FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IBEC) - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No ADJ-00002975.
BACKGROUND:
2. This case concerns a final written warning issued to the Worker, his demotion to the position of Customer Assistant and relocation to a store in Naas.
- The Employer said the Worker had used excessive force against a member of the public and was subject to the Employers full disciplinary procedure.
- The Worker said he was requested by the owner of the premises next door to help resolve difficulties with a drunken young man and that the sanctions have resulted in a severe financial penalty on him.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 5th October 2016 the Adjudication Officer issued the following Recommendation:-
- I find that the final written warning issued to the Complainant should remain in place. I also find that his demotion to a customer assistant role should remain in place; however, I find that the relocation to a customer store in Naas is totally disproportionate.
Based on the evidence presented at the hearing by both parties, I find that the complaint is well-founded in part. The final written warning should remain in place for a 12 month period and the customer assistant role should be located in the Dublin region.
- I find that the final written warning issued to the Complainant should remain in place. I also find that his demotion to a customer assistant role should remain in place; however, I find that the relocation to a customer store in Naas is totally disproportionate.
The Union on behalf of the Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 25th October 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 14th December 2016.
WORKERS’S ARGUMENTS:
3. 1. The Worker has worked for the Employer for almost 10 years with no previous disciplinary sanctions.
2. He was attempting to assist the owner of a premises next door with a difficult youth.
3. The sanctions handed out by the company are severe in the extreme.
EMPLOYER’S ARGUMENTS:
4. 1. The Worker should never have left his post in the store as he had no jurisdiction to do so or to involve himself in any matters outside of those that affect the Employer.
2. The Employer in line with best practice followed its procedures.
3. The sanction is in no way disproportionate considering the gravity of the situation.
DECISION:
This matter comes before the Court way of an Appeal by a Worker (the Appellant) of a decision of an Adjudication Officer in his complaint against his employer, TESCO (the Appellant).
The Adjudicator found that the complaint of the Appellant was well founded.
The Court has given careful consideration to the written and oral submissions of the parties and recommends as follows:
• That the warning issued to the appellant should expire in mid-January 2017 and that in accordance with practice in the employment as outlined to the Court the warning should not be considered in the context of any future events of a disciplinary nature should such occur.• That the parties should engage as soon as the health of the Appellant permits to agree his assignment to a Dublin location as close as possible to Dolphin’s Barn. In considering options for assignment the parties should endeavour as far as possible, having regard to operational requirements and agreed arrangements already in place in the destination store, to secure an assignment which affords the Appellant weekly hours at a level as close as possible to those which were available to him in his previous assignment in Dolphin’s Barn.
• That, notwithstanding the Appellant’s current assigned role as a customer assistant, the Appellant should be facilitated with the opportunity to complete again the PSA training programme. When he has completed this programme he should be permitted to apply in the normal way for vacancies in the role of RSO when such opportunities arise.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
20th December, 2016Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.