Complainant

Respondent

Anonymised Parties

A Customer Assistant

A Retail Supermarket

Representatives

William Hamilton Mandate Trade Union

Niamh Ni Cheallaigh

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-00015341-001

26/10/2017

The worker commenced her employment in September, 2015. She 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 she was disciplined for an incident that allegedly occurred during a period of industrial action in February 2017. The worker stated that she was accused of shouting at a customer and her child who were crossing the picket line and that she was abusive towards colleagues who had come to cover staff at the store who were engaged in industrial action. The worker’s position is that she 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 incidents took place on 6th 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 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 entire process and the inordinate delay denied her 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 her personnel file.

The employer stated that the worker displayed behaviours that were unacceptable by shouting at a customer and her child who were crossing the picket line and by being abusive towards other staff members who were working at the store on the day in question by calling them “scabs” and throwing pieces of paper at them.

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, Breach of the Company’s Dignity at Work Policy, Abusive threatening or insubordinate behaviour towards management or other colleagues 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 in line with its policies and procedures. As part of the disciplinary process the employer was in possession of social media screenshots where the complainant referred to other staff as “scabs” in relation to them providing cover at the store.

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

In relation to this complaint I find as follows:

The worker was subjected to an investigation process in relation to two incidents. She is alleged to have shouted at a woman and her child as they passed the picket line on that day. The worker denied any recollection of the incident at the investigation. The employer produced documentary evidence from a colleague stating that she had seen the worker shouting at the woman. On the basis of the direct evidence on this matter, I find that on the balance of probabilities, the incident did occur.

In relation to the second issue of the worker allegedly calling her colleagues “scabs” there were two signed written statements confirming that the worker was directly witnessed calling other staff members “scabs” and “scabby babbies” by two different people. The Union questioned the validity of the statements and stated that it had been unable to cross examine the authors of the statements.

In relation to procedures, the employer used the same member of management to conduct both the investigation and the disciplinary process which I find was inappropriate and at variance with best practice. However, despite this procedural unfairness, I find that on balance and based on the written evidence relating to the workers behaviour that the employer was justified in issuing the final written warning.

Having considered the submissions of both parties to this dispute, I recommend that the final written warning remain on the worker’s file. On expiry the warning should be treated in the same manner as other expired warnings as confirmed by management i.e. not used or referenced again in any future disciplinary process.