Complainant

Respondent

Anonymised Parties

A Supermarket employee

A Retail Supermarket

Representatives

 Trade Union

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00034138-001

03/02/2020

The worker has been employed by the employer since 2014. The current dispute arises as a result of an incident that occurred on the evening of 11^th January 2019. The worker was subject to a disciplinary process which resulted in a final written warning and a transfer to another of the employer’s Stores.

The Union (on behalf of the worker) contends that the employer acted at variance with its own procedures throughout the investigation and disciplinary process, that the sanctions imposed on the worker were excessive and disproportionate to the incident complained of and that mitigating circumstances had not been taken into account by the employer.

The Union stated that on the evening of 11^th January 2019, the worker was involved in an incident with a member of management when he was seen kicking a football in the back store area of the employer’s premises. The Union contends that following the incident, the worker was summoned to an immediate meeting and was suspended for allegedly failing to carry out a reasonable management instruction and for behaviour which had intimidated the Manager in question.

The Union stated that an investigation meeting was subsequently arranged for January 28^th, 2019 whereby the Union and the worker attended without having received any policies, procedures or other documentation relating to the incident in question. The Union contends that this is in breach of agreed disciplinary procedures.

The Union also stated that while the Investigation meeting dealt only with the worker’s alleged failure to follow a legitimate management instruction, he was ultimately sanctioned for an additional charge of intimidatory behaviour towards the Personnel Manager, which was not put to him on at the meeting of 28^th January 2019 and which is denied.

The Union alleges that the worker was assigned to the back store area following a previous disciplinary issue and did not receive appropriate training for that role. When the worker was instructed to move roll cages on the evening in question, the worker responded that he was not trained in that role and had injured himself previously while carrying out a similar task.

At a reconvened investigation meeting held on the 14^th February 2019, the Union stated that, once again, it had not been provided with the required statements, policies and other documentation in advance of the meeting, and although the meeting was adjourned to allow the Trade Union and the complainant to read the relevant documents, it was difficult to comment on the information as it had only just been provided to them.

The Union stated that, at a disciplinary meeting which took place on 1^st April 2019, the worker outlined the previous difficulties that he had encountered with the People/Personnel Manager as well as the procedural deficiencies encountered throughout the process. The Union stated that despite the worker’s denial of serious misconduct and intimidatory behaviour towards the personnel manager, he was sanctioned with a final written warning and was transferred to another store. The Union stated that the worker was denied the principles of fair procedures and natural justice throughout the process. The Union cited the cases of Tesco Ireland v Ann Flaherty (UD/18/28), Lyons v Longford Westmeath Education and Training Board ([2017] IEHC 272, Dunnes Stores Limited v Gearon UD 367 [1988] and Gallagher v Revenue Commissioners ([1991 2.I.R. 370)

In support of its assertion that the worker’s alleged behaviour did not constitute serious misconduct, the Union cited the case of DHL Express (Ireland) Ltd v Michael Coughlan UDD1738.

The Union is seeking that the final written warning be expunged from the worker’s file, that he be reinstated to his previous role at his previous work location and that he receives compensation in relation to loss of earnings and in relation to the unfair treatment he has received by the employer.

The employer stated that the worker was instructed by the Personnel Manager on 11^th January 2019 to move some stock in the back store area and refused to do so. The employer stated that the worker refused to carry out a legitimate instruction from management and engaged in aggressive and abusive behaviour towards the Manager in question. The worker was also kicking a football in the area while he should have been carrying out his duties and answered a call on his mobile phone which is against company policy.

The employer confirmed that the Manger was so shaken by the incident that she asked the Retail Security Officer (RSO) to watch on CCTV as she returned to the worker to discuss what had occurred and to issue further instructions to him in relation to his duties. The employer stated that given the seriousness of the situation, the Manager in question had no option but to call an immediate meeting and to suspend the worker on full pay pending an investigation into the incidents. The employer confirmed that a complaint of bullying and harassment was submitted against the worker the following day.

The employer stated that investigation meetings took place on 28^th January 2019 and 14^th February 2019. The worker accepted that he should not have been kicking a football around but denied that he had used abusive and threatening language/behaviour and outlined that he had not received the necessary training to do what had been requested of him. The employer stated that the worker had received the appropriate training but had refused to sign to confirm that the training had taken place.

The employer confirmed that the matter was referred to a disciplinary meeting which took place on 1^st April 2019 and resulted in a finding of serious misconduct which was conveyed to the worker by letter dated 18^th June 2019. The employer stated that while the worker could have been dismissed for serious misconduct, a more lenient sanction of a final written warning and a transfer of work location was deemed more appropriate given that the relationship between the worker and Management has irretrievably broken down.

The employer stated that the disciplinary findings were appealed, and an appeal hearing took place in October 2019 as the worker was on certified sick leave and unable to attend prior to that date. The employer stated that the grounds of appeal were that the Manager who suspended the worker had investigated her own complaint, that the principals of fair procedure and natural justice had not been followed throughout the process, that the sanctions outweighed the allegations and that mitigating circumstances had not been taking into account in relation to previous difficulties between the worker and the Manager in question. The employer confirmed that the disciplinary findings were upheld on appeal and that the worker received a final written warning which has expired since 18^th June 2020 and was transferred to another Store. The employer confirmed that the worker has not taken up his role in the new Store as he has been absent on sick leave since the initial disciplinary findings were notified to him.

The employer contends that a full and fair investigation took place in line with agreed procedures and that the worker was aware of the allegations against him, was afforded the right to representation, was given the opportunity to state his case and was given an opportunity to appeal the disciplinary findings. The employer stated that the worker was ultimately given a lenient sanction in relation to his behaviour on the evening in question.

The employer concluded by stating that there is no merit in the worker’s claim and that it should fail.

The worker was suspended from work on the night of 11^th January 2019 following an incident that took place with the People/Personnel Manager on that night. In my view, the Manager acted in haste and suspending the worker in the manner she did, denied him of the principals of fair procedures and natural justice.

In Bank of Ireland v Reilly [20145] IEHC 241.  Noonan J. states as follows in relation to suspension:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire”.

The worker has undoubtedly had a troubled relationship with some members of management during his employment. It was clarified at the adjudication hearing that due to issues early on in his employment the worker was issued with an apology from the employer and certain members of management were retrained in the employer’s Dignity at Work Policy (including the Manager involved in this incident). There have also been other referrals to the WRC and Labour Court concerning the worker’s employment history with the employer.

In the instant case, two investigation meetings were held in relation to the incident that took place on 11^th January 2019 and on both occasions, the Trade Union and the worker were not provided with the relevant documentation in advance of each meeting which would have prevented them preparing an adequate defence.

I also note that the Trade Union was dissatisfied that the initial investigation meeting was based on one allegation of failing to obey a legitimate instruction whereas the subsequent investigation and disciplinary process resulted in a disciplinary sanction for an additional charge of using abusive and threatening language towards the Manager on the night in question. On this point I find that the worker would have been well aware what the totality of the accusations were against him on the basis of the letter inviting him to partake in the investigation process.

The worker also stated that he did not refuse to carry out management’s instructions in relation to moving the roll cages but rather he had not been trained in that role and was previously injured and not paid for his contractual hours while out on sick leave. The worker also stated that he was unaware of a mobile phone policy in relation to having a mobile phone while working. While the worker has had his difficulties over the years with the employer and is not entirely blameless in his interactions with management, it is the alleged unfair treatment, procedural deficiencies and the related sanctions imposed that are the focus of this Recommendation.

In all of the circumstances of the incident of 11^th January 2019 and the investigation and disciplinary process that followed, I find that the worker was treated unfairly and was denied the principles of natural justice and fair procedures on the basis of his immediate suspension on the night in question. The investigation and Disciplinary process that followed also had some flaws such as the failure of the employer to provide all documents in relation to the incident to the worker and his Trade Union representative in advance of each of the meetings.

Redress sought

The Trade Union is seeking that the final written warning be expunged from the worker’s file, that he be reinstated to his previous role at his previous work location and that he receives compensation in relation to loss of earnings and in relation to the unfair treatment he has received by the employer.

As the final written warning has now expired, I note Labour Court Recommendation No:21807, concerning the same employer, which states as follows:

The Company were questioned in relation to their procedures when a warning expired, and they confirmed that it is not their policy to write to Employees to inform them that the warning has expired. In their view it would create operational difficulties if they were to do so particularly where there were a large number of cases involved. The Court notes that the agreed disciplinary procedure states that the warning will only remain on file for 12 months. There is an onus therefore on the Company to ensure that there is a system in place that ensures no ambiguity can arise around the status of the warning after the twelve months has expired.

Having considered the submissions of both parties the Court recommends that the final written warning be expunged from the Claimant’s personnel file.

The two matters remaining are compensation which the Union has sought and the return of the worker to his original role at his original store location (Store A). The return of the worker to his original role has been addressed in ADJ-00021363. The employer indicated that it has accepted the Recommendation in ADJ-00021363 albeit that it will be at Store B. (The issue of Store Location was not raised at the previous adjudication.)

I note the comments attributed to the Personnel/People Manger that despite the issues which occurred early on in the worker’s employment, those issues were in the past and she believed that the working relationship between herself and the worker was good prior to 11^th January 2019. On that basis I do not find that the relationship has irretrievably broken down on the basis of that one incident.

Having considered the facts of the within dispute I find, on the basis of the initial unfair treatment of the worker and the procedural deficiencies in the subsequent investigation process, that the permanent transfer of the worker to Store B was an excessive and disproportionate sanction.

Having considered the submissions of both parties to this dispute, I recommend as follows:

In accordance with Labour Court Recommendation No:21807 I recommend that the expired final written warning be expunged from the workers file.

I do not recommend the payment of compensation to the worker.

When the worker returns to work from certified sick leave, he should carry out his duties in Location B for a period of three months. If there are no further disciplinary issues within that time, the worker should be returned to Store A. His return to his role as a Delivery Driver in that location should be in line with the Adjudication Recommendation in ADJ-00021363.

Investigation and Disciplinary process, Transfer, Suspension.