Worker

Employer

Anonymised Parties

A Worker

A Distribution Company

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 - 00001606

04/08/2023

Following an incident in May 2023, the Worker stated that his Employer unreasonably and disproportionately imposed a permanent sanction of demotion on him which resulted in his wages being reduced.

The Worker began working for the Employer through a recruitment agency in 2005 as a general warehouse operative. Subsequently he was employed directly by the Employer from 6 February 2006. In May 2008, he was promoted to the position of Acting Line Manager (ALM). Subsequent to this variation, the ALM bonus was increased to €28 per shift.

As of June 2023, the Worker received a monthly wage of on average €1066.12 net, of which approximately €400 was due to his position as ALM, although this could be up to €600 per month depending on how many ALM shifts were done.  Up until May 2023, the Worker had an exemplary work, disciplinary and attendance record at the employer. He never had any disciplinary proceedings against him, and in 18 years he only took 5 sick days and was late for work a total of 8 times.

The Worker’s role as ALM required him to work most days as a manager, directing and supervising general warehouse operative staff in the distribution centre. Occasionally (perhaps 1-2 times a week), depending on staffing levels, the Worker was also required to work as a GWO.

In 2020, the Employer introduced a new process at the warehouse, the “Layer picking system”. This required GWOs to pack goods and boxes in a particular order. GWOs qualify for a weekly bonus called the PRI based on their compliance with this process. ALMs do notqualify for this bonus, even when they are working as GWOs. Since the introduction of the system, there have been problems with GWOs engaging in a practice called “reverse picking” where the policy is not followed and GWOs can inflate their compliance figures in order to unfairly qualify for the PRI bonus. At the same time, GWOs have complained that the new system requires them to spend significant time waiting and not working and that this unfairly penalises them by artificially preventing them from qualifying for the bonus. On 5 May 2023, the Worker was, as part of his weekly duties, working as a GWO on the line. There were only a few boxes of goods to be packed. Mindful of the ongoing complaints from GWOs about the new system, as an experiment, the Worker packed a few boxes using the reverse picking method, in order to compare the time difference between packing that way and following the layer picking system. The Worker did this knowing that as he was unable to qualify for the PRI bonus, there was no financial or other advantage to him in doing this, other than establishing a comparison between the two methods. The Worker did this solely for the purpose of comparing the two systems.

The Employer’s Team Manager told the Worker that he had been reported by a GWO for reverse picking. Reverse picking is not listed in the company’s disciplinary policy or staff handbook as capable of being regarded as gross misconduct. Although there was an email/notice circulated to staff indicating that this practice could lead to disciplinary action against staff, there was no indication that this could be regarded as gross misconduct.

Notwithstanding this, the Worker was notified by the Shift Operations Manager, that he was to attend a disciplinary hearing on 16 May 2023 for “gross misconduct – reverse picking incident on 5 May 2023”. The Worker attended the hearing with his shop steward. The Employer stated that as this was a matter of fact, no investigation was required and they would proceed to a formal disciplinary hearing.

At the hearing, the Worker accepted that he had engaged in reverse picking, and explained why he had done so. He apologised and committed to not doing this again in future. The Worker pointed out that he did not stand to financially benefit in any way, and that up until then had had an exemplary work record. Notwithstanding this, by letter on 18 May 2023, the Worker was informed that he was being permanently demoted back to a GWO role and it was explained that this was the only option available to him.

The Worker engaged in the Appeal process and attended an Appeal on 31 May 2023. The Appeal was chaired by the Operations Manager. The Worker was accompanied by his SIPTU shop steward. The Worker was advised of the result by letter on 8 June 2023. 

In the appeal outcome letter, the Operations Manager stated that he decided to uphold the decision to demote him from his ALM position to that of his previous role of Warehouse Operative. He further stated that he did not accept the arguments put forward by the Worker’s shop steward which he stated in the letter “were at times completely inappropriate”. The Worker stated that there was nothing inappropriate in any of his trade union representative’s representations and asserted that this comment was an indication of bias against workers who choose to be represented by trade union officials as is their right, and/or that the decision to demote him was based on inappropriate and unfair considerations.

The Worker further stated that his Employer decided to make an example of him, in order to have a deterrent effect of other workers. The misconduct he was accused of is not mentioned in the Company’s disciplinary policy, and in none of the proceedings which have resulted from a breach of this policy since its introduction in 2020 have been treated as gross misconduct, and in none of these cases was a permanent sanction imposed.

The Employer completely disregarded the Worker’s unblemished previous disciplinary record and 18 years of loyal service, the fact that he did not stand to benefit in any way from his conduct as well as his his complete and honest cooperation with the disciplinary process,

The Worker has suffered and continues to suffer serious impacts on his life due to the actions of his employer. His salary has been reduced by a minimum of €100 per week (as sometimes, depending on how many ALM shifts he did, the Worker could earn up to €150 per week) since 8th June 2023.

The Worker commenced employment with the Respondent company on 30 January 2006 and is engaged as General Warehouse Operative (GWO).

In May 2008, the Worker commenced additional duties and was promoted to the position of Acting Line Manager. This promotion meant that as the need arose, the Worker would act-up into this position. This is not considered a management role, as it does not have full management responsibilities. The role of ALM does not require people management and would be required to cover periods of sickness or annual leave. When the need for the Worker to act-up arose, he would receive supplementary pay to the amount of €27.50 gross per day, which was on top of his wage for General Operative.

The Respondent operates a PRA bonus, which is a payment issued to Warehouse Operatives who pick above the required numbers. This PRA bonus represents a small increment for eligible employees; however, the Worker is not eligible for this as he is on a higher hourly rate than his colleagues.

On 5 May 2023, the Worker was approached by the Warehouse Manager, regarding poor performance whilst picking that morning. The Warehouse Manager contacted the Human Resources Department to advise that it was brought to his attention that the Worker had been engaging in reverse picking. When spoken to regarding this, the Worker queried why this was an issue.

On 12 May 2023, the Worker was invited to attend a formal disciplinary hearing under the Company’s disciplinary procedure. This was scheduled for 16 May 2023 and in this invitation, the Worker was advised of his right to be represented by a colleague or trade union representative of his choice. The Worker was also informed that this could warrant a disciplinary sanction being taken against him up to and including dismissal.

The disciplinary hearing took place on 16 May 2023. The Worker chose to be represented by his colleague and SIPTU shop steward, and the meeting was conducted by the Shift Operations Manager. During the disciplinary hearing, the Worker was afforded an opportunity to respond to the reverse picking reports and advised that he engaged in the reverse picking incident to ‘test’ the system to determine if it impacts performance and expressed his surprise that this was raised as an issue.

On 18 May 2023, the Shift Operations Manager wrote to the Worker to advise him of the outcome of the disciplinary hearing. In this correspondence, he outlined that for the Worker, an acting manager, to engage in reverse picking was disappointing. Further, he stated that it amounted to a breach of trust given his position. The Shift Operations Manager further outlined that as the appointed Disciplinary Manager, he was left with no alternative but to remove the additional ALM duties and demote the Worker to General Operative with immediate effect. The Worker was informed that a further recurrence of this behaviour would not be tolerated and that further disciplinary action could be taken, up to and including dismissal. The Worker was advised of his right to appeal this decision, should he wish to do so.

On 19 May 2023, the Worker informed the Human Resources department that he wished to appeal the disciplinary outcome. On 26 May 2023, the Worker was invited to attend an appeal hearing, scheduled for 31 May 2023. He was advised of his entitlement to be accompanied to this meeting by a colleague or trade union representative of his choice.

The appeal hearing took place on 31 May 2023, at which the Worker was represented by his SIPTU shop steward. The appeal manager, the Employer’s Operations Manager, chaired this meeting. 

On 8 June 2023, the Worker was issued with an outcome to his appeal via letter. The Operations Manager advised the Worker that, following a thorough review of all relevant documentation and the information put forward by the Worker at the appeal hearing, he was upholding the disciplinary sanction. He also outlined that he did not accept the defence put forward at the appeal hearing by the Worker regarding the reverse picking, given that he was in a management position and the seriousness of this activity was communicated to all managers, as well as posted on noticeboards and sent via email. He advised that he believed the Worker chose to ignore management’s instruction on the matter and his actions served to undermine the Company’s approach to addressing reverse picking on site.

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

I should highlight firstly that I do not accept the contention of the Employer’s representative that the provisions of the Industrial Relations Act 1969 do not allow an Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation should be or to form an opinion as to whether the Employer was “objectively correct in their conclusions”.

In support of my view that the Act does in fact afford Adjudication Officers the latitude to make findings in relation to the outcome of internal company processes, I have regard to the recommendation of the Labour Court in the matter of St. Vincent’s University v A Worker (LCR 20389.) In their recommendation, the Court clearly set out the function of a third party body in such matters stating that: “What is in issue is this case is not the appropriateness of a disciplinary sanction but rather the appropriateness of the sanction decided upon by the Hospital. From an industrial relations perspective the appropriateness of a disciplinary sanction, including dismissal, must be judged by the gravity of the misconduct giving rise to the sanction chosen.”

In considering whether the sanction imposed on the Worker in this dispute was appropriate, from an industrial relations perspective, I have regard to the fact, crucially in my view, that the Worker did not benefit financially from his decision to “reverse pick” on 5 May 2023. I therefore find that what is effectively a permanent sanction was both wholly unreasonable and disproportionate. While I accept that a disciplinary measure was warranted, a more appropriate penalty, in my view, would have been a specific and unpaid period of suspension from his role of ALM.   

Considering the foregoing and recognising the long service of the Worker to date and hopefully in prospect, as well as his clean disciplinary record prior to the date of this incident, I recommend that he be automatically given the next ALM position that becomes available within the Employer organisation without having to undergo a selection process for the role.