirmed by the Court, due to changed circumstances in the employment. It is a matter for the parties to address these implications appropriately.
Signed on behalf of the Labour Court
Kevin Duffy
19th April 2010______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.