Complainant

Respondent

Anonymised Parties

A Retail Worker

A Retail Chain

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015217-001

23/10/2017

The Complainant commenced employment with the Respondent on 08th March 1988 and works as a Customer Assistant. The Complainant is based in the Arklow branch and works 39 hours per week.

In January 2016, the Respondent company announced that they were seeking to change the terms and conditions of 1,200 staff employed on Pre-96 contracts.

Each of these workers are members of Mandate Trade Union, have long established terms and conditions of employment and are covered by a series of comprehensive procedural agreements with the Respondent, the latest one being “Working through partnership 2004”.

From the start of its engagement with the Union the Company stated that if agreement could not be reached the changes would be unilaterally introduced.

During the period of February 2017 workers at a number of store locations voted to an indefinite strike following a secret ballot of union members employed in those locations. Subsequently Mandate served strike notice on the Company for industrial action in a number of locations, all locations nominated for industrial action were identified.

The strike notices served on the Respondent did not include notice that an official picket would be placed on the Arklow store where the Complainant works.

On 14 February 2017, an incident occurred whereby it was alleged at that time that the Complainant engaged in unofficial industrial action and was absent from work without authorisation. The Complainant failed to attend work at Arklow for 10 days but instead attended a picket in another store location (Greystones) and engaged in industrial action against the Respondent.

Following an investigation, the Complainant was issued with a Final Written Warning as a result of her behaviour, namely:

• Participation in unofficial industrial action.
• Absence without leave from work.

Following an appeal process the decision to uphold the issue of the warning was upheld and the warning would remain in place for a period of 12 months.

• From January 2016, the pre- 96 contract members worked under significant stress caused solely by the repeated threats of the Respondent to change the terms and conditions of their employment without their agreement.
• On 10/01/2017 at a general meeting of Mandate members employed on pre-96 contracts, the contents of the Labour Court recommendation LRC 21340 were rejected

·         At this meeting, it was also agreed that in the event the company chose to implement the recommendation without the consent of the members an immediate ballot for industrial action would take place. Despite being put on notice of this the Respondent continued on a regular basis to issue the threat to make these changes without agreement.

·         At a meeting on 29th January 2017 the members including the Complainant voted in favour of industrial action.

• Following on from this result strike notice was served on the Respondent on 6th February 2017.
• The Complainant participated in lawful picketing at the Greystones branch. She did so in good faith and complied with the relevant legislation at all times during their picket duty.
• Following an invitation from the Labour Court to both the Mandate and the Respondent, a notice suspending industrial action was issued on 24th February 2017 and further correspondence was received from the Labour Court dated 03rd March 2017. It was clearly outlined in this suspension document from Mandate that there would be ‘no victimisation’ as a result of partaking in industrial action and that an orderly return to work would ensue. For the purpose of clarity as to what was agreed between the parties at the Labour Court on 24th February, a small delegation of the Respondent’s personnel and Mandate personnel met in separate and joint sessions with the Labour Court throughout the evening of 24th February 2017.The issue of an orderly return to work was the last issue to be agreed. Mandate drafted the clause as per the notice to the members dated 24th February 2017. The Respondent in side session stated that they had an issue with this particular clause appearing in any Labour Court document. When questioned by the Labour Court, the Respondent agreed that the content of the clause would not be an operational problem but that they did not want to see it in any final Labour Court document. Once again, the Respondent was questioned by the Chair of the Court as to why they were prepared to accept this clause across the table from Mandate, and before the Labour Court but not have it appear in a final Labour Court document. The Respondent’s only reply was that it would prefer not to. The Chair of the Labour Court and the Division Court members then stated that they intended to write into the record of the Labour Court that this “clause” was agreed between the parties in the presence of the Court and they expected the parties to abide by it. The union document and return to work was then completed on the night, it was shown to the Labour Court, which in turn showed it to the company. It was agreed by all that the return to work document should be circulated to all union members as an accurate account of the discussions on that evening.
• The Mandate General Secretary subsequently on that
• night spoke to the Director of the Respondent who gave assurances that the spirit and intent of the return to work document would be upheld and Mandate gave similar assurances.
• Our members, including the Complainant returned to work. Along with approximately 80 colleagues from across the country the complainant was subjected to a disciplinary process which led to the issue of a final written warning to her. The date of this warning was 8th June 2017.
• The issue of the final written warning was appealed by Mandate on or around 9th June 2017.The appeal was heard by the Respondent’s manager on 11th September 2017 and the outcome of the appeal was sent out on 15th September 2017.
• A valid secret ballot of pre-96 members took place on 29th January 2017. This ballot returned a vote in favour of industrial action. Mandate served official strike notice on the Respondent on 6th February 2017, which specifically stated that members would be participating in pickets in various listed locations. The suggestion that the strike notice issued by the union was not valid was never challenged by the Respondent when the strike was ongoing and there is no ruling by any court in Ireland which states that the strike was unlawful.
• The warning as issued to the Complainant is flawed in that the investigating officer was not suitably qualified to investigate the complex legal application of the Industrial Relations Act 1990, more specifically that surrounding industrial disputes.
• The Respondent Manager conducting the Investigation had no issue in both carrying out the investigation and then acting as disciplinary officer. This is a denial of the Complainant’s rights to natural justice and fair procedure, but is in fact a clear breach of the Respondent’s own policy that quite clearly states: “To ensure fairness the disciplinary officer must not have been a witness to the complaint or have been the investigating officer”.
• The issue of a final written warning to the Complainant is part of a campaign against union members employed on pre-96 contracts and this is in turn part of a more sinister and determined effort by the Respondent to de-unionise its Irish business.

·         It is clear that all decisions made in respect of deciding to investigate the Complainant’s involvement, and that of her colleagues, in lawful industrial action and the subsequent disciplinary action taken against her was contrived centrally and totally controlled by the company.

Conclusion.

·         The decision to participate in industrial action by the Complainant in the instant case was taken as a result of a formal ballot for industrial action of all pre-96 members of the union. No members including the Complainant did not at any stage make an individual decision to take unofficial industrial action or to absent themselves from work without leave.

• If the Respondent was not satisfied with the procedures followed by Mandate Trade Union and in particular the legality of the strike notice they had the option of taking legal action before or during the strike – which they chose not to do.
• The Respondent has taken the decision to be final arbitrator in this matter and to issue a final written warning to the Complainant.
• It is evident that there has been a complete failure of fair procedures and premeditated decisions have been made at a central level to discipline the Complainant and others.
• We fully believe that all investigating and disciplinary managers were operating to a script and provided with pre-determined outcomes.
• We contend that the Complainant and others have fallen victim to a deliberate act of corporate bullying whereby the Respondent could not mount a sufficient legal challenge to stop them from taking industrial action, so have instead decided to engage in a campaign of intimidation and retribution to deter the Complainant and others from exercising their rights as trade union members.
• The behaviour meted out to the Complainant and others has also been used in a calculated way to send a message to the rest of their fellow union members employed by the Respondent in an effort to warn them off engaging in collective industrial action in the future.

• We respectfully request that in light of the above arguments you expunge the final written warning issued to the Complainant and restore her unblemished record.

• It is the Respondent’s position that a full and fair investigation took place. In line with fair procedures the Complainant was informed of the allegations against her, was afforded the right to representation, was given the opportunity to state her case, was informed of the possible outcome of the disciplinary hearing and was afforded the opportunity to appeal the disciplinary outcome.

·         The Complainant works in the Respondent’s Arklow store which was not covered by official strike notice from Mandate trade union. On 7th February 2017 Mandate conducted a secret ballot for industrial action for the colleagues in the Arklow store. The generic invitation to Mandate members was for a “general meeting and ballot for industrial action”, where the ballot was to be “among all union members” Strike notice was not served on the Company in relation to colleagues in the Arklow store. The Company understand that the majority of colleagues voted against industrial action. Nevertheless, the Complainant left work without authorisation for 10 days and partook in unofficial industrial action at another of the Respondent’s stores in which the colleagues at that store were covered by official strike notice.

• The right of members to engage in properly sanctioned and appropriately conducted industrial actions is not disputed. However, the trade union and its members must conduct themselves wholly within the confines of the Industrial Relations Act.
• The Industrial Relations Act 1990 sets out employer’s and employee’s obligations in order to be compliant with the Act for trade disputes. For the employees, it confers immunities on workers where, in “contemplation or furtherance “of a “trade dispute”, they participate in a “strike” or other “industrial action “provided the strike or other industrial action is supported by a secret ballot and not less than one week’s notice is given to the employer.
• The Respondent would rely on the statement of Barron J when he addressed the issue in the Supreme Court in Nolan Transport (Oaklands) Limited-v-Halligan [1999] 1IR 128, in relation to the interpretation of Part II of the Industrial Relations Act 1990, expressing his views on a number of important issues. In particular, he said:

“…it is essential before any industrial action is taken that those who are taking the industrial action shall first have had a secret ballot on the issue. If a majority is against industrial action, then that is an end of the matter. If a majority is in favour of industrial action, then that is a matter for the union concerned to determine whether or not the industrial action should take place’’.

• The Respondent is mindful that workers who engage in actions in contemplation or furtherance of a trade dispute enjoy certain legal immunities under Sections 10, 11 and 12 of the 1990 Act.
• Nevertheless, it should be noted that on this occasion the Complainant falls far outside of this immunity as her actions were taken in disregard of and contrary to the outcome of Arklow’s secret store ballot relating to the issue(s) involved in the dispute. It was never the intention of the Law that its provisions be set aside as and when it suits.
• The Respondent would again refer to Clarke J in P Elliot and Co -v- Building and Allied Trade Union [2006] IEHC 340 where he noted that the industrial action engaged in must be “fairly within the parameters of that authorised”. The Complainant continually stated throughout the investigatory period that she was involved in a lawful industrial dispute. Yet if her actions are overlaid with legislation, she cannot enjoy the rights associated with those who lawfully conduct their dispute within the well-established parameters of that legislation.
• The union might attempt to rely on a secret ballot conducted with “pre-96” colleagues that

took place on 29 January 2017 wherein the majority of colleagues who participated in this ballot voted in favour of industrial action. The notification received from the union in relation to this ballot did not specify when they would instigate industrial action. In this regard the Respondent would rely on the following:

Section 19 of the 1990 Act provides that:

• “Where a secret ballot has been held in accordance with the rules of a trade union as provided for in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute.
• Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so. A court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.
• Notice as provided for in subsection (1) may be given to the members of a trade union by referring such members to a document containing the notice which the members have reasonable opportunity of reading during the course of their employment or which is reasonably accessible to them in some other way.
• Subsections (1) and (2) do not apply-
• In respect of proceedings arising out of or relating to unlawfully entering into or remaining upon the property belonging to another, or unlawfully causing damage or causing or permitting damage to be caused to the property of another or,
• In respect of proceedings arising out of or relating to any action resulting or likely to result in death or personal injury
• Where two or more secret ballots have been held in relation to a dispute, the ballot referred to in the subsections (1) and (2) shall be the last such ballot”

·         Following the “last such ballot” on 7th February 2017 in Arklow, strike notice was not served on the Company for any colleague in the Arklow store including the Complainant.

• As a result of the Complainant being present and actively partaking in the Greystones dispute, she was involved in an illegitimate action which did not concern her as an employee of the Arklow store and was also absent from her normal place of employment without authorisation.

·         The Respondent evidently was compliant with the Act relating to this entire matter. Strike action was taken at a number of stores and circa 1000 colleagues went on strike during the period of industrial action in 2017. A strike took place over the period of 14 – 24 February 2017. Only those who breached Company policy or whose actions meant they could not enjoy the protections inferred on them by the Industrial Relations Act (Sections 10 through 12) were brought through the disciplinary procedure.

• The union claimed at the appeal hearing for the Complainant, that it was agreed between the parties at a meeting with the Labour Court, that there would be no recriminations either by or against the staff or management as a result of the dispute. The points agreed at the meeting with the Labour Court were communicated to both parties on 3 March 2017. There is nothing in this communication which states that the Company could not take action to investigate unacceptable behaviours or actions that took place during the strike. Furthermore, throughout the period of industrial action and following same, the Respondent advised the union that they would not accept any actions/behaviours that were considered to be outside of what is acceptable in such circumstances and it would continue to investigate unacceptable actions/behaviours by individuals. It is the case that the Complainant’s actions were considered to be outside what is acceptable and was in clear breach of her contractual commitments and of the Industrial Relations Act.

• The union also claimed that the action taken against the Complainant was part of a campaign to engage in corporate bullying and victimisation against members for engaging in Trade Union activity and their involvement in a lawful Trade Dispute with the Company. This is simply not the case. As a Company, the Respondent is entitled to investigate what they believe to be instances of unacceptable actions/behaviours by any employee, and if warranted, take the appropriate disciplinary action. This is exactly what happened in this instance. The sanction issued to the Complainant was in relation to her own behaviours only and did not relate to trade union activity as the union attempted to argue.

Regardless of the circumstances all colleagues of the Respondent have an absolute duty of care to the business, their colleagues, and to customers to behave and act at all times in the appropriate manner and in full compliance with legislation. The Complainant did not behave in an appropriate manner in her actions of partaking in unofficial industrial action and her absence from work without authorisation, and was therefore appropriately issued with a Final Written Warning.

Conclusion.

• Taking everything into consideration, the Respondent acted more than fairly and in line with their procedures. The Complainant was absent from work without leave and participated in unofficial industrial action. The Complainant was appropriately issued with a Final Written Warning due to her unacceptable actions which expired on 8th June 2018.

• No individual can cherry pick which part of the Industrial Relations Act they wish to apply especially when such action is intended to damage the business of the Respondent.

• To find in favour of the Complainant would have serious implications for any Company in relation to any industrial action, as it would mean that any individual can simply decide who can take part in industrial action regardless of the result of a secret ballot and also when this action can take place without due notice to employers. Both of which are clear contraventions of the Industrial Relations Act. It would also have the effect of rendering legislative provisions covering trade disputes null and void.

During February 2017 workers at a number of store locations voted to an indefinite strike following a secret ballot of colleagues in those locations. Subsequently Mandate served strike notice on the Company for industrial action in a number of locations which specifically pointed out that the “members employed in these locations will place official pickets on the premises”.

By letter dated 06/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be placed on a number of stores with effect from Tuesday 14th February 2017 until further notice. Nine stores were listed.

By letter dated 08/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be placed on a number of stores with effect from Friday 17th February 2017 until further notice. Another five stores were listed.

By letter dated 09/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be placed on a number of stores with effect from Friday 17th February 2017 until further notice. Another four stores were listed.

By letter dated 20/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be placed on a number of stores with effect from Monday 27th February 2017 until further notice. Another four stores were listed.

By letter dated 21/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be placed on a number of stores with effect from Monday 27th February 2017 until further notice. One store was listed.

By letter dated 22/02/2017 and addressed to the Chief Executive Officer of the Respondent the Mandate Trade Union gave notice that official pickets would be place on a number of stores with effect from Wednesday 1st March 2017 until further notice. One store was listed.

Overall the Respondent was notified that pickets would be placed on a total of 23 stores, Arklow, the home store of the Complainant was not one of those stores.

It is quite clear from the letters sent by the General Secretary of Mandate that pickets would be placed at these 23 locations by staff employed in these locations.

On 22nd February, the Arklow store manager wrote to the Complainant informing her that it had come to management’s attention that she had been engaged in picketing at the Greystones Store which amounted to unauthorised absence. The Complainant was put on notice that this being the case she would be invited to an investigation meeting to determine whether disciplinary action was required. The Complainant did not return to work at that point and only returned when the union called off their action on the evening of 24th February 2017.

The Manager issued an investigation outcome at a meeting on 6th April 2017. He found that it was not disputed by the Complainant that she had attended at the Greystones store to participate in industrial action and that although she claimed it was official industrial action, he set out that in order for it to have been so, she should have been covered by official strike notice which she was not.

Furthermore, the Complainant had left her place of work without authorisation in order to partake in the unofficial action which was a clear breach of Company policy.

The Manager decided to send the matter forward to a disciplinary hearing.

A disciplinary hearing took place on 18th   May 2017.

On 8th June 2017, the Complainant received a letter informing her that she was being issued with a Final Written Warning that would remain live on her file for a period of 12 months. This letter went onto point out that in accordance with the agreed disciplinary procedure she had the right to appeal this sanction and should she wish to do so she should write to the Employee Relations Manager within 5 days of receipt of this letter.

An appeal hearing took place on 22nd August 2017 and an outcome was communicated to the Complainant on 29th August 2017. The Appeals Officer informed the Complainant that he could find no grounds upon which to overturn the original disciplinary officer’s findings and accordingly he concluded that the original sanction of a Final Written Warning was to be upheld.

At all stages throughout the investigation, disciplinary hearing and the appeal hearing the Complainant was represented by an official from Mandate.

In consideration of the facts as submitted at hearing I must conclude that the ballots that took place and strike notices issued were for selected stores i.e. strikes would take place at selected stores and employees participating in such strikes would be from those selected stores.

The employees in the Arklow store including the Complainant voted as part of a national ballot and notice was not served on the Respondent for any employees in the Arklow store including the Complainant.

In relation to the Complainant no notice of any industrial action by her was served on the Respondent therefore her actions were in breach of the Act and as such the Respondent cannot be criticised for viewing her absence from work as unauthorised and she is not able to rely on the protections outlined in Part ll of the Act.

In this instant case I note that the investigating officer and disciplinary officer was the same person. I believe this to be out of line with what is considered best practice.

The Appeal letter was dated 9th June 2017 and the appeal was heard on 22nd August 2017, just over two months later. This is an unacceptable waiting time for the hearing of an appeal and I would ask that this point is noted by the Respondent.

I believe the Respondent was justified in issuing the Complainant with a Final Written Warning. The Complainant’s participation in industrial action was unofficial and unauthorised.

It is noted that the Final Written Warning issued to the Complainant expired on 8th June 2018 and at hearing it was accepted by the Respondent that it would be removed from the Complainant’s record and not be brought up in future. As part of my Recommendation I ask that the Respondent confirms this fact, in writing, to the Complainant.

Industrial Action.