Worker

Employer

Anonymised Parties

Driver

Supermarket

Representatives

Jim Fuery Mandate Trade Union

Niamh Ní Cheallaigh

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 - 00000189

27/04/2022

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

IR - SC - 00000196

27/04/2022

The background to this dispute relates to an individual grievance about a verbal warning given to a delivery driver based on a finding that he did not comply with Company policy when he delivered alcohol to a household where the person who ordered the alcohol was 19 years of age. The policy requires the employee to make a judgement about the age of the customer and not to deliver or sell alcohol to a person under age 25 without seeking confirmation of their age. The following is the policy:

The Think 25 Process

The “Think 25” process ensures that we do not sell age restricted products to underage customers If a customer looks under 25 and wishes to purchase, or take delivery of, an age restricted product, proof of age must be requested. If the person is not old enough, or proof of age is unavailable or unacceptable, the purchase or delivery must be refused. This does not mean that a customer must be or25 to buy these products. If they can prove that they are old enough to purchase the product, the sale may go ahead.

Based on secret shopping a disciplinary investigation concluded that the driver was in breach of the policy and should receive a verbal warning.

The employee takes issue with the process as the identity of the shopper remains anonymous. He contends that the sanction could give rise to dismissal based on a secretive process where the allegations at face value are accepted by the Company and there is no way to challenge the veracity or reasonableness of the allegations. The Driver in this case strongly denied that he was negligent when making a delivery.

The Company argue that this complaint is moot as the verbal warning no longer exists. They cite case law where Twomey J determined in Dillon v Board of Management of Catholic University School [2016 IEHC 67] where an employee who had been issued with a final written warning proceeded with a claim to have the warning quashed from their file. However, the warning had expired by the time the applicant had brought their application to the Court. Mr Justice Twomey relied on two legal principles, mootness and the De Minimis rule to dismiss the complaint. And in Barry v FitzPatrick [1996 I IRLM 512], the Supreme Court upheld the finding of Mr Justice Ronan Keane that “an order of certiorari, once it ceases to have any effect, is a pointless exercise and one which no court should undertake.

However, the worker maintains while the verbal warning has been expunged from his file; a fact appropriate for investigation is the application and the ongoing application of an anonymous secret shopping procedure that offends the principles of natural justice and the code of practice S.I No 146 of 2000 that states:

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

The worker maintains that his work is overseen by a procedure that is anonymous where the source of allegations or complaints cannot be scrutinised and examined, and that the secrecy of the process offends fair procedures. Therefore, the dispute is not mute as oversight of his compliance continues with what he sees as a manifestly unfair procedure. While the grievance about the verbal warning maybe moot that cannot be said about the policy and active procedures that oversees his work on an ongoing basis and continues.

The worker presents two complaints:

1.       The verbal warning should not have been given based on the failure to allow him to see the evidence against him

2.       The secret shopping procedure where the identity of the secret shopper is protected makes the process inherently flawed and offends fair procedures

The employer must ensure that it has a robust and fair process to protect customers and staff so that the law relating to alcohol sales is fully complied with. This involves a balancing of varying interests so that the Company is not prosecuted for any breach and where the store could be temporarily closed for failing to comply with the law. The procedure is a sensible one.

The dispute as presented is moot. There is no warning on the worker’s file as it has been expunged. There is no dispute to hear in these circumstances.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that Murdoch’s dictionary (2021 Bloomsbury Professional) defines moot as:

(1) Debate of points of law in a hypothetical case, eg to give practice to student lawyers. There is an All Ireland Moot Court competition sponsored by the Bar Council. Also Irish law students compete in the Irish heats of the American Jessop International Law Moot and in the heats of a European law moot run by the European Law Students Association. See examples in (1992) 2 ISLR 110 and (1993) 3 ISLR 147.

(2) The courts should not embark on a moot issue where matters of fact have not actually been established in evidence: Brady v Donegal Co Council [1989 SC] ILRM 282. While the court does not ordinarily give a ruling on a moot, cases concerning the care and custody of children were probably of unique character; and the court would therefore rule on the issues in order to provide guidance to those involved and in particular having regard to the absence of provision for legal assistance for children involved in such proceedings: F v Supt of B.Garda Station [1990] 8ILT Dig 191.

An appeal was said to be moot when the decision would not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties and where the passage of time had caused the proceedings to lose their character as a present live controversy: O’Brien v Personal Injuries Assessment Board [2006] IESC 62; [2007 SC] 1 IR 328; [2007 SC] 1 ILRM 304.

The starting point of any consideration of mootness had to be a determination as to whether the issue sought to be litigated was still alive in any meaningful sense such that it could not be said to be purely hypothetical or academic: PV v Courts Service [2009] IEHC 321; [2009 HC] 4 IR 264. There might be circumstances in which it might be appropriate to determine issues which might be moot, however, the discretion to exercise moot proceedings should be exercised sparingly (ibid).

The Supreme Court decided that it would exercise its discretion to hear an appeal given that the issue arose in circumstances which would escape review if the court did not hear the appeal, and that the decision to grant a stay: (i) was made on an ex parte application in which the appellant had no opportunity to address the issue; (ii) had an effect on criminal proceedings which were of real concern to the appellant; (iii) potentially affected many criminal cases in the District Court and (iv) had a systematic relevance to cases before the courts, where an application or judicial review had been granted: Farrell (also known as Regan) v Governor of St Patrick's Institution [2014] IESC 30; [2014 SC] 1 IR 699; [2014 SC] 1 ILRM 341.

See also Murphy v Roche [1987] IR 106; International Fishing Vessels Ltd v Minister for the Marine [1991 SC] 2 IR 379; In re Application of Tivoli Cinema Ltd [1992 HC] ILRM 522; DPP (Whelan) v Delaney [1996 HC] 1 ILRM 70; Maguire v South Eastern Health Board [2001 HC] 3 IR 26; The People (DPP) v D K [2002 CCA] 3 IR 534; Rice v Judge Mangan & DPP [2004 HC] 4th October 2004. See McMahon

The fact that the verbal warning has expired means that this matter or dispute is moot and therefore should not be adjudicated upon.

The second matter or dispute that the procedure could give rise to an injustice as it is a secretive process where the evidence cannot be challenged can be considered under what is referred to as a hypothetical argument:

A plaintiff has no LOCUS STANDI (qv) to advance hypothetical arguments and is limited to showing how he himself is affected: Madigan v Attorney General Ors [1986] ILRM 136. A court cannot take into account assumptions or hypotheses outside the facts or circumstances of the action before the court: MhicMhathuna v Ireland [1990] 8ILT Dig 59. Also a court must determine the actual and not any hypothetical facts surrounding an alleged offence: Carron v McMahon [1990 SC] ILRM 802.

While the matters before me are related to a trade dispute and are not legal arguments; the facts show that what I am being asked to look at, are the possible effects including dismissal that might occur based on the secret shopping policy and practice. That by definition is hypothetical.

I have noted that the code of practice S.I No 146 of 2000 that states:

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

However, the absence of any factual matrix in contrast to a hypothetical one, means that both issues before me are moot and/or hypothetical and therefore not open to a finding based on fact. Therefore, I cannot find or recommend in favour of the worker.

It is understandable that the worker in this case perceives the process to be unfair; however, in the absence of a tangible wrong or a tangible claim, the matter cannot be progressed. It is the manifestation of an unfairness stemming from an unfair policy that could give rise to an investigation; however, that is no longer the case for this worker. Therefore, the dispute is moot.

Secret shopping-Moot-Hypothetical Argument