FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Recommendation ADJ-00011320
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of its member. The dispute relates specifically to the Union's claim that the final written warning issued to the Worker following her alleged participation in unofficial industrial action was harsh and disproportionate in nature. The Employer disputes the Union's claim, arguing that the Worker acted in breach of Company policy and the sanction imposed was fair and appropriate in all the circumstances of the case. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 23rd October, 2018 the Adjudication Officer issued his Recommendation as follows:
"Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the dispute.
That the final written warning be expunged from the Claimant's file if it has not already been done through the efflux of time".
On the 26th October, 2018 the Employer appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 10th April, 2019. The following is the Decision of the Court:-
DECISION:
This matter comes before the Court as an appeal under the Industrial Relations Acts arising from the referral of a trade dispute to the Workplace Relations Commission involving a single worker.
The Court has been made aware by the Trade Union of the general background for this trade dispute and is conscious that the matter before the Court arises from events occurring during an industrial dispute in 2017.
Good industrial relations are underpinned by an approach which is pragmatic and realistic. The Court has considered the within dispute in that context and has examined the facts presented by the parties in order that it can develop a decision which can best support the resolution of the trade dispute originally referred to the Workplace Relations Commission.
The Court is asked to give a decision in relation to a final written warning which was issued to the worker on 1stJune 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 Worker has no meaning for the Worker in terms of her employment or her relationship with her Employer since 31stMay 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 and indeed could make no positive contribution to whatever wider issues might currently pertain in the employment generally.
The Court therefore recommends that the parties should accept that the matter was resolved as an industrial relations matter on 30thMay 2018 when the impugned warning ceased to have existence. The warning should therefore be removed from the Worker’s file.
The decision of the Adjudication officer is varied accordingly.
The Court so recommends
Signed on behalf of the Labour Court
Louise O'Donnell
29th May 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.