ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00008880

Parties:

Complaint:

Date of Adjudication Hearing: 11/10/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.  

Background:

This claim concerns an appeal of a Disciplinary sanction applied in March 2017 .The Employer disputed the claim .

Summary of Claimant’s Case:

The Union outlined the case on behalf of the Claimant. The Claimant had worked as a Sales Assistant with the Employer since 2010.He currently filled the role of Team Leader and worked a 35-hour week. On 12 March, 2017, the claimant received a final written warning and suspension from the Privilege card scheme (staff discount scheme) in respect of an alleged breach of Policy for a period of 12 months. He had since transferred to another store. The Company staff discount card provides a 10% staff reduction to an annual ceiling of €1,300. On 9 January, 2017, the claimant attended an Investigatory meeting where he was shown stills taken from CCTV footage of purchases made on five occasions during December 2016 aided by his privilege card. He was present for all purchases and was accompanied by a family member and his partner. He submitted that his understanding of the correct use of the card incorporated family members and highlighted a vacuum in training on the card. A further Investigation meeting took place on 27 January ,2017 and the Investigator confirmed that the claimant had been trained on the card in 2012.He had placed his mother’s address as the presiding address for the card and his file and he was requested to amend the details. The issue was referred to a Disciplinary hearing. This culminated in the application of a final written warning and suspension from the Privilege card scheme for 12 months from March 12, 2017. The sanction was attributed to the claimant’s family having purchased goods without them living with him permanently. The Policy was emphasised as: “ …. The only person who can use the privilege card is the person whose name is on the card. The goods purchased using the Privilege card must be for the personal use of the colleague, or of their partner /immediate family permanently living with them at their home address as held on company records. The Claimant lodged an appeal, which was heard on 9 May and centred on the submission that three of the purchases were made by his parents in line with the criteria of the scheme. The Claimant advanced the circumstances which covered the other two transactions which involved his Partner and his brother. The appeal was unsuccessful. The Union contended that the Employer had applied a disproportionate sanction on the claimant. The claimant had maintained from the outset that he had resided with his parents and did not receive any reprieve on the goods bought for family use for this during the investigation and disciplinary hearings. The Union pointed to the findings of the Appeal hearing, where the deciding manager found that he was entitled to use his card for this purpose under the Policy. He also found that that claimant had been trained on and signed acceptance of the Policy on Privilege cards. He was also described as having changed over names on the card previously, thus demonstrating a knowledge of the workings of the scheme. At the hearing, the Union stressed that the Claimant had been a Night worker in 2012 and had signed for 11 Policies on the night in question. He had not received training in them. The Union also recounted that following a data access request, the claimant name had always been the sole name inserted on the card. The Union argued that the Disciplinary process was fundamentally flawed and lacked natural justice and reliance on fair procedures. In analysing the company Disciplinary Procedure, they pointed to the objective of the company disciplinary procedure as being not to punish but to correct. In conclusion, the Union contended that the claimant had been subjected to unfair treatment and a “zero tolerance” culture from the outset in that none of the representations made by him or on his behalf were examined even when undeniable evidence existed to support his case. The Union sought that the warning be expunged and the use of the Privilege card be restored.    

Summary of Employer’s Case:

The Claimant commenced work as a Sales Assistant on February 13,2010. He received training in the use of the Privilege card on 15 November, 2012.He also received a copy of the Policy, for which he signed his acceptance. His card had been systematically renewed since that date, most recently on 27 February,2015 when the renewal was accompanied by a copy of the policy. This stated: This Policy applies to all colleagues who have a Privilege card , either in their own name or transferred to a family members name that is permanently living with them at their home address …….The only person who can use the card is the person whose name is on the card……..Colleagues must not use their privilege card to provide discount on any goods other than those that are purchased for the use of their own family permanently living at the address as held on company records ….. The Employer outlined the consequences for Misuse/abuse of the scheme. The scheme is intended for the personal benefit of staff. They went on to outline that any breach of the Policy would be treated as serious misconduct. Depending on the circumstances of the abuse of the Privilege card, and following investigation, the colleague may be subjected to: ·         Disciplinary action up to and including dismissal. ·         Temporary disqualification from the scheme ·         Or both depending on the gravity of the situation The Privilege card is issued in the Individuals name and its use is confined to that Individual. The criteria for the scheme is set out in the main rules of the Policy, which were in the possession of the claimant in this case. In January 2017, the Company’s security system identified several transactions where the claimant was observed using privilege card for another individual, involving five transactions over a four-day cycle. The Stores compliance officer investigated the matter and the claimant was invited to an Investigatory meeting with hi representative on 12 January, 2017.The meeting centred on: Presentation of five incidents where the claimant had used his privilege cards while family members and his partner had paid for the goods. The Claimant informed the hearing that he thought that he could use the card for himself and his extended family irrespective of their residential status. A further meeting followed on January 27, 2017 where the claimant referred to having been trained on policies in 2012, there were eleven policies covered that day. He confirmed his bi-locational residential status. A Disciplinary hearing followed, where the claimant confirmed the transactions but thought they were okay. He explained that the incidents always happened during his break time and involved family only. the Employer had difficulty in establishing his bona fide address. The Employer outlined that the Deliberative process surrounding the application of the sanction of Final Written Warning was informed by: 1 There were 5 separate instances where the card had been presented but the transaction was paid for by someone else. This contravened the Policy. 2 The Claimant had not transferred the Principal name on the card. 3 The Claimant had facilitated the purchase of shopping by several individuals, whilst having a bi-locational address, only one of which was on file. 4 All 5 incidents had occurred within an 11-day period, with two incidents occurring on the same day. The Deciding Manager was satisfied that the scheme had been abused and this constituted serious misconduct and merited a sanction of both Final Written Warning and a concurrent 12-month suspension from the scheme. The Claimant appealed on the basis that “the company had failed to consider all the circumstances of the case in reaching a conclusion” The Claimant confirmed that the card had previously been in the name of a different family member. The deciding manager considered that the card had been used for two persons who didn’t not dwell with the claimant which contravened “the permanent living at the recorded address “component of the Policy. The Claimant was acquainted with the nuances of the scheme and he had received training. He made the decision to uphold the sanction. The employers Representative contended that the company position on the sanctions should stand and outlined: The Claimant understood the scheme. There was no dispute in the facts, just on the proportionality of the sanction. The Company had presided over fair procedures in accordance with S.I.146/2000.The Privilege card is clearly subject to the rules of the scheme and it was known that it could be withdrawn in the face of abuse. An issue of trust had arisen between the company and the claimant and the issue was properly addressed as serious misconduct. The Employer contended that the claimant had been treated leniently in the circumstances. The Employer sought that he Adjudicator would take consideration of the premise that at the core of any organisation is the need for satisfactory ethical standards from its employees. If the Respondent ha not disciplined the claimant appropriately, it would have given the impression to other employees that the behaviour was not viewed by the Respondent as being unacceptable. However, the company’s actions were couched in fairness and consistently in line with accepted practice in the employment and company standards. The Employer had brought the Policy to the staff and it wasn’t just a set of rules. They had also applied the same sanction for a similar transgression at the store.    

Findings and Conclusions:

I have carefully considered both presentations in this case and I have analysed the Privilege Card Policy dated April 2016. I have also reviewed the meeting log surrounding this issue. I have established that the Privilege card is an item of high value to both parties. For the claimant, it has a monetary value, if used and it is also linked to another bonus scheme. For the Employer, I noted the pride expressed in the product as a positive staff retention gesture as well as a token of loyalty. I have looked at the circumstances surrounding the application of the sanction and wish to make some preliminary observations as a backdrop. I noted that the Store Manager /Duty Manager held a clear discretion to void any transactions found to have strayed outside the criteria. The discovery of the claimants expanded use of the card was detected by a Surveillance system, which explained the delay in putting the case to the claimant. I have found that the role of the Store Manager /Duty Manager was by passed in this case by the Surveillance system. It may have been a useful first step to permit a cancellation of the transactions by the Store Manager /Duty Manager. I have also identified that the Privilege card is permitted to be used for on line shopping purposes. I have not established what, if any surveillance system is structured for monitoring on line use. This suggests to me at least a variance in the personal and on line shopping methods of surveillance. I accept that the Company wishes to preserve the card as a staff benefit and a necessary pre-cursor for this is to ensure that the card is used strictly in accordance with the Policy. The claimant deviated from the policy on two occasions which involved his partner and his brother. It was accepted on appeal at least that the transactions involving the claimants mother were permitted. I found that the Claimant in the case had a profile sometimes found in the modern Irish family, where two living bases are referenced. I note that the references to the permanent place of residence in the Policy were attributed to domestic needs as opposed to any staff member using the discount to resell a product. The question of reselling a product was not raised at the hearing. The case centred on the way the claimant stretched the boundaries of the Policy to an unacceptable level on being party to purchases not intended for his own or direct family consumption. This was a major concern for the Employer in this case. I accept that the claimant signed acceptance of the Policy on privilege cards and this should have guided his actions in respect of the management of family visits to the store. I accept that he has since developed a clear understanding of the limitations of the card because of his experience with this case. I have considered that the final written warning was applied when the store judged the five transactions as constituting significant breaches of the Policy. I noted that this was revised to two defined breaches on appeal, yet the sanction remained at the highest sphere of final written warning. I would have expected a proportionate scale back on the sanction on that point alone. I have given some consideration to the Employers submission that there was a stated need to demonstrate to staff that the Privilege card policy should be upheld by staff. I must, however, examine this case on the unique facts pertaining to the individual circumstances. I have also considered the dual sanction of final written warning and card suspension. I found this dual sanction to be harsh. A Final written warning is a penultimate sanction prior to dismissal and places a worker in a precarious and fearful setting. I found that it had a deep impact on the claimant. I found that while the Claimant confirmed two breaches of the Policy, these were careless digressions rather than deliberate acts and did not amount to personal gain. Rightly or wrongly, he believed he was assisting the important people in his life, his family and partner. He did not reflect on whether he was inside or outside procedure. He ought to have done so. I have found that the Employer adopted a listening ear to the circumstances of the case and on appeal when they down sized the procedural breach. I find that this should have led to a commensurate reduction in sanction. I found that the company did not allow for the first step approach of the discretionary powers of the Store Manager to veto the transactions. I found that this was illogical and unfair. I accept that the Company acted in the interests of preserving the staff benefit of a Privilege Card However, the sanctions of a final written warning and card suspension are too severe in the circumstances and a lesser unitary sanction should have been considered in the interests of securing an improvement. I do not, however , agree that both sanctions should be expunged. To do so would suggest that the company was completely wrong. I found the error in the proportionality and duality of the sanctions . I have found merit in the Dispute. I conclude that the sanctions should be revisited and revised .    

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that the Employer and the Union revisit the Disciplinary sanctions in this case. Considering the reasons already outlined, I recommend that the Final Written Warning be reduced to a written warning of 6 months’ duration. I also recommend that the Privilege card be re-instated immediately. In the interest of restoring trust to the employment relationship, I recommend that the parties conjointly review the usage of the card over the next six months to achieve a mutual understanding of compliance.    

Dated:   12/12/17

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Disciplinary Sanction