FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND PLC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DENISE CURRAN (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner's Decision R-144679-Ir-14/EO'S
BACKGROUND:
2. This case concerns issuing of a Final Written Warning and the non-removal of same from the Worker's file. The Worker believes that the Final Written Warning was wholly unwarranted while the Employer maintains that the Worker was treated leniently in accordance with the Company's policies.
The matter was referred to a Rights Commissioner for investigation and recommendation. On 25th January,2015 the Rights Commissioner issued the following recommendation:-
"I find the sanction imposed upon her was disproportionate and unfair. The claimant has already suffered by virtue of the suspension imposed upon her. In all of the circumstances I recommend in full and final settlement of this dispute that the Final Written Warning be withdrawn and expunged from her record."
The Employer appealed the Rights Commissioner's recommendation to the Labour Court on 11th March, 2015 in accordance with section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 10th October, 2017.
DECISION:
This is the Company’s appeal from a Recommendation of a Rights Commissioner (R-144679-IR-14/EOS, dated 29 January 2015).
The Worker (who is a Mandate Shop Steward) was issued with a final written warning on 13 November 2013 for allegedly instigating unofficial industrial action on 4 August 2013. She was advised that the final written warning would remain live on her personnel file for a period of 12 months in line with the company’s Disciplinary Procedure. However, the Worker was further advised in writing that “although the sanction in this case ceases to be live on your file after twelve months, this letter itself will continue to be held in your employment file thereafter for consideration and reference in the event of any re-occurrence of such incidents”. The core of the dispute before the Court relates to this latter sentence in the disciplinary outcome letter of 13 November 2013. The Rights Commissioner recommended that the final written warning be withdrawn and expunged from the Worker’s record.
Discussion and Recommendation
The Company has a comprehensive written Disciplinary Procedure which has been agreed with the Trade Unions. That Procedure provides as follows in relation to Stage 4: Final Written Warning –
“… A copy will remain on the staff member’s personnel file for 12 months.”
In purporting to retain the letter of 13 November 2013 on the Worker’s personnel file beyond the period during which it was live – and, in fact, for an indefinite period – the Company is clearly departing from the provisions of the agreed Disciplinary Procedure.
The final written warning issued to the Worker has long since expired. The Court recommends that the letter conveying the imposition of that sanction on her should be fully expunged from the Worker’s personnel file and not referred to again by the Company in the future.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
1st November, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.