FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS & SPENCER'S IRELAND LTD - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-050843-Ir-07.
BACKGROUND:
2. The Worker has been employed by the Company since 1996. In December 2006, the Worker was accused of mis-using her staff discount card to enable a co-worker to purchase goods. The Company held a Disciplinary hearing into the incident and it was found that the Worker's action was in breach of the Company's 'Staff Discount Policy'; constituted an act of gross misconduct; and merited a Stage 3 disciplinary warning and the removal of the Worker's staff discount card for twelve months (the staff discount card was later restored following an appeal by the Worker).
The imposition of Stage 3 disciplinary warning automatically meant that the Worker could not apply for a promotion, a transfer or a pay review for the duration of the warning. In July 2007, the Worker was not paid a €750 bonus paid to staff because she was on a Stage 3 disciplinary warning. The Union claims that the sanctions imposed on the Worker were too severe and the matter was referred to a Rights Commissioner for investigation and recommendation. On the 6th February, 2008 the Rights Commissioner issued his Recommendation as follows:-
- “Having considered all of the evidence presented I find as follows:
It is reasonable for the respondent to enforce their policy on the use of staff discount cards as the discount allowed on items is significant and because the use of discount cards is open to abuse if not controlled. I also acknowledge that the respondent followed their disciplinary procedure and afforded the claimants fair procedure.
This entire issue could have been avoided if [Ms A] had simply given the Vouchers to [Ms B] and let her use them to purchase all of her goods and it is not clear why [Ms A] didn’t do just that. On the other hand the exchange of the discount card was done openly at the till and in full view of the CTV cameras and both claimants had similar amounts of cash remaining on their discount cards so there was no obvious advantage gained by [Ms A] by using [Ms B]’s discount card and in [Ms B]’s case she would suffer the loss of discount on her card. Basically the position of both claimants was that while two baskets of goods were presented at the till point they were both the property of [Ms B] and [Ms A] took one basket and used [Ms B]’s discount card to pay for [Ms B]’s goods.
It is clear that the claimants did break staff discount card policy. However on the balance of probabilities I accept their explanations as a true version of what happened in the circumstances on the day and I find that they did not deliberately breach the discount card policy or attempt to defraud the company. Accordingly and in the light of their previous good disciplinary record I recommend that the stage 3 warning be reduced to a stage 2 warning and that the respondent treat the claimants on the same basis as any other member of staff on a stage 2 warning in relation to the 2007 Performance Pay Review and the 'Sharing in success bonus' scheme for 2007.
I am making no recommendation on the other issues raised by the Union in relation to the 'Sharing in success bonus' scheme as those issues have general application for all staff covered by the scheme and are not confined to the claimants in this case. Similarly I am making no recommendation on the issues raised by the Union in relation to the severity or otherwise of the respondent’s disciplinary and grievance procedure.”.
On the 25th February, 2008, the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 16th May, 2008, the earliest date suitable to the parties.- “Having considered all of the evidence presented I find as follows:
UNION'S ARGUEMENTS
3. 1. With the exception of this incident, the Worker has an exemplary disciplinary record. That the Worker continues to work in a very sensitive part of the Company where she deals with large sums of cash indicates that the Company continues to have trust in the Worker.
2. The Worker's action was not a deliberate breach of the Company's 'Staff Discount Policy', was not an attempt to defraud the Company, and did not cause the Company to suffer any financial loss.
3.The disciplinary sanction imposed by the Company on the Worker were entirely disproportionate.
COMPANY'S ARGUMENTS:
4. 1. The Worker'smis-use of a co-worker's staff discount staff was a clear breach ofthe Company's 'Staff Discount Policy'by a long-serving member of staff who fully understood the Company policy.
2. The seriousness of this incident resulted in a total breach of trust between the Company and the Worker.
3. At the time of the imposition of the Stage 3 disciplinary warning on the Worker the Company was unaware that a €750 bonus would be paid to staff, excluding those who, like the Worker, were on a Stage 3 disciplinary warning.
DECISION:
There is no suggestion in this case that the Claimant engaged in any form of dishonest conduct or sought to defraud the Company in any way. At worst what occurred was a technical breach of the Company rules from which the Claimant derived no benefit.
In all the circumstances of this particular case, and on the facts as disclosed at the hearing, the Court is of the view that the matter can be adequately dealt with by way of a verbal warning at stage 1 of the Company procedure.
The recommendation of the Rights Commissioner should, accordingly, be varied so as to provide that the warning be reduced to a stage 1 verbal warning.
The appeal is to that extent allowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th May, 2008.______________________
JMcC.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.