LCR22052

This is the Worker’s appeal from a Recommendation of an Adjudication Officer (ADJ-00017739, dated 5 April 2019) under section 13 of the Industrial Relations Act 1969 (‘the Act’). The Notice of Appeal was received by the Court on 23 April 2019. The Court heard the appeal in Dublin on 4 June 2019.

The Dispute

The Worker has been employed by Tesco Ireland Limited (‘the Company’) as a Sales Assistant at its Arklow store since 2000. At all material times relevant to the within dispute, the Worker was an elected member of Mandate’s National Executive Committee (NEC) and the elected Vice-President of the Union.

In January 2017 members of the Union employed by the Company pre-1996 rejected Labour Court Recommendation LCR21340. The Union subsequently balloted for industrial action and in February 2017 served strike notice on the Company naming the store locations at which pickets would be placed. Picketing took place at those locations but following intervention by the Labour Court the industrial action was suspended on 24 February 2017. The store in which the Worker is employed was not one of the stores that voted in favour of industrial action. However, the Worker did attend at a picket organised at the Company’s Baggot Street store. It is the Union’s submission that he did so in his capacity as a member of Mandate’s NEC and as the Union’s elected Vice-President and that he did so on his own time on his day off.

On 3 March 2017 the Worker was invited to an investigation meeting to address an allegation that he had partaken in unofficial industrial action. A brief hearing, at which the Worker was represented by his Union Official, took place on 9 March. It was conducted by the Store Manager. The Official representing the Worker advised that the Worker had attended the picket in his own time and in his capacity as a senior office of the Union. The Store Manager issued an outcome letter dated 6 April 2017 in which he stated as follows:

• “Although it was claimed that you [were] part of an official dispute, in order to participate in official industrial action you must be covered by formal strike notice. I can confirm that you were not covered by formal strike notice and therefore you engaged in unofficial industrial action. Notwithstanding that you were on your own time, the capacity in which you participated in this action had effect of engaging in activity that was damaging the business of your employer.”

The Respondent submits that the Final Written Warning issued to the Worker on 8 June 2017 (and that remained active on his personnel file for a period of twelve months from that date) had expired prior to the date on which he referred his complaint to the Workplace Relations Commission on 30 October 2018. On this basis, the Respondent invited the Court to decline jurisdiction to consider the within appeal.

In the alternative, the Company submits that the sanction imposed on the Worker was “lenient … fair and entirely appropriate” in circumstances where the Worker had been found to have engaged in unofficial industrial action.

The Adjudication Officer found, inter alia, that the Worker had not withdrawn his labour on any occasion, that he attended at the picket placed on the Baggot Street store in his own time, he had done so in his capacity as a member of the Union’s NEC and, therefore, was not in breach of the Industrial Relations Act 1990, but was acting within its parameters. The Adjudication Officer recommended 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”.

The Union’s stated grounds of appeal are that the Adjudication Officer “erred by not addressing the merits of the disciplinary action”.

Discussion and Decision

There are four issues which concern the Court arising from the facts of the within dispute: (i) the nature of the industrial action in which the Worker participated when he attended at the Baggot Street store on 14 February 2017; (ii) the import of the Worker’s status as a member of the Union’s NEC and elected Vice-President having regard to section 11(5) of the Industrial Relations Act 1990; (iii) the fairness of the investigation and disciplinary processes undertaken by the Worker’s Store Manager; and (iv) the appropriateness or otherwise of the disciplinary sanction imposed on the Worker having regard to the Court’s findings in relation to (i) through (iii).

(i) The Nature of the Industrial Action that took place in February 2017

The Court has previously comprehensively addressed this issue (albeit in relation to a different Worker) in its Decision in CD/18/217 wherein it found that:

• “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.”

(ii) Section 11(5) of the 1990 Act and the Worker’s Status

Section 11(5) of the 1990 Act provides:

• “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.”

• “Subsection (4) permits a trade union official, as defined in subs. (5), to accompany “any member of his union whom he represents” on a picket. Since the Interpretation Act 2005 provides, in s.18(a), that the singular imports the plural (unless the contrary intention appears), it would seem that more than one official can so attend. Such attendance, however, must be merely for the specified purposes, namely peacefully obtaining or communicating information or of peacefully persuading nay person to work or abstain from working. If the official attends for any other purpose his or her immunity is lost (but not that of the picket itself).”

(iii)The fairness of the investigation and disciplinary processes undertaken by the Worker’s Store Manager

It is common case that both the investigation meeting and the disciplinary meeting were conducted by one and the same individual i.e. the Worker’s Store Manager. In his outcome letter following the investigation meeting, the Store Manager stated,inter alia:

• “I can confirm that you were not covered by formal strike notice and therefore you engaged in unofficial industrial action. Notwithstanding that you were on your own time, the capacity in which you participated in this action had effect of engaging in activity that was damaging the business of your employer.”

(iv)The Appropriateness of the Disciplinary Sanction

The Court has already found that the Worker did not engage in unofficial industrial action; he attended at a lawful picket organised and conducted in accordance with the requirements of the Industrial Relations Act 1990 and he did so both in his own personal time and as an officer of a recognised Trade Union. Nevertheless, he was subjected to a flawed disciplinary process for having done so, the outcome of which was the imposition of a very severe disciplinary sanction on him.

Decision

For the reasons set out above, the Court finds 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
18th July 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.