Complainant

Respondent

Anonymised Parties

A General Assistant

A Retail Supermarket

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-00016658-001

05/01/2018

The worker commenced her employment in June, 1998. She is employed as a General 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 incidents that allegedly occurred during a period of industrial action on 14th and 15th February 2017. The worker stated that she was accused of displaying behaviours that were unacceptable to the Company by making rude comments to a customer who was crossing the picket line to enter the store and that she was rude to a colleague from another store who was covering at the store. The worker stated that she was absent from work for a number of months due to a fractured ankle but was subject to a disciplinary process on her return in September 2017.

The worker stated that there was an anonymous complaint from a customer which did not refer to her specifically. The worker contends that she could not defend a complaint she knew nothing about. The worker stated that she had sought the statements in relation to the complaint made by the other staff member but these was not provided to her. The worker stated that the allegation was untrue which was proven after CCTV footage of the alleged incident was reviewed. The worker contends that the CCTV footage showed that she did not engage with the other staff member as claimed and was engaged in peaceful picketing at all times. In relation to the on line comment, the worker stated that this was not a complaint, was unsigned, undated and could have been written by anyone at any time.

The worker confirmed that investigation meetings into the alleged incidents took place on 25th September 2017 and 6th October 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 employer upheld the final written warning on appeal. The worker stated that the process was flawed on the basis that the same member of management carried out the investigation and disciplinary process which denied her fair procedures and natural justice and which was in breach of the employer’s own procedures. The worker also stated that the appeal decision was communicated to her by letter on the same day as the appeal hearing took place. The worker contends that this shows that no real consideration was given to her appeal.

The worker also 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 making rude comments to a customer who was crossing the picket line to enter the store and that she was also rude to a colleague from another store who was providing cover at the store.

The employer confirmed that there had been complaints from a customer in relation to how she had been treated as she entered the store and again when she was leaving. The employer stated that a staff member had complained about the “snide” comments she received from the worker and another statement from the store manager supported that complaint.

The employer stated that the investigation meetings which were held on 25th September and 6th October 2017 found that the workers actions were a breach of the serious misconduct policy on the basis of, rudeness or ill treatment of customers at any time, breach of the dignity of work policy and conduct which brings the company’s good name into disrepute.

The employer stated that it conducted a disciplinary process in line with its serious misconduct policy and although termination of employment is an option, the employer decided to issue the worker with a final written warning for a period of 12 months. The employer stated that the worker appealed the sanction in line with procedures but the final written warning 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 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 involved in intimidation, victimisation or a campaign of corporate bullying as suggested by the Union.

In relation to this complaint I find as follows:

The worker was subjected to an investigation process in relation to a number of incidents. She is alleged to have been rude to a customer, who subsequently made a complaint and also rude to a staff member who was covering in that store at the material time. There is also an online comment made about a female whose first name is given (supposedly the worker in this case) and the allegation that she was rude on the day in question. I find that the details included in the online comment are insufficient to elevate it to the status of a complaint of wrongdoing against the worker in this case.

In relation to the written customer complaint, it is anonymous and does not refer specifically to the worker but rather to a group of people on the picket line. There is nothing in the letter that identified the worker or proves that she behaved inappropriately.

In relation to the complaint made by a member of staff and supported in a statement by the store manager, the Union stated that agreed procedures allow for questions to be put to staff in such circumstances but the Union were not permitted to do so. I find that the employer acted at variance with its own procedures on this issue.

In relation to process followed by the employer, I find that it was inappropriate that the same member of management carried out the investigation and the disciplinary process. I also find that there was much to consider at the appeal stage of these particular issues yet the employer conveyed its decision to uphold the final written warning at appeal on the same day that the appeal was held.

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 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 with immediate effect.

Final written warning, grievance procedures