Complainant

Respondent

Anonymised Parties

A General Sales Assistant

A Retail Supermarket

Representatives

William Hamilton Mandate Trade Union

Niamh Ni Cheallaigh, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015346-001

26/10/2017

The worker commenced her employment in February, 2004. She is employed as a Customer Assistant. The dispute concerns an appeal of a disciplinary sanction.

The parties furnished written submissions at the adjudication hearing and further documentation was requested and 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 displaying behaviours that were unacceptable to the company by calling the store manager an “a***hole” and that she made inappropriate comments on social media which breached the social networking policy.

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 3rd 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’s position is that the invitation to attend an investigation meeting referred only to the allegation of a breach of the social networking policy. The Worker contends that the other allegations and statements relating to how she treated a colleague in relation to the upcoming industrial action were only raised at the investigation meeting which she states is unfair.

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 she did not post the comments to social media or behave in such a way that warranted a final written warning. The worker stated that the same member of management conducted both the investigation and disciplinary process which she claims denied her natural justice and fair procedures.

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 “by calling the store manager an “a***hole” and that she made inappropriate comments on social media which breached the social networking policy.”

The employer stated that the workers behaviour was a breach of its serious misconduct policy under the headings of “Breach of the Social Networking Policy, Breach of the Company’s Dignity at Work Policy, 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 Facebook posts/conversations involving the worker whereby she breached the Internet and Social Network Policy as a result of the remarks she made.

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.

In relation to her actions on the picket line, 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 towards her manager, her behaviour towards a colleague in the store and her involvement in inappropriate conversations on social media. The employer stated that its actions were in no way related to trade union activity and it 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 subject to an investigation process in relation to a number of incidents. She is alleged to have called her manager an “a***hole” while on the picket line, treated a colleague inappropriately prior to the industrial action and engaged in social media conversations on Facebook that breached the employer’s internet and social media policy.

The worker stated at the hearing of this complaint that she did not make the comments on Facebook and that her account had been hacked. The worker was less than certain of the hacking throughout the internal process as she had said at the investigation that her account could have been hacked. She stated at the adjudication hearing that she had been notified of the hacking by email but was not in possession of the email notification. She also confirmed that she did not notify the employer of the hacking incident. On the balance of probabilities, I find that the worker was most likely engaged in the social media conversations in a manner which breached company policy.

In relation to the issues that the worker claimed were only raised at the investigation meeting, I find that there was no prejudice suffered as a result. The purpose of the investigation was to gather information and to determine if a disciplinary meeting was required. The union replied, “no comment” on behalf of the worker when she was asked at the investigation meeting if she called her manager an “a***hole” and the worker denied speaking to her colleague in the way that the colleague’s statement claims she had.

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, taking all of the circumstances into account I find 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.

Final written warning, disciplinary procedures.