FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (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-00011302.
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 Worker's claim that he was treated in an inequitable manner by his Employer when he was issued with a final written warning in respect of his alleged participation in unofficial strike action and alleged breach of the Employer's social media policy. The Employer disputes the Worker's claim, arguing that the sanction imposed on the Worker was warranted in the circumstances.
The matter was referred to an Adjudication Officer for investigation and recommendation. On the 5th October, 2018 the Adjudication Officer issued his Recommendation as follows:
"Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
That the final written warning be expunged from the Claimant's employment file if it has not already been done through the efflux of time".
On the 7th November, 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.
In this particular case the Worker is alleged to have acted in an inappropriate manner on the picket line while on a days’ annual leave and is alleged to have made inappropriate comments on social media. The Employer invoked the disciplinary process and the Worker was given a final written warning.
It is the Worker's contention that while he attended the picket line in question he did not participate in the picket. The Worker advised that for a brief moment he held a placard and waved it at a friend of his who was working inside the store. In relation to the comments on social media the worker confirmed that he did write the comments. However, it was his case that they were factually correct and not in breach of the Employer’s social media policy.
The Employer in the course of the hearing did not dispute the fact that the worker was on annual leave on the day in question. In relation to the allegation of his participation in the picket they informed the Court they were relying on one photo still extracted from CCTV footage and a letter of complaint they received. The Employer confirmed to the court that they did not have the footage from either before or after that particular “still”. They also confirmed that they had not provided the Worker with the letter of complaint nor had they checked with the person identified by the Worker who was in the store whether or not what the Worker had said was correct.
In relation to the allegations of breach of social media policy the allegation was broad and did not identify the specific elements of the policy alleged to have been breached.
It is clear to the Court from the submissions of the parties and the submissions made on the day that the process followed by the Employer was fundamentally flawed from the start and that the investigation was not carried out in a fair and just manner. In those circumstances the Court has decided that no fair outcome could arise from such a flawed process.
The Court recommends that no action should have been taken against this Worker and all reference to this process should be removed immediately from the Worker’s file.
The Recommendation 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.