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-00015350-001

26/10/2017

The worker commenced employment in June 1998. She is employed as a General Sales Assistant. The dispute relates to 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’s case is that she was given a final written warning for alleged inappropriate behaviour during a period of industrial action in February 2017. The worker stated that she was accused of “behaviours that were unacceptable to the Company by offending a customer and leaving her feeling nervous of exiting the store.”

The worker stated that she attended an investigation meeting on 6th April 2017 in relation to the alleged incident. The worker contends that she was lawfully engaged in industrial action under the protection of the Industrial Relations Act, 1990 and denied any wrongdoing.

The worker did not take part in the disciplinary process as the trade union official was unavailable on that day but was issued with a final written warning as a result of the disciplinary process.

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 also contends that the same member of management carried out both the investigation and disciplinary sanction which denied her 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 it conducted an investigation into the workers alleged behaviour that she “displayed behaviours that were unacceptable to the Company by offending a customer and leaving her feeling nervous of exiting the store.”” 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 categorically denied any intimidation, victimisation or that it engaged in a campaign of corporate bullying as suggested 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’s trade union official was unavailable and the worker did not attend the second disciplinary meeting. The employer’s procedures, provide that in such circumstances an adjournment can be granted where representation is not available but not for more than one week. In this case the employer carried on with the disciplinary process on the basis that the worker was notified approximately 5 days in advance of the meeting and the final written warning was subsequently issued to her. I find that the employer breached its own procedures on this point.

The parties are also in dispute about which procedures were in use at the time. Irrespective of what procedures were applicable, I find that when investigating alleged serious misconduct which includes a sanction of dismissal, it is unreasonable not to postpone the meeting for a short period of time 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 and at variance with the principles of equity and fairness 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 at variance with its own procedures. 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 her personnel file.

Final written warning, disciplinary procedures.