LCR22180

This matter was referred to the Court by the Worker pursuant to section 20(1) of the Industrial Relations Act 1969, Lidl Ireland GmbH (‘the Company’) previously having objected to the investigation of the dispute by an Adjudication Officer of the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969. The Court heard the matter in Dublin on 7 January 2020.

The dispute concerns the outcome of a disciplinary process to which the Worker was subject. Following an appeal hearing, the Worker received a final written warning and was demoted to a position that carried a salary of approximately €17,000.00 per annum less than that from which he was demoted.

Factual Matrix

The Worker commenced employment with the Company on 1 June 2004. He was subsequently promoted on a number of occasions, eventually rising to the position of Deputy Logistics Manager (‘DLM’) at the Company’s Regional Distribution Centre in Newbridge, County Kildare. This was regarded as a position of some responsibility as the Worker was employed on night shifts, was a keyholder to the premises which contained several million euro of stock at all times and was often the only manager on duty.

In or around January 2019, the Company carried out a standard review of DLM average working hours. It came to light in the course of that review, that the Worker had not used the Company’s clocking card system for the month of December 2018 but instead had recorded his working hours manually. On further investigation, it transpired the Worker’s hours did not coincide fully with his rostered hours. This apparently prompted the executive concerned to review CCTV footage for the period in question. In doing so, he came across footage recorded on 22 December 2018 which showed the Worker leaving the warehouse, pushing a trolley of items and returning again some minutes later with, it would appear, fewer items in the trolley.

By letter dated 30 January 2019, the Worker was invited to an investigation meeting, pursuant to the Company’s Disciplinary Policy and Procedure, to take place on 7 February 2019 to discuss two matters: “Alleged manipulation of working times in December 2018; Alleged concealment of goods with the intent of theft on Saturday, 22^ndDecember 2018”. The Worker was advised of his right to be accompanied by a work colleague at the meeting.

At the meeting on 7 February 2017, both allegations were put to the Worker. He advised that he had lost both of his swipe cards and hadn’t taken the necessary steps to inform the Company of this nor had he applied for replacement cards. He admitted that he had manually recorded his working hours using a login card belonging to the Regional Logistics Manager in a different department. The Worker – when shown the CCTV footage of 22 December 2018 - accepted that he was the person recorded on that occasion. He offered an explanation as to why he was using the trolley on that occasion and as to what he items he believed had been in the trolley when he left the warehouse and when he returned with it to the warehouse. He made no admission of having removed any item from the trolley at any stage.

The investigator also interviewed three other witnesses and compiled relevant records, including the time sheets for December 2018. The investigator prepared a comprehensive written report dated 15 March 2019. He concluded that the Worker had a case to answer and recommended that matters proceed to a disciplinary hearing.

Mr Scott Phillips, Sales Operations Executive, was appointed to conduct the disciplinary stage. Mr Scott, by letter dated 22 March 2019, invited the Worker to attend a “disciplinary hearing” in Newbridge on 27 March 2019. Again, the Worker was advised of his right to be accompanied to that meeting by a work colleague. He was also referred to the section of the Employee Handbook which sets out the Company’s Disciplinary Policy and Procedure.

The disciplinary meeting took place as scheduled. The Worker was unaccompanied at the meeting. Mr Phillips issued his findings in writing on 10 April 2019. He found that the Worker had knowingly falsified his hours over a four-week period in December 2018 and had thereby undermined the Company’s compliance with the Organisation of Working Time Act. In relation to the second allegation, Mr Scott said he had found the Worker’s explanation “to be highly implausible” and that “on the balance of probability, that a 3-litre carton of milk was removed from the company premises, an action that constitutes gross misconduct”.

Mr Scott’s letter goes on to state that “the above actions constitute gross misconduct” but declined to impose a sanction of dismissal, having regard to the Worker’s “years of service within the business and unblemished record to date”. He decided that the appropriate sanction was a final written warning and a recommendation that the Worker be moved to an alternative DLM role in a different department where he would be subject to greater supervision.

The Worker thereafter commenced a period of sick leave. However, he notified the Company by email dated 23 May 2019 that he wished to avail himself of his right to appeal the outcome of the disciplinary hearing. The appeal hearing took place on 7 June 2019 in Newbridge. It was conducted by Mr Niall Murray, Regional Director. The Worker was not accompanied at the meeting. The appeal was confined, at the Worker’s election, to the second allegation i.e. that he had concealed a three-litre carton of milk with the intention of stealing it. The Company facilitated a reconstruction of the events captured by the CCTV footage on 22 December 2018. The appeal hearing lasted for approximately one hour and ten minutes.

Mr Murray issued his appeal outcome letter on 18 June 2019 in which he stated, inter alia:

• “In conclusion, I believe that the decision to issue you with a final written warning was justified. However, due to the fundamental breakdown of trust and the concerns that I have in relation to you remaining in a managerial role, where even in the Selections Department you would continue to work in an unsupervised position, I have decided to increase your sanction in relation to your redeployment. Therefore, rather than a transfer to a Deputy Logistics Manager in Selections, I have instead decided to demote you to a Desk Clerk position in the Warehouse, with immediate effect. This decision is final.”

Submissions

Counsel for the Worker submits that the sanction imposed on his client following the appeal hearing is disproportionate and unfair and requests the Court to recommend payment of compensation accordingly. Counsel takes particular issue with outcome of the appeal process that resulted in the Worker being demoted to a role bearing a salary that is some €17,000.00 lower than that the Worker had previously held.

Counsel for the Company submits that Mr Phillips, at the disciplinary stage, and Mr Murray, at the appeal stage, would have been entitled to impose the ultimate sanction of dismissal on the Worker, having made findings of gross misconduct against him. However, at both stages the Worker’s prior record was taken into account and the lesser sanction of a final written warning was imposed, albeit Mr Murray amended the original decision to move the Worker laterally at the same grade and decided instead to demote him to a much lower position. Counsel submits that the lateral move recommended by Mr Phillips would not, in fact, have resulted in the Worker being employed in a position that was subject to greater supervision than his original position. Counsel also urges the Court to consider the significance of both allegations against the Worker which, he says, jointly point to a lack of honesty and trustworthiness on his part.

In the course of the hearing, Counsel for the Company gave a number of undertakings to the Court on behalf of his client. The first undertaking is that the Company will, in early course, furnish the Worker with full details of its Employee Assistance Programme. Secondly, the Court was told that, should the Worker apply for promotion in the future in the Company, there would be no bar to him doing so, arising from the events that gave rise to the within proceedings. The Company referred to a number of other employees who had also received disciplinary sanctions in the past and who had successfully applied for promotion afterwards and gave an assurance that the Worker in this case would be treated no differently to how those employees had been treated.

Discussion

Having considered in some detail, the Parties’ written submissions and the comprehensive oral submission from Counsel on both sides, the Court finds that the Company has not justified its decision to drastically increase, at the appeal stage, the original sanction imposed on the Worker at the disciplinary stage. A final written warning, in and of itself, is a severe disciplinary sanction, particularly when the recipient of such a warning is a person that has accrued some sixteen years’ unblemished service with his employer prior to this and has been promoted on a number of occasions. The requirement to ensure that the Worker would be subject to greater supervision does not justify demoting him to a much more modestly paid role, as happened in this case. This aspect of the disciplinary sanction in this case is, therefore, in the Court’s view, disproportionate and unfair.

The Court, therefore, recommends the Worker receive compensation of €17,000.00.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
CO'R______________________
22 January 2020Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.