Complainant

Respondent

Anonymised Parties

A General Sales 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-00015338-001

26/10/2017

The worker commenced employment in November 1999. He is employed as a General Sales Assistant. The dispute relates to an appeal of a disciplinary sanction.

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

The worker’s case is that he was given a final written warning for alleged inappropriate behaviour during a period of industrial action in February 2017. The worker stated that he was accused of “behaviours that were unacceptable to the Company by preventing two delivery vehicles exiting the premises, only allowing them exit when the Gardaí arrived.”

The worker stated that he attended an investigation meeting on 5th April 2017 in relation to the alleged incident. The worker contends that he was lawfully engaged in industrial action under the protection of the Industrial Relations Act, 1990 and denies any wrongdoing.

The worker stated that a disciplinary meeting was subsequently arranged but due to the unavailability of representation on the day, he sought to have the meeting postponed. The worker contends that the postponement request was refused. The worker did not attend the meeting due to the lack of representation and was issued with a final written warning on 16th May 2017.

The worker confirmed that the company handbook on Managing Discipline at Page 11 states that:

“in cases of misconduct if the colleagues chosen representation is not available reschedule the meeting for a further date no longer than 1 week and inform the individual that they need to ensure their representation is available.”

The worker stated that Page 16 of the handbook on Managing Discipline states:

“In cases of serious misconduct contact the full-time trade union official to arrange a date…”

The worker also stated that the Company Handbook at Page 6 states that:

“the Manager issuing the sanction must not be involved in the investigation either as a witness or the investigation officer”.

The worker contends that the same member of management carried out both the investigation and disciplinary sanction which he contends denied him fair procedures.

The worker is seeking that the final written warning issued under the serious misconduct policy be removed from his personnel file.

The employer stated that it conducted an investigation into the workers alleged behaviour that he “behaviours that were unacceptable to the Company by preventing two delivery vehicles exiting the premises, only allowing them exit when the Gardaí arrived.” The employer stated that following the investigation process, a disciplinary process took place and the worker was issued with a final written warning under the serious misconduct policy. The employer stated that the warning was appealed but was upheld on appeal.

The employer stated that the worker’s behaviour at the picket line could not be defined as peaceful picketing. The employer stated that the Industrial Relations Act, 1990 sets out that attendance at a picket line must be “for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.” The employer stated that the act says that industrial action shall not be protected if “it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.”

The employer stated that the commitment given at the Labour Court for an orderly and peaceful return to work with no recriminations on either side did not preclude management from investigating individuals for alleged inappropriate behaviour. The employer also stated that invoking its disciplinary procedures were appropriate on the basis of the worker’s behaviour on the picket line and were in no way related to trade union activity. The employer emphatically denies that it engaged in intimidation or victimisation or a campaign of corporate bullying as alleged by the Union.

In relation to this dispute I find as follows:

The worker was disciplined under the serious misconduct policy for alleged inappropriate behaviour during a period of strike action. At the disciplinary stage of the process, the worker sought a postponement but was refused. The employer’s procedures, provide that in such circumstances an adjournment can be granted where representation is not available. Irrespective of what procedures were in place at the time, when investigating alleged serious misconduct which includes a sanction of dismissal, it is unreasonable not to allow a short adjournment to allow for the availability of the worker’s trade union official.

In relation to the process as carried out, I find that it was inappropriate that the same member of management carried out both the investigation and the disciplinary process.

On balance and having taken into account the submissions of both parties, I am satisfied that the process followed by the employer on this occasion was unfair and in those circumstances, I find that the worker should not have received a final written warning.

Having considered the submissions of both parties to this dispute, I recommend that the final written warning issued to the worker be expunged from his personnel file.