FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DELPH CENTRE LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Disciplinary Sanctions
BACKGROUND:
2. This case concerns a dispute between the Company and Union in relation to a disciplinary sanction imposed on the worker. Management contends that the worker moved/removed stock that was stored on the Company premises but did not belong to it. The Union contends that the final written warning was excessive in the circumstances on the basis that the worker was unaware that his actions were inappropriate. On the 15th October 2012, the Union referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on the 22nd January 2013.
UNION'S ARGUMENT:
3 1 The sanction imposed upon the worker was totally excessive and unwarranted and should be removed. The worker accepts that he moved the item of stock from one location to another within the Company but not in the context of any deliberate wrongdoing. The Company had no procedures in place in relation to such issues and there were no guidelines for staff on the movement of stock within the organisation.
COMPANY'S ARGUMENT:
4 1 The Company did not own the item of stock that was moved/removed. It was in storage for a client of the Company. Staff are well aware that it is not permitted to remove items of stock within the Company. The Company was totally justified in applying a final written warning.
RECOMMENDATION:
Having considered the extensive written and oral submissions of both parties to this dispute the Court finds that the Worker’s behaviour in this case cannot reasonably be described as “theft”, “misappropriation” or as “taking stock without permission” within the normal meaning of those terms. On the other hand the Company is entitled to maintain strict control of the movement of all stock under its control. Unauthorised movement of stock is a matter that self-evidently falls to be dealt with under the Company’s disciplinary procedures.
In this case the manner in which the company implemented its procedures was flawed. The worker attended a meeting to answer a charge of theft but was sanctioned for a different offence that was not put to him and for which he was given no opportunity to prepare or mount a defence. Accordingly this finding cannot stand.
The disciplinary sanction in this case was decided by a Director of the Company. The Procedures provide for an appeal against that sanction to an independent and impartial third party who was not involved in the original disciplinary process. An appeal to the Company Financial Controller against a decision of two Directors of the Company does not meet this requirement. Whilst recognising the individual’s personal and professional integrity in this matter, the Court does not accept that a person who is subject to the control of those Directors can fairly and impartially review their decisions based solely on the evidence before him. Accordingly the Court finds that, contrary to the terms of the Company’s Disciplinary Procedure, the Worker in this case did not have access to a fair and impartial appeals procedure. Accordingly the decisions that flowed from that flawed process cannot stand.
Having reviewed the evidence before it in the context of the Company’s need to maintain control of all stock movements and the worker’s entitlement to fair procedures the Court recommends that the final written warning be reduced to a verbal warning on this occasion.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
11th February 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.