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-00015343-001

26/10/2017

The worker commenced employment in October 2014. He is employed as a Customer 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 making a snide remark at a customer as she was crossing the picket line, leading the customer to make a complaint.”

The worker stated that he attended an investigation meeting on 6th 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 denied any wrongdoing.

The worker stated that there were no specific details in relation to the complaint at the investigation stage but a written statement from a staff member was produced at the disciplinary state of the process. The worker stated he was alleged to have said “thanks a lot” to a customer as she left the shop.

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 contends that the same member of management carried out both the investigation and disciplinary sanction and that he was given a final written warning for allegedly saying “thanks a lot”. The worker contends that the manner in which the employer carried out the process 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 displayed “behaviours that were unacceptable to the Company by making a snide remark at a customer as she was crossing the picket line, leading the customer to make a complaint.”

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

In relation to this dispute I find as follows:

In relation to the process as carried out, I find that it was inappropriate and unfair that the same member of management carried out both the investigation and the disciplinary process. I also find that issuing a final written warning to a worker for saying allegedly saying “thanks a lot” is an excessive sanction.

On balance and having taken into account the submissions of both parties, I am satisfied that the sanction was excessive and the process followed by the employer was unfair. 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.

Final written warning, disciplinary procedures.