LCR21978

• “I believe the Respondent was justified in issuing the Complainant with a Final Written Warning. The Complainant’s participation in industrial action was unofficial and unauthorised.
  
  It is noted that the Final Written Warning issued to the Complainant expired on 8th June 2018 and at hearing it was accepted by the Respondent that it would be removed from the Complainant’s record and not be brought up in future. As part of my Recommendation I ask that the Respondent confirms this fact, in writing, to the Complainant”.

This matter came before the Court by way of an appeal brought on behalf of the Complainant (‘the Worker’) against a recommendation of an Adjudication Officer (bearing reference number ADJ-00011455 and dated 8 August 2018) under section 13 of the Industrial Relations Act 1969 (‘the Act’). The Worker’s Notice of Appeal was received by the Court on 13 August 2018. The Court heard the appeal in Dublin on 24 January 2019.

The Worker is employed by Tesco Ireland Limited (‘the Respondent’) as a Customer Assistant in its Arklow store. She is a member of the Mandate Trade Union (‘the Union’). The Union conducted a ballot of its members on 29 January 2017 in respect of proposed industrial action. The outcome of the ballot favoured industrial action. The Union, therefore, served written notice of such industrial action on the Respondent on 9 February 2017. On foot of that written notice, the Union placed an official picket on four of the Respondent’s stores commencing on 17 February 2017. The Greystones store was one of the four stores affected. No picket was placed at the Arklow store. The Worker and a number of her colleagues from the Arklow store participated in the picket at the Greystones store as a consequence of which the Respondent commenced disciplinary proceedings against the Worker (and the colleagues in question). The outcome of the disciplinary process (upheld following an internal appeal) was a decision to impose a final written warning of twelve months’ duration on the Worker on the grounds that she had participated in unofficial industrial action and had been absent without leave from work. That sanction took effect from 8 June 2017 and had, therefore, expired prior to the hearing before the Adjudication Officer on 21 June 2018.

The Worker requested the Adjudication Officer, nevertheless, to direct the Respondent to expunge the record of the final written warning imposed on the Worker from her personnel file as the disciplinary action which resulted in that sanction was unwarranted and unfounded in circumstances where the Worker had taken part in lawful industrial action in furtherance of a bona fide trade dispute. The Adjudication Officer found that the Respondent was justified in issuing the Worker with a final written warning. He further found that the Worker’s participation in the picket at the Greystones store was unofficial and unauthorised. However, the Adjudication Officer noted in his Recommendation that the Respondent had stated that it would remove the Final Written Warning from the Complainant’s file. He also specifically requested the Respondent to confirm to the Worker, in writing, that this had been done. In bringing this appeal, the Worker has requested the Court to rule on the merit of the sanction imposed on her by the Respondent and to vary the Adjudication Officer’s Recommendation and to find that the sanction should not have been imposed on the Worker at all.

The Respondent submits that there is no case to be heard on the appeal as the disciplinary sanction it imposed on the Worker has long since expired. Notwithstanding that, the Respondent also submits that the final written warning was an appropriate sanction to have imposed on the Worker having regard to what it regarded as her illegal participation in unlawful industrial action.

Discussion and Decision

The Court is of the opinion that the Adjudication Officer erred, as a matter of law, in his interpretation of the relevant provisions of the Industrial Relations Act 1990 (‘the 1990 Act’) and their application to the facts which give rise to the within proceedings. It is clear to the Court that the picket in which the Worker participated was undertaken in full compliance with the requirements of the 1990 Act and constituted at all times lawful, official industrial action and the Respondent had been notified in writing to that effect in advance by the Worker’s Union. It follows that the Respondent’s decision to commence disciplinary action against the Worker was unjustified and inappropriate. Ipse forte, the outcome of that disciplinary action – the Final Written Warning – should never have been placed on the Worker’s personnel file and, therefore, the record of that warning should be removed from the file.

For the foregoing reasons the appeal succeeds and the Adjudication Officer’s Recommendation is varied accordingly.

The Court so decides.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
26 April, 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.