LCR21966

• “The Complaint is well found and I recommend that the Final Written Warning should be expunged from his record"

The Employer is a retail company. The Worker is a member of his union’s National Executive Committee (NEC). In the course of an industrial dispute in February 2017, the Worker attended the picket lines at stores other than where he was employed in his own time. The store where he worked was not participating in the industrial action at the time. The Employer disciplined the Worker, following a disciplinary procedure, on the grounds that he had engaged in ‘unofficial industrial action’. The sanction, which issued in June 2017, was a Final Written Warning to remain live on his personnel file for 12 months. This was up-held on internal appeal. The Worker referred the matter to the WRC. The Adjudication Officer found in favour of the Worker, noting the argument made that, as a member of his union’s National Executive Committee, he is an officer of his union and is , therefore, entitled to picket in accordance with s. 11,(5) of the Industrial Relations Act, 1990 and noting also that he had done so in his own time. The recommendation was that the Final Written Warning should be expunged from the Worker’s record.

The Employer appealed this finding to the Court.

Employer’s arguments

1 The Worker was awarded a lenient sanction, having engaged in unofficial picketing, which had the intention of causing damage to his employer.

2 The Adjudication Officer erred in his finding that membership of the union’s NEC conferred ‘immunity’ on the Worker under s.11,(5) of the Act and in finding that behaviour which could have the effect of damaging the business of his employer did not warrant the employer taking appropriate disciplinary action. The Worker is not an officer of his union. The rules of the union specify that the officers are the President, Vice-President and three Trustees. The Worker is an ‘ordinary’ member of the NEC.

3 The disciplinary sanction has since expired. However, the finding of the Adjudication Officer that membership of a union’s NEC confers rights under s.11(5) is at odds with the legal requirements and would render the legislative provisions governing trade disputes null and void for all employers in similar circumstances in the future.

4 The Employer was entitled to conduct a disciplinary process in respect of any actions that were considered to be outside what is acceptable in such circumstances. The right to engage in properly sanctioned and appropriately conducted industrial actions is not disputed. However, trade unions and their members must conduct themselves within the law. The Worker in this case was not covered by strike notice and was involved in unofficial and inappropriate action that did not concern him in his store.

Union arguments

1 The Worker is covered by the immunities provided under s. 11(5) of the Act as an elected member of the union’s NEC and thereby an officer of the union. That section reads;

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 a union.

The previous section of the Act, s11(4) makes it lawful for a trade union official to picket.

2 The Adjudication Officer was correct in his findings regarding the Worker’s legal immunities and in noting that the Worker had picketed in his own time. The union’s rules state that ‘ordinary’ members of the union NEC ‘hold office’, which copperfastens the point that the Worker is an officer of the union, within the meaning of s.11(5).

3 The Employer deliberately and unnecessarily prolonged the appeals process contrary to their own procedures.

4 The Investigating Officer was not suitably qualified to conduct the investigation and he ignored key pieces of factual information.

5 The actions of disciplining a Worker for picketing within his legal rights and in his own time breached the legislation applicable. The Final Written Warning should be expunged from the Worker’s file.

Deliberation

It was only disclosed and confirmed to the Court by the union during the hearing of this appeal that the Worker had, in fact, been also an elected officer, the Vice-President of his local Division/Branch of the union, at the time of the industrial dispute and was, thereby, undoubtedly covered by the immunities provided under s.11(5) of the Act.

The Employer, while aware of the Worker’s membership of his union’s NEC at the time, was not aware that he was, at the time of the dispute, also an elected officer of his local Division/Branch. The Employer then accepted at the hearing, subject to formal confirmation to substantiate this, that this conferred on the Worker the immunities provided in the Act. Formal confirmation of this fact has since been received to the satisfaction of the Court. As an elected Branch Officer, the Worker has a legal right to attend pickets at places other than his own place of employment in his own time in support of lawful industrial action by his union.

The Court finds it most regrettable that the fact that the Worker was an elected officer, the Vice-President of his local Division/Branch of the union at the time of the dispute, was not disclosed and confirmed by the union to the Employer at the material time. Had the union done so, it may well have resulted in no action being contemplated or taken against the Worker and it could have avoided the need for the resulting claim and this appeal.

Notwithstanding this clarification, the Employer wished to pursue the appeal on grounds that the Worker had acted in a way that was designed to be harmful to his employer. The Court is, therefore, obliged to issue its decision.

It is clear that the disciplinary action taken against the Worker arose in circumstances where the Employer was unaware of the Worker’s position as an officer of his Division/Branch of his union at the time of the dispute. However, notwithstanding the Employer’sbona fides,given the Worker’s protected status under the Act, it is clear that the action taken against the Worker was misconceived and mistaken.

Both parties sought a decision from the Court as to the legal status conferred on the Worker by virtue of his membership of the union’s NEC. The Worker’s status as an elected Branch officer confers the protections of the Act on him and it is not necessary for the Court to go further on that matter.

The secondary argument of the Employer, to the effect that even if the Worker was entitled legally to attend a picket, in doing so his actions were damaging to his employer, raises a number of points.

Firstly, the protections afforded by s.11 of the Act have to be read in conjunction with s.10(2), which reads;

An act done in pursuance of an agreement or combination by two or more persons, if done in contemplation or furtherance of a trade dispute, shall not be actionable unless the act, if done without any such agreement or combination, would be actionable.

Clearly therefore, the Act is intended to offer wide legal protections to lawful actions taken in furtherance of lawful industrial action. In that spirit, it is difficult to see how the Employer in this case could have any basis for disciplinary action against an employee who in his own time did something that is permitted expressly in the Act and for which he enjoys a wide range of legal immunities.

Interestingly, neither party sought to rely on an argument that the point is moot although the Final Written Warning has expired. In fact, the Employer revealed that expired warnings are left on personnel files as it is an administrative inconvenience to remove them. This does not strike the Court as good practice. In the circumstances of this case, as disciplinary action ought not to have been imposed, the Court is of the view that the Final Written Warning should be removed physically from the Worker’s file and that this should be confirmed to him in writing.

Decision

The decision of the Adjudication Officer that the Worker enjoys the protections of the 1990 Act is upheld but on the different basis outlined above. Therefore, the Worker should not have been the subject of disciplinary action. In this case, the Final Written Warning should be removed physically from the Worker’s file and he should be advised in writing that this has happened.

Signed on behalf of the Labour Court



Tom Geraghty
TH______________________
12 April 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.