Complainant

Respondent

Anonymised Parties

An Employee

A Retail Department Store

Representatives

JohnCartyMandate Trade Union

Ronnie LawlessIBEC

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-00016688-001

09/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016688-002

09/01/2018

The Complainant commenced employment in the Respondent’s retail store on 4 October 1990 when it was owned by a previous enterprise. The business was acquired by the Respondent in 2006.

The Complainant, who works as a Stock Movement Assistant, lodged her complaint with the WRC, under the Industrial Relations Act, 1969, on 9 January 2018.

The complaint consists of two elements:

CA-00016688-001 – the contesting of a Final Written Warning issued on 6 October 2017 and

CA-00016688-002 - the Complainant’s non-eligibility for bonus payments, including a Christmas bonus, for the duration of this warning.

Background:

It was submitted on behalf of the Complainant that, on 15 September 2017, as she was leaving the premises with a work colleague, she participated in a staff search, which was conducted by her Supervisor and the Loss Prevention Officer.

During the search, Complainant was requested to open her handbag. On the basis that during any previous searches, she was never required to open a handbag for examination, the Complainant declined to comply with this request on this occasion.

It was submitted on behalf of the Complainant, that the next she heard of the matter was when she reported for work on the following Monday, (18 September 2017) and was immediately suspended. According to the Complainant’s evidence, the suspension was followed with a suspension letter (typed on 15 September and signed on 18 September) which accused the Complainant of the following breaches of procedure:

1.       Failure to comply with a legitimate and reasonable request.

2.       Failure to comply with a star search.

3.       Refusing to carry out legitimate instructions.

4.       Failure to comply with Company Profit Protection policy particularly relating to staff searches.

According to the Complainant’s submission, she was then subjected to a disciplinary process which, on conclusion, imposed a sanction of a Final Written.

Complainant’s arguments in relation to the Staff Search:

In submissions made on behalf of the Complainant in relation to the Staff Search, reference was made to the Respondent’s “Profit Protection Guidelines” and another document entitled “Searches Log”. It was submitted, on behalf of the Complainant, that staff have to sign the “searches logs” when a search is fully completed. It was further submitted that neither of the documents referred to above make any reference to the searching of “handbags”.

While it is accepted by the Complainant that the Respondent’s Staff Handbook does make reference to the searching of handbags, it is her contention that while she was subject to staff searches in the past, she never had her handbag searched. In this regard, it was submitted, on behalf of the Complainant, that the Respondent was not in a position to produce any witness statements or CCTV footage to directly contradict the Complainant’s contention that she never had her handbag searched in previous searches.

In support of her contention in this regard, the Complainant referred to the following comment which is contained in her Final Written warning – “I have noted the point raised regarding people signing a “bag search” log when they haven’t had a bag searched. Albeit, they are signing to confirm that they have been asked and have passed through the search, they have not had the bag searched”.

Based on the above, the Complainant is contesting the sanction is imposed.

Complainant’s claim that Management abdicated their responsibility in relation to “Staff Searches”:

It was submitted, on behalf of the Complainant, that, in the context of document confusion and the practice of not searching handbags in the past, this was tantamount to Management’s abdication of their responsibilities in this regard.

According to the Complainant’s representative, it is standard management practice for a supervisor, who is confronted with what they interpret as a failure to comply/refusal of instruction, to advise the employee of the likely consequences there and then. In her evidence, the Complainant stated that neither the Supervisor nor the Loss Prevention Officer challenged her when she declined to have her handbag searched. It was further contended, on behalf of the Complainant, that, during the investigation/disciplinary process, it was clear from the CCTV footage that there was time for either of the Respondent’s representatives, on that occasion, to have challenged the Complainant with regard to her actions, but neither did.

In further evidence in this regard, the Complainant referred to a previous referral to the WRC, whereby it was clearly established that the member of management on that occasion informed the employee that he was to report to his line manager in advance of starting his next shift. However, in the within case, it was submitted that the Complainant was suspended without warning when she arrived for her shift on the following Monday morning.

In conclusion on this aspect of the complaint, it was submitted, on behalf of the Complainant, that the Respondent has responsibility to ensure that its agents, conducting staff searches, are fully trained in what to do in all likely circumstances and to respond immediately in an appropriate manner as per Company procedures. It is further submitted that this whole issue has shown that the practice of staff searches in the Respondent’s store does not match their policies.

Complainant’s arguments re non-eligibility for Bonus payments:

The second aspect of the Complainant’s claim relates to the linking of the payment of the Christmas Bonus to the disciplinary procedures. According to the Complainant’s representative, the Respondent does not have the authority to link the payment of the Christmas Bonus to the disciplinary procedures for staff who were employees of the previous enterprise, prior to its takeover by the Respondent.

In support of the Complainant’s contention in this regard, reference was made to the Staff Handbook, of the previous employer, where it was stated as follows in relation to the matter of the “Christmas Box”:

“In appreciation of the extra effort at Christmas and in respect of ongoing change, a Christmas box is paid to all employees with more than four weeks service on behalf of the company. This is paid directly into your bank account separately to your wages and are subject to tax. This is calculated over an annual period of hours worked and your position on the pay scale.”

It was submitted that the above policy contrasts with that which applies to employees, hired by the Respondent since the transfer of the business, whose Christmas Bonus is performance linked, as follows:

“Staff whose performance is considered to be below standard (or who are under a disciplinary warning at the time the bonus is paid) are not eligible to receive payment.”

Reference was also made on behalf the Complainant to the wording of the Respondent’s Disciplinary Procedures, which states as follows:

“Proper procedures are an aid to good management. This procedure is designed to help and encourage everyone to achieve and maintain the required standards of conduct and job performance and applies to everyone employed in the Company. It is our responsibility to ensure that disciplinary practices and procedures are effective, fair, well understood and consistently applied and that issues are resolved within a reasonable timeframe.”

The Complainant’s representative contends the fact that the specific wording “….the procedure is designed to help…”  connotes that it is designed to be corrective as opposed to punitive. Reference in this regard was also made to the previous employer’s Staff Handbook which similarly states that its disciplinary procedures are corrective as opposed to punitive.

Based on the above, it was submitted, on behalf of the Complainant, that the denial of bonuses, including the Christmas bonus, is punitive in a financial sense and also that the employee is being punished twice for the one offence.

In conclusion, it is submitted on behalf of the Complainant that the issuing of a final written warning and the additional punishment of withholding the Christmas Bonus arose from the following – (1) confusion over the company’s numerous right to search policies, (2) the practice that existed in this particular store did not match the Company’s policies and (3) an abdication of managerial responsibility at three levels – supervisory, store level and corporate level.

It was contended that these three breakdowns in managerial responsibility resulted in the scapegoating of the Complainant, which is a further lapse of good management practice.

The Complainant contests the withholding of the Christmas bonus on the grounds that the final written warning is illegitimate based on the foregoing reasons and, furthermore, because (1) the Complainant’s status as an employee of the previous owner, (2) the punitive as opposed to the corrective nature of such a practice and (3) the adjust principle of double jeopardy.

Based on the above, the Complainant is seeking a favourable recommendation that the warning be expunged, and payment of the Christmas Bonus be restored.

Background:

The Respondent provided a detailed submission in relation to the events of 15 September 2017 and the subsequent investigation/disciplinary procedure which followed as a result. The detail in this regard is consistent with that set out on behalf of the Complainant and is clearly not in dispute.

Respondent’s submission in relation to the Staff Search:

The Respondent submitted that, when the Complainant stated she had personal items in her handbag, which she did not wish to show, the Supervisor acknowledged her right to privacy but stated that the searches, which are standard practice, only asked for bags to be opened. It was further submitted that the parties conducting these searches do not go through the contents of anyone’s bag/belongings.

The Respondent submitted that this is well known and accepted as the status quo for these searches. It was further submitted the policy also sets out that if any employee wishes for a search to be completed in private, it is their entitlement to request this. However, it was contended that no such request was made on this occasion and the Complainant left the building refusing the search.

In conclusion, the Respondent stated that they have a clear policy in place regarding staff searches. It was submitted that the search is a common practice and well known within the Company. In particular, it was submitted that, in this instance, a long serving employee refused to comply with the staff search on the date in question and the Company must take the associated inference such a refusal implies and act upon it.

Respondent’s submission in relation to the Disciplinary Procedures:

It was submitted, on behalf of the Respondent, that all aspects of the disciplinary process were conducted in line with the Company Disciplinary Procedures and that the principles of natural justice were applied at all stages. In support of this position, the Respondent stated that the Complainant:

·         was afforded the right to representation at all stages of the process

·         was informed of the allegations against her at all stages of the process

·         was given ample opportunity to state her case

·         was informed of the possible disciplinary outcome of the procedure

·         was given the right to appeal the outcome of the process

In conclusion, the Respondent stated that, at all times throughout the process, they were reasonable and thorough in gathering/reviewing the information available to them. The Respondent also stated that at all times in the process they followed extremely fair procedures and issued a sanction believed to be appropriate to the act.

Consequently, on the basis that the burden of proof  had been clearly discharged, on the balance of probabilities, and that their position that a Final Written Warning and non-payment of bonus is the appropriate sanction in this instance, the Respondent requested that their position be upheld in this regard and that the Complainant’s appeal under the Industrial Relations Act, fails.

Staff Search/Disciplinary Procedures: (CA-00016688-001)

Having carefully considered all of the evidence adduced in relation to this element of the Complainant’s complaint, I am satisfied that the conducting of searches of staff are a common feature of the retail sector. In fact, one cannot disagree with the Respondent’s contention that retailers could not survive without these random searches. Therefore, I am satisfied that the Respondent, in line with similar employers in the sector, have the right to conduct such searches.

However, notwithstanding the above, I am also satisfied that such searches should be carried out in line with clearly set out and well communicated guidelines or policies, so that all parties fully understand their rights and obligations in this regard.

From the evidence adduced in this case, I am satisfied that the Respondent has such a policy in place. In this regard, I note Section 10 of the Employee Handbook, under the heading “Loss Prevention”, sets out the “right of search” as follows:

“We reserve the right to search you or belongings, in your presence, at any time while you are on Company premises. In doing so, no accusation is being made.

Searches are only carried out by two appropriate staff, one of which must be of the same sex as you. Examination of parcels, bags, handbags, vehicles, etc is carried out with the maximum amount of discretion. You may request that:

·          You are accompanied by another member of staff

·         The searches conducted in private

Failure or refusal to comply fully with search procedures leaves you liable to disciplinary action, up to and including summary dismissal.”

Consequently, based on the above, I am satisfied that the Respondent was entitled to seek to search the Complainant’s handbag on the occasion in question. Further, I am satisfied that, based on the Complainant’s failure to cooperate with the search, the Respondent was within their right to initiate disciplinary procedures in accordance with the above stated policy.

However, notwithstanding the above, I accept the Complainant’s evidence that, despite having been searched on a number of previous occasions, this may have been the first time that she was requested to have her handbag included in such a search. I also accept the Complainant’s evidence that there may have been confusion in relation to management’s right, based on the policies, to make such a request.

Consequently, in that context, and taking the Complainant’s bona fides in this regard into account, I am of the view that the sanction imposed by the Respondent in this case, that of a Final Written Warning, may be somewhat harsh, in the circumstances.  Were the sanction still operative, I would be of a mind to recommend that it should be reduced to a written warning. However, I note that the duration of the sanction, when issued on 6 October 2017, was for a period of 12 months.  I also note the sanction letter states that the warning would be disregarded for disciplinary purposes after the expiry of the 12-month period.   Consequently, as the period of the sanction has expired and as it has been removed from the Complainant’s record, the matter is now moot.

Non-eligibility for Bonus Payment: (CA-00016688-002)

The issue of transfer of undertaking is covered in a Statutory Instrument - S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

In particular, Section 4 (1) and (2) of the Instrument state as follows:

“(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

 (2)  Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

Having considered all the evidence adduced, I am satisfied that the Complainant’s transfer, in 2006, to the Respondent’s employment is covered by the above Instrument.  On that basis, I am further satisfied that the Complainant’s terms and conditions of employment would have transferred with her at that time. In the absence of any evidence that would suggest that the situation has been reviewed or altered since the transfer, I can only conclude that the Complainant’s terms and conditions of employment, as they transferred from the transferor, currently apply.

Consequently, based on the above, I am satisfied that the Complainant’s entitlement to a “Christmas Box”, as set out in the Transferor’s Staff Handbook and that there is no link to the disciplinary process as it exists in the Respondent’s current policies in this regard.  Therefore, I find that the Respondent’s view that the Complainant was not eligible for the payment of a “Christmas Box” bonus for 2017 is not consistent with her terms and conditions of employment.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend as follows:

·         In order to ensure that all employees are fully aware of and understand the implications of the Right to Search policy, as set out in the Respondent’s Employee Handbook, I would recommend that the Respondent restate the policy to all staff in order to avoid any future confusion or misunderstanding.

·         In relation to the issue of the “Christmas Box” bonus for 2017, I would recommend that the Respondent give favourable consideration to the restoration of the Complainant’s bonus on that occasion and that payment of the amount that would have been applicable at that time is made.

 That concludes my recommendations.

Industrial Relations Act

Right to Search Employees

Disciplinary Procedures

Payment of Bonuses