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-00022917-001

30/10/2018

The complainant has been employed as a Sales Assistant since September 2000 and works in a branch of the respondent’s retail business. The complainant is also an elected senior officer of his Trade Union.   There was an official trade dispute which involved members of the Trade Union in a number of the respondent’s outlets engaging in strike action. The branch where the complainant worked was not involved in the dispute but the complainant attended picket lines in his own time and in his capacity as an officer of the Union. He was disciplined for this action by the respondent and received a final written warning. He is appealing this decision.

The complainant’s participation in the industrial action occurred in his capacity as an elected officer of the Union and on his own time.

He did not engage in unofficial industrial action.

The disciplinary procedures which resulted in the imposition of a Final Written Warning were flawed.

The complainant worked in a store that was not covered by the official strike notice served by the union and where staff had voted against industrial action.

The complainant took part in unofficial industrial action by participating in picketing at another store.

The respondent acted in line with their procedures and the sanction imposed on the complainant was appropriate.

The warning is no longer live and therefore the respondent has no claim to answer.

In January 2017 members of the union employed pre-1996, who were employed by the respondent, rejected a Labour Court Recommendation regarding issues that had arisen between themselves and their employer. Resulting from this the union advised management that attempts to implement changes without agreement would result in ballots for industrial action being organised in stores across the country. In February 2017 the union began serving strike notice naming the store locations at which picketing would take place. The store in which the complainant worked was not one of the stores listed in this regard. Picketing took place at those locations but following intervention by the Labour Court the industrial action was suspended on 24 February 2017.

On 3 March 2017 the complainant was invited to an investigation meeting “concerning an allegation that you partook in unofficial industrial action.” The hearing took place on 9 March and the complainant was represented by his union official. The specific allegation was to the effect that the complainant had participated in a picket on a store where staff had taken industrial action. The complainant’s representative advised that the complainant had attended the picket in his own time and in his capacity as a senior office of the union. The hearing was conducted by the store manager.

The outcome of the investigation was the finding that the complainant had engaged in activity that was damaging to the business of the employer and that there should be a disciplinary hearing in this regard. This hearing took place on 31 May with the complainant again represented by his union official. This hearing was also conducted by the store manager. The outcome was that the complainant was issued with a Final Written Warning to stay on his file for a period of 12 months. In the outcome letter dated 8 June it specifically stated that “the matters under consideration at your disciplinary hearing were: Your engagement in unofficial industrial action”. The complainant appealed this sanction at a hearing held on 12 July but the appeal was unsuccessful.

The complainant’s representative raised the issue of the disciplinary procedures being flawed and, in particular, highlighted the situation whereby both the investigation hearing and the disciplinary hearing were conducted by the same person. The respondent argued that it was not prejudicial for these functions to be performed by one and the same person.   In the outcome letter following the investigation the store manager issued definitive findings including that the complainant engaged in unofficial industrial action, that he had engaged in activity that was damaging to the business of his employer and that his participation in unofficial industrial action was a failure to comply with his obligations to his employer. Given these findings it could not be held that the same person could conduct a non-prejudicial disciplinary hearing.

The issue raised by the respondent was that the complainant contravened the legislation governing trade disputes regarding the withdrawal of labour because he was not covered by the strike notice (his home store had not voted in favour of taking industrial action) and therefore was not legally entitled to picket at any of the respondent’s stores. I note that the complainant did not withdraw his labour at any time during the dispute. Any participation was done in his own time. The other matter is in regard to the specific position of the complainant in his role as a senior national officer of his trade union. Section 11 of the Industrial Relations Act, 1990, deals with peaceful picketing. In particular Section 11(4) states:

It shall be lawful for a trade union official to accompany any member of his union whom he represents providing that the member is acting in accordance with the provisions of subsection (1) or (2) and providing that such official is attending merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.

Section 11(5) states:

For the purposes of this section, “trade union official” means any paid official of a trade union or any officer of a union or branch of a union elected or appointed in accordance with the rules of the union.

A national officer obviously represents union members on a national scale and it therefore appears to me that in attending an official picket of his union on his own time the complainant was not in breach of the Industrial Relations Act, 1990, but was acting within its parameters.

The other issue raised by the respondent is that the Final Written Warning was issued to the complainant on 8 June 2017 and that it was to remain active on the complainant’s personnel file for a period of 12 months. It had therefore expired at the time the complaint was submitted to the WRC on 30 October 2018. The Labour Court considered a similar matter involving the respondent in Labour Court Recommendation, LCR21862.   In that recommendation the Court stated:

The Court is asked to give a decision in relation to a final written warning that was issued to the worker on 14 July 2017. The disciplinary procedure of the Respondent provides that a final written warning shall “remain on the staff member’s personnel file for 12 months.” On plain reading therefore, the procedure makes no provision for the warning to remain on that file for a day longer than 12 months. The Court finds therefore that the warning has no existence following the lapse of 12 months from the day of issue.

The Court went on to state that “the parties should accept that the matter was resolved as an industrial relations matter on 13 July 2018 when the impugned warning ceased to have existence”. It is obvious that similar facts pertain to the case before me.

I recommend that the parties accept that the matter was resolved as an industrial relations matter on 7 June 2018 when the impugned warning ceased to have an existence.