Complainant

Respondent

Anonymised Parties

A Worker

Multinational Retailer

Representatives

 Mandate Trade Union

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-00017457-001

15/02/2018

1. 1 The submission specifically relates to the claimant, unnecessarily and unfairly receiving a final written warning by the respondent - for alleged unlawful industrial action and absence without leave, the basis for which Mandate argues was flawed and therefore fundamentally unfair when all the circumstances of the case are considered.

1.2 The case is lodged for due hearing as per Section 13 of the Industrial Relations Act 1969.

1.3 Currently there are approximately 80 Mandate members employed in a number of locations who have been accused of similar allegations, the majority of whom at time of writing have also been issued with final written warnings. Similarly a number of these cases have and are being processed through the Adjudication Officers’ offices, and to date to the best of my knowledge one has been appealed to and heard by the Labour Court.

1.4   The alleged misbehaviours are in relation to a Company/Union dispute in 2017.

2. Background

2. 1 The claimant started employment as a General Sales Assistant with the respondent’s X outlet

on the 22^nd September 1986. She is employed on a full-time basis of 39 hours/week but has 3 rostered late night hours per week which are paid at the overtime rate of double time. Her current rate of pay is €14.31/hour. In line with good industrial relations this rate would normally have attracted the 4 concurrent pay increases unilaterally offered and implemented by the respondent for all staff bar the claimant and many of her long serving colleagues. This would amount to a further compound 8% pay increase on top of the stated rate. For the last 24 years she has been working in the respondent’s X outlet’s cash office – a position that clearly carries with it untold responsibility suitable only to those employees with a proven record of accuracy, accountability, honesty and above all else, discipline to processes and procedures, etc. which are regularly audited and tested.

The claimant has as per the above information considerable service length and heretofore has had no blemishes on her personnel records in respect of performance sanctions, etc. On her behalf I feel it is only fair to say that the claimant has given exemplary service to the respondent and its predecessor which has in no small measure handsomely contributed to her employer’s business and local reputation within X and its environs. The claimant alongside her colleagues employed prior to 1996 are what is known as the pre’96 contract staff.

2. 2 The claimants employment remained relatively uneventful until on or about 25^th January 2016 when the respondent announced that it was moving all employees who were employed prior to 1996 (approx. 1000 workers) to a new "modern contract". This initial notice set a very ambitious deadline of the 18th April 2016 for the completion of this exercise, after which time the respondent intimated that they would unilaterally impose the aforesaid changes.

2.3 The consequences of such new "modern contracts" would have resulted in an extremely significant reduction in value terms to the long established terms and conditions enjoyed by the members in question including the claimant.

2.4 The claimant who is a member of Mandate Trade Union has long established terms and conditions of employment that are covered by a series of comprehensive collective agreements and submit that her terms & conditions can only be changed by collective agreement which is laid out in the Respondent/Mandate procedural "Working Through Partnership 2004 ", and/or by her agreement.

2.5 From the outset the respondent stated that if agreement could not be reached the changes would be unilaterally introduced. This approach was totally at variance to how the parties had conducted industrial relations for over 30 years and this contention is supported through the existence of a vast number of collective agreements which the parties had concluded up to this point.

2.6 Notwithstanding the onerous task at hand, Mandate earnestly engaged with management, endeavouring to reach a negotiated outcome on the aforementioned issues. However it was abundantly clear from the start of direct engagement with the respondent that their adopted approach was extremely hostile and significantly different to previous occasions.

2.7 Throughout engagements on both the 10^th and 19^th February 2016 the respondent constantly repeated the mantra that the new "modern contract" would be implemented from April of that year, with or without agreement. Not surprisingly there was no resolution arising from the local engagement.

2.8 The Pre 1996 dispute was referred to the WRC and a conciliation conference was held on 21^st March 2016. The respondent from the outset adopted the same restrictive style of engagement, and refused to provide any financial data justifying the need for their desired changes. The respondent again reiterated its intention to impose the changes on the 18th April 2016 with or without agreement. Arising from the behaviour of the respondent, Mandate requested to have the matter referred to

the Labour Court under Section 26 (1) in accordance with the agreed procedures. In essence the company failed to agree to attend.

2.9 On 14^th April 2016 the Claimants and their Union received a formal notification under Section 10 of Protection of Employment Act 1977-2014 outlining the details of the respondent's position regarding the changes being sought in respect of the Pre-1996 contract holders. The choice presented in this correspondence was either a move to a "modern contract" with compensation for loss of earnings or a voluntary redundancy package.

2.10 Arising from the lack of real engagement and the imminent threat of change to terms and conditions without agreement, Mandate initiated a protective ballot for industrial action amongst the Pre- 1996 contract group of workers. The outcome of this ballot was overwhelmingly in support of industrial action and this was formally notified to the respondent on the 15th April 2016.

2.11 Mandate served notice of industrial action stating that its members would engage in strike action from the 16^th May 2016. Following an invitation by the WRC the strike was suspended on the evening it was due to take place and the parties engaged in intensive discussions.

2.12 In total the parties were also before the WRC in 2016 on the 18^th May, 23^rd May, 27^th May, 31^st  May, 9^th June, 20^th June, 25^th July, and the 2^nd August.

2.13 In an effort to bring a resolution the WRC issued proposals dated 2^nd August 2016 which were subsequently rejected by the Pre 1996 members by way of a secret ballot typical of most Union procedures in such circumstances.

2.14 Mandate, in accordance with agreed procedures, referred the issue to the Labour Court for determination. The Court issued its findings LCR21340 dated November 21^st 2016.

2.15 On the 10^th January 2017 at a general meeting and secret ballot of Mandate members employed on Pre 96 contracts, the contents of the Labour Court recommendation were rejected.

2.16 At the aforementioned meeting it was also agreed that in the event the respondent chose to implement the recommendation without our members' consent, Mandate would immediately move to a ballot of Pre 96 members for industrial action.

2.17 Despite being put on notice of this, the respondent continued on a regular basis to issue the threat to make these changes without agreement. Notwithstanding numerous requests from the claimant’s trade union to the respondent to desist from this behaviour they refused to comply. Based on this refusal, another secret ballot for industrial action was conducted at a meeting on the 29^th January 2017.

2.18 The result of the ballot was overwhelmingly in favour of engaging in industrial action. Resulting from the outcome of the ballot, strike notice was served on the respondent on 6^th February 2017

2.19. Prior to our members partaking in industrial action local management in their respective stores were kept fully informed by our members of their intention to partake in lawful industrial action.

2.20. Industrial action commenced on Tuesday the 14th February 2017. Accordingly the claimant participated in lawful picketing in the Y Store on dates between February 14th and February 24th 2017.

2.21 Following an invitation from the Labour Court to both the claimants' Union Mandate and the respondent, an agreement was reached to suspend the industrial action and accordingly a notice suspending industrial action was issued by Mandate Trade Union on the 24^th February 2017.

2.22 Further correspondence was received from the Labour Court dated 3^rd March 2017.

2.23 It was clearly outlined in this suspension of picketing document that there would be "no victimisation" as a result of partaking in industrial action and that an orderly return to work would ensue.

2.24 For the purpose of clarity and for the avoidance of any doubt as to what was agreed between the parties at the Labour Court on 24th February, a small delegation of the respondent’s and Mandate’s personnel met in separate and joint sessions with the Labour Court throughout the evening of the 24th February 2017. The issue of an orderly return to work was the last issue to be agreed.  The claimant’s representative set out an account of the exchanges that took place in side session and at the Labour Court on the orderly return to work arrangements.

2.25 The aforementioned return to work document which the union intended to send to its members was then completed on the night, it was shown to the Labour Court which in turn showed it to the company. It was agreed by all that the return to work document should be circulated to all union members as an accurate account of the discussions on that evening.

2.26 It is contended that the Mandate General Secretary, subsequently on that night spoke to the Respondent’s Director, who gave assurances that the spirit and intent of the return to work document would be upheld and Mandate gave similar assurances. The Labour Court Chair can confirm that this account was captured in the official minutes from the session.

2.27 The claimant returned to work and together with approximately 80 colleagues from across the country the claimant was subjected to a disciplinary process which led to her being issued with a final written warning. The claimant was summoned to investigatory meetings for alleged participation in unlawful industrial action and for allegedly being absent without leave.

2.28 Mandate wrote to the respondent within the agreed timeframe appealing the decisions. The timeframe for appeal hearings/outcomes are outlined in the procedural agreement. It is very obvious that the respondent were unwilling to process the claimant’s disciplinary process in line with the stated agreed procedures because of the fact the respondent wanted the Labour Court to hear ahead of this process their appeal of a Rights Commissioner Decision – R-144679-Ir-14/EOS dated the 25^th January 2015. The Rights Commissioner decision found that the claimant’s then disciplinary sanction – which was a final written warning – was ‘disproportionate and unfair. The claimant has already suffered by virtue of the suspension imposed upon her. In all of the circumstances I recommend in full and final settlement of this dispute that the Final Written Warning be withdrawn and expunged from her record’. Please note that the claimant’s suspension regards the process that led to this disciplinary sanction was close on 4/6 months!

A Labour Court hearing to hear the respondent’s appeal of this decision was held on the 10^th October 2017 at which it was evidently clear that despite the fact that the respondent’s own disciplinary procedures provide that such a sanction can only remain on an individual’s record for a maximum of 12 months, the respondent wanted to reference the same in line with the disciplinary procedure they intended to exercise against the claimant at the time before, during and after the Labour Court appeal. The Labour Court recommendation was dated the 1^st November 2017. It is our contention that the respondent deliberately and unnecessarily prolonged the appeal process which took from initial date of allegation to completion of appeal an unacceptable approximate total of 10/11 months. This is very clearly a case of justice delayed, justice denied.

2.29 Upon conclusion of the internal appeals process, the sanction issued by the respondent was upheld and the final written warning remains in place for 12 months from the date of issue.

3.Union Position

3.1 In an effort to provide some broader context it is contended by Mandate that the respondent has in place a well-resourced medium to long term plan to purposefully disengage in normal and orderly industrial relations therefore marginalising Mandate Trade Union to the point of de-recognition. This assertion should not be dismissed as some form of groundless post dispute Union propaganda. Mandate believe that there is wholly sufficient and credible evidence that a project designed to achieve such an outcome, "Project Black", is very much real. It is our absolute contention that the divisive pre 1996 contract dispute was deliberately constructed and used as the launch pad for this hostile and deeply worrying development.

3.2 During the course of 2017 events took place that resulted in unjustified attacks on our members by the respondent, specifically in the present case(s). These attacks on our members were unprecedented and unwarranted.

3.3 It is submitted that suggestion by the respondent that these members participated in unlawful industrial action and were absent without leave was part of a centrally coordinated campaign by the employer in an effort to intimidate and punish members of Mandate Trade Union who in good faith did no more than participate in a lawful Trade Dispute in defence of their terms & conditions of employment. The latter has been recognised by a previous Adjudication Officer decisions particular to 10 like for like cases of the claimant’s workplace colleagues. In the same the Adjudication Officer determined that it was within his remit to determine whether those claimants’ behaviours were unlawful, but that the respondent had a responsibility to process this allegation through the courts and seek possible injunction against the Union. He further proposes that the respondent’s attentions in this regard should have been directed at the Union and not individual and/or groups of low paid workers who were laid to believe by their Union hierarchy that they were engaging in a lawful dispute.

3.4 The respondent's treatment of these staff can only be viewed as a crude method of deterring other Mandate members from engaging in a lawful dispute in the future. There is no doubt that the respondent has sought to make an example of the claimant and her colleagues as part of their broader agenda to de-recognise Mandate Trade Union.

3.5 The respondent failed to provide the claimant with supporting documentation regarding the very serious allegations. It is also submitted that the investigating/disciplinary manager was not in possession of all of the evidence necessary to reach his respective conclusions. It is common case that the aforesaid was not provided with a copy of the strike notice served on the respondent dated 6^th February or indeed the return to work protocol which was agreed at the Labour Court.

3.6 In this regard the claimant had at the very least the right to be informed of the charge against her and be given adequate notice of an enquiry, to be given an oral hearing, and to see and challenge all the evidence. In Gearon v Dunnes Stores Limited UD 367 [1988] the Tribunal held that fair procedures had not been followed and concluded:

“The right to defend herself and have her arguments and submissions listened to and evaluated by the Respondent in relation to the threat to her employment is a right of the Claimant and is not the gift of the Respondent or this Tribunal ... the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach".

3.7 Furthermore, Mandate contends the warning as issued is flawed in that the investigating and disciplining officer and the appeal officer were not suitably qualified to investigate the complex legal application of the Industrial Relations Act 1990, more specifically that surrounding industrial disputes.

3.8 Perhaps most fundamentally of all, the respondent’s investigation manager also acted as a disciplinary officer. Not only is this a denial of the claimants' rights to natural justice and fair procedure, but it is in fact a clear breach of Tesco Irelands own policy which states as follows;

“To ensure fairness the disciplinary officer must not have been a witness to the complaint or have been the investigating officer".

3.9 In considering a similar matter in JOSEPH BRENNAN BAKERIES v GRAHAM ROGERS

UD/17/160 the Labour Court held that:

"the Court considers that the multiplicity of roles undertaken by TG in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw that procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure. "

4.      Legal Argument

4.1 Section 11 of the Industrial Relations Act, 1990 sets out the provisions relating to Peaceful Picketing, subsection (1) states;

‘’It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working. "

4.2. It is an incontrovertible fact the claimant was acting on behalf of a Trade Union in furtherance of a trade dispute and therefore in compliance with sections 10, 11 and 12 of the aforementioned act.

4.3 Section 11 also dispels the respondent's assertion that the Claimant was not entitled to picket another store other than the one in which they work. The focus of Section 11 is not on where the picketers work but on where their employer carries on business. Picketers are thus quite entitled to attend at a place where they do not work provided that it is a place where their employer works or carries on business, which is clearly the case in this instance and has been the case in numerous official industrial disputes not necessarily involving the respondent.

4.4 On Sunday 29th January 2017 the claimant took part in a ballot for industrial action, the outcome of which favoured engaging in industrial action in selected stores nationally, the ballot paper stated the following:-

Issue: Changes to Pre 1996 Terms and Conditions of Employment

Locations: In Selected Stores Nationally

Are you in favour of or against engaging in Industrial Action, up to and including all out strike, in response to your employers stated intention to change your terms and conditions of employment without your agreement?

The foregoing ballot unequivocally complies with the requirements as laid down by section 14 of the aforesaid Act and is in accordance with the rules of Mandate Trade Union. Furthermore the ballot paper clearly outlines that Industrial Action, up to and including all out strike would take place in selected stores nationally if the members supported such a proposition. In the case of the Claimant this is precisely what ensued.

4.5 Whilst it appears the respondent may argue that there was ambiguity vis-a-vis the serving of strike notice, it is contended that this is inconsequential and the Claimant seeks to rely on the test contained in P Elliot & Co v BATU which Dark J. outlined as follows;

'The test was whether a reasonable member of the trade union concerned would know what they were voting for or against. The text should not be parsed or analysed as if it were a formal legal instrument. "

Furthermore, the policy of the 1990 Act was that the managing body of a trade union should retain control over the precise way in which industrial action is pursued. Therefore, it was wholly consistent with the 1990 Act that the trade union should seek authority from its members to engage in a range of industrial action, leaving it up to the managing body of the union to determine precisely what action should be carried out from time to time provided that the industrial action actually taken can be said to be fairly within the parameters of that authorised by the ballot. It is abundantly clear that in the present instance that the claimant was acting on behalf of her trade union in furtherance of a trade dispute and engaged in industrial action in a "selected location" which was determined by her Union's management body, fairly within the parameters of that authorised by the ballot in which she and others participated.

4.6 Even if one were to ignore the foregoing, the respondent, if it had any concerns vis-a-vis the validity of the industrial action carried out by the claimant, could have as previously stated sought injunctive relief. It is respectively submitted that the reason the respondent did not institute such injunctive relief proceedings was that they would not have been in a position to establish a prima facie entitlement to an interlocutory injunction as there would not have been a fair question to be decided in the court.

4.7 Without prejudice to the foregoing it is submitted the proposition that the claimant was somehow personally responsible for the validity of the strike notice is absurd in the extreme, in deciding a similar matter in Nolan Transport Ltd v Halligan [1998] ELR 177 Barren J concluded;

 "While the irregularities may have been a matter for the union it was held that the union did not lose immunity from actions in tort conferred by section 13 since that immunity is not made conditional upon a secret ballot, and the individual defendants, who were engaged in the picketing, could not be held liable for irregularities in the ballot carried out by the trade union"

4.8 In the investigation outcome the respondent also adjudged that the claimant was absent without leave which they alleged amounted to a breach of their absence policy. This allegation can be dealt with by both legal and practical examination.

4.9 At a practical level Mandate contends that the warning as issued is flawed in that the respondent’s Investigating Officer, Manager A, was a key and material witness in the proceedings. In his role as Manager A, he and another senior manager of the store were advised by the claimants in her role as Shop Steward, along with the Assistant Shop Steward, that due to procedural irregularities in the original secret ballot for the respondent’s X store to engage in industrial action, the pre ’96 members of that named store would be joining the picket line in Store Y. When informed of this both managers were clearly agreeable to this and appeared delighted that they would not have to endure the operational logistics and problems of a picket at their particular store. On being informed of this position the claimant and her in-store pre ’96 Contract colleagues were then removed from all rosters for the duration of the strike. In fact the Assistant Shop Steward was advised by one of these managers that this made everything a lot easier now as it would require less staff cover.

In light of this neither of these managers should have been involved in any shape or form in the disciplinary process and in fact should also have been interviewed as witnesses to ascertain were they aware of the fact that the pre ’96 Contract staff would be attending the Y picket and if so did they advise the same that if they did do as notified they would be recorded as ‘absence without leave’. This obviously runs contrary to natural justice and clearly demonstrates the respondent’s flaws in exercising the disciplinary procedures in these cases.

Given that the claimant through her in-store representations as a Shop Steward informed the local management of her and her colleagues picketing intentions and was not advised and/or instructed to desist from the same Mandate contends that the respondent cannot assert she was AWOL. At this stage and throughout the 11 days of the dispute the respondent never once informed the claimant that she was recorded as AWOL and that they had a responsibility to explain same to their store management. This would be normal good managerial practice but obviously this was lost on the respondent.

Furthermore it is incumbent of an employer to ascertain from an employee the reasons for his/her AWOL actions. This again was not done and for good reason. The local management were fully aware of what the claimant was doing and where. The claimant had through her role as a Shop Steward and her in-store representatives actually exercised due courtesy and manners by advising their store management of her and her colleagues’ intentions, thus obviating any further impacts or hindrances on that store’s operations throughout the dispute. The least the claimant deserves is for that to be reciprocated.

4.10 As submitted prior to our member partaking in industrial action, local management in the respondent’s X store, were kept fully informed by the local Mandate representatives and members of their intention to partake in lawful industrial action as per related protections under Section 10 & 12 of the Industrial Relations Act 1990. Furthermore from a legal position Mandate submits that in view of the foregoing that the alleged breach of AWOL could not occur in law as the claimant was engaged in lawful action acting on behalf of a Trade Union in furtherance of a trade dispute, and therefore had effectively suspended her contract of employment for the length of time in which she was engaged in the action. This contention is supported in Morgan v. Fry [1968] 2 Q. B.710 where it can be summarised that arising from that case it is now the accepted doctrine that a notice to strike must be construed not as a notice to terminate the contract but as a notice to break it. The intention of those who give strike notice is, according to the present interpretation, to suspend the performance of their duties under their contracts of employment for the duration of the strike and to resume the contract after the termination of the strike. The aforementioned case was also quoted with approval by McLoughlin J. Becton, Dickinson Ltd. v. Lee.

Whilst the Respondent may seek to rely on ADJ-00011468 (which is currently under appeal and presently being heard through the Labour Courts) whereby the Adjudicator held that "In relation to the Complainant no notice of any industrial action by her was served on the Respondent therefore her actions were in breach of the Act", it is submitted that the Adjudicator erred in fact and in law and acted ultra vires to the powers which were delegated to him by the Oireachtas.

4.11 In support of the aforesaid contention it is argued that to reach such a conclusion the Adjudicator would have to interpret the 1990 Industrial Relations Acts and apply its provisions. Adjudicators have delegated their powers via both the 1969 Industrial Relations Act and the 2015 Workplace Relations Act, upon examination of these pieces of legislation it is clear that an Adjudicator does not have jurisdiction to interpret and apply such provisions. It is Mandate’s position that the Adjudication Officer’s decision held at is the more appropriate decision that embraces and recognises the Union’s arguments and defence of its members in these particular cases.

5.      Conclusion

5.1 For all of the above reasons, we respectfully request the Adjudicator to declare the Claimants' case to be well founded and direct the Company to expunge the Final Written Warning from the Claimants' files.

1.1     The matter is taken under the Industrial Relations Act 1969 by the complainant) against her employer in relation to a disciplinary sanction issued to her. The Company rejects the complaint in its entirety.

1.2     Arising from the unacceptable behaviour by the claimant where she went absent from work without permission, and then her participation in an unofficial and unlawful manner in industrial action, the complainant was given a lenient sanction of a Final Written Warning which the Company deems was fair and entirely appropriate.

1.3     The complainant works at the X store. In February 2017 the complainant went on unauthorised absence from work from 14^th February 2017 to 24^th February 2017 and failed to make contact as per Company Policy. The reason for the said unauthorised absence was that the complainant had unlawfully taken part in industrial action against the company during the said period.

1.4      On 6^th February 2017 colleagues in the X store balloted for industrial action - a letter in this respect dated 6^th February 2017 from the trade union to the Company. The result of this ballot was initially in favour of strike action in that store however this ballot was flawed and therefore notice of strike action was subsequently withdrawn. Confirmation of this flawed ballot in the X store was confirmed by the trade union’s own solicitors in a letter dated 14^th February 2017 to the Company. The union also communicated this to the colleagues on 13^th February 2017. Therefore, whilst X was initially listed in the letter from the union dated 6^th February serving strike notice on the Company in particular locations, this was withdrawn by the union, and therefore colleagues in the X store were not covered by strike notice.

1.5      Notwithstanding that there was no longer strike notice in respect of colleagues in the X store, the complainant then in an unlawful manner proceeded to engage in industrial action in a different store, Y store.

1.6     A further letter from the Company’s Solicitors dated 14^th February 2017 to the unions solicitors set out the nature of the unlawful picket taking place at the Y Store and specifically requested members of the X store to leave the picket in Y due to their unlawful engagement in industrial action.

1.7     Notwithstanding this, the complainant ignored this fact and she continued to absent herself from work without permission and continued to unlawfully partake in strike action against the Company at the Y store in the knowledge that colleagues from the X store were not covered by strike notice. It is for this absence as the reason the complainant was ultimately issued with the lenient sanction of a Final Written Warning although the Company, given the seriousness of her actions, could applied the ultimate sanction of dismissal.

1.8     The complainants’ assertion that the Final Written Warning should not have been given is rejected by the Company.

2.0           Background to the Complainant

2.1           The complainant works as a Customer Assistant. The claimant is based in the X store and is full-time.

3.0           Background to the Claim

3.1           During the period of February 2017 workers at a number of different store locations voted on whether or not to take indefinite strike in that store. Subsequently the union served strike notice on the Company in respect of named stores who had voted for strike action in that store. In the strike notice the union clearly stated whom the strike notice covered specifically “members employed in these locations will place official pickets on the premises”.

3.2           The strike notice served in respect of X store was ultimately withdrawn by the union due to what they acknowledged to be the flawed nature of the ballot and therefore colleagues in the X store were not lawfully/legally entitled to engage in any form of industrial action against the Company until such time as a new ballot had been conducted and proper notice served.

3.3           When they conducted their re-ballot for X notice was then served in respect of that store with strike action due to be effective from the 1^st March 2017. The strike ultimately ceased in the stores covered by strike notice before the date on which the X colleagues were due to engage in their strike action.

3.4             On 14 February 2017 the complainant absented herself from work without     authorisation and it was subsequently discovered that she was unlawfully engaged in industrial action at the Y store despite the fact that the notice for the Y store did not cover her.

3.5             The union through their legal advisors accepted by letter dated 14^th February that strike action in X store would not be proceeding but yet the claimant absented herself from work without authorisation and unlawfully partook in industrial action.

3.6             By Letter dated 22nd February 2017  Store Manager A , informed the complainant that by her engagement in picketing at the Y Store during the absence period mentioned above amounted to unauthorised absence and that she would be invited to an investigation meeting to determine whether or not disciplinary action is required. The Complainant did not return to work at that point and only returned to work when the unions called off their action on the eventing of 24 February 2017. A further letter dated 3rd March 2017 followed informing the complainant that she was now invited to an investigation meeting in order to obtain information concerning an allegation that she was absent without leave from work and that she had partaken in unofficial industrial action. She was advised of her right to representation and given a copy of the company Disciplinary Policy and Procedures.

3.7           An investigation meeting was held on 8^th March 2017 by Store Manager A. The complainant was in attendance with Mr Ciaran Campbell, Trade Union, as her representative.

3.8            At the investigation meeting, Manager A set out that the purpose of the meeting was to obtain information in relation to the allegation that the complainant was absent without leave from work and unlawfully partook in industrial action. The complainant confirmed in the course of the meeting that she had attended a strike at the respondent’s Y store between the dates 14^th – 24^th February 2017. The complainant further provided that it was the union who gave her authorisation to attend the strike in Y not the Company. The complainant did not provide any evidence to support her defence that she was legally engaged in industrial action. As the complainant did not have anything further to add, the meeting ended.

3.9           A letter issued from the respondent on 30^th March 2017 and a subsequent letter on 7^th April 2017 inviting the complainant to an investigation outcome meeting and the said investigation outcome meeting took place on 12^th April 2017. At this meeting an Investigation Outcome Letter was read out by Manager A and issued to the complainant. This letter recommended that a breach of company policy had occurred and that the matter should be considered further at a disciplinary hearing.

3.10       Manager A found that it was not disputed by the complainant that she attended the Y store to partake in industrial action.  He found that although it was claimed her actions were lawful, that it was official industrial action and that the store was notified of her absence, in order to participate in official industrial action she must be covered by formal strike notice. He confirmed that she was absent but not covered by formal strike notice therefore she unlawfully engaged in unofficial industrial action. He found that she was not authorised to remove herself from the roster therefore she was absent from work without leave. The capacity in which she participated in this action to dissuade shoppers had the effect of engaging in activity that was damaging the business of her employer.

3.11        The Colleague Handbook under the section regarding Absence & Attendance states:

“it will be considered unacceptable and treated as unauthorised absence if you do not [contact your line manager], and could lead to disciplinary action being taken against you up to and including dismissal”.

3.12       Manager A also found that the complainants’ actions were contrary to what is expected of her as an employee of the Company and that her unlawful participation in industrial action was a failure to comply with her obligations to her employer.

3.13       As there was at this point an appeal pending with the Labour Court by the claimant in respect of a previous sanction of a final written warning issued to her following a previous incident when the claimant had instigated unlawful industrial action, Manager A further advised that the disciplinary hearing would be deferred pending the outcome of that appeal. Had Manager A not chosen to do so the claimant was facing the real prospect of a disciplinary sanction of dismissal for her unlawful participation in industrial action on this occasion given her history of this type of behaviour which no employer could be expected to endure.

Indeed at the Labour Court hearing of that appeal Mr Ciaran Campbell on behalf of the claimant acknowledged that this could have occurred and also noted that the complainant was concerned about her future employment with the Company. 

3.14       Following receipt of the Labour Court recommendation, the complainant was invited to attend a disciplinary hearing on 23^rd November 2017 and as the facts at issue were not in dispute, and there was no other supporting evidence requiring consideration from the complainant, the disciplinary hearing was to be conducted by Manager A. This is in line with Company procedures for such issues and in line with the EAT decision in Brendan O’Callaghan v Dunnes Stores UD54/2012 wherein it was determined that where the facts of the alleged wrongdoing were not in dispute it was acceptable that the investigation and disciplinary hearing could be conducted by the same person.

3.15       The disciplinary hearing took place on 28^th November 2017. At this hearing the complainant was afforded a further opportunity when she was asked again whom from the store gave her authorisation to leave the store and attend a picket in Y and she responded “no one”. Furthermore when asked if she had any proof her strike action was lawful (as alleged by the complainant) she replied “no”. The complainant submitted a written document into the record.

3.16       By letter dated 11^th December 2017 the complainant was invited to attend a disciplinary outcome meeting on 14^th December 2017 with Manager A. Again, the complainant was advised of her right to representation and that failure to attend would result in the decision being issued in writing.

3.17       The said outcome meeting then took place on 14^th December. At this meeting Manager A went through his decision and provided the claimant with a letter confirming that decision. In his determination ,  concluded that after taking everything into consideration he found that the complainant had displayed unacceptable behaviours and that disciplinary action was warranted. The complainant was placed on a final written warning to remain live on her file for a period of 12 months. She was advised of her right to appeal which she exercised by letter dated 15^th December 2017 to , Employee Relations Manager.

3.18        Store Manager B wrote to the complainant by letter dated 5^th January 2018 advising her that he had been appointed as the appeal officer and the appeal hearing would take place on 11^th January 2018 and of her right to representation at the said appeal hearing.

3.19       The appeal hearing proceeded on 11^th January 2018. Although Manager B was in attendance, the complainant failed to attend and failed to provide notice to him  that she would not be in a position to attend.  In light of her failure to attend, Manager B abandoned the appeal hearing at that point.

3.20        Manager B then decided to afford the complainant a further opportunity to attend for an appeal meeting. The complainant was informed by letter dated 25th January 2018 that the appeal hearing would be rescheduled to take place on 30th January 2018.

3.21       The rescheduled appeal hearing proceeded as scheduled with the complainant in attendance and her union official. Again, no evidence was produced to support their defence that she was engaged in lawful industrial action and Mr Campbell again confirmed that she did not have authorisation from the store management team to attend a picket in Y but alleged that the store manager, Manager A was aware of her intentions.

3.22       On 6^th February 2018, Manager B issued his appeal outcome to the complainant by registered post in which he determined he could find no grounds on which to overturn the disciplinary officer’s decision.

4                Respondent Arguments

4.4           The Complainant did not attend work between 14th and 24th February, had no permission to absent herself from work and during this period she attended at the Y store, engaged in industrial action for which no formal notice had been provided in respect of her attendance as is required under the Industrial Relations Act 1990. In absenting herself from work without permission and in her engagement in strike action against the Company, she contravened company policy and legislation governing trade disputes regarding withdrawal of labour. The claimant in her capacity as a shop steward possesses an in-depth knowledge of the requirements under law in order to benefit from the protections contained therein. Indeed the claimant through her employment with the Company has had occasion to be reminded of her obligations and requirements in such matters and the potential for disciplinary action up to and including dismissal should she fail to fulfil her obligations.

4.1           It is the Company’s position that a full and fair investigation took place in accordance with fair procedures. The complainant was informed of the allegations against her, was afforded the right to representation, was given the opportunity to state her case, was informed of the potential of an outcome of moving to a disciplinary hearing and a sanction in line with Company policy.  She was afforded the opportunity to appeal the disciplinary outcome which she subsequently availed of.

4.2           The complainant works in the Company’s X store which was not covered by official strike notice from the trade union. The union conducted a secret ballot for industrial action for the colleagues in the X store.  Strike notice was served on the Company in relation to the X store however due to a flawed process this notice was retracted. Nevertheless, in defiance of her union’s retraction of the strike notice, the complainant absented herself from work without authorisation or contact for 9 days and unlawfully partook in industrial action at another of the Company’s stores in which colleagues at that store were covered by official strike notice. The complainant was not covered by strike notice therefore she was not legally entitled to engage in a picket at any of the respondent’s stores.

4.3           In any properly sanctioned industrial action, the trade union and its members must conduct themselves wholly within the confines of the Industrial Relations Act.

4.4           The Industrial Relations Act, 1990 sets out employer’s and employee’s obligations in order to be compliant with the Act for trade disputes. For the employees it confers immunities on workers where, in “contemplation or furtherance “of a “trade dispute”, they participate in a “strike” or other “industrial action” provided the strike or other industrial action is supported by a secret ballot and not less than one week’s notice is given to the employer.

4.5            The trade union is obliged to conduct a secret ballot prior to organising, participating in, sanctioning or supporting a strike or other industrial action. Section 14 of the 1990 Act provides that the rules of every trade union must contain a provision that the union:

“shall not organise, participate in, sanction or support a strike or other industrial action against the wishes of a majority of its members voting in a secret ballot’’.

4.6           The Company would rely on the statement of Barron J when he addressed the issue in the Supreme Court in Nolan Transport (Oaklands) Limited-v-Halligan [1999] 1IR 128, in relation to the interpretation of Part II of the Industrial Relations Act 1990, expressing his views on a number of important issues. In particular he said:

‘…it is essential before any industrial action is taken that those who are taking the industrial action shall first have had a secret ballot on the issue. If a majority is against industrial action, then that is an end of the matter. If a majority is in favour of industrial action, then that is a matter for the union concerned to determine whether or not the industrial action should take place’’.

4.7           In this instance, the complainant was not covered by the immunities under the Act as her actions were taken in disregard of and contrary to the outcome of the Sligo store secret ballot of 6 February 2017 relating to the issue(s) involved in the dispute. It was never the intention of the Law that its provisions be set aside as and when it suits.

4.8           Section 17 of the 1990 Act provides that ss.10 (acts in contemplation or furtherance of a trade dispute), 11 (peaceful picketing) and 12 (removal of liability for certain acts) shall not apply in respect of proceedings arising out of or relating to a strike or other industrial action by a trade union or a group of workers in disregard to or contrary to the outcome of secret ballot relating to the issue or issues involved in the dispute.

4.9           The Company would again refer to Clarke J in P Elliot and Co -v- Building and Allied Trade Union [2006] IEHC 340 where he noted that the industrial action engaged in must be “fairly within the parameters of that authorised”. The complainant continually stated throughout the investigatory period that she was involved in a lawful industrial dispute. Yet if her actions are overlaid with legislation, she cannot enjoy the rights associated with those who lawfully conduct their dispute within the well-established parameters of that legislation.

4.10       The union at other hearings have attempted to rely on a separate ballot conducted in and around 29 January 2017 wherein the majority of colleagues who participated in this ballot voted in favour of industrial action. The notification received from the union in relation to this ballot did not specify when they might instigate industrial action. Therefore the notice requirements arising from this ballot did not meet the requirements set out in the legislation. In this regard the Company would rely on the following:

          Section 19 of the 1990 Act provides that:

(1)            “Where a secret ballot has been held in accordance with the rules of a trade union as provided for in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute.

(2)            Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so. A court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.

(3)            Notice as provided for in subsection (1) may be given to the members of a trade union by referring such members to a document containing the notice which the members have reasonable opportunity of reading during the course of their employment or which is reasonably accessible to them in some other way.

(4)            Subsections (1) and (2) do not apply-

(a)            In respect of proceedings arising out of or relating to unlawfully entering into or remaining upon the property belonging to another, or unlawfully causing damage or causing or permitting damage to be caused to the property of another or,

(b)            In respect of proceedings arising out of or relating to any action resulting or likely to result in death or personal injury

(5)            Where two or more secret ballots have been held in relation to a dispute, the ballot referred to in the subsections (1) and (2) shall be the last such ballot”

4.11       Arising from the flawed ballot that took place on 6^th February which was subsequently confirmed by the union through their legal representatives, the strike notice covered by any colleague in the store was withdrawn.

4.12       As a result of the complainant being present and actively partaking in the Y  dispute, she was involved in an illegitimate action since it did not concern her being an employee of the X store,  and was also absent from her normal place of employment without authorisation.

4.13       The Company evidently was compliant with the Act relating to this entire matter. Strike action was taken at a number of stores and circa 1,000 colleagues went on strike during the period of industrial action in 2017. A strike took place over the period of 14^th to 24^th February 2017. Only those who breached Company policy or whose actions meant they could not enjoy the protections inferred on them by the Industrial Relations Act (Sections 10 through 12) were brought through the disciplinary procedure.

4.14       The union claimed that it was agreed between the parties at a meeting in the Labour Court, that there would be no recriminations either by or against the staff or management as a result of the dispute. This is totally refuted by the Company. The points agreed at the meeting with the Labour Court were communicated to both parties on 3^rd March 2017. There is nothing in this communication which states that the Company could not take action to investigate unacceptable behaviours or actions that took place during the strike. Furthermore, throughout the period of industrial action, the Company advised the union that they would not accept any actions/behaviours that were considered to be outside of what is acceptable in such circumstances. The Company confirmed its position in relation to its investigation of unacceptable actions/behaviours by way of letter on 4^th April 2017, in which the Company also confirmed the Respondents position at the meetings in the Labour Court.

4.15       Given the unions attempts at other adjudication hearings of similar claims to portray some sort of agreement in relation to these matters at the Labour Court,  the  Head of Employee Relations in the Respondents Company confirmed by way of letter that having been in attendance at the meetings with the union and the Labour Court on 24 February 2017 and 3 March 2017, the Respondent had made it clear that although there would be no recriminations against those who were ‘lawfully’ engaged in industrial action taken place at that time, those who were unlawfully engaged in industrial action or had behaved inappropriately would be subject to investigation through the normal disciplinary process. It is the case that the complainants’ actions were considered to be outside what is acceptable, and was in clear breach of her contractual commitments, and the requirements of the Industrial Relations Act.

4.16       The union is also being hypocritical with this argument given that the union themselves engaged in an investigation and disciplinary process against colleagues who chose to pass their picket line. Approximately 3 months following this, by way of letter in November 2017 the union advised employees that a decision was made to terminate their membership from that union.

4.17       The union has also alleged that the action taken against the complainant was part of a campaign to engage in corporate bullying and victimisation against members for engaging in trade union activity and their involvement in a Trade Dispute with the Company. This is totally without foundation. The Company is entitled to investigate what they believe to be instances of unacceptable actions/behaviours by any employee, and if warranted, take the appropriate disciplinary action. This was made clear to the union and this is exactly what happened in this instance. The sanction issued to the complainant was in relation to her own behaviours only which were in breach of Company policy and a breach of employment legislation.

4.18       To accept an argument of no wrong doing by the complainant is to essentially ignore the provisions set out in the Industrial Relations Acts and to render the legislation as null and void.

4.19       Regardless of the circumstances all colleagues have an absolute duty of care to the business, their colleagues, and to customers to behave and act at all times in the appropriate manner and in full compliance with legislation. Compliance with employment legislation is not one where the employer must comply, but the employee/trade union can pick and choose when it applies to them.

4.20       The complainant did not behave in an appropriate manner in her actions of illegally partaking in industrial action and furthermore her absence from work without authorisation was a breach of Company policy. It was therefore entirely appropriate to have issued a sanction of a Final Written Warning which of itself was extremely lenient especially given that this is not the first occasion where the complainant has been subjected to disciplinary sanctions for similar behaviour.

5                Conclusion

5.1           Taking everything into consideration, the Company acted more than fairly and in line with their procedures. The complainant was absent from work without leave and illegally participated in industrial action. She was appropriately issued with a Final Written Warning due to her unacceptable actions which will expire on 13^th December 2018.

No individual can cherry pick which part of the Industrial Relations Act they wish to apply especially when such action is intended to damage the business of the Company.

5.2           To find in favour of the complainant would have serious implications for any Company in relation to any industrial action, as it would mean that any individual can simply decide to take part in industrial action regardless of the result of a secret ballot and also when this action can take place without due notice to employers. Both of which are clear contraventions of the Industrial Relations Act. It would also have the effect of rendering legislative provisions covering trade disputes null and void.

5.3           This substantive matter in relation to this case has been adjudicated on and recommendations have been issued in this regard whereby in similar issue the Complaints have failed. Example ADJ 00011495. In this case the adjudicator in his decision stated “the worker was not part of the official strike action and was not covered by the specifics of the strike notice. Accordingly I find that his unnotified absence from work and participation in supporting the other picket at the other store constituted absence without leave in contravention of Company policy and participation in unofficial action”.

5.5     We respectfully request that the Adjudication Officer finds that the complainant’s claim under the Industrial Relation Act, 1990 fails.

I have reviewed the evidence presented at the hearings and noted the respective positions of the parties. I have considered both parties accounts of what they understood to have been agreed at the Labour Court on an orderly return to work. I have also taken account of the respective parties’ accounts of the exchanges that took place between the claimant and her manager about her intentions in the days immediately preceding the commencement of industrial action.  I have also considered the contention of the employer that the dispute is now moot by virtue of the passage of time.

I find that the principles at issue in this dispute are similar to those considered by the WRC in ADJ-00012362. This case was appealed to the Labour Court (LCR21869) by the respondent and the Court found as follows:

“The Court is asked to give a decision in relation to a final written warning which was issued to the worker on the 14^th.July 2017. The disciplinary procedure of the Respondent provides that a final written warning shall “remain on a staff member’s personnel file for 12 months”. On plain reading therefore, the procedure makes no provision for the warning to remain on that file for a day longer than 12 months. The Court finds therefore that the warning has no existence following the lapse of 12 months from date of issue.

The Court therefore concludes, in accordance with the disciplinary code under which it was issued, that the fact of a written warning having been issued to the Complainant has no meaning for the Complainant in terms of his employment or his relationship with his employer since the 13^th July 2018. In those circumstances, the court has decided that no decision it could make on the substance of the within matter could have any effect on the worker concerned.

The Court therefore recommends that the parties should accept that the matter was resolved as an industrial relations matter on the 13^th July 2018 when the impugned warning ceased to have existence.

The Court so recommends.”

Accordingly, and consistent with LCR21869, I recommend that the parties accept that the matter was resolved as an industrial relations matter on the 12^th December 2018 when the impugned warning ceased to have existence.