Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Mr. Greg Caffrey, Mandate Trade Union

Ms. Niamh Ní Cheallaigh, Ibec

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000240

28/04/2022

On 8 October 2021, the Worker commenced employment with the Employer as a Delivery Driver. On 13 July 2021, during a random test purchase, the Worker failed to ask a 19-year-old customer for photographic ID when delivering alcohol. This was a breach of the Employer’s Restricted Sales Policy. On 30 September 2021, following an investigation, the Worker received a verbal warning. On 17 December 2021, the Worker’s appeal of the verbal warning was denied. On 30 December 2021, the verbal warning expired. On 28 April 2022, the Worker submitted their dispute to the Workplace Relations Commission (the “WRC”).

The Worker provided submissions in advance of and during the Hearing.

On 8 October 2021, the Worker commenced employment with the Employer as a Delivery Driver. He earned approximately €561.13 gross per week, working 35+ hours per week. The Worker outlined that he has delivered alcoholic beverages and other items, without incident, throughout his career. Until the incident central to this dispute, the Worker had an unblemished record of over 10 years’ service.

When delivering alcohol, the Employer’s Restricted Sales Policy (the “Policy”) requires Delivery Drivers to ask customers, who look younger than 25 years old, for photographic ID when delivering alcohol. Periodically, the Employer carries out random test purchases to ensure that the Policy is being implemented correctly. On 13 July 2021, during a random test purchase, the Worker failed to ask a 19-year-old customer for photographic ID when delivering alcohol. This was a breach of the Employer’s Policy. On 30 September 2021, following an investigation, the Worker received a verbal warning. On 17 September 2021, the Worker’s subsequent appeal of the verbal warning was denied. On 30 December 2021, the verbal warning expired. On 28 April 2022, the Worker submitted their dispute to the WRC.

The Worker asserted that this issue is not moot, despite the expiration of the verbal warning. The Worker asserted that the investigation and its outcome were flawed and unfair. The Worker also took issue with the Policy. The Worker submitted inter alia that:

1.       The Employer failed to record the investigation under the appropriate investigation category;

2.       The Employer did not furnish the Complainant with a copy of the Policy during the investigation and disciplinary process;

3.       The Employer incorrectly referred to the Policy as legislation;

4.       The Employer did not properly consider the Serve Legal report which noted that the Worker was not described accurately and indicated that the delivery docket/receipt was not stamped to indicate that the delivery contained alcohol;

5.       The Employer did not outline or provide a provide a copy of the Worker’s training record as regards the Policy;

6.       The Employer did not consider the Worker’s version of events;

7.       The Employer did not acknowledge the discretionary judgment stipulation provided for in the Policy; and

8.       The Policy is flawed in theory and practice.

The Worker requested that the Employer expunge the verbal warning from their record and review its Policy training to ensure that more robust systems are in place to minimise the selling and delivery of alcohol to minors.

The Employer provided submissions in advance of and during the Hearing.

The Employer refuted the Worker’s allegations in their entirety.

The Employer submitted that as the verbal warning has expired and is no longer live on the Worker’s record, the issue is moot. The Employer highlighted the fact that the Employer submitted his complaint to the WRC almost four months after the verbal warning had expired.

The Employer outlined that the Policy and procedures in place regarding age restricted sales are treated seriously. The Employer outlined that it carries out random test purchases periodically, to ensure that the Policy is being implemented correctly.  After these test purchases, a report is sent to the Employer’s Compliance Officer. The Employer submitted that on 13 July 2021, during a random test purchase, the Worker failed to ask a 19-year-old customer for photographic ID when delivering alcohol. This was a breach of the Employer’s Policy. The Employer outlined that the Worker was fully trained on the Policy. The Employer submitted that in the circumstances, the verbal warning sanction was fair and appropriate.

The Employer submitted that it is not for an adjudication officer to make specific findings as to what the outcome of an internal investigation should be, but rather to assess whether the process conformed to the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146/2000). The Employer outlined that the Worker was subjected to a full and fair investigation, and in particular was:

1.       Informed of the allegations against them;

2.       Afforded the right to representation;

3.       Given the opportunity to state their case;

4.       Informed of the possible outcome of the disciplinary hearing; and

5.       Afforded the opportunity to appeal the disciplinary outcome.

The Worker requested that this matter be deemed moot, or in the alternative, that the adjudication officer finds that the Worker’s dispute under the Industrial Relations Act fails.

My role is to inquire into the dispute and find a fair basis for resolving the dispute. In conducting my

inquiry, I have taken into account all relevant information presented to me by the Parties.

On 30 December 2021, the Worker’s verbal warning expired. On 28 April 2022, almost four months later, the Worker submitted their dispute to the WRC.

The Labour Court has found on many occasions that a warning which no longer exists cannot be expunged. For example, in Tesco Ireland v. A Worker, LCR21763, the Labour Court noted:

“The issue came before the Court on the 25th July 2018 at that point the final written warning had expired and therefore the issue was moot. The Court cannot expunge something that no longer exists.”

I conclude that the verbal warning no longer exists and the issue is moot. I recommend that the Worker and the Employer move on from the dispute in the interests of effecting a harmonious relationship.

Industrial Relations Act, section 13.