FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of a Recommendation of a Rights Commissioner r-126261-ir-12/MMG.
BACKGROUND:
2. The Claimant is a long standing employee of the Company. On the 2nd March 2012 she was called to the office and told she was to be the subject of an investigation. Following the investigation and the finding of no wrongdoing she made a complaint under the Grievance Procedure. It took over four months for the issue to be resolved.
The Employer said the initial investigation was in line with the Company's Disciplinary Policy and there was no allegation of dishonesty, fraud or theft against the Claimant. The Claimant submitted a grievance to the Company on the 10th April 2012 and the Manager of another store brought her through her grievance on the 3rd July 2012 in line with the Company procedures.
This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 3rd December 2012 the Rights Commissioner issued the following Recommendation:-- “It is acknowledged that both parties gave very full and frank and comprehensive details in relation to these sensitive matters. In summary I have formed the opinion that both parties should acknowledge that the matters of the situation at hand was a “happenstance” and was not a matter in relation to the individuals concerned. The situation and methodology of dealing with reductions is a matter for the company and one that can be reviewed from time to time to ensure it is both appropriate and manageable.
It is my opinion that there is no issue in regard to the claimants and that there is no blemish to their records or standing as valued long serving employees.
It is to be noted that the grievances were genuinely handed in by the employees in good faith as they felt they had suffered and also suffered untimely delays in resolution of these matters. This undoubtedly added to the stress and confusion over the principle matter.
It is my overall recommendation therefore that the company and perhaps in this situation it may be preferable it was the store manager who has direct responsibility for the store and the employees should write to the employees concerned confirming the above opinions of the commissioner and confirm that the matter is amicably resolved to all parties satisfaction.
Additionally I would recommend that as a gesture of good faith the company and the individuals concerned would accept a nominal monetary compensation equivalent to 1 week’s wages in each case.
- “It is acknowledged that both parties gave very full and frank and comprehensive details in relation to these sensitive matters. In summary I have formed the opinion that both parties should acknowledge that the matters of the situation at hand was a “happenstance” and was not a matter in relation to the individuals concerned. The situation and methodology of dealing with reductions is a matter for the company and one that can be reviewed from time to time to ensure it is both appropriate and manageable.
On the 25th March 2013 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 the 21st June 2013.
WORKER’S ARGUMENTS:
3. 1. On 2nd March 2012, the Claimant was told that the Assistant Manager saw an incident between her and a colleague the previous day and made a statement on the matter which would be subject to an investigation.
2. The Claimant was instructed not to speak to her colleague and with her Union Representative was questioned about purchasing reduced items in the delicatessen the previous day.
3. The Claimant was aware that the situation was the subject of discussion and speculation amongst other members of staff which caused her great upset. Following the investigation, the Claimant submitted a grievance to the company head office.
EMPLOYER’S ARGUMENTS:
4. 1. On the 1st March 2012 the store Assistant Manager noticed the Claimant and her colleague were holding deli products together with a roll of labels entitled “reduced to clear”. He made a written report of the events for further investigation.
2. On foot of the Assistant Manager’s report, the Store Manager held an investigation meeting with the Claimant and her colleague. The investigation was formal and in line with the company Disciplinary Policy.
3. Having gathered the information the Store Manager reached the conclusion that the Claimant had no case to answer. He gave his outcome to the Claimant on the 5th March 2012. The Claimant subsequently submitted a grievance to head office which found there was no evidence the Claimant was treated unfairly.
DECISION:
Having considered the submissions of the parties to this appeal the Court is satisfied that there are exceptional circumstances in this case which justify the monetary award made by the Rights Commissioner.
These circumstances relate to the delay in bringing to finality the grievance pursued by the Claimants and the wholly inappropriate language used in conveying the outcome of the Company’s investigation to the Claimants.
In view of the Court’s conclusion that the circumstances of this case are exceptional, this decision does not have any precedent value and should not be quoted or relied upon in any other case.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
18th July, 2013.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.