Worker

Employer

Anonymised Parties

A Barman

A Bar

Representatives

SIPTU

Act

Dispute Reference No.

Date of Receipt

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

CA-00020710-001

23/07/2018

The Worker commenced his employment with the Employer on 31st August 2012. He works in various capacities but primarily as a bar person. The Worker seeks to have a final written warning rescinded and expunged from his records.

This complaint was heard in conjunction with ADJ-00016221.

SIPTU on behalf of the Worker submit that in June 2018 the HSE conducted a staged test purchase where a fourteen-year-old minor received a token for a cigarette vending machine from the Worker. Subsequently, the Employer issued a final written warning to the Worker on 3rd July 2018, citing the letter from the HSE. SIPTU submits that the union wrote to the Employer requesting details of the appeals procedures. SIPTU submits that the Employer decided to discipline the Worker without complying with fair procedures and natural justice. SIPTU claims that no investigation took place, there was no disciplinary meeting at which the Worker could have presented his case, the Worker was denied the right to representation and finally, there was no right to appeal. SIPTU submits that the union sought to appeal the warning and advised the Employer of its obligations in respect of having correct procedures in place. SIPTU claims that the Employer made up procedures that were fundamentally flawed to further discourage and frustrate the Worker’s right to fair procedures.

SIPTU submits that the Worker was subject to two disciplinary warnings without any disciplinary process. When the Worker and SIPTU sought the disciplinary procedures, the Employer was relying on and to appeal the warnings, the Employer attempted to “window dress” the procedures. SIPTU argues that the Employer designed, orchestrated and conducted the disciplinary matter only to discipline the Worker at all costs. SIPTU argues that the Employer failed to investigate the complaints, failed to conduct proper, thorough and fair disciplinary process and the Worker was denied the right to representation and to appeal. SIPTU submits that the implications of the Employer’s actions and omission brought a great amount of stress to the Worker.

The Employer submits that on 19th June 2018 at 12:50 pm the HSE carried out a test purchase of a tobacco product at the Employer’s business to assess compliance with the relevant legislation. A test purchase is a check to determine if a retailer is complying with the law by refusing to sell tobacco product to a person under 18 years of age. The Employer submits that it received a letter from the HSE dated 25th June 2018 in which the Senior Environmental Health Officer outlined that the Worker gave an activation device (token) for the cigarette vending machine to the volunteer minor. The minor at the time of the purchase was 14 years of age. The Officer noted that on this occasion the machine malfunctioned and ultimately the volunteer minor left the premises without obtaining cigarettes. The letter outlined that it is an offence to sell a tobacco product to a person under 18 years of age and there are serious consequences including fines, imprisonment and removal from the register of retailers.

The Employer submits that the Worker did not dispute the details as outlined in the letter. The Employer argued that an outside organisation i.e. the HSE performed the investigation and the Worker agreed with its findings. On foot of that the Employer issued a warning. The Employer pointed out that the Worker could have faced more serious consequences including dismissal. The Employer noted that the HSE will carry out further test purchasing in the future. The Employer noted that if an incident of this nature occurred in the future the Employer would need to be able to demonstrate that it took steps to address the matter in the past.

The Employer pointed out that the manner in which the union’s representative has been dealing with the matter is eroding any relationship between the Parties. The Employer noted that the Worker remains a valued employee and the Employer would like to return to the previous relationship with the Worker.

In relation to this dispute I find as follows:

On 19th June 2018 the HSE carried out a test purchase whereby a minor was given a token for the cigarette vending machine by the Worker. The HSE letter of 25th June 2018 outlines the details of the incident. The letter states that after the test purchasing took place the Environmental Health Officer spoke with the Employer and the Worker. There is therefore no ambiguity as to what had happened. The Worker clearly breached the Employer’s policy and did not comply with the relevant legislation in respect of selling of the tobacco products to a minor. The Worker did not dispute the events of 19th June 2018. As a result, the Worker was issued with a final written warning. I note the seriousness of the consequences which the Worker’s action could have had, if the vending machine did not malfunction on this occasion. I also note that the Employer’s Disciplinary Procedure lists examples of gross misconduct which include “A serious breach of the rules, policies or procedures…”.

I note the Employer’s assertion that the warning was issued on foot of the action of the HSE, details of which were notified in writing to the Employer and a copy was provided to the Worker. The Employer wrote to the Worker in 3rd July 2018 outlining again the details of the incident of 19th June 2018. The Employer noted in the letter that “this is an extremely serious matter as it is an offence…” The Employer explained in the letter that “It appears that the only reason the bar is not being prosecuted for the offence in question is that the machine did not accept bank notes and the volunteer minor left the premises without obtaining cigarettes.” The Employer informs the Worker that “Under no circumstances can such an incident arise again. Please take this as a final written warning…”

On 4th July SIPTU on behalf of the Worker wrote to the Employer expressing its wish to appeal the warning and requesting the appeal procedures. On 20th July SIPTU informed the Employer that it would now refer the matter to the WRC. The Worker submitted his claim to the WRC on 23rd July 2018. The Employer replied on 2nd August and 8th August detailing the appeal procedure. I note that the Employer allowed for representation. However, the Employer objected to SIPTU representation. I find that the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 clearly states that an employee representative “includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise”.

There is no dispute that the Employer did not adhere to its Disciplinary Procedure and did not follow the S.I. 146/2000. I note that the Worker admitted that the incident did occur as outlined in the HSE letter. In “Redmond on Dismissal Law”[1] [16.14] pages 353-354 Dr D. Ryan states: “Where an employee admits to dishonest conduct self-evidently it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions. However, it will still be advisable to allow an employee the opportunity to show cause as to why the employer should not dismiss. This will enable the employer to form a view on the reasonableness of its decision to dismiss in the light of all the circumstances.”

Although, the above refers to dishonesty and resulting dismissal I find that the same principle applies in the instant case. Therefore, the fact that the Employer did not conduct an investigation does not render the process fatal. I note a conversation took place with the Worker after the test purchase. I find that it would be prudent to have a disciplinary hearing to give the Worker an opportunity to present his case. Furthermore, I find that the Worker was within his right to disagree with the Employer’s assertion that it applied the less serious sanction available and he was entitled to an appeal process. I find that the Employer allowed for the appeal. However, the delay in responding to SIPTU letter of 4th July 2018 was unhelpful and ultimately led to these proceedings. I also find that the Worker is entitled to his trade union representation, if requested, during the process.

Taking all of the circumstances of this case into consideration, I recommend that the Parties commence the appeal process in respect of the final written warning issued on 3rd July 2018. I recommend that both sides agree to conduct the process within the spirit of resolution.

I also recommend that the Employer alters its Disciplinary Procedure to include details of the appeals process.

Final written warning- appeal process