FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BOOTS RETAIL IRELAND LTD TRADING AS BOOTS IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-151405-Ir-14/JT
BACKGROUND:
2. This is an appeal by both parties of Rights Commissioner Recommendation No: r-151405-Ir-14/JT. The issue concerns the demotion and transfer of the worker following an internal disciplinary process. The Union's position is that the disciplinary process was flawed on the basis that it cliamed the investigator gave an opinion that the actions of the worker constituted misconduct. It contends that the investigator's role was to establish facts and any subsequent disciplinary process would confirm what sanction was appropriate in the circumstances. Management's position is that the disciplinary process was not flawed and that the actions of the worker warranted significant disciplinary sanctions which it contends were appropriate and proportionate to the incident in question.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 28th July 2015. The Rights Commissioner found that the investigation was flawed and that the disciplinary sanction was disproportionate to the incident. The Rights Commissioner recommended that the worker be restored to her previous grade of Assistant Manager with the appropriate level of pay.
The Union and Management appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969 on the 17th August 2015 and the 20th August 2015 respectively. The Union's appeal relates to retrospective payment of the original rate of pay owing to the worker between the date of her demotion and the implementation of the Rights Commissioner's Recommendation. Management's appeal relates to the entirety of the Rights Commissioner's Recommendation.
A Labour Court hearing took place on the 9th October 2015.
UNION'S ARGUMENT:
3 1 This issue arose as a result of the worker playing a practical joke on a colleague during her lunch break. The workers in question are friends outside of work and there was no issue between the two colleagues in relation to the incident. Management actions were excessive in the circumstances. Its investigative process was flawed and subsequent disciplinary sanction completely excessive. The Union accepts the Rights Commissioner's Recommendation but is seeking retrospective application of the higher rate of pay.
COMPANY'S ARGUMENT:
4 1 Management contends the joke was completely inappropriate and unbecoming of a member of management. Dismissal had been considered but given the worker's previous record the employer decided on the lesser sanction of demotion and transfer. In the circumstances Management contends it acted appropriately and imposed a proportionate disciplinary sanction.
DECISION:
The parties appealed a recommendation of a Rights Commissioner in this case. The Court has given careful consideration to the submissions of the parties and the points made at the hearing.
The Court is satisfied that the Company took appropriate steps to investigate and arrange for appeals within agreed procedures in place in the organisation. The Court is however concerned that some occurrences during the investigation and appeal process could give rise to a perception of bias or lack of fairness of procedure. The Court is aware that a focus of internal procedures in Boots is to be corrective and supportive rather than punitive.
Taking all aspects of this case into account the Court is of the view that the disciplinary measures imposed were disproportionate in the circumstances. The Court therefore recommends that the demotion imposed on 1stNovember 2014 should be terminated with effect from 1stFebruary 2015 and the Claimant restored to her former grade with effect from that date. The Court notes that movement between stores is a feature of the role of Assistant Manager in the Company and the Court recommends that the Claimant should be considered in the normal way for a transfer to her original store should she seek such a transfer in the future.
Signed on behalf of the Labour Court
Kevin Foley
27th October 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.