FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS AND SPENCER (IRELAND) LIMITED - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-119990-ir-12/JT.
BACKGROUND:
2. The Claimant is employed as a Section Manager in the Marks & Spencer Liffey Valley Store. In November 2011 she had a verbal altercation with a staff member, the staff member went to her Shop Steward outlining her concerns. The matter was dealt with through the Informal Process and was resolved to the satisfaction of both parties. Later the Claimant was invited to an Investigation Meeting to establish if she had behaved inappropriately contrary to the 'Managing Dignity at Work' policy. A Disciplinary hearing followed and on 7th December 2011 she was issued with a Stage Two warning which she appealed. The Appeal was heard on 24th January 2012 and the Claimant was unsuccessful in her appeal.
The matter was referred by the Claimant to a Rights Commissioner for investigation and recommendation. On the 14th September 2012, the Rights Commissioner issued his Recommendation as follows:
" I have considered the submissions of both parties. The Claimant is a line manager with considerable service with the Respondent. She did not manage the situation in an appropriate manner for someone of her experience. The incident took place in a public place and the Respondent was concerned with regard to the public perception of the matter.
The Respondent had no option but to act as they did in dealing with this incident. I do not find the complaint well founded. Therefore, it fails."
On the 2nd October 2012 the Claimant appealed the Rights Commissioners 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 January 2013.
UNION'S ARGUMENTS:
3. 1. The Company is in breach of its 'Managing Dignity at Work' policy and the Code of Practice on Grievance and Disciplinary Procedures.
2. The Company failed to provide copies of the complaint and statement of witnesses to the Worker prior to the disciplinary hearing. The manager who conducted the investigation was also a witness to the alleged altercation and should not have been involved in the Investigation. The Stage Two disciplinary sanction was too severe and inappropriate.
COMPANY'S ARGUMENTS:
4. 1. There was a clear breach of Company policy and the Worker by her own admission behaved inappropriately. This was of concern to Management as the incident was witnessed by customers thereby bringing the Company into disrepute.
2. This matter has been fully investigated in accordance with the Company's disciplinary and appeals policies. The Company has a duty of care towards all Employees and a breach of any procedure does not require a written complaint in order to allow an investigation.
DECISION:
This is an appeal by the Union on behalf of an Employee against a Rights Commissioner’s Recommendation which found against her claim that she should not have been issued with a Stage Two disciplinary sanction in December 2011.
Management carried out a disciplinary hearing following an incident which occurred on 25thNovember 2011 where it held that as a Section Manager the Appellant had acted and behaved inappropriately, in line with its Managing Dignity at Work Policy. The Stage Two disciplinary sanction was imposed following a disciplinary hearing on 7thDecember 2011.
Having considered the submissions of both parties the Court takes the view that the use of the Dignity at Work Policy was inappropriately referenced in this case, as the incident complained of was resolved within the terms of that Policy on an informal basis between the parties, with the assistance of a trained mediator. However, the Court accepts that this does not preclude Management from utilising its disciplinary procedures where required in the case of inappropriate behaviour by an Employee.
In all the circumstances of this case, the Court is of the view that taking account of the Appellant’s employment record and as this was a once off incident, it should have issued the Appellant with a caution concerning her inappropriate behaviour towards another Employee. Therefore, the Court recommends that the Stage Two disciplinary sanction should be expunged from the Appellant’s personnel file.
The Right’s Commissioner Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th January, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.