FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Mr Geraghty Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Restoration of grade and warning rescinded.
BACKGROUND:
2. This matter was referred to the Court by Ms. Lancaster, ‘the Claimant’, under s. 20(1) of the Industrial Relations Act. The Claimant was a Deputy Store Manager with Tesco, ‘the Respondent’. Six colleagues raised grievances against her in November 2017, 2 were withdrawn subsequently. The Respondent opened an investigation, in the course of which a further allegation was made against the Claimant to the effect that she had deliberately processed two colleagues on the payroll system as being on annual leave while they were, in fact, at work, in order to reduce the evident payroll costs. The investigation resulted in the Claimant being found to have breached the Respondent’s Dignity at Work policy in respect of one of the grievances raised and to have failed to complete properly the Respondent’s routine documentation procedures and/or to have falsified documents. Following two disciplinary hearings, the outcome was that the Claimant was found to have committed serious misconduct. Taking everything into account, the Deciding Manager determined that, although such an outcome could result in dismissal, an alternative outcome of demotion to a position of Line Manager was appropriate. The Claimant appealed the decision and the penalty under the Respondent’s internal procedures. The appeal up-held the decision. The Claimant sought to refer the matter to the Workplace Relations Commission. The Respondent refused to attend a hearing stating that they could not do so as the Claimant had not utilised the Respondent’s Grievance Procedure. The Claimant referred the matter to the Court under s.20(1) of the Act.
RECOMMENDATION:
Claimant’s arguments
1. The Claimant has worked for the Respondent since 2000. She had worked her way into management, having started as a Shop Assistant. She has been a Manager for 15 years without ever being subject to disciplinary action for her manner in dealing with staff.2. When these matters were brought to her attention first, the Claimant was advised that she did not need anybody to accompany her and was told that she could not have her trade union official present at a subsequent meeting. She advised the Respondent’s Director of Operations that she was concerned that her Manager was not neutral on this matter due to their poor relationship.
3. During a period of sick leave due to work related stress, she met the Retail Area Manager who asked her to return to work as she was a loyal and strong member of staff.
4. Subsequently, the Claimant was invited to an investigation meeting when, for the first time, she was advised of the potential disciplinary consequences. She believed that the purpose of the meeting was to deal with the grievances raised and was surprised at the additional allegation that she had altered the payroll system.
5. The Claimant denied completely the complaints made by colleagues and gave her account in respect of each incident alleged, details of which were provided to the Court. She refuted also a statement by her Manager regarding an alleged meeting with him, denying that any such meeting took place.
6. The Claimant denied any interference with the payroll system and stated that she did not have the access codes that would have allowed her to alter information on the system. The allegation was made by one of the colleagues who had raised a grievance against the Claimant. She was the only alleged witness. This witness alleged that another Manager had changed the codes in order to prevent the Claimant from accessing the system. This Manager had never reported this to the Store Manager and, although she did confirm this aspect of the allegation to the Investigator, she did not allege to have witnessed the Claimant altering the system. The Investigator never interviewed the Store Manager. Furthermore, the Claimant was only advised of these allegations 11 months after they were alleged to have taken place.
7. Correspondence between the Claimant and the other Manager who alleged that she had changed codes to prevent the access of the Claimant to the system, (which was produced to the Court), did not substantiate any allegation of this sort and, in fact, pointed to some technical problems with the system.
8. The Claimant remained at work during the investigation, contrary to the Respondent’s procedures, carrying out management functions, including the management of staff and at no point was she ever given the dates and times of the alleged interference with the payroll system.
9. The entire disciplinary process was carried out by individuals who were not trained properly.
Respondent’s arguments
1. Serious grievances were raised against the Claimant that required investigation. In the course of that investigation a further serious allegation was made against her. This second allegation was of a breach of an agreement with MANDATE and a potential breach of the Company’s legal requirements under the Organisation of Working Time Act 1997.2. A thorough and fair process was conducted by the Respondent to determine the facts regarding the allegations made and the Claimant was afforded her rights to natural justice and fair procedures, in accordance with the Code of Practice, S.I. 146, of 2000.
3. The Claimant was made aware at all times of the allegations against her, she was provided with an opportunity to respond and to put her version of events and there was a thorough investigation before any decision was made. The Claimant was afforded the right to representation throughout the process and the assessment of the facts and the sanction issued took account of the Claimant’s representations. The process and determination were impartial and the Claimant was afforded, and availed of, the opportunity to appeal.
4. There is no possibility that the interference with the payroll system was a result of an accidental mistake.
5. The Respondent would have been within their rights to dismiss the Claimant having determined through an impartial and fair process that she breached the Respondent’s dignity at Work policy and had failed to follow routine documentation procedures and/or to have falsified documents. These breaches amount to serious misconduct. The Respondent opted for the more lenient penalty of demotion, having considered all factors.It is not satisfactory that a large, reputable employer would refuse to engage with the Workplace Relations Commission in respect of an individual case of this sort. The reason offered for this non-engagement to the effect that the Claimant did not process her grievance through the Respondent’s Grievance Procedure is, to put it mildly, unconvincing. Given the implications of the outcome of the Respondent’s internal investigation and disciplinary process, access to the more informal processes of the Commission, relative to the proceedings of the Court, ought to have been routine.
Recommendation
The Court’s role in respect of matters of this sort is quite clear. If a finding in an internal process is self-evidently at variance with the facts the Court would be required to offer its observations. Otherwise, the Court has to be mindful that it does not have the capacity, nor is it the Court’s role, to conduct its own investigation into allegations of wrongdoing. Rather, the function of the Court is to test the procedures used to reach a decision as to whether or not an allegation is up-held and , if satisfied as to the procedures used, to, as the Employment Appeals Tribunal, (EAT), set out inLooney v. Looney, UD 83/1984‘…consider, against the facts, what a reasonable employer….would have done..’ This is similar to the notion of a ‘band of reasonableness’ in respect of dismissal cases as set out by Denning L in the British case ofBritish Leyland UK Ltd. V.Swift (1981) IRLR 91which holds that within this band one employer might reasonably decide to dismiss while, equally reasonably, another employer might decide the opposite ‘but if a reasonable employer would have dismissed him, then the dismissal was fair’.
In the case ofPacelli v. Irish Distillers Ltd (2004) ELR 25,the EAT set out that any investigation should have regard to all the facts, issues and circumstances surrounding a case warranting serious chastisement or reprimand. The Court is satisfied in the instant case that this was so, having listened to the cases put by both parties.
Therefore, the Court has to consider if the penalty imposed was reasonable. Given the serious nature of the allegations against the Claimant, the Court cannot say that the penalty was unreasonable and is satisfied that it falls within the band of potential penalties that a reasonable employer would impose.
The Court does not up-hold the case made by the Claimant.
Signed on behalf of the Labour Court
Tom Geraghty
LS______________________
08 April 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.