FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SHAWS DEPARTMENT STORE - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation R-152963-IR-15/JW.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of Rights Commissioner's Recommendation R-152963-IR-15/JW. The dispute relates specifically to the Worker's claim that she has been treated in an inequitable manner by her Employer and the sanctions imposed on her following an incident in the workplace were disproportionate and harsh in nature. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 11th August, 2015 the Rights Commissioner issued his recommendation as follows:
" Based on the evidence presented at the hearing and taking all the circumstances of the case into account, I recommend that the complaint is well-founded.
I recommend that the respondent reinstate the claimant to the position of supervisor from the date of this Recommendation as the sanction of demotion issued to the claimant was too severe. I consider the loss in pay incurred by the claimant up to the date of this Recommendation and the written warning issued, as sufficient sanction in the circumstances".
UNION'S ARGUMENTS:
3. 1. Prior to the incident the Worker held an exemplary unblemished record with the Company.
2. The Union contends that the sanctions of a written warning and a demotion were completely disproportionate and inconsistent with the sanction imposed on the other individuals involved in the incident.
3. The Union on behalf of its member is seeking reinstatement to the position held prior to the disciplinary action taken by the Company.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer is of the view that it has adhered to the principles of natural justice at all times throughout its handling of this matter.
2. The Employer maintains that the sanctions imposed on the Worker were warranted given the senior position held by the Worker at the time of the incident.
3. The Employer asserts that it has acted fully in accordance with its internal Grievance and Disciplinary Procedures at all times.
DECISION:
This matter came before the Court by way of an appeal brought by the Employer (‘the Respondent’) against a recommendation of a Rights Commissioner in favour of the Complainant. The Rights Commissioner issued his recommendation on 11 August 2015. The Appeal on behalf of the Respondent was lodged on 14 September 2015.
Facts
The Facts are not in dispute between the parties. At the material time, the Complainant was employed as a supervisor at the Respondent’s Drogheda store. She was demoted from this position to the position of sales assistant following a disciplinary investigation into an incident which occurred in the store on 6 November 2014. This resulted in a significant reduction in the Complainant’s rate of pay. The Complainant also had a written warning placed on her file for 9 months.
On 6 November 2014, the Complainant – along with two colleagues – participated in an incident that involved her being pushed around the retail floor in a stock trolley. The store was open for business and there were customers present. The incident – which lasted for a minute or two - was recorded on the store’s CCTV system. The incident was not investigated until 17 November 2014, following the General Manager’s return from annual leave. A disciplinary hearing followed on 24 November 2014 conducted by the Respondent’s Human Resources Manager. The outcome of the disciplinary process was a finding that the Complainant’s behaviour on 6 November 2014 had been “completely incompatible with the position of responsibility which [the Complainant] held as supervisor.”
The Complainant appealed the decision to demote her to the position of sales assistant. The Respondent’s Retail Operations Director heard the appeal on 5 January 2015. The Complainant’s appeal was unsuccessful and the sanctions imposed on her at the disciplinary stage were upheld in full.
As a consequence of her demotion, the Complainant’s basic weekly pay was reduced from €518.66 to €482.27. The Complainant also lost her bonus of €175.00 per month. The Complainant submits that she also suffered a loss of overtime but this is disputed by the Respondent.
Rights Commissioner’s Recommendation
A Rights Commissioner heard the case referred by the Complainant on 4 June 2015. He upheld the complaint and recommended that the Respondent reinstate the Claimant to the position of supervisor from that date of his Recommendation.
Respondent’s Submission to the Court
The Respondent submitted that the Rights Commissioner’s Recommendation restoring the Complainant to her supervisory position, should be upset for the following reasons:
•The Respondent had complied fully with its own disciplinary procedures;•The Claimant fully accepted that the incident in question had occurred as alleged on 6 November 2014;
•The incident had occurred in the presence of customers;
•The behaviour of the Complainant and her colleagues endangered safety;
•The sanction imposed by the Respondent was within the band of reasonable action;
•The Complainant’s behaviour was completely incompatible with the position of responsibility she held as supervisor.
When pressed by the Court to identify the most important factor that informed its decision to impose the sanction of demotion on the Complainant, the Respondent’s representative stated that the key factor was the fact that a customer had to step out of the way of the stock trolley in which the Complainant was being pushed around the store.
Claimant’s Submission to the Court
The Complainant’s representative informed the Court that the Complainant and the Union fully accepted the Rights Commissioner’s Recommendation. The Union submitted that the Court should uphold that Recommendation on the following grounds:
•The three members of staff who participated in the incident on 6 November 2014 were equally culpable, however, the sanction imposed on the Complainant was far more severe than that imposed on her two colleagues who each received a first written warning only;•The Complainant suffered severe financial loss as a result of her demotion;
•The sanction of demotion has an ongoing punitive effect on the Complainant whereas the first written warnings applied to her colleagues had expired in the intervening period;
•The purpose of the disciplinary process is not to punish but to correct inappropriate conduct;
•The Respondent’s finding that the incident of 6 November 2014 “endangered safety” is over-stated and an exaggeration of the facts;
•The Respondent’s decision to impose a written warning in conjunction with the sanction of demotion was not permitted by its disciplinary policy.
Findings and Conclusions of the Court
Having considered the written and oral submissions of both parties, the Court finds that the Respondent’s decision to demote the Complainant as a consequence of the incident that occurred in its Drogheda store on 4 November 2014 was disproportionate. The Court is of the view that the incident was at the less serious end of the spectrum of inappropriate behaviour.
When questioned by the Court in relation to the alternative sanctions, if any, he considered prior to imposing the sanction of demotion on the Complainant, the Respondent’s representative (who had been the decision maker at the disciplinary stage) was unable to offer a convincing account that he had done so.
Recommendation
The Court recommends that the Complainant be re-instated to her former position as supervisor with effect from the date of Rights Commissioner’s recommendation. For the avoidance of doubt, the Court further recommends that the Respondent reimburse the Complainant the differential in pay and bonus that accrued from that date to the date of the implementation of the Court’s recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
30th November 2015______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.