Complainant

Respondent

Anonymised Parties

A Customer Assistant

A Retail Supermarket

Representatives

 Mandate Trade Union

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015333-001

26/10/2017

The worker commenced his employment in September, 1993. He is employed as a Customer Assistant. The dispute concerns an appeal of a disciplinary sanction.

The parties provided written submissions at the adjudication hearing. Further documentation was requested and was submitted on 11th April, 2018.

The worker contends that he was disciplined for his involvement in supporting a picket at another store during a period of industrial action in February 2017. The worker has long service with the employer and although the store at which he works was not part of the official industrial action at the time, the worker did not attend work for three days, instead attending at a picket that was placed on another store to support his colleagues.

The worker confirmed that an investigation meeting into the alleged incidents took place on 31st March 2017 which led to disciplinary action, the issuing of a final written warning and a subsequent appeal of that decision. The final written warning issued to the worker was upheld on appeal.

The worker submits that the actions of the employer throughout the process constitute intimidation, victimisation and a campaign of corporate bullying against workers for their involvement in a period of industrial action. The worker confirmed that, following discussions at the Labour Court on 24th February 2017, both sides gave a commitment that there would be an orderly and peaceful return to work, with no recriminations on either side. The worker stated that the employer reneged on its commitment by instigating the disciplinary process and effectively issued disciplinary sanctions to workers for engaging in Trade Union activity

The worker stated that it took almost seven months from the beginning of the investigation to the completion of the appeals process and that the same member of management carried out the investigation and the disciplinary processes. The worker stated that the method by which the employer carried out the entire process and the inordinate delay in its completion denied him natural justice and fair procedures.

The worker is seeking that the final written warning issued to him for being absent without leave and engaging in unlawful industrial action be removed from his personnel file.

The employer confirmed that following a ballot for industrial action, strike notices were served on several of its stores. The employer stated that the strike notices provided that “members employed in these locations will place official pickets on the premises.” The employer also stated that the store at which the worker was employed was also balloted but staff were not in favour of industrial action.

The employer stated that the worker was absent from work for three days without notifying the employer as per company policy and attended at a picket organised at another store. The employer stated that the worker was absent without leave and was engaged in unofficial industrial action as a result of his actions.

The employer stated that it carried out a full and fair investigation and disciplinary process into the allegations in line with its policies and procedures. The employer found that the worker had displayed unacceptable behaviours and that the appropriate disciplinary action in the circumstances was to issue him with a final written warning for 12 months. The employer confirmed that the warning, once expired will physically remain on the worker’s file but will not be referenced again in any future process. The employer stated that this is in line with Labour Court Recommendation LCR21502.

An appeal hearing took place on 29th September 2017 and the sanction was upheld on the basis that the worker was not covered by official strike notice and was not partaking in official strike action and was therefore absent from work without authorisation.

The respondent stated that of all staff who participated in the industrial action, it was only those who breached Company policy or whose individual actions meant they could not enjoy the protections of the Industrial Relations Act, 1990 that were subject to a disciplinary process. The employer stated that it acted appropriately on the basis that the worker breached company policy at the time of the strike.

In relation to reneging on the commitments given at the Labour Court, the employer stated that the process did not preclude management from investigating individuals for alleged inappropriate behaviour. The employer emphatically denied that it was engaged in a process of intimidation, victimisation or a campaign of corporate bullying as claimed by the Union.

In relation to this complaint, I find as follows:

The worker was employed at a store where a ballot was conducted with respect to industrial action. The relevant staff at the store did not vote in favour of industrial action.

The strike notices that were served on the employer provided that “members employed in these locations will place official pickets on the premises.” The worker was not part of the official strike action and was not covered by the specifics of the strike notice. Accordingly, I find that his unnotified absence from work and participation in supporting the other picket at the other store constituted absence without leave in contravention of company policy and participation in unofficial industrial action.

In relation to the disciplinary procedures carried out by the employer, I find that it was inappropriate for the same member of management to carry out both the investigation and the disciplinary processes. On that basis there was an element of procedural unfairness in the process.

Having considered the submissions of both parties, I recommend that a final written warning for a period of six months with effect from 1st June 2017 is a more appropriate sanction in this case. As this timeframe has already elapsed, the warning should be treated in the same manner as recommended in Labour Court Recommendation No: LCR21502 i.e. that the expired warning will remain on file but will not be quoted/referenced in future.

Final written warning, disciplinary procedures.