Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retailer

Representatives

Caroline Clifford Mandate Trade Union

Muireann Mc Enery IBEC

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-00015814-001

15/11/2017

The Complainant was appealing a Final Written Warning he received due to participating in Industrial Action.

The Complainant is employed for over 30 years in various departments with an unblemished record.

The Respondent announced it was moving staff to a new less beneficial contract in 2016. These terms were covered by long established collective agreements which the Respondnet was unilaterally changing.

The staff affected and their Union engaged in a number of meetings, with external IR involvement, to try resolve the issue.

Staff affected were told if they did not accept the new terms they would either be offered a voluntary redundancy package or compensation for their loss.

In 2017 the contents of a Labour Court proposal to solve the issue were rejected by staff and a ballot for industrial action was held of the affected staff and it voted overwhelmingly in favour of industrial action and strike notice was served on the Respondent.

The Complainant participated in lawful picketing in February 2018 and on return to work once the dispute was resolved received a final written warning for his participation in the picket.

This warning was not in the spirit of the agreement reached with the Respondent resolving the dispute and was in contravention of Section 11 of the Industrial relations Act 1990 which set out the provisions relating to peaceful picketing.

The Complainant was acting in furtherance of a Trade Dispute and in compliance with the Act and the action by the Respondent in giving him a final written warning was totally inappropriate and should be rescinded from his record.

This claim should not adjudicated upon based on the fact that the warning has expired and based on Mr. Justice Ronan Keane’s findings in “Barry v Fitzpatrick “an order of certiorari, once it ceases to have any effect   is a pointless exercise and one which no court should undertake” and in Labour Court cases which the Court found “The issue came before the Court on the 25th July 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists”.

However, despite the above points, should the Adjudicator continue to issue a Recommendation on the matter the Respondents case is that the Complainant went on unauthorised absence for 4 days and failed to make contact with the Company per Company policy and afterwards it was discovered that he had attended a picket at the Respondents X Location Store where the Respondent had been formally picketing would take place.

However, the Complainant was not employed in X Location Store and was instead employed in Y Location Store where no notice of picketing had been notified to the Respondent. The Strike Notice issued by the Complainant’s Union specifically covered a number of Stores, including X Location but not where the Complainant was employed and worked.

The Complainat was therefore on unauthorised leave and during that time attended a picket at a location where he was not employed. Therefore, the strike notice or any legal protections under the Industrial Relations Act 1990 did not extend to the Complainant.

The issue was investigated and the Complainant was disciplined in line with company policy for unauthorised absence and was given the right of representation, which he availed of and the right of appeal.

The Complainant could not provide and evidence that he was legally engaged in Industrial action.

In line with the Company Handbook the Complainant could have been dismissed but the Respondent did not take this action open to it in the circumstances and issued a Final Written Warning as a more reduced disciplinary action.

Given that the Complainants warning had expired at the time of the Hearing and the fact that he was not covered by the Industrial Relations Act 1990 for the picketing he undertook, as the location he worked in was not party to the picketing, I find that the actions of the Respondent were reasonable in all the circumstances and I see no justification, especially based on the legal and Labour Court precedents regarding a warning having expired at the time of a Hearing, to recommend any change to the action of the Respondent in this case and recommend that the parties accept the issue is now effectively closed as the warning has expired.

Appeal of Final Written Warning