ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011447
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | An Employer |
Complaint(s):
i | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00015215-001 | 23/10/2017 |
Date of Adjudication Hearing: 06/03/2018
Workplace Relations Commission Adjudication Officer: David Mullis
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant is employed in the Respondents store in Arklow, Co. Wicklow. The Respondent has multiple outlets in Ireland. The complainant has worked with the respondent for 25 years. On February 9th 2017 his union, Mandate, served notice on the company of strike action to commence on the 17h February in selected stores. The selection of stores was based on the decision of the union members in those stores. This dispute was in support of employees who had been employed by the Respondent from pre-1996. The claimant was one of this group. The dispute was suspended on the 3rd March following a Labour Court intervention. On the 6th March the complainant was requested to attend a meeting with management. This was a disciplinary meeting where he was charged with (a)participation in unlawful industrial action (b)being absent from his workplace without permission. There followed a series of investigative meetings. At one of these the further charge of “unacceptable behaviour” on the picket line was added. Finally, on the 8th June 2017 the discipline being imposed on the claimant was announced to him. He was advised that he was being issued with a Final Written Warning, this to remain live on his personnel file for 12 months. An appeal hearing was held on the 18th August, in accordance with the company’s Grievance procedure, with a final decision issued by letter of 29th August 2017. This confirmed the disciplinary sanction previously imposed on the Claimant. The matter was then referred to the WRC on appeal. |
Summary of Complainant’s Case:
The complainant says he was employed by the Respondent for over 25 years and has an unblemished employment record. He says that through 2016 the Respondent company signalled that they wished to fundamentally alter the contract of employment for those of its employees employed pre-1996, of which he was one. This was being resisted, with the support of their union, Mandate. Various discussions and outcomes from the WRC and the Labour Court failed to resolve the dispute resulting in a ballot for industrial action, when the company advised that it would implement the changes unilaterally if agreement could not be reached. The decision in favour of industrial action was communicated to the Respondent on the 9th February 2017 and implemented on the 17th February 2017. He says that there were separate ballots of the pre-96 and post-96 employed staff. Because the pre-96 staff were those whose conditions were being affected, they balloted first. Secondary ballots were held among the post-96 staff to seek their support for the pre-96 staff. The first group voting voted to strike. The second group voting voted not to support the strike at the Arklow store. The complainant says that overall the pre-96 group at his work location voted for strike and he was advised he had a right under sections 10,11and 12 of the Industrial Relations Act to participate in the strike, which was focused on the Respondent’s business as a whole. As there was no strike at the Arklow store, he went to support the strike at the Greystones, Co. Wicklow store, where all of the staff had voted for strike. He understands, from his union, that he did not do anything outside his rights as a member of the union. In direct evidence he says that contrary to the Respondent’s assertion that he absented himself, without permission, from his workplace for six days, he was absent, without leave, for one day. He was also on five days annual leave. In relation to the charge that he engaged in unacceptable behaviour in preventing a truck delivery to the Greystones store, he says that he, in fact, advised his colleagues on the picket that they should not obstruct the truck and that subsequent to this the truck gained access to the store without further difficulty. He says that evidence of this was presented to the manager who conducted the investigation into these allegations, but that they were ignored or not taken into account and that if they had been properly investigated they would have exonerated him of the wrongdoing he was charged with. He says that the respondent did not follow its own guidelines to ensure fairness in the Grievance process. The guidelines say: ”To ensure fairness, the manager hearing the grievance must not have had any previous involvement in the circumstances which have led to the formal grievance being lodged”. He says that the same manager was involved in the investigation and subsequently in issuing the sanction. In allowing this the respondent had ignored their own procedure for handling such issues and that the procedure was so written to avoid unfairness in the process. In summary the complainant says: (a) He was participating in a strike for which the ballot of his pre-96 colleagues was in favour, as expressed in the secret ballot of this group. (b) He was advised by his union that that he was acting in accordance with the terms of the Industrial Relations Act 1969 and was therefore covered by the terms of the Act. (c) The Respondent departed from the fairness built into the disciplinary and grievance procedure in coming to its decision on the proposed discipline. (d) When the strike was suspended, a clause of that suspension document confirmed that there would be “no victimisation” by either side arising from the strike. The Respondent agreed to the terms of the document but did not want this clause included. The Labour Court included it as an integral piece of the document. The dispute ended on that basis. The Complainant and the union say that this and sanctions taken against other pre-96 employees is part of a company strategy to remove the union from the company. (e) The imposition of the sanction was unwarranted. |
Summary of Respondent’s Case:
The Respondent rejects the Complainant’s claim in its entirety and says that “The Complainant was awarded a lenient sanction of a Final Written Warning, which the Respondent submits was fair and entirely appropriate.” The Complainant works at the Arklow store, but in February 2017 went on unauthorised absence for 6 days from work and failed to make contact as per the Company Policy. It was then discovered he attended a picket in the Greystones store where picketing had been notified and that when doing so he displayed behaviours that were unacceptable by trying to prevent a delivery being made to the store. The strike notices served at the time (February 2017) referred to picketing at a number of specified stores, but not the Arklow store, and did not provide for employees at Arklow to join pickets at other stores. In fact, colleagues at Arklow balloted but were not in favour of any action there. This is the reason the Complainant was given a Final Written Warning as an alternative to dismissal, along with the fact that his behaviour whilst on the picket on unauthorised absence was deemed to be unacceptable. The Complainant’s claim that the Final Written Warning should be rescinded is rejected by the Re The Complainant commenced employment with the Respondent on 15 January 1993 and works as a Customer Assistant. The Complainant is based in the Arklow store and is full-time. During the period of February 2017 workers at a number of store locations voted to an indefinite strike following a secret ballot of colleagues in those locations. Subsequently Mandate served strike notice on the Respondent for industrial action in a number of locations which specifically pointed out that the “members employed in these locations will place official pickets on the premises”. The strike notices served on the Respondent did not include notice that an official picket would be placed on the Arklow store (where the Complainant works). The Respondent understands that the majority of the colleagues voted against industrial action in the Arklow store. The Respondent says that on 17 February 2017 an incident occurred whereby it was alleged at that time that the Complainant engaged in unofficial industrial action and was absent from work without authorisation. The Complainant failed to attend work at the Arklow store for 6 days but instead attended a picket in another store location (Greystones) and engaged in unofficial industrial action against the Respondent. He also displayed behaviours that were unacceptable by trying to prevent a delivery being made to the store. That the Complainant returned to work when the union called off their action on the evening of 24 February 2017 and on 3 March 2017 was invited to an investigation meeting. An investigation meeting was held on 8 March 2017 by Mr BB, the Arklow Store Manager. The Complainant was accompanied by and represented by MM, Mandate Trade Union. Mr B set out that the purpose of the meeting was to obtain information in relation to the allegation that the Complainant was absent without leave from work and partook in unofficial industrial action. The Complainant's representative responded by saying that he was on official strike with Tesco Ireland. A second investigation meeting was held on 28 March 2017 as further information had been brought to Mr B's attention in relation to the Complainant's conduct on the picket line. The Complainant was again in attendance with Mr M as his representative. Mr B read a statement from a Mr CN, Greystones Store Manager, which stated that the Complainant had attempted to block a delivery being made to the store. The Complainant did not deny the allegation, rather he stated that he believed the incident occurred at the traffic lights (rather than the goods receiving area). The Complainants representative then spoke to say that they refuted Mr N’s statement, that the Complainant was on official strike and that he was not obstructing any truck. Mr B issued the investigation outcome at a meeting on 18 May 2017 and found that it was not disputed by the Complainant that he attended the Greystones store to partake in industrial action and that although he claimed it was official industrial action, he set out that in order for it to have been so, he should have been covered by official strike notice which he was not. Furthermore, the Complainant left his place of work without authorisation in order to partake in the unofficial industrial action which was a clear breach of Company policy in that he should have advised his manager if there was a reason he was not attending for work. The result would be, the Respondent advised, that: “it will be considered unacceptable and treated as unauthorised absence if you do not (contact your line manager), and could lead to disciplinary action being taken against you up to and including dismissal”. Mr B also found that the Complainant's actions and behaviours on the picket line were contrary of what is expected of him as an employee of the Respondent and that his participation in unofficial industrial action was a failure to comply with his obligations to his employer. Mr B decided to send the matter forward to a disciplinary hearing. On 28 May 2017 the Complainant was invited to attend a disciplinary hearing . The disciplinary hearing took place on 31 May 2017 and as the facts at issue were not disputed, and there was no supporting evidence requiring consideration from the Complainant, the disciplinary hearing was conducted by Mr B. The Complainant was again represented by Mr M, Mandate. Mr M read from a pre-prepared statement from the Complainant. Mr B asked if strike notice has been served on the Company to which Mr M responded yes, however, Mr M could not articulate how he came to that assertion or in fact provide evidence to support his statement. The reason for this is simply that there was no evidence to support the view that the Complainant’s actions were protected by section 10, 11 and 12 of the Industrial Relations Act. When Mr B asked if they would like to add anything else, Mr M stated that the Respondent was in breach of a Labour Court recommendation by 'bringing people up over industrial action'. He also referenced statements provided at the investigation outcome meeting in relation to the Complainant's behaviour on the picket line, i.e. blocking a delivery being made which he said proved that the Complainant did not act in an aggressive manner.
Mr B issued the disciplinary outcome at a meeting on 8 June 2017. He again set out the allegations against the Complainant, namely that he had participated in unofficial industrial action, that he was absent without leave from work and that his behaviour on the picket line was unacceptable. Taking everything into consideration he found that disciplinary action was warranted. The Complainant was issued with a final written warning to remain on his file for a period of 12 months. He was advised of his right to appeal which he did on 9 June 2017 through his representative. Ms A C, Sandymount Store Manager, was appointed to hear the appeal which took place on 22 August 2017. Mr M was again in attendance as the Complainant’s representative and in short, stated that the Complainant had engaged in official industrial action and that he should not have received a final written warning. Again, no evidence was produced to support their defence that the Complainant was engaged in official industrial action. On 29 August 2017, Ms Carney issued the appeal outcome . In summary, Ms Carney found that the Complainant did not dispute the allegations against him, rather he claimed that his behaviour was appropriate and that he was engaging in strike action as protected under the Industrial Relations Act. Ms C pointed out that in order to participate in official industrial action the Complainant should have been covered by formal strike notice which he was not, therefore he engaged in unofficial industrial action. Ms C also found that the Complainant was not authorised to remove himself from the roster therefore he was absent from work without leave. Furthermore, Ms C found that the Complainant's behaviour on the picket line could not feasibly be defined as ‘peaceful picketing’ as set out in the Industrial Relations Act 1990 which states that attendance at a picket must be ‘For the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working’. Ms C also highlighted that the Complainant’s action of attempting to block a delivery was not protected under the IR Act, confirming that the IR Act states that industrial action shall not be protected if “It is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.” Ms C found that the Complainant's behaviour on the picket line fell short of his requirements to behave in a peaceful manner and not to interfere with the business of the Respondent, or with the rights of other people who chose to cross the picket line for the purposes of shopping in the store or attending at work, and that the capacity in which he participated in this action also had the effect of engaging in activity that was damaging the business of the Respondent. Taking everything into consideration, Ms C found that the Complainant’s actions were contrary to what is expected of him as an employee that together with the other issues arising, there were that there were no grounds upon which to overturn the disciplinary officer’s decision and that the original sanction of a Final Written Warning was upheld. The Complainant then lodged his complaint with the WRC on 23 October It is the Respondent’s position that a full and fair investigation took place. In line with fair procedures the Complainant was informed of the allegations against him, was afforded the right to representation, was given the opportunity to state his case, was informed of the possible outcome of the disciplinary hearing and was afforded the opportunity to appeal the disciplinary outcome. The Complainant works in the Respondent’s Arklow store which was not covered by official strike notice from Mandate trade union. On 7 February 2017 Mandate conducted a secret ballot for industrial action for the colleagues in the Arklow store. The generic invitation to Mandate members was for a “general meeting and ballot for industrial action”, where the ballot was to be “among all union members” . Strike notice was not served on the Respondent in relation to colleagues in the Arklow store. The Respondent understands that the majority of colleagues voted against industrial action. Nevertheless, the Complainant left work without authorisation for 6 days and partook in unofficial industrial action at another of the Respondent’s stores in which the colleagues at that store were covered by official strike notice. The right of members to engage in properly sanctioned and appropriately conducted industrial actions is not disputed. However, the trade union and its members must conduct themselves wholly within the confines of the Industrial Relations Act. The Industrial Relations Act 1990 sets out employer’s and employee’s obligations in order to be compliant with the Act for trade disputes. For the employees it confers immunities on workers where, in “contemplation or furtherance “of a “trade dispute”, they participate in a “strike” or other “industrial action” provided the strike or other industrial action is supported by a secret ballot and not less than one week’s notice is given to the employer. The trade union is obliged to conduct a secret ballot prior to organising, participating in, sanctioning or supporting a strike or other industrial action. Section 14 of the 1990 Act provides that the rules of every trade union must contain a provision that: the union “shall not organise, participate in, sanction or support a strike or other industrial action against the wishes of a majority of its members voting in a secret ballot’’. The Respondent would rely on the statement of Barron J when he addressed the issue in the Supreme Court in Nolan Transport (Oaklands) Limited-v-Halligan [1999] 1IR 128, in relation to the interpretation of Part II of the Industrial Relations Act 1990, expressing his views on a number of important issues. In particular he said:
‘…it is essential before any industrial action is taken that those who are taking the industrial action shall first have had a secret ballot on the issue. If a majority is against industrial action, then that is an end of the matter. If a majority is in favour of industrial action, then that is a matter for the union concerned to determine whether or not the industrial action should take place’’. The Respondent referred to the Law where workers who engage in actions in contemplation or furtherance of a trade dispute enjoy certain legal immunities under Sections 10, 11 and 12 of the 1990 Act. Nevertheless, it should be noted that on this occasion the Complainant falls far outside of this immunity as his actions were taken in disregard of and contrary to the outcome of Arklow’s secret store ballot relating to the issue(s) involved in the dispute. It was never the intention of the Law that its provisions be set aside as and when it suits. Section 17 of the 1990 Act provides that ss.10 (acts in contemplation or furtherance of a trade dispute), 11 (peaceful picketing) and 12 (removal of liability for certain acts) shall not apply in respect of proceedings arising out of or relating to a strike or other industrial action by a trade union or a group of workers in disregard to or contrary to the outcome of secret ballot relating to the issue or issues involved in the dispute. The Respondent then referred to the judgement of Clarke J in P Elliot and Co -v- Building and Allied Trade Union [2006] IEHC 340 where he noted that the industrial action engaged in must be “fairly within the parameters of that authorised”. The Complainant continually stated throughout the investigatory period that he was involved in a lawful industrial dispute. Yet if his actions are overlaid with legislation, he cannot enjoy the rights associated with those who lawfully conduct their dispute within the well-established parameters of that legislation. The Respondent says the union might attempt to rely on a secret ballot conducted with “pre 96” colleagues that took place on 29 January 2017 wherein the majority of colleagues who participated in this ballot voted in favour of industrial action. The notification received from the union in relation to this ballot did not specify when they would instigate industrial action. In this regard the Respondent would rely on the following:
Section 19 of the 1990 Act provides that: “Where a secret ballot has been held in accordance with the rules of a trade union as provided for in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute. Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so. A court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute. (3) Notice as provided for in subsection (1) may be given to the members of a trade union by referring such members to a document containing the notice which the members have reasonable opportunity of reading during the course of their employment or which is reasonably accessible to them in some other way. (4) Subsections (1) and (2) do not apply- (a) In respect of proceedings arising out of or relating to unlawfully entering into or remaining upon the property belonging to another, or unlawfully causing damage or causing or permitting damage to be caused to the property of another or, (b) In respect of proceedings arising out of or relating to any action resulting or likely to result in death or personal injury (5) Where two or more secret ballots have been held in relation to a dispute, the ballot referred to in the subsections (1) and (2) shall be the last such ballot”
Following the “last such ballot” on 7 February 2017 in Arklow, strike notice was not served on the Company for any colleague in the Arklow store including the Complainant. As a result of the Complainant being present and actively partaking in the Greystones dispute, he was involved in an illegitimate action which did not concern him as an employee of the Arklow store and was also absent from his normal place of employment without authorisation.
The Respondent evidently was compliant with the Act relating to this entire matter. Strike action was taken at a number of stores and circa 1000 colleagues went on strike during the period of industrial action in 2017. A strike took place over the period of 14 to 24 February 2017. Only those who breached Company policy or whose actions meant they could not enjoy the protections inferred on them by the Industrial Relations Act (Sections 10 through 12) were brought through the disciplinary procedure. The union claimed at the disciplinary hearing for the Complainant, that it was agreed between the parties at a meeting with the Labour Court, that there would be no recriminations either by or against the staff or management as a result of the dispute. The points agreed at the meeting with the Labour Court were communicated to both parties on 3 March 2017 There is nothing in this communication which states that the Respondent could not take action to investigate unacceptable behaviours or actions that took place during the strike. Furthermore, throughout the period of industrial action and following same, the Respondent advised the union that they would not accept any actions/behaviours that were considered to be outside of what is acceptable in such circumstances and it would continue to investigate unacceptable actions/behaviours by individuals. It is the case that the Complainant’s actions were considered to be outside what is acceptable and were in clear breach of his contractual commitments and of the Industrial Relations Act. The union also claimed that the action taken against the Complainant was part of a campaign to engage in corporate bullying and victimisation against members for engaging in Trade Union activity and their involvement in a lawful Trade Dispute with the Company. This is simply not the case. The Complainant did not behave in an appropriate manner in his actions of partaking in unofficial industrial action, attempting to block a delivery being made and his absence from work without authorisation and was therefore appropriately issued with a Final Written Warning. The Respondent concluded their case by saying: Taking everything into consideration, the Respondent acted more than fairly and in line with their procedures. The Complainant was absent from work without leave and participated in unofficial industrial action. Furthermore, his behaviours on the picket line were unacceptable. The Complainant was appropriately issued with a Final Written Warning due to his unacceptable actions which will expire in just over three months’ time on 8 June 2018. No individual can cherry pick which part of the Industrial Relations Act they wish to apply especially when such action is intended to damage the business of the Respondent. . To find in favour of the Complainant would have serious implications for any Company in relation to any industrial action, as it would mean that any individual can simply decide who can take part in industrial action regardless of the result of a secret ballot and also when this action can take place without due notice to employers. Both of which are clear contraventions of the Industrial Relations Act. It would also have the effect of rendering legislative provisions covering trade disputes null and void. The Respondent requested that I find that the Complainant’s claim under the Industrial Relation Act, 1990 fails. |
Findings and Conclusions:
Having listened to the submissions of the parties I make the following findings: The complainant did absent himself from his workplace for one day. I don’t accept that damage was done to the Respondent company in that period such that an otherwise long career without reference to the disciplinary process was ignored. He did give evidence at the hearing that he advised his colleagues on the Greystones picket not to block the delivery truck, for legal reasons. The delivery was made without further issues. This was not challenged. The Respondent did ignore the terms of its own procedures in dealing with discipline, such that the investigating manager was the investigator and the manager delivering the discipline. It is for good reason that that safeguard Is included in the process and must not be ignored. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I recommend that the discipline imposed remains on the Claimant’s file for a period of six months from the date of imposition and at the end of that period it should be expunged from his record. |
Dated: 01/08/18
Workplace Relations Commission Adjudication Officer: David Mullis