ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Decision Reference: ADJ-00001833

Complaint for Resolution:

Date of Adjudication Hearing: 09/06/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 13 of the Industrial Relations Act, 1946 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant is employed with the Respondent since the 18^th September 2007. She works as a supervisor in a Department Store . The Respondent removed the Complainant from a list of key holders and will not allow her to step up as duty manager on Sundays. As a supervisor in the store, she had been carrying out these duties. She alleges that the action of the Respondent has resulted in a loss of income and that this action is totally unfair. She filed a complaint with the Workplace Relations Commission on the 8^th February 2016.

Complainant’s Submission:

The Complainant’s representative outlined the following submission;

On the 6^th November 2014, the Complainant was involved with two other staff members in a prank which involved her being pushed around the shop floor in a stock trolley. The incident only lasted for approximately one minute but it resulted in the three staff members being disciplined.

The other two staff members received a written warning but the Complainant was demoted and given a written warning.

The Complainant appealed the company’s decision and the sanction was overturned by the Rights Commissioner on the 11^th of August 2015.

The company appealed the Rights Commissioner’s recommendation to the Labour Court and the court upheld the Rights Commissioner’s recommendation in favour of the Complainant. Following this recommendation the Respondent reinstated the Complainant to the position of supervisor and restored her salary with effect from the date of the Rights Commissioner’s recommendation. However on her return to her position of supervisor, she was informed by the store manager that she would no longer be a key holder nor would she be allowed to carry out management cover for Sundays, both of which she previously did, in common with other supervisors prior to her demotion. The reason given by her manager for the withdrawal of these duties was that she had lost trust in her.

The Respondent is attempting to impose an additional sanction over and above what was allowed in both the Rights Commissioner’s recommendation and the Labour Court recommendation, in that it seeks to undermine the Complainant’s position and status as a supervisor not worthy of trust.

The fact is that by removing the Complainant from the roster of supervisors who provide management cover for Sundays and for 6 public holidays, the Complainant is currently at a loss of €2,458.93. This figure is arrived at by sharing out all the Sundays in an 18 month period and the 9 Bank Holidays that would have been covered in the same period by the 6 supervisors in the store at the rate of €153.78 per day.

The Respondent attempts to justify their position by saying that key-holding and management cover are outside the scope of supervisor’s terms and conditions of employment across the company.

This excuse does not explain how other supervisors working with the Complainant carry out these duties on a rota basis and this included the Complainant until her demotion.

The Complainant should be reinstated to her supervisor position with all her duties, rights and responsibilities in that role as operated prior to her demotion. That she should be paid the sum of €2458.93 for loss of earnings arising from the company’s actions.

Respondent’s Submission:

The Respondent’s representative outlined the following submission:

The Respondent, on receipt of the Labour Court recommendation, reinstated the Complainant to the position of supervisor and to the supervisor’s rate of pay. Her regular bonus was also reinstated and was backdated to the date of the Rights Commissioner’s recommendation on the18th August 2015.

The Respondent did not require the Complainant to resume management cover and key-holding functions following her reinstatement. The Complainant has been restored to the position of supervisor and is remunerated accordingly. Management cover and key-holding are outside the scope of supervisor’s terms and conditions of employment. Across the company, for example, only a small proportion of supervisors would carry out either function and the company reserves the right to alter arrangements for the carrying out of such functions at its discretion. The union accepts that the carrying out of these functions is at the discretion of the Respondent. The Respondent does not have a requirement for the Complainant to carry out cover and key-holding at this time. The Respondent’s current assessment is that it is not appropriate for the Complainant to work without supervision. The Respondent would not have confidence in a situation where the Complainant would be the most senior employee on duty in the store at the time, which is what a restoration of management cover/key-holding functions would involve. This assessment is reinforced by recent issues affecting the Complainant who has been the recipient of letters of caution (non-disciplinary) twice already this year.

Findings:

Following on from a Labour Court recommendation (Ref No: AD 1582) dated the 13^th November 2015, the Complainant was restored to her position of supervisor, however, on the day she was reinstated to her original position, she was advised by her manager that she had no trust or confidence in her as a result of an incident which occurred in the store on the 4^th November 2014, when the Complainant was involved in (horse-play) with two of her colleagues.

The Labour Court adjudicated on this matter following an appeal by the Respondent of a recommendation from a Rights Commissioner (r-152963-ir-15JW). The conclusion of the Labour Court on this matter was as follows;

“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 store on the 4^th of 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 alternative sanctions, if any, he considered prior to imposing the sanction of demotion of 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.

The Court recommended that the Complainant be reinstated to the former position of supervisor with the effect of the date from the Rights Commissioner’s recommendation. For 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 Complainant was one of the supervisors who operated management cover and key-holding duties prior to the incident on the 4^thNovember 2014. No evidence was presented to the adjudicator at either hearing or to the Labour Court which demonstrated that she was unreliable in carrying out her functions as a key-holder or her acting as a supervisor for Sunday working. The action of the Respondent in discontinuing her role as key-holder and as supervisor for Sunday working because they had “lost trust” in her was totally inappropriate and has resulted in a loss of earnings for the Complainant and significant embarrassment in relation to her fellow supervisors.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and under Section 13 of the Industrial Relations Act, 1946.

Based on the evidence presented by both parties, I find that the complaint is well-founded.

I order the Respondent to reinstate the Respondent to the supervisory role that she previously held. For avoidance of any doubt, this role includes key-holding duties and supervisory duties for Sunday working. I also order the Respondent to pay to the Complainant all loss of earnings due to her as a result of the actions of the Respondent in discontinuing her role as a key-holder and removing her from the roster for Sunday working. These payments must be made to the Complainant within 6 weeks of this decision.

Dated:   15^th September 2016