ADJUDICATION OFFICER RECOMMENDATION
A Retail Department Store
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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 Complainant commenced employment in the Respondent’s retail store on 4 October 1990 when it was owned by a previous enterprise. The business was acquired by the Respondent in 2006.
The Complainant, who works as a Stock Movement Assistant, lodged her complaint with the WRC, under the Industrial Relations Act, 1969, on 9 January 2018.
The complaint consists of two elements:
CA-00016688-001 – the contesting of a Final Written Warning issued on 6 October 2017 and
CA-00016688-002 - the Complainant’s non-eligibility for bonus payments, including a Christmas bonus, for the duration of this warning.
Summary of Complainant’s Case:
Summary of Respondent’s Case:
The Respondent provided a detailed submission in relation to the events of 15 September 2017 and the subsequent investigation/disciplinary procedure which followed as a result. The detail in this regard is consistent with that set out on behalf of the Complainant and is clearly not in dispute.
Respondent’s submission in relation to the Staff Search:
The Respondent submitted that, when the Complainant stated she had personal items in her handbag, which she did not wish to show, the Supervisor acknowledged her right to privacy but stated that the searches, which are standard practice, only asked for bags to be opened. It was further submitted that the parties conducting these searches do not go through the contents of anyone’s bag/belongings.
The Respondent submitted that this is well known and accepted as the status quo for these searches. It was further submitted the policy also sets out that if any employee wishes for a search to be completed in private, it is their entitlement to request this. However, it was contended that no such request was made on this occasion and the Complainant left the building refusing the search.
In conclusion, the Respondent stated that they have a clear policy in place regarding staff searches. It was submitted that the search is a common practice and well known within the Company. In particular, it was submitted that, in this instance, a long serving employee refused to comply with the staff search on the date in question and the Company must take the associated inference such a refusal implies and act upon it.
Respondent’s submission in relation to the Disciplinary Procedures:
It was submitted, on behalf of the Respondent, that all aspects of the disciplinary process were conducted in line with the Company Disciplinary Procedures and that the principles of natural justice were applied at all stages. In support of this position, the Respondent stated that the Complainant:
· was afforded the right to representation at all stages of the process
· was informed of the allegations against her at all stages of the process
· was given ample opportunity to state her case
· was informed of the possible disciplinary outcome of the procedure
· was given the right to appeal the outcome of the process
In conclusion, the Respondent stated that, at all times throughout the process, they were reasonable and thorough in gathering/reviewing the information available to them. The Respondent also stated that at all times in the process they followed extremely fair procedures and issued a sanction believed to be appropriate to the act.
Consequently, on the basis that the burden of proof had been clearly discharged, on the balance of probabilities, and that their position that a Final Written Warning and non-payment of bonus is the appropriate sanction in this instance, the Respondent requested that their position be upheld in this regard and that the Complainant’s appeal under the Industrial Relations Act, fails.
Findings and Conclusions:
Staff Search/Disciplinary Procedures: (CA-00016688-001)
Having carefully considered all of the evidence adduced in relation to this element of the Complainant’s complaint, I am satisfied that the conducting of searches of staff are a common feature of the retail sector. In fact, one cannot disagree with the Respondent’s contention that retailers could not survive without these random searches. Therefore, I am satisfied that the Respondent, in line with similar employers in the sector, have the right to conduct such searches.
However, notwithstanding the above, I am also satisfied that such searches should be carried out in line with clearly set out and well communicated guidelines or policies, so that all parties fully understand their rights and obligations in this regard.
From the evidence adduced in this case, I am satisfied that the Respondent has such a policy in place. In this regard, I note Section 10 of the Employee Handbook, under the heading “Loss Prevention”, sets out the “right of search” as follows:
“We reserve the right to search you or belongings, in your presence, at any time while you are on Company premises. In doing so, no accusation is being made.
Searches are only carried out by two appropriate staff, one of which must be of the same sex as you. Examination of parcels, bags, handbags, vehicles, etc is carried out with the maximum amount of discretion. You may request that:
· You are accompanied by another member of staff
· The searches conducted in private
Failure or refusal to comply fully with search procedures leaves you liable to disciplinary action, up to and including summary dismissal.”
Consequently, based on the above, I am satisfied that the Respondent was entitled to seek to search the Complainant’s handbag on the occasion in question. Further, I am satisfied that, based on the Complainant’s failure to cooperate with the search, the Respondent was within their right to initiate disciplinary procedures in accordance with the above stated policy.
However, notwithstanding the above, I accept the Complainant’s evidence that, despite having been searched on a number of previous occasions, this may have been the first time that she was requested to have her handbag included in such a search. I also accept the Complainant’s evidence that there may have been confusion in relation to management’s right, based on the policies, to make such a request.
Consequently, in that context, and taking the Complainant’s bona fides in this regard into account, I am of the view that the sanction imposed by the Respondent in this case, that of a Final Written Warning, may be somewhat harsh, in the circumstances. Were the sanction still operative, I would be of a mind to recommend that it should be reduced to a written warning. However, I note that the duration of the sanction, when issued on 6 October 2017, was for a period of 12 months. I also note the sanction letter states that the warning would be disregarded for disciplinary purposes after the expiry of the 12-month period. Consequently, as the period of the sanction has expired and as it has been removed from the Complainant’s record, the matter is now moot.
Non-eligibility for Bonus Payment: (CA-00016688-002)
The issue of transfer of undertaking is covered in a Statutory Instrument - S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003
In particular, Section 4 (1) and (2) of the Instrument state as follows:
“(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.
(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”
Having considered all the evidence adduced, I am satisfied that the Complainant’s transfer, in 2006, to the Respondent’s employment is covered by the above Instrument. On that basis, I am further satisfied that the Complainant’s terms and conditions of employment would have transferred with her at that time. In the absence of any evidence that would suggest that the situation has been reviewed or altered since the transfer, I can only conclude that the Complainant’s terms and conditions of employment, as they transferred from the transferor, currently apply.
Consequently, based on the above, I am satisfied that the Complainant’s entitlement to a “Christmas Box”, as set out in the Transferor’s Staff Handbook and that there is no link to the disciplinary process as it exists in the Respondent’s current policies in this regard. Therefore, I find that the Respondent’s view that the Complainant was not eligible for the payment of a “Christmas Box” bonus for 2017 is not consistent with her terms and conditions of employment.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend as follows:
· In order to ensure that all employees are fully aware of and understand the implications of the Right to Search policy, as set out in the Respondent’s Employee Handbook, I would recommend that the Respondent restate the policy to all staff in order to avoid any future confusion or misunderstanding.
· In relation to the issue of the “Christmas Box” bonus for 2017, I would recommend that the Respondent give favourable consideration to the restoration of the Complainant’s bonus on that occasion and that payment of the amount that would have been applicable at that time is made.
That concludes my recommendations.
Dated: 8th August 2019
Workplace Relations Commission Adjudication Officer:
Industrial Relations Act
Right to Search Employees
Payment of Bonuses