FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED TRADING AS TESCO 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 Adjudication Officer's Decision No: ADJ-00000635
BACKGROUND:
2. This case concerns a claim that the worker be reinstated to his position as a Dot Com Delivery Customer Assistant with effect from 3 July 2015, and to his original pay with full retrospection to be paid and that his final written warning be rescinded.
The matter was referred to an Adjudication Officer for investigation and decision. On 10 June 2016 the Adjudication Officer issued the following decision:-
I have considered the submissions of both parties. The original meeting of the parties on 24 March could be regarded as ‘marking the Claimant’s cards’ in regard to his practise of going home during working hours. He was advised that the Respondent regarded it as serious with possible disciplinary consequences. Yet he continued this practise. He therefore forced the Respondent to take action on what they regarded as gross misconduct in the circumstances.
I therefore do not find the claim well founded and it fails.
The Union on behalf of the Claimant appealed the Adjudication Officer's Decision to the Labour Court on 20 July 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 9 September 2016.
UNION’S ARGUMENTS:
3. 1.Tesco Ireland and Mandate Trade Union have a comprehensive agreement governing grievance and disciplinary procedures, which state that“the objective of the company in applying its disciplinary procedures is that its actions should be corrective rather than to seek to punish the individual”.Mandate believe that the company failed to comply with the stated intention of the procedure in this instance when all the facts of the case are taken into consideration.
- 2. The Company never asked the Claimant to furnish any information from his GP or hospital.
3. The Company failed to conduct the standard of investigation which the Union believes was required to reflect the alleged seriousness of the situation. The sanction imposed on the Claimant was totally disproportionate to any of the alleged offences committed.
4 1.The Company has clearly defined policies and procedures in which the Claimant was trained in and was well aware of.
2. At no time during the process did the Claimant offer a reasonable explanation for his 21 unauthorised stops as regards a delivery time on his 'Reach' device, or his failure to inform the Company in the prescribed manner of 3 customer orders which were not delivered.
3. The Claimant’s actions represented a fundamental breakdown of trust in the relationship between the employer and the employee. By issuing a final written warning and demoting the Claimant he now has an opportunity to rebuild that bond of trust.
DECISION:
The Court has considered in detail the written and oral submissions of the parties.
The Court notes the procedure followed by the Respondent in dealing with this matter and notes the fact that the Appellant was at all times afforded representation and the opportunity to set out his response to all matters raised by the Respondent.
The Court notes in particular the undisputed minutes of the meeting of 24thMarch 2015. At that meeting it is clear that the Respondent set out the nature of the matters which were giving rise to concern and the Appellant is recorded as apologising. The Court notes that notwithstanding the exchanges between the parties on 24thMarch 2015 the Appellant subsequently repeated the behaviour which had given rise to the Respondent’s concern and for which he is recorded as having apologised.
The Court accepts that the issue of trust and confidence has a particular significance in a situation where an employee’s role requires a degree of autonomous performance of duty outside of a directly supervised environment.
In all of the circumstances the Court does not regard the penalty imposed by the Respondent as unreasonable. The Court does however believe that the continued imposition on the Appellant of a reduced level of working hours is disproportionate.
The Court therefore recommends that the Appellant be placed on the “Greater than 35 and less than full time hours in your store” hours band for store-based Customer Assistant with effect from the date of acceptance of this Recommendation. The Court also recommends that the Appellant should be free to apply in the normal way for appointment as a Dot Com Delivery Assistant whenever a vacancy arises in the future.
Signed on behalf of the Labour Court
Kevin Foley
14 September 2016______________________
MNChairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.