ADJ-00011302

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00011302

Parties:

 Complaint(s):

 Date of Adjudication Hearing: 19/06/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

Background:

The claimant is employed by the respondent since July 1988 as a General Assistant. The claimant was the subject of the respondent’s disciplinary procedures for alleged breach of the respondents Internet Use and Social Network Policy and alleged partaking in unofficial industrial action, which imposed the sanction of Final written warning on his employment file. It was submitted on behalf of the claimant that the sanction imposed was excessive in the circumstances and that the principles of natural justice were not afforded to the claimant.

The respondent submitted that a full and fair investigation took place in line with fair procedures.

Alleged partaking in unofficial industrial action:

The claimant readily admitted to being present at Tralee but stated on numerous occasions that it was merely in a supportive capacity. The respondent assessed on the basis of photographic evidence that the claimant was partaking in unofficial action.

Alleged breach of Internet Use and Social Network policy:

The respondent, after an investigation decided that the claimant’s social media comments were in breach of the respondent’s policy on internet usage and social network policies.

Findings:

Both parties made written and verbal submissions at the hearing.

The application of the principles of natural justice is fundamental in the operation of a process which can impose sanctions on an individual to the possible detriment of their employment status.

In examining the evidence, I find that the respondent failed to follow their own policies and procedures in relation to dealing with such issues. Apart from a number of minor technical breaches of the principles of natural justice, two major breaches occur that clearly call into question the findings and conclusions of the investigatory and discipline processes.

1. There was no separation of processes by the respondent during the investigation and discipline stages. In having the same individual carry out the investigation and disciplinary process, there was no separation of process, thereby creating a question of impartiality and integrity.
2. The claimant was not afforded the right or opportunity to put forward a proper defence due to the withholding of evidence by the respondent. The CCTV evidence may or may not have supported the claimant’s version of events, thereby denying him a fair and transparent process.

In relation to the alleged breach of the respondents Internet Use and Social Network Policy, I find, having examined the respondent’s policy and Top 10 Do’s and Don’ts for using Social Media Colleague Guide, it hard to equate the claimant’s comments to a breach of the respondent’s policy. I find in fact, that the claimant acted within the respondent’s policy insofar as the respondent’s policy is open to interpretation by virtue of the following, “WOULD I SAY THAT/SHOW THAT PICTURE TO MY MANAGER?” IF YOU HAVE TO THINK TWICE...DON’T POST IT!

10)Remember: you are responsible for what you post. Use your common sense and adhere to the Tesco code of conduct.

Clearly at the time the dispute between the respondent and claimant’s union received national attention not only from social media but by national newspapers and TV, furthermore I find the claimant gave a reasonable explanation for his comments and by virtue of the fact that his comments were not anonymous then I believe the claimant acted in accordance with the respondent’s policy and with the foregoing extracts from the respondents Policy.

Having taking into consideration the evidence as presented I have made the following decision.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

That the Final written warning be expunged from the claimant’s employment file if it has not already been done though the efflux of time

Dated: October 5th 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: