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-00015339-001

26/10/2017

The worker commenced his employment in April, 2015. 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 information was requested and was submitted on 11th April 2018.

The worker contends that he was disciplined for an incident that allegedly occurred during a period of industrial action in February 2017. The worker stated that he was wrongly accused of making a nasty comment to a customer while on the picket line. The worker stated that he would never be rude to a customer in the course of his work. The worker stated that he did not know who the customer was, he had never seen a statement from the customer and was not provided with any specifics in relation to the alleged complaint. The worker’s position is that he was lawfully engaged in an industrial dispute under the protection of the 1990 Industrial Relations Act and denies any wrongdoing.

The worker confirmed that an investigation meeting into the alleged incident took place on 7th April 2017 which led to disciplinary action, the issuing of a final written warning under the employer’s serious misconduct policy and a subsequent appeal of that decision. The worker stated that the same member of management carried out both the investigation and the disciplinary meetings and that it took almost eight months from the beginning of the investigation to the completion of the appeals process. The worker stated that the method by which the employer carried out the process and the inordinate delay in its completion denied him natural justice and fair procedures.

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

The employer stated that the worker displayed behaviours that were unacceptable by making a nasty comment to a customer who was crossing the picket line. The employer stated that the customer in question made a complaint and the employer investigated the complaint in line with its procedures. Specifically, the employer stated that the workers behaviour was a breach of its serious misconduct policy under the headings of “rudeness or ill treatment to customers at any time” and “conduct which brings the company’s good name into disrepute.”

The employer stated that it carried out an investigation and disciplinary process into the allegations. The employer found that the worker was guilty of serious misconduct and although termination of employment is an option in such circumstances, it believed that the appropriate disciplinary action was to issue the worker with a final written warning.

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 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 categorically denies that it was engaged in intimidation, victimisation or a campaign of corporate bullying as alleged by the Union.

In relation to this dispute I finds as follows:

It is alleged that the worker made a nasty comment to a customer on 17th February, 2017. The employer conducted an investigation into the alleged incident. At the investigation meeting the worker sought clarification in relation to who had made the complaint and what were the specifics of the allegations. The employer did not have the name of the complainant and did not have any written details in relation to the complaint or what the worker was alleged to have said.

I find that the employer was entitled to investigate the matter on the basis of the information it had at the time. However, the process culminated in the worker being given a final written warning in circumstances where there was no specific details, no names, no written statements and no certainty in relation to what allegedly occurred.

In relation to the process itself, the employer stated that it considered it appropriate for the same person to carry out both the investigation and disciplinary process and the delay was as a result of the number of disciplinary processes that were ongoing at the time and as a result of the unavailability of the parties on certain occasions.

I find that it was inappropriate that the same member of management carried out the investigation and disciplinary process especially in the circumstances where termination of the worker’s employment was one of the possible sanctions.

I also find that taking almost eight months to complete the process was unfair on the worker especially as the disciplinary process was taking place under the serious misconduct policy which has a final written warning as the least disciplinary sanction and includes other sanctions such as suspension without pay, demotion/relocation and dismissal. I find that this would be distressing and stressful for any worker.

In all of the circumstances of the case, I find that the final written warning should not have issued to the worker for the reasons stated.

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.

Final written warning, disciplinary procedures.