Complainant

Respondent

Anonymised Parties

Store assistant

Health and beauty retail store

Representatives

Mandate Trade Union

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-00013244-001

23/08/2017

The complainant commenced employment with the respondent on 22/9/2007 as a part time store assistant. She is contracted to work 20 hours a week. Her annual salary is €13,769 (€13.24 per hour).

The complainant received a first written warning on 15/2/17 following on an incident on 11/1/17 in a car park which provides discounted spaces for the respondent’s staff. The warning expired in October 2017

The complainant appealed the warning. Her appeal was not upheld.

She submitted her complaint to the WRC on 23/8/17.

The complainant is appealing the written warning which the respondent issued to her on foot of an incident which occurred on 11/1/17.

The complainant has worked as a store assistant with the respondent who owns a chain of stores.

On the 11/1/17, at around 2.20 pm, she arrived at the car park, discovered that she had mislaid her parking ticket, and became very stressed as she had to collect her children aged 2,6 and 12 from school. She explained her problem to the car park attendant and offered to pay the €6, the part time, discounted daily rate required to get the car out. The staff member in the car parking office refused to accept the money until she gave him her car registration. The complainant advised the staff member that she was late collecting her children, did not know her registration number, would have to walk back to the car to get same and would give it the following day and pay the money due.

When this was refused, she then informed him that she had to leave and that she was concerned about the safety of her children. She returned to the car, looked again for the ticket, could not find it, drove to the barrier, buzzed the office, offered €10 and asked for change of €4, promised to give the attendant the registration number the next day and asked to be allowed exit. At this stage, she was late for the collection of her children. They refused to lift the barrier, advising that she had to return to the office with the car registration and €10 the full daily rate. While at the barrier she received a call from her son asking her where she was. She became stressed and fearful, for her children, drove the car around the barrier and exited the car park.

The car park staff member sent a letter of complaint about the complainant’s actions in the car park to the respondent on the same day, asking for €10 (the full daily rate). They stated that she was no longer welcome to use the car park and submitted CCTV footage which the respondent states showed the complainant driving her car around the barrier.

The respondent invited her to an investigation meeting on the 20/1/17. There followed a disciplinary hearing on 1/2/17. After this meeting she was issued with a written warning on 15/2/17 and was also advised that she would lose a bonus payment due to her having received a written warning. An appeal into the sanction was heard on 3/3/17. The respondent’s delay in advising the complainant of the outcome of the appeal prompted her to refer the complaint to the WRC on 23/8/17.

The complainant’s representative argued that the sanction was unfair as

She was falsely accused of being in breach of company policy while representing the respondent and wearing the respondent’s uniform.

The incident occurred outside of her workplace and of her working hours

The incident is a matter between the car park and the complainant There is no contract between the respondent and the car park so therefore there is no breach.

The respondent failed to supply the complainant with the service level agreement which the representative states would classify the carpark owners as suppliers who are to be protected from verbal abuse as set out in in the respondent’s disciplinary procedure.

Breaches of the Data Protection Acts 1998-2003 occurred in that photographic images of her were used for a purpose not intended and without her consent. A complaint has been submitted to the Data Protection Commissioner.

The respondent failed to provide her with their policy on wearing of uniform at social events though the respondent had committed to providing same or with a copy of the terms and conditions for use of car park. This had also been requested.

The complainant at no stage indicated that she was an employee of the respondent.

Due to the warning, she has forfeited her annual bonus of approx. €650. The warning is for 8 months yet the bonus runs over 12 months. In a separate action, she is challenging the loss of the bonus through the grievance procedure. This is the first year which she didn’t attract a performance rating of sufficient strength to merit a bonus payment. She received it in 2016.The complainant stated that the store manager advised her that she hadn’t received sufficient support in her role.

The complainant’s representative stated that the respondent charged the complainant with a breach of company policy while wearing the uniform at the disciplinary hearing. He requested a copy of this policy. The respondent could not source this policy but assured the complainant that they would send it to her. The respondent’s letter of the 15/2/17 informing her of the outcome of the disciplinary meeting advised the complainant that she had breached a policy concerning serious misbehaviour towards suppliers. This replaced the previous charge of a breach of the policy concerning behaviour while wearing company uniforms. The breach of the policy concerning behaviour towards suppliers was not put to the complainant at either the investigation meeting on the 20/1/17 or the disciplinary meeting held on 1/2/17.

The respondent issued a warning to the complainant on foot of an incident which occurred in the carpark at the disposal of the respondent’s employees in the shopping centre housing the

respondent’s shop on 11/1/17.

The complainant finished her shift at 2pm on that date. She then spent some time shopping in the shopping centre. The complainant had mislaid her parking ticket. She then requested the car parking attendant to accept the usual discounted rate of €6 which she had paid the day previously. The attendant told her that as she did not have the ticket he would have to charge her €10- the discounted rate for a full day. The respondent states that the attendant suggested as an alternative that she give her registration number so he could check the hours during which her car was parked and charge her accordingly. The day rate chargeable to the public is €30.

The respondent advises that the complainant used “foul Language”, calling the attendant a” dick head”. The complainant stated that she used a variant.

The respondent states that the complainant who was behind the exit barrier in the car park, then drove on to the adjacent footpath and circumvented the barrier and exited without paying.

The car park reported the incident to the store manager.

The respondent invited the complainant to attend an investigative meeting to examine 2 matters:

1.Her name calling of the car park attendant

2.Driving over the footpath and around the barrier without paying the parking rate.

She was also advised of the possibility of disciplinary action following on the investigative meeting.

The investigation meeting took place on the 20/1/17, The complainant was accompanied by a colleague, was invited to make a response to the accusations put to her and to submit any mitigating circumstances. At the meeting the complainant did not dispute that she had used inappropriate language to the car park attendant on 11/1/17. She advised that she had been under pressure; her son was having difficulties with a fellow student and she was late collecting her children. She believed herself to be a valued customer of the car park, parking her car there 300 days a year.

The matter was advanced to a disciplinary hearing which took place on 1/2/17, and conducted by the store manager of one of the respondent’s other stores. An outcome of that disciplinary hearing was conducted on 15/2/17 at which the complainant was represented by her union official.

She was issued with a first written warning to remain on her file for a period of 8 months. That 8 months has now elapsed.

The respondent’s representative argued that the disciplinary process was conducted in strict compliance with the procedure. The delay in issuing the finding of the disciplinary hearing was an administrative error- nothing intentional.

While the complainant may claim to have used a slight variation on the term describing the car park attendant, it is not disputed that she used inappropriate language towards hi. This, coupled with her refusal to pay the full daily rate damages the relationship, the respondent believes, between the respondent and a supplier. The respondent argued that the complainant was clearly identifiable as an employee of the respondent in that discounted parking rates were offered and sought.

The respondent’s disciplinary policy classifies verbal abuse towards a supplier as gross misconduct and this was the basis for issuing the first written warning.

The respondent relies on Game Retail Ltd. V Laws UKEAT/0188/14/DA, an appeal against the Judgement of Newcastle – On -Tyne Employment Tribunal that the dismissal of the claimant was unfair. It is claimed that this case is analogous to the within dispute. Though contested by that claimant it was accepted that his persistent release of hostile, aggressive and obscene twitter messages damaged the reputation of the company and that he was clearly linked with the company. The UK EAT remitted the case back for consideration by another Employment Judge to decide on the range of reasonable responses and the application of that test in relation to the sanction.

The car park is a supplier of the company.

The respondent advised that the payment of a bonus was conditional on a performance appraisal which was conducted in August for the year 31/8/16- 31/8/17 and was due on November 2017. Irrespective of the first written warning, the complainant didn’t meet the performance standard necessary to   earn the bonus An employee can appeal the outcome of an appraisal.

The respondent argued that their case should be accepted.

The central facts are not in dispute. The complainant circumvented the exit barrier from the car park without paying the fee on 11/1/17. She used an abusive term towards the car park attendant. She later paid the fee of €10.

She was taken through a disciplinary process which resulted in her being issued with a first written warning.

While there was no lack of clarity as to incidents / behaviours which she was asked to address, there was a lack of clarity and consistency as to which policies had been breached by virtue of these behaviours. The alleged specific breach of the policy towards the suppliers was not put to the complainant at either the investigative or disciplinary meeting. First it was the wearing of uniforms while at work policy and then it changed post the disciplinary meeting to an alleged breach of an agreement with the suppliers. This put the complainant at a disadvantage.

It was a once off incident of unacceptable behaviour which does not reflect well on the

complainant. Her own evidence indicates that she was under self-induced pressure to collect her children and this led to behave in this way on the 11/1/17. The notes from the meetings with the respondent indicate that she was fearful for the safety of one of her children who had been threatened. The respondent did advise her of an employee assistance service.

The respondent in applying the disciplinary code have distanced themselves from the actions of the complainant so what damage may befall them on the basis of one improper act of behaviour on the part of one employee is uncertain. Presumably the company disassociated itself from her actions.

The case on which the respondent rely -Game Retail Ltd. V Laws UKEAT/0188/14/DA, is a complaint of unfair dismissal – a different statute with a more prescriptive process and outcomes than that available under the Industrial Relations Act, 1969. It concerned persistent circulation of extremely abusive and hostile tweets by a per with a management function. I accept that the complainant in the within case was identifiable as a n employee of the respondent perhaps not by the visibility of the uniform but via the discounted ticket, I accept that her behaviour is unhelpful to the respondent but damaging is a step further. That is where the connection ends.

The respondent’s disciplinary procedure allows for two steps before the provision of a first written warning. Step one is a verbal caution or letter of concern. Step 2 is a verbal warning of 6 months’ duration. The respondent’s decision to issue a first written warning automatically results in the loss of a bonus of approximately €850 for an entire year. The respondent advised that the complainant did not meet the performance standard required to merit a bonus in the 2017 year aside from the incident on the 11/1/17. I note that this matter is under appeal and that this is the first year which she has not received a bonus.

An oral warning was an option open to the respondent.

The first written warning has now expired. Based on the evidence submitted and in all of the circumstances, I find that a verbal warning would have been a more appropriate sanction.

I recommend that her eligibility for the bonus should be unaffected by the first written warning which has now expired.

First written warning; behaviour outside of working hours;automatic loss of bonus