ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011898
Parties:
| Complainant | Respondent |
Anonymised Parties | A sales assistant | A grocery retailer |
Complaint:
Act | 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-00015748-001 | 13/11/2017 |
Date of Adjudication Hearing: 30/01/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Acts 1969, this dispute was assigned to me by the Director General. I conducted a hearing on January 30th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the dispute.
The complainant was represented by Mr Willie Hamilton of Mandate, accompanied by Ms Patricia McAdam. The respondent was represented by Ms Niamh Ní Cheallaigh of IBEC, accompanied by Mr Cormac Grimes. The Employee Relations Manager and two store managers also attended the hearing.
Background:
The respondent is a retail grocery multiple and the complainant was the Mandate shop steward in the store where she worked. She has been employed by the company since September 2001 and works as a part-time sales assistant. This complaint is set in the context of an industrial dispute which resulted in a strike at 16 stores from February 17th – 24th 2017. The complainant was disciplined because of her conduct during the strike and her complaint is that the sanction was undeserved and unfair. |
Summary of Complainant’s Case:
Chronology of Events Leading to a Final Written Warning Issue 1: Conduct on February 20th 2017 During Industrial Action While she was on picket duty outside her store on February 20th 2017, a service delivery van arrived from the respondent’s cash-in-transit (“CIT”) service provider. This was a scheduled transfer of cash to and from the store, but the crew left the premises without making the transaction. The complainant was accused of preventing the crew from carrying out the cash transfer by telling one of the crew that cash was not to be delivered due to the strike. Evidence presented at the hearing shows that CIT crews didn’t deliver or collect cash to and from around 12 of the company’s stores in the last week of February 2017. Issue 2: Breach of Social Media and Internet Policy Instead of using the notice boards in the stores, where information posted was subject to the approval of management, Mandate members set up a Facebook group to communicate with each other. Membership of the group was open to union members only and 43 people joined the group about which this complaint is concerned. While it was set up for Mandate members, it is evident that one or more of the members showed some of the messages to the management at the store where the complainant worked. Messages written by the complainant were presented in evidence which the respondent argued were “brand damaging,” brought the name of the company into disrepute and were in breach of the company’s social media policy. At the end of a protracted investigation, during which she was suspended for 11 weeks, on July 6th 2017, the complainant received a final written warning and suspension for one week without pay. The Union’s Arguments that the Final Written Warning is Unfair The union’s position with regard to the failure of the CIT crew to carry out the delivery is that the complainant was engaged in a lawful picket and the crew members decided not to pass the picket. Mr Hamilton said that the CIT company’s employees who were members of SIPTU refused to pass pickets in the 16 stores affected by the strike and no other shop steward or Mandate member had been disciplined. In relation to the Facebook group messages, the union’s position is that the messages between group members are private and the fact that the management are monitoring such messages is a breach of the Labour Relations Commission’s (now the WRC) Code of Practice on the Duties and Responsibilities of Employee Representatives. On March 6th 2017, the complainant made a complaint of sexual harassment against her store manager in relation to an incident that occurred a year before, in February 2016, when she said that the manager put his hand on her buttock / hip. She also alleged that this manager sent her inappropriate text messages. In findings issued on April 27th 2017, The complaint that the manager touched the complainant was upheld. The complaint related to the inappropriate text messages was not upheld. Referring to the investigation into the complainant’s actions during the strike as a “charade,” Mr Hamilton alleged that it was not unconnected to the fact that the complainant submitted a complaint of sexual harassment against the store manager. |
Summary of Respondent’s Case:
Chronology of Events The respondent’s case is that on February 20th 2017, the complainant prevented a cash delivery driver from entering the store, and, in this way, she brought the name of the company into disrepute. Also, by posting certain comments on a social media site, she brought the company’s name into disrepute. At an investigation meeting on April 18th 2017, the complainant and her union representative were shown CCTV footage of a member of the CIT crew approaching the complainant and two colleagues on picket duty in front of the store on February 20th. From the evidence presented at the hearing, it is apparent that the complainant had a conversation with the crew member, who left without completing the transaction. She was also shown copies of Facebook closed group communications between her and some colleagues from the store. The complainant made no comment at the meeting about either of these matters and she was suspended on full pay to facilitate a more thorough investigation. About two weeks later, on May 5th, the investigating manager confirmed that, in her view, the complainant blocked a cash delivery which resulted in the delivery not being completed and, that she posted comments that were in breach of the company’s Internet Usage and Social Networking policy. Her actions in respect of these matters were considered to be serious misconduct and “contrary to what is expected of her as an employee.” A disciplinary hearing ensued and an initial meeting took place on May 11th. On behalf of the complainant, Mr Hamilton argued that SIPTU members of the CIT company, in support of Mandate, refused to pass the pickets at the respondents’ stores. On this basis, he argued that the complainant had no part in preventing the cash delivery from taking place. When the matter of the messages on the Facebook group was raised, Mr Hamilton stated that these were private communications between union members and not the business of the respondent. A second disciplinary meeting took place on May 25th when the manager running the meeting presented a statement from the CIT company’s section manager. This manager had interviewed the crew who were scheduled to make the delivery to the respondent’s store on February 20th. The statement said that the crew “was confronted by three (of the respondent’s) staff and told he was to not cross the picket line and that the service would not be happening today.” Mr Hamilton responded that the statement was hearsay evidence as it was not a statement from the driver himself. The disciplining manager also addressed the company’s problem with the posts in the Facebook group and produced further examples of messages posted since the last disciplinary meeting. The complainant and her representative made no comment about these messages. Six weeks later, on July 25th 2017, the complainant was issued with a final written warning and suspended for one week without pay. The letter confirming the final written warning sets out the reason as follows: “Specifically, the matters under consideration at your disciplinary hearing were: - Your unacceptable behaviours - Your breach of the Company’s Internet Usage and Social Media Policy - Your conduct which brings the Company’s good name into disrepute.” Mr Hamilton wrote to the company to appeal this disciplinary sanction “on the grounds that it was issued as part of the Company’s campaign to engage in corporate bullying and victimisation against him (sic) for engaging in Trade Union activity and her involvement in a lawful Trade Dispute with the company.” Following an appeal hearing on August 29th, the manager hearing the appeal found that the complainant believed that her actions were appropriate and that she was engaging in strike action which was protected under the Industrial Relations Act. In his letter upholding the disciplinary sanction, quoting from section 12(c) of the Industrial Relations Act 1990, he said that, such conduct was not 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.” The Respondent’s Arguments that the Final Written Warning is Not Unfair It is the respondent’s position that an investigation took place in line with fair procedures and that the respondent “had no alternative but to take action against such misconduct.” They argued that the complainant did not deny the actions she was accused of and did not fully engage with the process, refusing to answer questions at some of the meetings. Contrary to the provisions of section 11(1) of the Industrial Relations Act, the complainant’s behaviour on February 20th was not considered by the respondent to be “…for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.” Regardless of the complainant’s decision not to answer questions about this matter, they concluded that she told the cash delivery driver not to pass the picket and that the cash delivery would not be happening. In this way, she interfered with the delivery of cash to the store, which had a knock-on effect on the business that day and damaged the respondent’s good name with one of their service providers. The respondent’s position with regard to the complainant’s comments on the Mandate group Facebook page is that the comments could “have a negative impact on the company’s brand, image or reputation or cause embarrassment” to the respondent, and could have brought the respondent into disrepute. The respondent challenged the union’s contention that its actions amounted to “corporate bullying and victimisation” of an employee involved in a trade dispute. Their position is that they are entitled to investigate incidences of what they consider to be unacceptable behaviour and take appropriate disciplinary action if it is warranted. In this case, their view is that the final written warning and the suspension without pay for one week was appropriate. The sanction was issued because of the complainant’s behaviour and did not relate to trade union activity. |
Findings and Conclusions:
Was it Reasonable for the Respondent to Issue a Final Written Warning? Issue 1: Conduct on February 20th 2017 During Industrial Action On February 20th 2017, the crew of a CIT van was confronted by the complainant and two colleagues as they were on an official picket outside the store where they worked. It appears that following a conversation with the complainant, the crew turned around and failed to complete the scheduled pick-up and collection of cash for the store. Having considered this matter, it seems to me that “restraint of trade” at one’s place of employment is the objective of industrial action. By seeking to prevent the cash delivery, the complainant was hoping to disrupt or restrain trading at the respondent’s store. For picketers, this is normal conduct in what is no doubt, an abnormal situation. The respondent’s view is that the complainant’s action was “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.” When asked at the hearing who the “some other person” was, Ms Ní Cheallaigh, for the respondent, said that it was the CIT company and, that by her actions, the complainant prevented that company from getting on with its business. I do not accept this argument, as the CIT company’s contract was maintained for the duration of the industrial action and, apart from some inconvenience during the strike, it is unlikely that its business was in any way negatively impacted by the complainant’s actions. In considering this matter, I have to echo the question asked by Mr Hamilton of Mandate:- did the complainant have the power to prevent the CIT crew making the transaction? The complainant is a part-time sales assistant who was occasionally employed in the cash office. The evidence at the hearing was that one of the employees working in the cash office saw the CIT van driving away from the cash office hatch and reported this to the store manager. The manager could have contacted the CIT company and, as the vans are in radio or mobile phone contact, the crew could have been instructed by their management to return and complete the delivery. This didn’t happen, which would lead to a conclusion put forward by Mr Hamilton, that the SIPTU members in the CIT company did not pass the pickets when the Mandate members asked them for their support. From the evidence presented at the hearing, it appears that this occurred in at least 12 of the respondent’s stores. Again, it is my view that it is normal conduct for striking workers to seek the support of other union members for their particular cause. Issue 2: Breach of Social Media and Internet Policy At the hearing, the respondent and the union side presented different examples of the complainant’s postings on the Facebook group page. If I accept that all of the examples were considered as part of the disciplinary investigation, my impression is of a group of employees more disappointed than angry. As an example of the messages that the respondent found unacceptable, a series were written following a decision by two of the union members’ colleagues to accept an offer of redundancy. In one posting, the complainant said: “A and B have decided to take the redundancy: (I’m very upset as I have worked alongside them for the last 16 years. I think it’s disgusting that they’ve been made to feel that they’ve no choice but to take the redundancy.” Later that day, in response to a colleague, the complainant wrote: “Even tho the people have been forced, they’ve still chosen to take it so there’s nothing union can do about that.” The use of the term “forced” suggests that the company put these employees under pressure; however, in the context of the company’s endeavours to offer longer-serving employees new contracts on reduced wages, this was not an unreasonable perception, even if it was wrong. In the sentence, the complainant seeks to balance the suggestion of force with the matter-of-fact remark that the employees concerned chose to take the redundancy and, in this way, it seems to me that she calls for no reaction when she says, “there’s nothing union can do about that.” At the disciplinary meeting on May 25th, some more messages were considered which were posted by the complainant since the previous meeting on May 16th. In these new postings, the complainant warns her colleagues that the group is no longer private and she says that she has made a complaint to the Data Protection Commissioner. The issue for consideration is, did these postings breach the respondent’s Internet Usage and Social Networking Policy? The union argued that the group messaging site was private; however, as a group with 43 members posting to a Facebook page, there is no prospect that the information could be contained in the group. While the members may have aspired to privacy, in reality, the information was posted on the world-wide web. As such, they were in breach of the respondent’s Internet Use and Social Networking Policy, which provides that: “Employees must not post information or make comments that could bring (the respondent) into disrepute. Comments should not be speculative or have a negative impact on the company’s brand image or reputation or cause embarrassment to (the respondent) our employees or customers.” Apart from negative comments about the company, the comments also reflected badly on the named employees who decided to accept the redundancy terms, and for this reason also, they were unacceptable. Conclusion The final warning issued to the complainant on July 6th 2017 was set in the context of an industrial dispute that caused considerable disruption to relationships in the affected stores. Across the respondent’s business, around 700 pre-1996 employees accepted a redundancy offer, thereby bringing the strike to an end, but not the end hoped for by many who walked up and down on the picket line. In a rural town and in a company with many long-service staff, a strike has an enormously divisive effect. For most, a strike is their first experience of workplace conflict, and managers have the unenviable responsibility to navigate what appears to be a sometimes out of control situation. During episodes of industrial action, the rules of engagement change and loyalty is sundered as the energies of previously productive staff is focussed on how to scupper the employer’s efforts to do business. Thankfully, our legislature has developed rules and codes of practice to regulate the conduct of striking employees and it is my view that, on February 20th 2017, when the complainant asked the CIT crew not to pick up or deliver cash, she was not breaking those rules. I have a different view of the complainant’s postings on the Mandate group page on Facebook. It seems to me naïve to think that any postings on Facebook are private. I find that the postings themselves, while relatively harmless in the context of what was happening at the time, were in breach of the company’s policy on Internet Use and Social Networking and some form of disciplinary action would have been appropriate. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
In my consideration of a recommendation on this matter, I have to acknowledge that the final written warning issued to the complainant on July 6th 2017 will have expired by the time this decision is issued. I recommend that the respondent reverses the week’s suspension without pay imposed in July 2017 and that the final written warning, which, although expired, should have been issued as a first written warning. |
Dated: 2nd August 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Disciplinary sanction during an industrial dispute |