Complainant

Respondent

Anonymised Parties

Sales Assistant

Builders Providers

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00049576-001

08/04/2022

The Complainant seeks that a 9-month warning be expunged from his file as he alleges he was subject of a false allegation and natural justice was denied to him.

The Complainant is employed as a sales assistant and commenced his employment with the Respondent on 9th January 2017 working 39 hours per week. On Monday 24th January a complaint was received by Manager Mr A (CEO) by way of a phone-call in which he issued a written record of this complaint.

Mr B Operations Manager approached the Complainant bringing the matter of a customer complaint to his attention and subsequently inviting him to a meeting with himself and a member of the HR Department.  The purpose of the meeting was to establish the nature of the complaint by the two adult customers in the premises and the allegation that the Complainant had stated that the compost they were purchasing was incorrect for growing weed. The Complainant reaffirmed that this was not correct and when further questioned stated that he did mention weed without being permitted to fully explain the circumstances around this situation, was immediately suspended on full pay pending a full investigation.

On Tuesday 25th January an investigation meeting took place and the Complainant was represented by the Unite Representative. The Complainant gave a full established statement of events in relation to his interaction with the customers who were purchasing compost on the day and in responding to the complaint that was made by the mother who was not present in the premises on behalf of the two customers. The Complainant further stated that he did not use the word “weed” as in reference to the drug weed but in fact clearly stated he used the word “weed” when serving the customers in reference to garden weeds. The Complainant endeavoured to afford the best advice to the customers based on their purchase of compost and the ill effects this would have on plants and the increased growth of garden weeds inclusive of an explanation on Perlite in discussion and crucially confirmed he did not mention the word Nicolite in discussion with the customers. Following the conclusion of the Investigation meeting The Complainant attended a Disciplinary Hearing on Tuesday 1st February and the outcome of this Disciplinary Hearing on Thursday 3rd February was that the Complainant was issued with a sanction of a 9 month written warning. During the Disciplinary Hearing the Complainant has again confirmed and reaffirmed his position that he did use the word “weed” in relation to garden weeds, weed fabric, weed killer and weed control. The Complainant has confirmed that he did in fact use and reference Perlite and that this is utilised to air the compost of the soil and is defined as a “highly useful component of gardening for many reasons. It is physically stable and retains its shape, even in heavy or saturated soil. It doesn’t decompose, so it’s ideal for use in potting mixes for plants” The Complainant again has denied nor has he any knowledge of the word “Nicolite” which is stated in the complaint received by Manager Mr A.  The outcome of the Disciplinary Hearing was to issue the Complainant with a 9 Month written warning, based on the balance of probability.

The Complainant exercised his right of appeal and this hearing took place on Tuesday 22nd February. Following the appeal hearing, the outcome of this appeal was to uphold the 9 month written warning to The Complainant.

Employee’s Arguments

The Complainant has given his verified account of events in relation to the incident with the 2 customers on Monday 24th January and has confirmed and established his reference to using the word weed, specific to gardening purposes and not in relation to the accusation in relation to the drug weed.

· The complaint received came from the mother of the 2 customers, who was not present in Morris’s at the time of the purchase.

· The company during the investigation process never interviewed the actual customers as part of the investigation process for the specific purposes of getting a written statement in supporting their claim as key witnesses.

· The Complainant has throughout the process identified that as per the complaint received, he did under no circumstances use as stated the word Nicolite.

· The Complainant has always endeavoured to afford the best advice to customers based on their purchase and at all times approaches his work duties in a manner consistent with the company’s requirements.

Unite the Union on behalf of the Complainant believe that he has been denied natural justice based on the extensive internal procedure conclusion, whereby he has consistently denied that he did not use nor reference the word weed in relation to the drug and that this was a simple misunderstanding which was equally misinterpreted.

The complaint received by Manager Mr A is not supported by the 2 customers who were present in the shop and should have been dismissed based on the fact that the 2 customers were never interviewed to give their account on the day and is tantamount to hearsay which cannot not be substantiated. The Complainant has and continues to be deeply impacted by this process and has suffered considerable stress and increased anxiety as a result of the Respondent suspending The Complainant for a week and in issuing a sanction of a 9 month written warning. Therefore it is clear from the above information that the sanction of a 9 month written warning is both unfair and unjust and we are seeking that this sanction is expunged from The Complainant’s record.

On 24th January 2022, the CEO received a complaint by telephone call from a customer.  The customer said that her two adult children were purchasing compost in the shop and were served by a staff member who asked if they were growing weed, because the compost they were purchasing contained niccolite and they needed one with perlite.  Due to the seriousness of the complaint, the Operations Manager and HR Officer met with the staff member on the same day.  He was suspended on full pay pending an investigation and he was given a copy of the company disciplinary policy.

A meeting took place on 25th January 2022 at which the Complainant was represented by Unite the Union.  During this meeting, he did say that he questioned if the customers were growing weed, but he meant it as a joke.

A disciplinary meeting was held on 1st February 2023 and the Complainant was represented by his Union Official.  During this meeting he denied using the word weed as a reference to the drug and he did not know the word niccolite.  The outcome of the disciplinary meeting was given to the Complainant on 3rd February 2022 and he was advised that due to the conduct and interaction with the two men being in breach of the standard of behaviour expected a written warning was given due to expire 9 months from that date.  The sanction was appealed and an appeal meeting took place on 22nd February 2022.  By letter dated 9th March 2022, the Financial Controller who conducted the appeal communicated his decision that the word “weed” was used by the Complainant in his initial conversation with the two men, that the word was in connection with the drug, otherwise why would they ask their mother not to send them into the shop again.  The appeal also found that in the investigation meeting on 25th January 2022, the Complainant had admitted he used the word “weed” as an icebreaker and a bad joke.  The outcome of the appeal was that the 9 month warning was upheld. 

Company Arguments

There were considerable inconsistencies in the Complainant’s arguments during the process.  In the investigation meeting he admitted using the word “weed” as an ice breaker and said it was a bad joke.  Then in the disciplinary meeting he said he used the word but in the meaning of weeds growing in the garden.  The complaint from the customer was very clear, that her two sons had been told to use perlite if they wished to grow weed.

The Complainant was issued with a written warning on 3rd February 2022 and the expiry date was 3rd November 2022.  The Labour Court has found on several occasions in relation to disciplinary sanctions that if they have expired, then the matter of expunging same is moot.  In LCR21763 the Court found “The Court cannot expunge something that no longer exists”.

It is argued that there is no case to be heard as the warning no longer exists.   Notwithstanding this point, the sanction imposed was lenient and imposed following a full and fair investigation of the matter.  

 The Complainant was issued with a 9-month written warning on 3rd February 2022 following an investigation and disciplinary process during which he was afforded the right to be heard, to be represented and to appeal.  There were inconsistencies in his evidence in the process, where he initially agreed he used the word “weed” as an ice breaker and joke, to later denying he used the word “weed” as it refers to the drug.  The Respondent imposed the written warning after consideration of this and I find no reason to overturn this decision.  In any case, as has been pointed out by the Respondent, the Labour Court has found on many occasions that a warning which no longer exists cannot be expunged.  I conclude that the written warning no longer exists and the worker and the company should move on from the dispute in the interests of effecting a harmonious relationship.

Written warning, expired.