ADJ-00012271

Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retail Supermarket Company

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-00016194-001

07/12/2017

Following industrial action in February 2017 the Complainant was disciplined for alleged conduct that occurred during the period of industrial action against the Respondent. The industrial action was settled in February 2017 by way of an agreement reached in the Labour Court. A term of the agreement was that no recriminations would occur following a return to work. The Complainant was disciplined after the industrial action and received a sanction of a Final Written Warning. The complaint is that this was in breach of the Labour Court agreement, furthermore that the sanction was disproportionate to the alleged offence and lastly that the process of investigation and discipline took excessively long and were in breach of fair procedures.

The remedy sought is that the Final Written Warning of the Complainant be removed from her file.

1.       The Complainant commenced work as a retail assistant in a north midlands town in September 2015

2.       In February 2017 there was nationwide industrial action against the Respondent

3.       Specifically, in 18 February 2017 the Complainant engaged in industrial action outside the shop premises where she was employed

4.       On 24 February 2017 the Labour Court invited the Mandate trade union and the management of the Respondent to enter into discussions about a resolution of the industrial action

5.       On foot of these discussions the industrial action was called off on foot of certain undertakings. A return to work was agreed.

6.       One of these undertakings was that no recriminations would be raised by either parties on a return to work.

7.       The Complainant returned for work.

8.       On the 5th May the Complainant was required by the Respondent to attend an investigation meeting on 9 May 2017. This concerned an alleged incident of “unacceptable conduct” that occurred on 18 February 2017 during the period of industrial action. The specifics of the alleged unacceptable behaviour was not set out in advance of the meeting.

9.       The investigation proceeded on the 9th May 2017 and the investigation officer on behalf of the Respondent was a Ms. AB

10.   At the investigation meeting the Complainant was told by Ms. AB that a customer had made a complaint about her and another staff member whereby the customer reported feeling intimidated and was informed by the Complainant that she “could go to X” [X being a well-known retail shop, which is a competitor of the Respondent]

11.   On 17 May Ms AB issued the outcome of her investigation which was a recommendation that the Complainant be disciplined under the Respondent’s Serious Misconduct Policy under the following headings: rudeness or ill treatment to a customer and conduct that brought the Respondent’s name into disrepute.

12.   Following the investigation, by way of letter of 25 May 2017 the Complainant was required to attend a disciplinary meeting on 2 June 2017 into the allegations that has been discussed at the investigation. The letter of 25 May 2017 did not specify the charge against the Complainant but rather referred to “the unsatisfactory conduct” of the Complainant during the industrial action.

13.   The disciplinary meeting proceeded on 2 June 2017 and the person who conducted the disciplinary meeting was the same Ms AB who had conducted the investigation.

14.   The Complainant’s trade union raised the moratorium on recrimination that had been agreed by union and management at the Labour Court in February 2017 however the Respondent said that this did not prevent the Respondent from disciplining employees for actionable offences which fell outside industrial action.

15.   The disciplinary process continued.

16.   The specific complaints were put to the Complainant during the disciplinary meeting namely rudeness or ill treatment to a customer and conduct that brought the Respondent’s name into disrepute. The complainant denied this in general and in relation to the allegation that she told a customer to “go to X” [X being a well-known retail shop, which is a competitor of the Respondent] she said that so much time had passed she could not recall if she had said this or not.

17.   The outcome of the disciplinary meeting was that Ms. AB decided that the Complainant was found to be in breach of the Serious Misconduct Policy and that the sanction would be a Final Written warning which would stay on her file for 12 months.

18.   The Complainant appealed the decision under the disciplinary policy and the appeal took place on 18 August 2017. The Appeal Officer was Mr BC and the Complainant was represented by a colleague.

19.   During the appeal hearing the Complainant’s representative set out the procedural and substantive unfairness of the sanction which can be synopsised as follows;

(a)    The incident was denied

(b)    The identity of the customer was never revealed to the Complainant

(c)     The alleged incident that should ever have been dealt with under the Serious Misconduct policy as it was an allegation of a minor nature

(d)    The efforts to discipline the Complainant – and many other employees of the Respondent nationally – was in breach of the agreement reached in the Labour Court of 24 February 2017.

(e)    The specific facts of the alleged breach of the serious Misconduct Policy were not given to the Complainant in advance of the investigation meeting

(f)      The Investigator was the same person as the person who conducted the Disciplinary hearing, which proceed wise is inherently unfair and flawed.

(g)    The sanction was disproportionate to the alleged offence

(h)    The appeal was 29 weeks after the alleged incident, which was an inordinate delay.

(i)      This case combined with all the other similar cases around the country arising from the inappropriate use of the Serious Misconduct Policy arising from incidents arising from the industrial action in February 2017 amounts to collective bullying on behalf of the Respondent

20.   The outcome of the appeal was in 7 September 2017 was to uphold the findings against the Complainant and uphold the sanction.

21.   The Final Written warning would remain on the Complainant’s personnel file for 12 months

22.   The WRC complaint under the IR Acts was issued on 7 December 2017 seeking that the Final Written warning be removed from her file

The Respondent’s defence to the complaint was as follows:

1.       On 18 February 2017 the Complainant, with others, was involved in a picket of one of the shop premises which is owned and managed by the Respondent

2.       A complaint was made by a customer who was attempting to shop during the period of industrial action. The customer expressed that she felt intimidated and identified the Complainant who told her to “go to X instead” (X being a competitor retail shop)

3.       On 5 May 2017 the Complainant was invited to attend an investigation meeting which was conducted by an investigation officer Ms. AB

4.       The Complainant was accompanied by her union representative

5.       At the investigation Ms. AB put the specific allegation to the complaint, but when she did so the Complainant’s trade union representative would not allow the Complainant to answer the allegation herself instead he complained that this was corporate bullying. As a result the Complainant did not cooperate with the investigation.

6.       On 17 May 2017 Ms AB recommended that the Complainant be disciplined under the Company Serious Misconduct Policy for rudeness to a customer and conduct which brought the Respondent’s name into disrepute.

7.       On 25 May the Complainant was invited to a disciplinary meeting which took place on 2 June 2017. This disciplinary meeting was conducted by Ms. AB.

8.       However, the Complainant refused to attend the meeting

9.       AS such there was a refusal by the Complainant to engage either in the investigatory or disciplinary process

10.   AS the allegation was not refuted Ms. AB had no option but to make a finding that the Complainant had breached the Serious Misconduct Policy and to apply a sanction of Final Written Warning that would remain on the Complainant file for 12 months.

11.   At the appeal hearing on 18 August 2017 the Complainant’s representative read a statement on behalf of the Complainant but when the Appeals Officer asked if there was anything that she wished to add, she did not.

12.   The Complainant cannot refuse to engage in a disciplinary process and then make a complaint about how that disciplinary process was conducted.

13.   The Appeal decision was issued on 29 August 2017. The Appeal decision was to uphold the disciplinary decision of Ms. AB and uphold the sanction.

14.   On the procedural points raised by the Complainant, the Respondent says as follows:

(a)    The Complainant knew of the allegation made against her

(b)    The Complainant knew that disciplinary sanction might result in a final written warning

(c)     The Complainant refused to engage with the investigation, the disciplinary meeting or the appeal hearing

(d)    The conduct of the Complainant on the day in question was not part of industrial action and therefore was not an act of recrimination as argued by the Complainant

(e)    Industrial Action is the right to protest but it does not include a right to be rude to customers or to suggest that they shop in alternative retails outlets

(f)      The Respondent was fully within its rights to discipline the Complainant for actions of misconduct which brought the Respondent into disrepute.

(g)    The broader points raised by the trade union relate to a nationwide stance that the union have taken on this issue; rather than deal with the specific allegation that was made against the Complainant in this case.

(h)    The trade union should not prevent its members from engaging with a disciplinary process which it is entitled to embark upon.

(i)      The Respondent acted reasonably towards the Complainant and the finding and the sanction were fair and proportionate.

It is accepted that the Labour Court agreement of 24 February 2017 stated that following the return to work that there would be “no recriminations either by or against staff.”

However, I find that this does not preclude the Respondent from investigating instances of misconduct which may have arisen during the industrial action, but did not form a part of the industrial action. Therefore, if there had been an allegation of serious misconduct which fell outside what is normally understood as peaceful picketing in line with the Industrial Relations Act 1990 the Labour Court agreement does not per se restrict the Respondent from taking disciplinary action.

However, in this case I find that the allegation complained of should have been dealt under a less severe heading than Serious Misconduct. This was available to the Respondent to do. At its height the allegation against the Complainant was that she told a Customer to shop in a competitor shop. This does not come within the category of serious offences that are included in the Serious Misconduct Policy. As a result, I find that the Respondent failed to follow their own policy. A final written warning is not a disproportionate sanction to a final of serious misconduct. IT is not the sanction that is disproportionate. It is the categorisation of the offence as being an incident that constituted misconduct that is inaccurate.

Also, the Respondent failed to follow their own disciplinary procedures. The Investigating officer should not have been the same party as the Disciplinary Officer. This is because having decided to recommend that the Complainant be disciplined under the Serious Misconduct Policy, Ms AB should not have been the person who then dealt with the disciplinary hearing. It was reasonable for the Complainant to suspect that the disciplinary process was already decided before it started. Ms. AB’s actual bias, or the perception that she might be biased in favour of following her own recommendation, was not an unreasonable opinion for the Complainant to hold. The appeal process did not rectify this, as it upheld the disciplinary finding and failed to address the bias point raised by the Complainant’s representative during her appeal.

As the allegation did not constitute an act of serious misconduct within the definition of the Respondent’s disciplinary policy and the fact that the procedures of the disciplinary process were not followed, I find this complaint to be well founded.

I recommend that the finding of serious misconduct be removed from the Complainant’s personnel record and that the final written warning sanction similarly be removed.