LCR20518

FULL RECOMMENDATION

CD/13/15

RECOMMENDATIONNO.LCR20518

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

DUNNES STORES

- AND -

A WORKER
(REPRESENTED BY MANDATE)

DIVISION :

Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Mr Shanahan

SUBJECT:
1. Disciplinary Sanctions

BACKGROUND:

2. The Claimant has worked as a Merchandiser and Stock Room Attendant on the nightshift for six years. This case is an appeal against a verbal warning issued by Management for what they claim was based on monitoring the Claimant's overall attendance record.

On the 14th December 2012 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 12th April, 2013. The Company advised the Court by letter dated 11th February, 2013 that it would not be in attendance nor represented at the Court hearing.

The Union agreed to be bound by the Court’s Recommendation.

UNION'S ARGUMENTS:

3. 1. The Claimant was absent from work on the following nights, 27th January, 6th March 15th June and 27th September 2012.. The issuing of a verbal warning for taking these four days sick leave over a ten month period would be considered harsh, especially when some of these days were covered by a sick note from either a GP or Dentist.

2. The Company failed to comply with its own policy on appeals as the Claimant never received the opportunity to personally explain the legitimate reasons for his absence.

3. The Union request that the verbal warning be expunged for the Claimant's file.

RECOMMENDATION:

The Court notes that Dunnes Stores Management decided not to attend the hearing.

Having considered the submission the Court, on the information available to it, makes the following findings and recommendation: -

Contrary to the Company’s own procedures, the Worker involved was not given sufficient notice or details of the nature of the meeting that took place on 25^thOctober 2012. Furthermore the Worker was not given sufficient time or opportunity to consider the complaints made against him or to make representations in his defence or to arrange for representation by a competent person at the meeting.

The Court finds that Management’s Decision to issue the Worker with a written warning is excessive in this case.The Court finds that the appeals procedure applied in this case lacks credibility and is fatally flawed. The Worker involved was unaware that he would not be afforded an oral hearing by the appeals officer. Furthermore the evidence presented to the Appeals Officer by the Company was not provided to the Worker for comment or observation. Accordingly the Court finds that this amounted to a further denial of fair procedure to the Worker concerned. Decisions that emerged out of that appeals process are unsafe and cannot stand.

The Appeals Officer upheld the sanction originally imposed by the original decision maker. However the sanction appears to have no time limit attached to it. On the face of it the sanction will remain on the Employee’s record indefinitely. The Court finds that this is disproportionate and unfair and amounts to a further denial of fair procedures to the Worker concerned.

Taking these matters into account the Court recommends that the verbal warning be rescinded, that the procedures be reviewed and that systems be put in place to ensure that all staff are treated fairly and proportionately in the management of disciplinary matters.

The Court so recommends.

Signed on behalf of the Labour Court

Brendan Hayes
27th May, 2013______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.