ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011120
A Customer Assistant (3)
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing:6/Apr/2018
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The worker’s dispute involves the issuing of a Final Written Warning to him on the basis that the employer alleges that the worker was missing and participated in unofficial industrial action. The worker is appealing the employer’s decision.
The employer said there is no merit in the worker’s case and that it rejects the claim in its entirety.
Summary of Complainant’s Case:
The following is a summary of the worker’s evidence.
The worker said that she has an unblemished record of employment for the employer for 21 years and she has worked across various departments within the employer, a retail store, through out that time.
She said that in January 2016 the employer announced that they were seeking to change the terms and conditions of 1,200 staff employed on Pre- 1996 Contracts (‘Pre’96’). Each of these workers are members of the Mandate Trade Union, have long established terms and conditions of employment that are covered by a series of comprehensive procedural agreements with the employer. The worker said that from the start the employer had indicated that if agreement could not be reached the changes would be unilaterally introduced. She said that this approach was totally at variance to how the parties had conducted industrial relations for over 30 years.
She claims that from January 2016 she worked under significant stress caused solely by the repeated threats of the employer to change the terms and conditions of her employment without agreement. She said that a number of attempts were made between her Union and the employer to reach agreement on the matter without success. She said that her Union in accordance with agreed procedures, referred the issue to the Labour Court for determination. However, the contents of the Labour Court recommendation were rejected.
The worker said that the employer continued on a regular basis to issue the threat to make these changes without agreement. Despite numerous requests from the Union to desist from this behaviour the employer refused to comply. The worker said that based on this refusal her Union’s members decided at a meeting on 29 January 2017 to ballot in favour of industrial action, the process that was put in place was that all stores following the national ballot of Pre‘96 members would be balloted on a store-by-store basis for support. She said that the Pre’96 members were advised that if colleagues in their respective store did not ballot in favour of supportive action they could travel to another supportive store to participate in the industrial action on the basis of their participation in the national ballot of all Pre ‘96 Members, which was in favour of strike action. The employer’s store, in which the worker is employed, was included in the first group of stores which was due to start industrial action from 14 February 2017, however, the colleagues of the Pre‘96 members in the store did not ballot in favour of supportive action. Although a majority of members including the Pre‘96 members were in favour of industrial action. Following on from the result of this ballot, strike notice was served on the employer on 6 February 2017.
The worker claims that prior to partaking in industrial action, local management in the store where she worked were kept fully informed by Trade Union members of their intention to partake in lawful industrial action in accordance with the protection afforded to them. The worker maintained that She participated in lawful picketing at another Branch store of the employer. She said that she took part in industrial action in good faith and the Union complied with the relevant legislation at all times during picket duty.
She said that following an invitation from the Labour Court to both her Union and the employer, a notice suspending industrial action was issued on 24 February 2017 and further correspondence was received from the Labour Court dated 3rd March 2017. It was clearly outlined in this suspension document that there would be ‘no victimisation’ as a result of partaking in industrial action and that an orderly return to work would ensue. The issue of an orderly return to work was the last issue to be agreed. The Union drafted a return to work clause which was agreed between the parties in the presence of the Court and it expected the parties to abide by it. It was agreed by all that the return to work document should be circulated to all Union members as an accurate account of the discussions. The employer gave assurances that the spirit and intent of the return to work document would be upheld and the Union gave similar assurances.
The worker said on her return to work she was subjected to a disciplinary process which led to being issued with a Final Written Warning. The investigation meetings commenced from 7 March 2017 for alleged participation in unlawful industrial action and for allegedly being absent without leave. As a result of the investigation she was invited to attend a disciplinary hearing and was ultimately issued with a Final Written Warning.
She said that her Union wrote to the employer immediately on receipt of his decisions, she said that, while the employer promotes an outcome timeframe in the Company handbook, she contended that a decision was made to deliberately and unnecessarily prolong the appeal process. This resulted in unprecedented delays, which meant the appeal was not heard for almost three months. She said that the appeal hearing was delayed and this caused undue stress to him.
During the internal appeal hearing three grounds were put forward in support of the removal of the Final Written Warning. (1) She was engaged in lawful industrial action that was properly notified to the employer. Accordingly, she was not absent without leave. She said by solicitor’s letter of 6 March 2017, that her Union informed the employer that a valid secret ballot of Pre’96 members took place on 29 January 2017 which voted in favour of industrial action. The Union served official strike notice on the employer on 6 February 2017, which specifically stated that, following a secret ballot of the Pre’96 members, such members would be participating in pickets in various listed locations. She said any picketing by him was carried out in full compliance with the Industrial Relations Act 1990. The ballot and subsequent industrial action by Pre’96 members was entirely valid, was lawfully conducted and the employer’s decision to discipline him is unacceptable and unlawful. Contact that was made with the Store Manager to advise him of her intentions that in accordance with the notice to the employer dated 6 February 2017 She would be on strike. Clarification had already been sought locally to establish if it was the intention of the Pre’96 members to place pickets on the worker’s store. The employer clearly recognised that the Pre’96 employees were a separate group that had a separate ballot.
The worker said that to suggest that the strike notice issued by the Union was not valid was never challenged by the employer when the strike was ongoing and there is no ruling in the courts to say that the strike was unlawful.
(2) The principles of natural justice and fair procedure are not applied in this case. The employer is also in breach of its agreement that there would be no victimisation arising from the industrial action in issuing such a sanction. She said that the sanction is part of a coordinated campaign of victimisation towards staff who participate in lawful industrial action, with the decision to discipline staff and the disciplinary outcome both being taken at a central level in the employer. The notice served on the employer dated 6 February 2017 was not provided to the investigating Manager by the employer although he stated in his outcome letter that he had reviewed all evidence in its entirety. The investigating Manager was obliged to review all evidence including the strike notice referred to in the legal letter given at the start of the investigation. This was not provided to him by the employer’s head office although they are clearly saying it did not cover all Pre’96 Workers. It is the obligation of the employer to prove wrong doing on the part of the worker which has not been done. On the eve of the strike Mr. A, the investigating Manager, contacted representatives of the Pre’96 Staff in the store and advised them that they would be disciplined if they participated in industrial action. She said that Mr. A subsequently was both the investigating Manager and the disciplining Manager. The same Manager, Mr. A wrote to all the Pre’96 Members in the store on 22 February 2017 alleging that their absence from work on 14 February 2017 and picketing on such date amounted to an unauthorised absence. She said that it is quite clear that the employer, in advance, made a clear and unequivocal finding of misconduct against the individuals involved. It is also quite clear that all decisions made in respect of deciding to investigate the workers involved and the subsequent disciplinary action taken against them was made centrally by the employer. On this basis alone, the worker has been denied natural justice and fair procedure.
(3) The decision to discipline the worker and issue a Final Written Warning does not pay due regard to all the circumstances. A valid secret ballot of Pre’96 Members took place on 29 January 2017, which voted in favour of industrial action. The Union served official strike notice on the employer on 6 February 2017 which specifically stated that, following a secret ballot of the Pre’96 members and further to supportive ballots in selected locations, such members would be participating in industrial action. There was no absence without leave or participation in unofficial industrial action. The decision to take industrial action was because of a formal ballot for industrial action of all Pre’96 Members. If the employer was not satisfied with the procedure followed by the worker’s Union or the strike notice served, they had the option of taking legal action before or during the strike but chose not to do so. Instead they have taken disciplinary action against the worker and her colleagues in respect of circumstances which were completely outside of their control.
Upon conclusion of the internal appeals process, the sanction issued by the employer was upheld and the Final Written Warning s remain in place for 12 months from their date of issue.
Summary of Respondent’s Case:
The employer has said that the worker commenced employment with it on 25 October 1995 and works as a Customer Assistant on a full-time basis. She works in one of its stores in the south east of the country. In February 2017 the worker went on unauthorised absence for 6 days from work and failed to make contact with the employer as per the Company Policy. It claims that it discovered that the worker had attended a picket at the employer’s store at another location of the country where picketing had been notified by the Union. The employer maintained that the worker was awarded a lenient sanction of a Final Written Warning, which it submits was fair and entirely appropriate.
The employer said that the strike notices served at the time (February 2017) referred to picketing at a number of specified stores across the country, but not in the store where the worker worked in and it did not provide for employees at this store to join pickets at other stores. The employer said that in fact, the worker’s own store colleagues balloted against any action it the worker’s store. The employer said that this is the reason the worker was given a Final Written Warning as an alternative to dismissal.
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 their Union served strike notice on the employer 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 employer did not include notice that an official picket would be placed on the store where the worker works.
On 14 February 2017 an incident occurred whereby it was alleged at that time that the worker engaged in unofficial industrial action and was absent from work without authorisation. The worker failed to attend work for 6 days but instead attended a picket in another store location and engaged in unofficial industrial action against the employer.
On 22 February 2017, the worker informed by Mr A, Store Manager, that she was engaged in unlawful picketing at the other store which amounted to unauthorised absence. The worker was put on notice by Mr A that given the alleged events, she would be invited to an investigation meeting to determine whether disciplinary action was required. She did not return to work at that point and only returned when the Union called off their action on the evening of 24 February 2017.
On 3 March 2017 the worker was written to by Mr A requesting him to attend an investigation meeting on 7 March 2017. An investigation meeting was held on 7 March 2017 by Mr A, the worker was in attendance with her representative. Mr A set out that the purpose of the meeting was to obtain information in relation to the allegation that the worker was absent without leave from work and partook in unofficial industrial action. The worker responded by saying that she was on official strike with the employer. Upon request, the worker could not supply any evidence to support her defence that she was engaged in official industrial action. As the worker did not have anything further to add, the meeting ended.
Mr A issued the investigation outcome at a meeting on 21 April 2017. Mr A found that it was not disputed by the worker that she attended the other store to partake in industrial action and that although she claimed it was official industrial action, he set out that in order for it to have been so, she should have been covered by official strike notice which she was not. Furthermore, the worker left her place of work without authorisation in order to partake in the unofficial industrial action which was a clear breach of employer policy. The Company Handbook under the section regarding Absence & Attendance states: “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 A also found that the worker’s actions were contrary of what is expected of him as an employee of the employer and that her participation in unofficial industrial action was a failure to comply with her obligations to her employer. Mr A decided to send the matter forward to a disciplinary hearing. On 28 April 2017 the worker was invited to attend a disciplinary hearing. The disciplinary hearing took place on 30 May 2017 and as the facts at issue were not disputed, and there was no supporting evidence requiring consideration from the worker, the disciplinary hearing was conducted by Mr A. The worker was again represented by her Union representative.
The employer said that the Union representative made the following points:
· The worker was involved in an official strike.
· Mr A conducted the investigation and was conducting the disciplinary hearing.
· The worker had a right to be a member of a Trade Union.
The employer said that Union representative produced a letter from its solicitors to the employer, a letter from the Union to the CEO of the employer which served as notice of industrial action on a defined list of stores, and a pre-prepared document from the worker as information to be considered as part of the disciplinary process. The worker’s store was not listed as one of the stores in which the Union served strike notice on.
Mr A asked was it the Union’s position that the employees at the worker’s store were covered by the official strike notice that was produced, to which the Union responded yes. However, the employer claims that the Union could not articulate how she came to that assertion or in fact provide evidence to support her statement on request. The reason for this is simply that there is no evidence to support the view that the worker’s actions - by attending a picket in the other store - were protected by Section 10, 11 and 12 of the Industrial Relations Act.
Mr A issued the disciplinary outcome at a meeting on 6 June 2017. Taking everything into consideration he found that the worker had displayed unacceptable behaviours and that disciplinary action was warranted. The worker was issued with a Final Written Warning to remain on her file for a period of 12 months. She was advised of her right to appeal which she did on 23 June 2017 through the Union.
Mr B, a Store Manager from a different location, was appointed to hear the appeal which took place on 24 August 2017. The worker Union representative was again in attendance and she again stated that the worker had engaged in official industrial action and that the disciplinary process was unfair. Again, no evidence was produced to support her defence that she was engaged in official industrial action.
On 28 August 2017, Mr B issued the appeal outcome which set out that: “Although it was claimed that it was an official strike and that the store was notified of your absence, in order to participate in official industrial action, you must be covered by formal strike notice. I was not provided with documentation that constituted formal strike notice to support your position on this, therefore you engaged in unofficial industrial action.
Furthermore, you were not authorised to remove yourself from the roster therefore you were absent from work without leave.”
The employer said having taken everything into consideration, Mr B found that the worker’s actions were contrary to what is expected of him as an employee, that her participation in unofficial industrial action was a failure to comply with her obligations to her employer and that her absence without leave was a clear breach of the employer’s policy. Mr B found 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 employer claims that a full and fair investigation took place in line with fair procedures. The worker was informed of the allegations against him, was afforded the right to representation, was given the opportunity to state her case, was informed of the possible outcome of the disciplinary hearing and was afforded the opportunity to appeal the disciplinary outcome.
The worker’s store was not covered by official strike notice from her Trade Union. On 12 February 2017 this Union conducted a secret ballot for industrial action for the colleagues in the worker’s store. The generic invitation to Trade Union 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 employer in relation to colleagues in the worker’s store. The employer understands that the majority of colleagues voted against industrial action. Nevertheless, the worker left work without authorisation for 6 days and partook in unofficial industrial action at another of the employer’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, 1990, which 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 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 employer also relies on the statement of Barron J when he addressed the issue in the Supreme Court in Nolan Transport (Oaklands) Limited-v-Halligan  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 employer is mindful that 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 worker falls far outside of this immunity as her actions were taken in disregard of and contrary to the outcome of her store’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 Section 10 (acts in contemplation or furtherance of a trade dispute), Section 11 (peaceful picketing) and Section 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 a secret ballot relating to the issue or issues involved in the dispute.
The employer referred to Clarke J. in P Elliot and Co -v- Building and Allied Trade Union  IEHC 340 where he noted that the industrial action engaged in must be “fairly within the parameters of that authorised”. The worker continually stated throughout the investigatory period that she was involved in a lawful industrial dispute. Yet if her actions are overlaid with legislation, she cannot enjoy the rights associated with those who lawfully conduct their dispute within the well-established parameters of that legislation.
The employer said that the worker has attempted to rely on a secret ballot conducted with “Pre-96” colleagues that took place in and around 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. The employer said that Section 19 of the 1990 Act provides that:
(1) “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.
(2) 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 12 February 2017 in the worker’s store, strike notice was not served on the employer for any colleague in that store including the worker.
As a result of the worker being present and actively partaking in another location’s dispute, she was involved in an illegitimate action which did not concern him as an employee of her own store in the south east and was also absent from her normal place of employment without authorisation.
The employer evidently was compliant with the Act relating to this entire matter. Strike action was taken at a number of stores and circa 1,000 colleagues went on strike during the period of industrial action in 2017. A strike took place in some stores over the period of 14 to 24 February 2017. Only those who breached employer policy or whose actions meant they could not enjoy the protections inferred on them by the Industrial Relations Act were brought through the disciplinary procedure.
The employer said that the worker claimed, at the appeal hearing, 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. It said that there is nothing in this communication which states that the employer 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 employer advised the worker’s 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 worker’s actions were considered to be outside what is acceptable and was in clear breach of her contractual commitments and of the Industrial Relations Act.
The employer said that the worker also claimed that the action taken against the worker 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 employer. This is simply not the case. It said that the employer is entitled to investigate what they believe to be instances of unacceptable actions/behaviours by any employee, and if warranted, take the appropriate disciplinary action. This is exactly what happened in this instance. The sanction issued to the worker was in relation to her own behaviours only and did not relate to Trade Union activity as the Union attempted to argue.
The employer said that the worker did not behave in an appropriate manner in her actions of partaking in unofficial industrial action and her absence from work without authorisation, and was therefore appropriately issued with a Final Written Warning.
Findings and Conclusions:
I have fully considered both parties submissions on this case. It is fair to say that both parties hold equally strong views in terms of their respective positions and accordingly I have included in depth their positions above. I am satisfied that my consideration centres around two main questions. The first, and possibly the only aspect should I deem in favour of the worker, is whether the employer was entitled to investigate the worker’s absence and invoke the disciplinary procedures in this instance. And secondly, the fairness or otherwise of the procedures followed.
In relation to the first question above, it is clear that throughout the month of February 2017 that workers at a number of different stores voted to strike following a secret ballot of workers in those different store locations. As a consequence, the workers’ Trade Union served strike notice on the employer for industrial action in a number of locations across the country which specifically pointed out that the “members employed in these locations will place official pickets on the premises”. The worker’s store in this case was not included on the list of stores that had voted to strike and accordingly, was not served with a letter to say that they were on strike notice, or indeed that staff working there would be joining in with workers at other locations that had voted to go on strike. I note the worker failed to turn up for work for a period of 6 days, as no notice of any industrial action was served on her employer her actions were in breach of the Act and as such the employer cannot be criticised for viewing her absence as unauthorised. I am satisfied that the worker is not in a position to rely on the protections outlined in the Industrial Relations Act. Accordingly, I am satisfied the employer was within its right to investigate the worker’s absence and likewise to invoke the disciplinary procedures in this instance.
In relation to the second question, regarding the fairness or otherwise of the procedures followed. I note that Mr. A, store manager, wrote to the worker informing him that it had come to the employer’s attention that she had engaged in picketing at another store. I note that the letter states that the employer holds the view that this absence was considered as an unauthorised absence and that an investigation would be held to determine if disciplinary action is required.
I note that the investigation was held on 7 March 2017, and I note that the investigation officer was Mr. A. Following which the worker received a letter dated 6 April 2017 informing him that having considered all the information gathered as part of the investigation it was Mr. A’s decision to send the issue forward to a disciplinary hearing. A disciplinary hearing took place on 30 May 2017 and I note that the meeting was chaired by Mr. A, who was one in the same person who carried out the investigation.
On 6 June 2017, the worker received a letter informing him that she was being issued with a Final Written Warning that would remain live on her personnel file for a period of 12 months. This letter set out her right to appeal, which the worker decided to invoke her right.
An appeal hearing took place on 24 August 2017, which was held by Mr. B. The outcome of which was communicated to the worker on 28 August 2017. The Appeals Officer informed the worker that he could find no grounds upon which to overturn the original disciplinary officer’s findings and accordingly he concluded that the original sanction of a Final Written Warning was to be upheld.
In this case I note that the investigating officer and disciplinary officer was one in the same person. I believe this to be out of line with the employer’s procedures and out of line with what is considered best practice. I note the employers said that it had a larger scale employee relations problem at the time and that is the reason for the doubling up of roles and a delay in the completion of the process. Notwithstanding, I note the employer is a larger organisation with different branches across many locations and it could have managed to have this matter dealt with more timely, professionally and in line with best practice.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am satisfied that the employer was justified in holding an investigation into the workers behaviour and issuing the worker with a Final Written Warning. However, in having the same person conducting the investigation hearing and the disciplinary hearing they have breached their own procedures on this subject.
In view of this breach and the length of the process which caused significant stress to the worker, I recommend the following,
· that the Final Written Warning should remain only on the worker’s file for a period of 8 months and not for 12 months as was the case.
· that the employer gives to the worker a store voucher to the value of €75 within a month of this recommendation to be spent in the store within six months of receipt of same from the employer.
Dated: 25th June, 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Industrial Relations Acts – unofficial strike action – Pre96 contracts - disciplinary procedures