INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY MANDATE TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Ni Mhurchu
1. Disciplinary Issue.
2. The case before the Court concerns the Worker's claim that she has been treated in an inequitable manner by her Employer following an incident which occurred in the workplace. The Worker has been employed by the Company as a Checkout Operator since August 2003. In January 2012, an incident occurred in-store which involved a customer failing to pay for goods at the checkout in operation by the Worker at that time. Following an investigation into the incident, the Worker was penalised with a written warning as a result of her alleged negligence of proper checkout procedures. The Worker in line with internal disciplinary procedures appealed the sanction however she was unsuccessful in her appeal and the Employer refused to remove the written warning from her work record.
On the 11th June, 2012 the Union on behalf of its member referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th August, 2012. The Employer did not attend and was not represented at the hearing.
The Union agreed to be bound by the Court’s Recommendation.
3. 1. The Worker previously held an unblemished work record since the commencement of her employment with the Company.
2. The Union contends that the disciplinary sanction imposed on the Worker is unfair and unwarranted. The Union is seeking the removal of the written warning from the Worker's employment record.
The case before the Court was brought by Mandate on behalf of a worker under Section 20(1) of the Industrial Relations Act, 1969, seeking the withdrawal of a written warning given to her for alleged breach of till procedures. The Employer failed to attend the hearing.
The Court regards it as regrettable that the Employer failed to avail of the opportunity to explain its version of the events giving rise to the claim.
Having considered the submission of the Union, the Court notes that the disciplinary procedures adopted by the Company failed to observe the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 (the Code of Practice). In particular the Court notes the following:
The written warning was issued without specifying how long it would be retained on the Claimant’s personnel record. Thereby, rendering it very difficult for the Claimant to restore her previous unblemished record. The Court is of the view that this action was unreasonable and disproportionate.
The Employer failed to take into account the difficult personal circumstances the Claimant was going through.
The decision to issue a written warning was taken by the Store Manager.The appeal of that decision was conducted without a hearing, contrary to the Company’s own procedures and was carried out by a person within the store who reported to the Store Manager and therefore could not be expected to exercise independent judgement on the case. In such circumstances, the Claimant was not provided with a fair and impartial determination of her appeal. The Court finds that this action amounted to a denial of fair procedure.
The appeals officer upheld the written warning sanction originally imposed by the Store Manager and again the sanction has no time limit attached. The Court finds that this amounts to a further denial of fair procedures to the Claimant.
The Union referred the Court to a similar caseDunnes Stores v A Worker (represented by Mandate) Labour Court Recommendation No 20276 April 2012, involving similar circumstances with the same Employer, in the same store where the Court found that the Employer had breached the Code of Practice and recommended the following:-
- “Taking these matters into account the Court recommends that the written warning be rescinded, that the procedures be reviewed and that systems be put in place to ensure that all staff are treated fairly and proportionately in the management of disciplinary matters.”
The Court finds that the Company was in breach of the Code of Practice and recommends that the written warning issued to the Claimant on 2ndFebruary 2012 should now be rescinded and expunged from her personnel record. Furthermore, the Court reiterates the recommendation given in LCR 20276 that the Company’s procedures should be reviewed and systems should be put in place to ensure that all staff are treated fairly and proportionately in the management of disciplinary matters.
The Court so recommends.
Signed on behalf of the Labour Court
3rd September 2012______________________
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.