ADJ-00012349

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012349

Parties: 

Complaint(s):

Date of Adjudication Hearing: 9th May 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and 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:

Mandate were in dispute with the Employer in relation to the imposition of a Final Written Warning on the Complainant by the Employer.

The Complainant has been employed by the Employer at one of their stores in a named location since 1st October 1981.

It should be noted that his case was heard in conjunction with 9 named colleagues’ cases that both parties agreed were basically the same/similar on 8th and 9th May 2018, accordingly there may be collective references in it.

Summary of Trade Union Case:

Mandate said the Complaint is currently paid at €14.31c per hour and has considerable length of service and previously had no blemish on his personnel record in respect of performance or any other matter.   Mandate said the Complainant has given exemplary service to the Employer, which they said has in no small measure handsomely contributed to the Employer business and local reputation in the area.   Mandate said the Complainant, alongside colleagues employed prior to 1996 are what is known as the Pre-’96 contract employees.

Mandate said that in January 2016 the Employer announced that they were seeking to change the terms and conditions of 1,200 employees employed on Pre ’96 Contracts, all of whom were and for those currently remain in the Employer’s employment, members of the Mandate Trade Union.   Mandate said they have long-established terms and conditions of employment covered by comprehensive procedural agreements with the Employer.

Mandate said that from the onset of subsequent Company/Union engagement the Employer stated that in the event of not reaching agreement the changes would be unilaterally introduced.   They said this approach was totally at variance as to how the parties had conducted industrial relations for over 30 years as shown by the existence of numerous collective agreements dealing with managing business change and consequent employment impact issue through those years.

Mandate said that as a consequence of the Employer’s behaviour before, during and after the Union / Company engagement and dispute they are firmly convinced that the Employer is executing at well-resourced medium to long-term strategy of purposefully disengaging from normal and orderly industrial relations and that will effectively lead to union de-recognition.   They said this assertion is based on the very real and credible evidence of the existence of the Employer’s ‘Project Black’ which, when first disclosed by Mandate the Employer remained silent until such time as the Employer felt it had to present an unconvincing explanation for its existence, only when a named   TD used her Dail privilege and named the ‘Project Black’ existence and its modus operandi.

Mandate contends that the divisive Pre-1996 Contract dispute of February 2017 was deliberately constructed and engineered as a key integral part of the Employer’s ‘Project Black’.

Mandate said the Employer’s obvious and incremental deviation from normal good industrial relations practice included the:-

1. Refusal to engage on collective issues when requested by the Union
2.  
3. Limited engagement with Mandate on individual member issues
4.  
5. Meetings with Union officials are held away from the Store
6.  
7. Refusal to respond to Union correspondence and on the rare occasion that one is received, it comes from the Employer’s legal advisors.
8.  
9. Restricted access for Union officials into stores.
10.  
11. Withdrawal of in-store notice boards for Union information
12.  
13. Denial of reasonable time off for shop stewards / house committees to conduct their business.
14.  
15. Refusal to grant paid time off for Union organised training, attendance at conference etc.
16.  
17. Refusal to deduct union subscriptions in the 22 stores that were involved in the industrial dispute.
18.  
19. Refusal to enrol new workers nationwide into union membership contrary to an existing agreement with Mandate
20.  
21. When subscriptions are collected, the Employer retains these subscriptions for inordinate periods of time
22.  
23. Refusal to provide an individual listings breakdown for subscriptions when transferred to Mandate.
24.  
25. Collapse of Union/Employer Information and Consultation Framework.

Mandate said this is not an exhaustive list.

Mandate said that from January 2016, the Pre-96 Contract Mandate members worked under significant stress, caused solely by the Employer’s repeated threats to unilaterally change the terms and conditions of their employment, the consequence of which would have had a devastating impact on their earnings and livelihoods’.

Mandate said the parties unsuccessfully made a number of attempts to reach an agreement.   They said that they in accordance with agreed procedures and having exhausted efforts at local level and at WRC Conciliation level they referred the dispute to the Labour Court for recommendation.   Following a Hearing the Labour Court issued a Recommendation, LCR 21340.

Mandate said that at a General Meeting of their Pre-96 Contract member on 10th January 2017, the contents of that Recommendation were roundly rejected, they said at this General Meeting it was decided that in the event the Employer chose to implement the Labour Court Recommendation without the consent of their members, they would immediately move to ballot those members for industrial action.   Mandate said they informed the Employer of their position on this, but the Employer continued to regularly threaten unilateral implementation of the changes.   They said that despite numerous Union requests to desist from this behaviour, the Employer refused to comply.   Mandate said it was in this context that the affected and involved Mandate members decided to ballot in favour of industrial action on Sunday 29th January 2017.   Subsequently, strike notice was served on the Employer on 9th February 2017.

Mandate said that prior to their members partaking in industrial action, local management in the Store the Complainant works in were kept fully informed by the local Mandate representatives and members of their intention to partake in lawful industrial action in accordance with the protections afforded by Section 10 and 12 of the Industrial Relations Act 1990.

Mandate said the Complainant participated in lawful picketing at another named Respondent Store (not the one she was employed in), doing so in good faith and in compliance with the relevant law at all times during this picket duty.

Mandate said that following an invitation from the Labour Court to both them and the Employer, a notice suspending the industrial action was issued on 3rd March 2017.   It was clearly outlined in this document 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 and so as that this hearing is under no illusion as to what was agreed between the parties at the Labour Court on 3rd March, small delegations from the Employer and the Union met in separate and joint sessions with the Labour Court throughout the evening of 3rd March 2017.   They said the issue of an orderly return to work was the last matter to be agreed.   Mandate drafted the clause, as per their notice to members dated 3rd March 2017.   Mandate said the Employer in side session, stated that they had an issue with this particular clause appearing in any Labour Court document.   They said that when questioned by the Labour Court, the Employer agreed that the content of the clause would not be an operational problem but that they did not want to see it in any Labour Court document.   Mandate said that once again, the Employer was questioned by the Chairperson of the Labour Court as to why they were prepared to accept the clause across the table with Mandate and before the Labour Court, but not have it appear in a Labour Court document, the Employer’s only reply was that they would prefer not to.   Mandate said the Chairperson and 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.   Mandate said the Union document and return to work document was then completed on the night, it was shown to the Labour Court, who in turn showed it to the Employer side.   Mandate said it was agreed by all involved parties that the return to work document should be circulated to all Union members as an accurate account of the discussions on that evening.

Mandate said their named General Secretary on that night subsequently spoke with a named Director of the Employer who gave assurances that the spirit and intent of the return to work document would be upheld and Mandate gave similar assurances.

Mandate said the Labour Court Chairperson can confirm that this account was captured in the official minutes for the session.

Mandate said that when the Complainant and his colleagues returned to work they, along with others from across the Country, were then subject to a disciplinary process that led to the issue of final written warnings.

Mandate provided a detailed chronology of the process and procedures leading up to the imposition of the Final Written Warning to the Complainant and the appeal of same.

Mandate said that from the start to the finish the case histories demonstrate a disciplinary process that took over 6 months, which they said is an inordinate length of time.   They said that this time frame was deliberate and unnecessary and while some of the delays were excusable, the 6 month plus period had an incredibly adverse effect on the Complaint and his colleagues involved.

Mandate said during the course of 2017, events took place that resulted in unjustified attacks on the Complainant and her colleagues involved, specifically in these cases.   They said that these attacks on the Complainant and her Pre-96 Contract colleagues were unprecedented and unwarranted. Mandate said that suggestion by the Employer that the Complainant and her colleagues involved participated in unlawful industrial action and were absent without leave/permission was part of a campaign by the Employer to intimidate and harass these members - arguably out of their employment given that they were notified of the approaching end date of the Respondent’s unilateral redundancy offer immediately after receiving notification that they were to be put through a disciplinary process.   All of those affected wished to remain and enjoy the terms of employment they worked so hard for, the terms of which accumulated through collective agreements between the Employer, their predecessor and Mandate over a 30 year period.   Mandate said the Employer’s policy of corporate bullying and victimisation of the Complainant and her colleagues involved Mandate believe, was centrally co-ordinated, in an effort to intimidate and punish their members who, in good faith, did no more than participate in a lawful trade dispute against their Employer. Mandate said the Employer’s treatment of these employees can only be viewed as a crude method of deterring union members from engaging in a lawful dispute in the future.

Mandate said the Complainant and her colleagues participated in lawful industrial dispute in February 2017.   They were and are members of the Mandate Trade Union and therefore have the constitutional right to associate and be members of a trade union.   They said that this right is also confirmed by Article 11 of the European Convention for the Protection of Human Rights and fundamental freedoms as well as the right to assemble and strike.   Mandate said they do not believe there is any basis for the Employer to allege or assert that the strike action taken by the Complainant and his colleagues was unlawful or unofficial.  

Mandate said that a valid secret ballot of Pre-96 Contract member took place on 29th January 2017.   They said that this ballot returned a vote in favour of industrial action.   Mandate served strike notice on the Employer on 9th February 2017, which specifically stated that following a secret ballot of the Pre-96 member, such members would be participating in pickets in various locations.  

Mandate said crucially, the suggestion that the strike notice issued by them was not valid was never challenged by the Employer before, during and after the strike and to date there is no ruling by any court in Ireland that states the strike was unlawful.   They said that all strike action was validated by a lawfully conducted ballot and there can be no justification for the Employer to impose a Final Written Warning on the Complainant and his colleagues for participating in lawful industrial action.

In addition, Mandate contend that the Warning as issued is flawed in that the Investigating Officer, the named Store Manager was not suitably qualified to investigate the complex legal application of the Industrial Relations Act 1990, more specifically that surrounding industrial disputes.   They said the notice served on the Employer date 9th February 2017, was not provided to the Investigating Officer by the Employer.   However, the Investigating Officer stated in his outcome letter that he had reviewed all evidence in its entirety.   They said the Investigating Officer was obliged to review all evidence including the strike notice referred to in the legal letter given at start of the Investigation.   Mandate said this was not provided to him by the Employer, although they have very clearly stated that it did not cover all Pre-96 employees.   They said it is an obligation of an Investigating Officer to establish the facts of a case and make a determination as to whether or not the particular facts merit forwarding the matter to the next stage of the Disciplinary Procedure.

Mandate said furthermore the Investigating Officer was a key and material witness in the proceedings.   They said that in his role of Store Manager, he and another named senior manager of the Store were informed by the Mandate In-Store Representatives that due to procedural irregularities in the original secret ballot for the Store the Complainant worked in to engage in industrial action, that the Pre-96 Contract members of that named Store would be joining the picket line in another named Store.   They said that when informed of this both named managers were clearly agreeable to this and they appeared delighted that they would not have to endure the operational logistics and problems of a picket at their particular Store.   On being informed of this position the Complainant and his In-Store Pre-96 Contract colleagues were then removed from all rosters for the duration of the strike.   They said that in fact one of the managers informed the named Assistant Shop Steward that this made everything a lot easier now as it would require less employee cover.

Mandate said in light of this neither manager should have been involved in any shape or form in the disciplinary process and should have also been interviewed as witnesses to ascertain were they aware of the fact that the Pre-96 Contract employees would be attending the other named Store picket and if they did inform the same that if they did not do as notified they would be recorded as ‘absence without leave’.   Mandate said this obviously runs contrary to natural justice and clearly demonstrates the Employer’s flaws in exercising the Disciplinary Procedures in those cases.

Mandate said this position is supported by the Employment Appeals Tribunal (EAT) in Determination UD 893/2010, where they state:

“The Tribunal finds that the Respondent fell far short of good industrial relations practice, particularly relating to the manner of carrying out the Investigation and Disciplinary Hearing, which appear to have been conducted with a desire to obtain a particular result rather than afford the Claimant due process”

Mandate said that up to these particular cases, the Employer always operated their Disciplinary Policy in a manner that gave employees due process and fairness by ensuring that all facts and material witness would be interviewed.   But in these current cases for all the Pre 96 contract members who were disciplined the Employer deliberately ignored their policy and the good industrial relations practice they had previously adhered to and they said the only logical explanation for this that the process was conducted with a desire on the Employer’s part to obtain a particular result, thus giving substance to Mandate’s position that it is part of deliberate campaign by the Employer against Pre 96 Contract members including the Complainant.

Mandate said the issuing of final written warnings to the Complainant and his colleagues involved is part of a campaign against such members by the Employer, which is in turn part of a more sinister and determined effort by the Employer to de-unionise their Irish business.   They said that as result of this campaign, their members on Pre-96 Contracts have had pay increases of 6% withheld from them and they also been subject to the refusal of their Employer to make union deductions from their pay and provided for in their Contract of Employment.   Mandate said this is a fundamental breach of their contract of employment as well as interference with their right to seek trade union representation and protection and suggests it is an attempt to force Mandate members to surrender their rights in violation of Article 11.

Mandate said it is clear that all decisions made in respect of deciding to investigate the Complainant and his colleagues affected, who were involved in lawful industrial action and the subsequent disciplinary action taken against them, was contrived centrally and totally controlled by the Employer.   Mandate contended that the outcome of their hearings were pre-determined and at no point was there any meaningful engagement or consideration of basic key facts.   They said that therefore the Complainant and her colleagues have been denied their due natural justice and fair procedures.

Mandate made the following submissions in relation to the two specific allegations levelled at the Complainant and his colleagues involved:

2. Unlawful Industrial Action:                                                                                                                                   Mandate said the decision in respect of balloting to participants in industrial action was in accordance with the provisions of the Industrial Relations Act 1980 and it satisfies Section 10 of the 1990 Act regards to “furtherance of a trade dispute”.   They said that similarly the same Act provides for protections and safeguards from an employer post the dispute.

Mandate that at no stage were the Complainant and his colleagues strike actions and intentions to so strike ever challenged until after the dispute and both parties agreed there would be no recriminations towards any employees who participated in the dispute.   They said the Employer, with all their resources at their disposal, never sought to injunct Mandate at any stage in their declarations of official industrial action.

Mandate said the 1990 Act specifically refers to an employer when taking official industrial action and not the workplace.   They said that in light of this and the fact that the employer has many multiples of workplaces it follows that the Complainant and his affected colleagues were exercising their right to engage in official industrial action.

Mandate said that they did so in a manner that was arguably more beneficial to the Employer.   They said that had the same employees decided to picket their workplace there was serious potential impact on employees not passing that picket, let alone customers.   They said that this was evident in the two named managers reactions when they were notified by the In-Store Mandate representatives that Mandate would not be conducting a picket at the Store the Complainant worked in; they were clearly relieved.

Mandate said that by participating in the industrial action, the Complainant and his colleagues were honouring a collective decision and following Union Rules.   Mandate said they did not at any stage make an individual decision to take unofficial industrial action or to absent themselves from work without leave, nor were their behaviours on the picket line unacceptable.   Mandate said that if the Employer was not satisfied with the procedures followed by Mandate 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.   Mandate said that instead the Employer have taken the decision to be the final arbitrator in this matter and to issue a Final Written Warning against the Complainant and his colleagues involved.   Mandate said it is evident that there has been a complete failure of fair procedures and a predetermined decision has been made at central level to discipline the Complainant and his colleagues involved. They said they fully believe that all Investigating and Disciplinary Officers were operating to a script and provided with pre-determined outcomes.

Absence Without Leave:                                                                                                                                       Mandate said given that the Complainant and his colleagues through their In-Store representatives informed the local management of their picketing intentions and were not advised and/or instructed to desist from same and Mandate contends that the Employer cannot assert they were absent without leave.   Mandate said that at this stage and throughout the 11 days of the strike the Employer never once informed the Complainant and his colleagues that they were recorded as absent without leave and they had a responsibility to explain same to their Store Managers and said this would be normal good managerial practice but obviously was lost on the Employer

Mandate said that furthermore it is incumbent on an Employer to ascertain from those employees the reasons for their absence. They said that again this was not done and for good reason.   Mandate said the local management were fully aware of what the Complainant and his colleagues were doing and where they were doing it.   Mandate said the Complainant and his colleagues had actually via their In-Store Representatives exercised due courtesy and manners by informing their Store management of their intentions, thus obviating any further impact or hindrances on that Stores operations throughout the dispute and said the least the Complainant and his colleagues deserve is for that to be reciprocated.

Mandate submitted that the Complainant and his colleagues have fallen victims to a deliberate act of corporate bullying, whereby the Employer they work for, could not mount a sufficient legal challenge to stop them from taking industrial action and so have instead decided to engage in a campaign of intimidation and retribution to deter them from exercising their rights as trade union members.  

Mandate said the behaviour meted out to them has been used in a calculated way to send a message to the rest of their fellow trade union members employed with the Employer, in an effort to warn them off engaging in collective industrial action in the future.

Mandate said the named Shop Steward in the Store the Complainant and his colleagues worked in spoke directly to the named Store Manager and told him that they (the Pre-96 Contract members) would not be picketing at that Store but rather would be picketing at another named Store (the one they did picket at).   They said that Manager expressed relief and appeared glad that they would not have to deal with the operational logistics of a picket at their Store.   They said that this Manager did not indicate or suggest in any way that the Pre-96 Contract members at the Store should not participate in picketing at the other Store, that he made no comment at all in that respect and he most certainly did not remonstrate with them or tell them that they should not picket at that Store or that they would adverse consequences if they did so, or that they would be considered absent without leave if they went off work to picket at that other Store.   Mandate said at the hearing on 8th May 2018 that they sought to bring the named Shop Steward to give direct evidence of this and this was refused by the Employer.   Mandate said that permission had never been refused by the Employer for release of a Shop Steward to attend at Rights Commissioner/Adjudication Officer, Labour Court or Employment Appeals Tribunal Hearings before this dispute, it was absolutely standard practice and there was never a problem with such release previously.   Mandate said the Employer knew of the evidence the Shop Steward, the important relevance as they had been told of it during the Disciplinary Procedure.   Mandate said that following the first date of hearings on 8th May 2018, they again requested the release of the Shop Steward to attend the Hearing on 9th May 2018, but were again refused.   Mandate said that at this point, following the first day of hearings the Employer could not be unaware of the evidence to be given by the Shop Steward its relevance and important to the cases of all the complaints, but they still refused her release.   Mandate suggested that by their actions the Employer was denying them the opportunity to put their best case/evidence to the hearings.

Two witnesses gave evidence on behalf of the Complainant:

Witness No. 1:   The Witness said that he was a Pre-96 Contract employee at the Store in question, was one of the Complainants involved in the cases dealt with over 8th and 9th May 2018, was Deputy Shop Steward in the Store for circa 15 years and worked at the Delicatessen Counter in the Store.

The Witness said that on the day before the strike was to commence he was informed by Mandate that there would be no picket at the Store he worked at and that they (the Pre-96 Contract members at the Store) would not be picketing at that Store and instead would be picketing at the named other Store.   He said that he, along with a named colleague, were working at the Delicatessen Counter.  He said that the named Store Deputy Manager came to the Counter and he explained the position to her as outlined above, that there would not be picketing at their own Store and that the Pre-96 Contract members would be picketing instead at the named other Store.   He said the Deputy Manager said that’s fine, I need as many people in the Store as possible.   He said she seemed relieved that there would be no picketing at their Store and she raised no objection or said anything whatsoever about them going to picket at the other Store or being absent for that reason.

Witness No. 2: The Witness said that he was a Pre-96 Contract employee at the Store in question, was one of Complainants involved in the cases dealt with over 8th and 9th May 2018 and worked at the Delicatessen Counter in the Store with the previous Witness.   He said that on the day in question (the day before the strike was to commence) he was working at the Delicatessen Counter along with the previous Witness.   He said the Deputy Manager came to the Delicatessen Counter and the previous Witness and her had a discussion and that he heard some of that discussion as he was working close to the previous Witness.   He said the previous Witness told the Deputy Manager that there would not be a picket in their Store and that the Pre-96 Contract members would instead be picketing at the named other Store.   He said the Deputy Manager said that’s fine once we know there will not be a picket at the Store.   He said he did not hear the Deputy Manager state or suggest that they should not picket at the other Store or that it would present any problem if they did.   The Witness said he did not hear the full discussion between the previous Witness and the Store Deputy Manager.  

Both witnesses answered questions from the Employer’s Representative and from the Adjudication Officer.

Mandate and the Complainant sought a favourable decision and recommendation.

Summary of Employer’s Case:

The Employer was rejecting the claim in it’s entirety.   They said the Complainant was given a lenient sanction of a Final Written Warning, which they submitted was fair and entirely appropriate.

The Employer said the Complainant works at a named one of their stores. They said that in February 2017, the Complainant went on unauthorised absence from work from 14th February 2017 to 24th February 2017 and failed to make contact as per Company Policy.   They said the reason for the said unauthorised absence was that the Complainant had taken part in unofficial industrial action the Company during that period.

On 6th February 2017, employees in the relevant Store balloted for industrial action, a letter in this respect dated 6th February 2017 was sent from Mandate to the Employer, which said the result of this ballot was in favour of strike action. The employer said that this ballot was flawed and therefore did not count.   The Employer said confirmation of this flawed ballot in the Store was confirmed by Mandate’s own Solicitors in a letter dated 14th February 2017 to the Employer.   They said Mandate also communicated this to employees on 13th February 2017.   The Employer said that therefore while that Store was notified on 6th February serving strike notice on the Employer in particular locations, as this was flawed as stated by Mandate’s own submission, members in the named Store were not covered by strike notice.

The Employer said a further letter from their Solicitor of 14th February 2017, to Mandate’s Solicitors set out the nature of the unlawful picket taking place at the other named Store and specifically requested members of the Store involved to leave the picket at the other named Store due to its unlawful nature.

The Employer said that notwithstanding this the Complainant and her colleagues involved ignored this fact and took part in unlawful strike action against the Employer when not covered by strike notice.   The Employer said this is the reason the Complainant was given a Final Written Warning as an alternative to dismissal.   They said the Complainant’s claim that the Final Written Warning should be rescinded is rejected by the them.

The Employer said the Complainant works as a Customer Assistant and is based in the named Store and is a full-time employee.

The Employer said that during the period of February 2017 employees at a number of store locations voted to indefinite strike following a secret ballot of Mandate members in those locations.   Subsequently, Mandate served strike notice on the Employer for industrial action in a number of locations that specifically pointed out that the “members employed in these locations will place official pickets on the premises.”

The Employer said that strike notice served on the Store the Complainant works in was withdrawn by Mandate at the time and therefore the union members in the named Store were not lawfully entitled to engage in industrial action against the Employer.   They said that when they conducted their re-ballot for union members in the relevant Store it was then they served notice on the Employer.   The Employer said that however, the strike ceased before the date on which the employees in the relevant Store were due to engage in lawful picketing.

The Employer said that on 14th February 2017, the Complainant engaged in unofficial industrial action and was absent from work without authorisation.   They said the Complainant failed to attend work at the relevant Store for a number of days and instead attended a picket at another named store location and engaged in unofficial industrial action against the Employer.

The Employer said that by letter of 22nd February 2017 the Store Manager at the relevant Store informed the Complainant that by engagement in picketing at the other named Store during the absence period mentioned amounted to unauthorised absence and that she would be asked to attend an Investigation Meeting to determine whether or not disciplinary action is required.   They said a further letter of 3rd March 2017 followed informing the Complainant that she was requested to attend an Investigation Meeting in order to obtain information concerning an allegation that she was absent from work without leave and that he had taken part in unofficial industrial action.   He was informed of his right to representation and was provided with a copy of the Company Disciplinary Policy and Procedures.

The Employer said an Investigation Meeting was held on 8th March 2017 by the named Store Manager.   The Complainant was in attendance with her named Mandate full-time Official as his Representative (the signed minutes of that Meeting were submitted to the Hearing)

The Employer said that at that Meeting the Store Manager set out the purpose of the Meeting was to obtain information in relation to the allegation that the Complainant was absent from work and took part in unofficial industrial action.   The Mandate Official responded by reading a document into the record.   The Complainant confirmed at the Meeting that she had attended at a strike picket at the named Employer Store from 14th to 24th February 2017.

The Complainant stated that Mandate gave her direction to attend the strike at the named location.   The Employer said the Complainant did not provide any evidence to support his defence that she was engaged in official industrial action.   They said that as the Complainant had nothing further to state the Meeting ended.

On 7th April 2017 a letter from the Employer was issued requesting the Complainant to attend an Investigation Outcome Meeting and that took place on 12th April 2017.   At this Meeting the Investigation Outcome was read out by the Store Manager and he issued a copy of it to the Complainant.   This letter recommended that a breach of Company policy had occurred and that it should be considered further at a Disciplinary Hearing.   The Store Manager found that it was not disputed by the Complainant that she had attended the other named Store to take part in industrial action and that although she claimed that it was official industrial action, he set out that in order for to have been so, it should have been covered by official strike notice.   Furthermore, the Complainant left her place of work without authorisation in order to take part in the unofficial industrial action which was a clear breach of Company policy.   They said the Company Handbook under the Section dealing with Absence and Attendance states:

“It will be considered unacceptable and treated as unauthorised absence if you do not contact your line manager and could lead to disciplinary action being taken against you up to and including dismissal.”    

The Employer said the Store Manager also found that the Complainant’s actions were contrary to what is expected of an employee and that participation in unofficial industrial action was a failure to comply with his obligations to them.

The Employer said on 8th May 2017, the Complainant was requested to attend a Disciplinary Hearing.   This Disciplinary Hearing took place on 11th May 2017 and was conducted by the Store Manager.   The Complainant’s Mandate Official again responded by submitting a document into the record.

The Employer said that following this Hearing the Store Manager commenced on a period of sick leave and thus was not in a position to conclude the Disciplinary Hearing and/or the outcome.   The Employer said as a result they had no option but to appoint another named Store Manager to progress the disciplinary process and as a result he had to arrange a new Disciplinary Hearing with the Complainant.   A letter was sent to the Complainant on 20th June 2017, asking her to attend a Disciplinary Hearing on 22nd June 2017.   The Complainant had nothing further to add but submitted a document into the record.

By letter of 21st September 2017, the Complainant was requested to attend a Disciplinary Outcome Meeting on the following day, 22nd September 2017.   The Employer said the Complainant was again informed of his right to representation and that failure to attend would result in the decision being issued in writing.   This Meeting went ahead as planned.

The Disciplinary Outcome to the Complainant by letter of 22nd September 2107.   Taking all into account the Manager found that the Complainant had displayed unacceptable behaviour and that disciplinary action was warranted.   The Complainant was issued with a Final Written Warning to remain on her file for a period of 12 months and she was informed of her to appeal this decision.

The Employer said the Complainant exercised his right of appeal to the named Employee Relations Partner on 25th July 2017.

A named Store Manager was appointed to hear the Appeal and he notified the Complainant by letter of the time and date for the Appeal Hearing.   They said the Appeal Hearing took place on 24th August 2017 and the Complainant failed to attend the Appeal Hearing.   On 20th October 2017, the Manager issued the appeal outcome which stated that:

“As you did not attend the appeal hearing, the hearing went ahead in you absence and I have reached my decision based on the information available to me.

Having carefully considered all the information I can find no grounds upon which to overturn the original disciplinary officer’s findings.

Accordingly I have concluded that the original sanction of a Final Written Warning will be upheld.”

The Employer said the Complainant then lodged his complaint with the WRC on 20th December 2017

The Employer said it is their position that a full and fair investigation took place in accordance with fair procedures.   They said the Complainant was informed of the allegations against him, 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 which she subsequently failed to do.

The Employer said the Complainant works in a named one of their stores, which they said was not covered by official strike notice from Mandate.   They said Mandate conducted a secret ballot for industrial action for members in the Store the Complainant and her colleagues involved worked in.   They said the strike notice was served on them in relation to that Store, they said that however due to a technical error that notice was rescinded.   They said that nevertheless the Complainant left work without authorisation for 9 days and took part in unofficial industrial action at another one of their stores in which the Mandate members at that store were covered by official strike notice.

The Employer said the right of union members to engage in properly sanctioned and appropriately conducted industrial actions is not disputed.   However the trade union and their members must conduct themselves wholly within the confines of the Industrial Relations Act 1990.

The Employer said the Industrial Relations Act 1990 sets out employer’s and employee’s obligations in order to be compliant with the provisions of the Act for trade disputes.   They said that for 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 is given to the employer.

The Employer said the trade union is obliged to conduct a secret ballot prior to organising, participating in, sanctioning or supporting a strike or other industrial action.   The said Section 14 of the 1990 Act provides the rules of every trade union must contain a provision that the union:

“shall not organise participate in, sanction or support or strike or other industrial against the wishes of a majority of its members voting in a secret ballot.”

The Employer said they would rely on the statement of Judge Barron when he dealt with the issue in the Supreme Court in Nolan Transport (Oaklands) Limited -v- Halligan [1999] IIR 128, in relation to the interpretation of Part 11 of the Industrial Relations 1990, expressing his view on a number of important issues.   The Employer said that 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 the majority is against industrial action, that is an end of the matter.   If a majority in favour of industrial action, then that is a matter for the union concerned to determine whether or not whether or not the industrial action should take place.”

The Employer said that said they are 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.   They said that 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 the secret ballot relating to the issues involved in the dispute.   The Employer said it was never the intention of the Law that its provisions be set aside as and when it suits.

The Employer said Section 17 of the 1990 Act provides that subsection 10 (acts in contemplation or furtherance of a trade dispute), 11 (peaceful picketing) and 12 (removal of liability for certain acts) shall not apply in respect of proceedings arising out of or relating to a strike or other action by a trade union or group of workers in disregard to or contrary to the outcome of a secret ballot relating to the outcome of secret ballot relating to the issue or issues involved in the dispute.

The Employer again referred to the judgement of Judge Clarke in Building and Allied Trade Union -v- P Elliot and Co [2006] IEHC 340 in which he noted that the industrial action engaged in must be “fairly within the parameters of that authorised”.   The Employer stated that the Complainant stated continually throughout the Investigation that she was involved in a lawful industrial dispute.   Yet, they said if her actions are overlaid within legislation, she cannot enjoy the rights associated with those who lawfully conduct their dispute within the well-established parameters of that legislation.

The Employer said Mandate might attempt to rely on a secret ballot conducted with the ‘Pre-96’ colleagues that took place in and around 29th January 2017, in which the majority of union members who participated in that secret ballot voted in favour of industrial action.   The Employer said that the notification received from Mandate in relation to this ballot did not specify when they would instigate the industrial action.   The Employer said they would respond to this as follows:

They said 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 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 aggregate 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 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 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 members have reasonable opportunity of reading during the course of their employment or which is reasonably accessible to them in some other way.

• Subsections (10 and (2) do not apply –                                                                                              (a)   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,                                             (b) In respect of proceedings arising out of relating to any action resulting or likely to result in death

• Where two or more secret ballots have been held in relation to a dispute, the ballot referred to in subsections (1) and (2) shall be the last such ballot”    

The Employer said the “last such ballot” in the instant case was on 6th February 2017 in the relevant Store and strike notice was not served on the Company for any union member in the relevant store including the Complainant.

The Employer said that as a result of the Complainant being present and actively taking part in the other named Store picket, she was involved in an illegitimate action that did not concern him as an employee of her own Store and she was also absent from her normal place of employment without authorisation

The Employer said that they were evidently compliant with the 1990 Act relating to this entire matter.   They said that strike action was taken at a number of stores, circa 1,000 union members went on strike during the period of industrial action in 2017.   They said a strike took place over the period of 14th to 24th February 2017.   The Employer said only those who breached Company policy or whose actions meant they could not enjoy the protections conferred on them by the Industrial Relations Act (sections 10 to 12) were brought through the Disciplinary Procedure.

The Employer said Mandate claimed 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 employees or management as a result of the dispute.   They said the points agreed at the Labour Court were communicated to both parties on 3rd March 2017.

The Employer said there is nothing in the communication that states that they could not take action to investigate unacceptable behaviour or actions that took place during the strike.   They said furthermore throughout and following the period of industrial action they informed Mandate they would not accept any action/behaviour considered to be outside of what is acceptable in such circumstances, would continue to investigate unacceptable actions/behaviours by individuals and said 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 Employer said the Mandate also claimed that the action taken against the Complainant were part of 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.   They said that this is simply not the case.   They said that as a Company they are entitled to investigate what they believe to be instances of unacceptable actions/behaviours by any employees, and if warranted, take the appropriate disciplinary action.   They said this is exactly what happened in the this instance   They said the sanction issued to the Complainant was in relation to her own behaviour only and did not relate to trade union activity as Mandate attempted to argue.

The Employer said that regardless of the circumstances all employees of theirs have an absolute duty of care to the business, their employees, and to customers to behave and act at all times in appropriate manner and in full compliance with the legislation.   They said the Complainant did not behave in an appropriate manner in her action of taking part in unofficial action and absence from work without authorisation and was therefore appropriately issued with a Final Written Warning.

The Employer said that taking everything into consideration, they acted more than fairly and in line with their procedures.   They said that they Complainant was absent from work without leave and participated in unofficial industrial action.   They said she was appropriately issued with a Final Written Warning due to his unacceptable actions that will expire in September 2018.

The Employer said that 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 without due notice to employers, both of which are clear contraventions of the Industrial Relations Act.   They said that it would also have the effect of rendering legislative provisions covering trade disputes null and void.

Based on the foregoing the Employer sought that the Adjudication Officer find and decide that the claim is not well founded and that it be rejected.

One witness gave evidence on behalf of the Respondent.   The Witness said that she was the Deputy Manager at the Store at which the Complainant was employed and she was giving evidence in respect of the evidence and statements made by the two witnesses who gave evidence on behalf of the Respondent in relation to an alleged meeting with one of those witnesses, the Deputy Shop Steward at the Store in which it was alleged that she and the Deputy Shop Steward briefly discussed the strike due to start the following day.   That the Deputy Shop Steward informed her that there would by not picketing at their Store, but that rather all the Pre-96 employees at their Store would instead be picketing at the other named store and the Deputy Manager stated that was fine and raised no objection to them going to/picketing at that Store the following day.

The Witness said and was adamant that no such meeting or discussion took place.   She said nothing happened on that date and no such discussion took place on that day or any other day.  

The Witness also answered questions from the Adjudication Officer and the representatives of both parties.   She gave evidence in relation to rostering and cover for the Complainant and his colleagues involved during the period of the strike.   The Witness agreed that the Employer knew where the Complainant and his colleagues were during the their absence during the strike.

In relation to the submissions of Mandate that the Store Manager had been informed by the Store Shop Steward the day before the strike commenced that there would be no picket placed at their Store, but that rather the Pre-96 members in that Store would now be picketing at the other Store and that the Store Manager was relieved to be informed of this and raised no objections whatsoever to this, did not advise or inform them not to picket at that Store or that there would be any adverse consequences to them so doing and that accordingly his reaction or lack of reaction and/or silence on the matter should be taken as acquiescence to them picketing at the other Store, the Employer said the following.   They said they did not accept that such a discussion with the Store Manager took place, but however the Store Manager was absent on sick leave, not available to give evidence and they could not say when, if ever, the Store Manager would be available to give evidence.   They further said that they noted that it was not suggested by Mandate that the Store Manager gave them permission to be absent from the Store or permission to taken part in the picketing at the other Store at a named location.

Findings, Conclusions and Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a decision setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made by both parties and I have concluded as follows.

This is an appeal by Mandate on behalf of the Complainant against a Final Written Warning imposed on the Complainant by the Employer.  

The Employer maintain that the discipline was fully justified by the facts and circumstances of the case and that fair procedures that fully protected the Complainant’s rights were observed by them.

For their part, Mandate maintain the discipline was totally unjustified on substantive grounds and fair procedures were not observed by the Employer in dealing with these matters.

The Employer maintain the discipline was imposed for two following alleged misconducts by the Complainant:

• Participation in an alleged unofficial and unlawful strike at one of the Employers Store

1. 1.                                                and

• Unauthorised absence from work (to participate in the strike)

I note that these two issues are interrelated.

Participation in an Unofficial Strike:                                                                                                                     It seems the Employer in their submissions are mixing up the question of an ‘unofficial’ and an ‘unlawful’ strike.   An unofficial strike (sometimes called a ‘wildcat’ strike) is one that has not been officially sanctioned by the Trade Union involved and a strike that is officially sanctioned by the Trade Union is an official strike. It is a matter for the Trade Union as to whether or not the industrial action is officially sanctioned and the fact that it is officially sanctioned does not automatically make it lawful, that is a different issue. There is no doubt and it is not contested by the Employer that the strike in the instant case was officially sanctioned and accordingly it was an official strike.

I note that in the Disciplinary Letter it is stated that the Complainant “partook in unofficial industrial action.”   I do not accept that the industrial action/strike was unofficial.

I note as stated above that an unofficial strike (sometimes called a ‘wildcat’ strike) is one that has not been officially sanctioned by the trade union involved and it is for that reason that ‘unofficial industrial action’ is prohibited in many procedural agreements and/or disciplinary procedures, particularly in trade union organised employments (as this one is) is to prevent such wildcat or unofficial industrial action.

Participation in an Unlawful Strike:                                                                                                                   This is very much at the heart of the Employer’s position.   I note that this issue was raised and responded to by both parties’ legal advisors in correspondence between them on behalf of their clients before and during the strike and taking opposite views in that respect.   I further note that in accordance with law and the provisions of the Industrial Relations Act 1990, it was open to the Employer to take legal action seeking an injunction restraining the strike and/or seeking damages from Mandate.   However, for whatever reason they did not do this before, during or after the strike.     I further note the sections of the Industrial Relations Act 1990 quoted and relied upon by the Employer relate to provisions whereby a trade union as distinct from the individual members of that union can be injuncted or sued in respect of any possible unlawful industrial action.   I believe that if the Employer believed that the industrial action was unlawful this was/is a more appropriate and fairer course of action to take, rather than taking action against individual union members.     The Employer was informed by Mandate that they formally sanctioned the strike.   I further note that the Employer was formally informed on a number of occasions by Mandate that they directed the Complainant to take part in the strike and where to picket, but despite this rather than taking up this direction directly with Mandate they chose instead to take it up with the Complainant and apparently did not take the fact of the direction by the trade union into account.   I have concluded that it is unreasonable and unfair to penalise individual union members in respect of a matter that was/is the subject of different legal views as to whether or not the industrial dispute was unlawful and where the matter was not legally tested.   There is no ruling by any competent legal body that the industrial action was unlawful.   In these circumstances, it is impossible for me to conclude definitively that the industrial action was unlawful.

I further note that the Employer did not directly inform the Complainant of their views in relation to the industrial action before the strike, and did not write to her in any respect in relation to the matter until a letter dated 22nd February and received by the Complainant on 23rd or 24th February either the last day of the strike or the previous day and accordingly had not been made aware of the Employer’s view that he was doing something wrong.     This is not fair to the Complainant.  

In support of their position the Employer states that Mandate, in their strike notice stated: “members employed in these locations will place official pickets on the premises.”     I note that this statement in capable of an interpretation other than that made by the Employer.   It does not state that they will only picket at the Store they are employed at and there is nothing in it that would prevent or suggest that a Mandate member was prohibited from picketing at any of the other listed stores.   The Employer appears to rely upon this submission in deciding to impose discipline on the Complainant and I do not accept that they are entitled to do so.

Alleged Absence Without Authorisation:                                                                                                                            The Employer states that the Complainant was absent without leave or was on an unauthorised absence for the 10 days of the strike.

I note that there was dispute between the parties as to whether or not the Employer (the Store Manager) was informed by the Mandate Shop Steward in the Store that all of Pre-96 Mandate members in that Store would not be picketing in their own Store, but rather that they would be picketing at another named Store and that the Store Manager raised no objection to this, did not indicate in any way that they should not absent themselves from their Store or picket at the other Store and did not remonstrate with the Shop Steward or inform her that there could be adverse consequences to them so doing.  

I note that the Shop Steward in question was refused permission to attend at the hearing on 8th and 9th May 2018, even though this issues was raised by Mandate at the Grievance Procedure and at the first and second day of the hearings.   Accordingly, there was a conflict of evidence in that respect and I have to make my decision in relation to it on the ‘balance of probabilities’.     I note that in the agreed minutes/record of the Investigatory Minutes the following is stated the Trade Union stated:   “We are also aware that in this particular store that in advance of picketing duty, the Store Manager was advised that this would be happening.”   I note that the Store Manager in question was present and was conducting the Investigation Meeting and he did not challenge this statement or deny it is any way.   I have decided on the ‘balance of probabilities’ that the Store Manager was so informed and raised no objection to it nor indicated to the Pre-96 Mandate members that they should not absent themselves from their Store or picket at the other one and did not inform the Shop Steward that that there could be any adverse consequences.   I am satisfied that apart from the fact that legally silence is taken to be assent, that based on the Store Manager’s reaction to the Shop Steward she and the members involved were entitled to conclude that there was no problem from the Employer in them absenting themselves from their place of work, participating in the strike and picketing at the other named Employer Store.

I note the Employer also stated that it was not alleged by Mandate that the Store Manager had specifically stated or given permission for the Pre-96 union members to participate in the picket at the other named Store.  

I find this a rather strange submission; it is unlikely in the extreme that workers would ever get specific permission from an employer to picket at an employer’s premises and it is amazing to suggest that it is required in any circumstances.   The submissions in that respect are rejected by me.

I further note that the Complainant was notified by the Employer until 9 or days into the strike, i.e either the last day of the strike or the previous day of their view that the Complainant was doing something wrong. This means that the Complainant was not afforded any reasonable opportunity to take advice and respond to the Employer before the strike ended and he returned to normal work. Prior to this the Complainant had no reason to believe he was doing anything wrong and was afforded no opportunity to correct any wrong behaviour and as it is a fundamental part and concept of a disciplinary procedure that an employee must be afforded a reasonable opportunity to correct any unacceptable behaviour.   On this basis, the procedure adopted by the Employer was unfair to the Complainant and did not represent fair procedure.

In this regard in discussion at the Hearing the Employer confirmed that such a gap in writing to ‘absent’ employees was not normal practice.   They agreed that the normal practice (as in most employments) was to write a strongly worded letter to the absent employee after 2 days absence noting their absence without permission or proper notification and informing that if the Employer did not hear directly from them within a short fixed period of days it would be taken that they had terminated their employment.   The Employer further confirmed that they were fully aware from Day 1 where the Complainant was and that he was picketing at the other named Store.   I note with concern this deviation from normal practice of the Employer in relation to alleged absences from work without authorisation and I can see no good reason for it.

Fair Procedures:                                                                                                                                                      Mandate made extremely detailed submissions in relation what they said was the complete failure of the Employer to observe fair procedures in their dealing with these matters.

Mandate said that since the commencement of the dispute that involved the strike in the instant case there was a hugely detrimental change in the previous good working relationship between them and the Employer and in the Employer’s conduct of Industrial Relations.   Mandate cited a large number of examples of this.   In that respect, I note that the list of 13 alleged such changes listed at Page 3 of this document were not disputed or challenged by the Employer.

In this respect, Mandate stated, in answer to questions, that prior to this dispute there was never a problem getting release from work for a Shop Steward to attend third party hearings.   From my own experience, I know this to be correct as such cases have been heard by me between the parties over the years and the local Shop Steward was in attendance at each one of them.   I am very concerned at the failure to allow the local Shop Steward attend at these hearings on 8th and 9th May 2017.   The Employer was aware of the relevance of the evidence that Shop Steward would proffer as it was firstly stated at the Investigative Hearing and was again reiterated at the first date of the Hearing, 8th May 2018, but the attendance of the Shop Steward was not facilitated by the Employer, this in effect prevented the trade from putting into direct evidence what was said between that Shop Steward on the day before the strike began.   I consider this to be unfair to the Mandate and the Complainant.

I agree with Mandate that the length of time taken by the Employer to deal with this issue of more than 6 months was unfair and unreasonable to the Complainant.   It is a well accepted legal norm that justice delayed is justice denied.

I note with great concern the refusal of the Employer to adjourn the Appeal Hearing as the Mandate Representative was not available and I note that the adjournment sought was only for a matter of 3 days.   This was an extremely unreasonable position for the Employer to adopt as it denied the Complainant the opportunity to be represented by his Union Official considering the issues being raised in the matter, that he was familiar with the case, had been involved with the matter from the beginning and there was only a few days involved.   I am satisfied that the Employer denied the Complainant the opportunity to be represented by his trade union representative and that this in effect denied him a proper appeal which renders the procedure as unfair.

I accept as submitted by Mandate that it was inappropriate for the Store Manager, in light of the allegations of his discussions with the Shop Steward on the day prior to the strike commencing, to be involved in any way in the Investigation or Grievance Procedure, other than as a witness.   However, I note that he ceased to be involved early in the process when he went off on sick leave and was replaced by another Store Manager from another Store with no involvement in the process and accordingly there was no detriment suffered by the Complainant in that respect.

I do not accept that the failure to provide the Investigating Officer with legal letter given at the beginning of the process represented unfair procedure that affected the Complainant’s rights.

Based on the foregoing and in particular the findings in respect of the questions of alleged Participation in an Unofficial Dispute, Participation in an Unlawful Strike and Alleged Absence from Work without Authorisation contained above on pages 18, 19 and 20 of this document, I see considerable merit in the dispute/claim and it is upheld in full by me.

As a full and final settlement of the dispute I recommend that the Final Written Warning issued by the Employer be rescinded and be expunged from the Complainant’s record.

Dated:             25 July 2018

Workplace Relations Commission Adjudication Officer: Sean Reilly

Key Words:   Appeal against Final Written Warning